Hastings Journal on Gender and the Law


Anne Onoma


The laws against assault and battery do not provide an exception for consensual BDSM. Consequently, a BDSM practitioner may be charged with criminally assaulting or battering a sexual partner despite having engaged in an activity that was completely consensual and not harmful in any meaningful way. Consent is the legal difference between sex and rape, and so consent should also be the difference between BDSM and criminal assault or battery. However, courts remain unwilling to even consider a defense of consent in assault and battery cases that include alleged BDSM activities. This note will explore the multiple ways in which the law has been used to enforce conventional morality and discourage untraditional or ‘taboo’ expressions of love and sexuality. It will then explore how courts have recently been applying a stricter standard when it comes to laws affecting sexual privacy rights, and show that the same rationale should be used to extend legal recognition to BDSM practitioners.