Content warning: this piece includes the mention of violence, sexual assault, and police misconduct.
Until recently, there was no legal definition of affirmative consent for adults who use force or restraint during erotic power exchange and roleplay. Instead, U.S. case law has found, based on moral objections, that consent is not a defense to assault—even for mild, non-injurious kink activities.
However, changing social mores, and a rising tolerance of and interest in kink and BDSM, due to the Fifty Shades of Grey phenomenon, means that law enforcement and prosecutors typically refuse to prosecute sexual violence and nonconsensual acts if the behavior is mischaracterized as BDSM, kink, or “rough sex.”
This is critical because there are many U.S. citizens who engage in alternative sexual expressions (alt-sex). 1A cross-sectional survey found that 20-30% of adult Americans have engaged in roleplay, power exchange, and/or restraint in an erotic context. 2The National Coalition for Sexual Freedom (NCSF) Consent Survey (2020) of alt-sex practitioners found that 25.5% of nearly 3,000 respondents reported their consent was violated in an alt-sex context. 3Of those, 55% said that they were sexually assaulted while the rest were assaulted without consent (i.e., slapped, punched, choked) during erotic activities. 3.9% were injured, yet only 3.5% of those nonconsensual acts were reported to the police.
Explicit Prior Permission: A Legal Framework
The American Law Institute (ALI) grappled with these issues for six years and recently adopted the legal framework in Section 213.10 of the Model Penal Code, “Affirmative Defense of Explicit Prior Permission” for consent to kink activities. The Model Penal Code is an influential model act for state criminal laws first issued by the ALI in 1962. NCSF began assisting the ALI in 2016 with the creation of Article 213.10 to define affirmative ongoing consent for the use of force or restraint. After an exhaustive years-long effort with the input of dozens of subject matter experts, Affirmative Defense of Explicit Prior Permission, Section 213.10 of the revised Model Penal Code on Sexual Assault, was approved by the ALI membership in June 2021. 4This new legal framework for consent to kink is intended to replace the outdated case law which found that consent is not a defense, and provide a way for the courts to determine whether consent was violated in a kink context.
A summary of some of the problematic case law involving alt-sex activities and charges of assault or battery (which Explicit Prior Permission would address) can be found in Consent to Harm by Vera Bergelson, in Chapter 8 of The Ethics of Consent: Theory and Practice. According to Bergelson, criminalization of the erotic use of force and restraint was based on “moral judgments about the iniquity of the conduct,” with courts tending “to inflate the risk and harmfulness of an activity they want to denounce.”5
The Reporters’ Notes in the ALI’s MPC on Sexual Assault that accompany Explicit Prior Permission states:
Social disapproval on moral grounds was once, and to some extent still is, widespread. Nonetheless, as long as the person giving consent is a competent adult, and as long as the force poses no risk of serious bodily injury, death, or harm to others, respect for individual autonomy requires deference to these choices, which the person may regard as a cherished vehicle for personal and sexual fulfillment.
The ALI’s reasoning is based on Lawrence v. Texas, 539 U.S. 558 (2003), which holds that competent adults have constitutionally protected privacy and autonomy rights to engage in mutually consensual sexual activity, as long as it doesn’t involve “persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused.” 6
The Reporters’ Notes also cites evidence that police and prosecutors are especially reluctant to investigate and file charges for sexual assault when the complainant has engaged in erotic use of force or restraint “because they assume that a person who is injured or sexually violated in such a case ‘must have asked for it.’”
Conditions and Limitations
There are specific conditions and limitations to obtain Explicit Prior Permission:
- You must discuss and agree to the specific things you’re going to do and the intensity of the activity before you start – this includes any kind of sexual contact.
- You must have a way to stop at any time, like a safe word or safe signal.
- You agree beforehand what roleplay resistance is OK to ignore, like “No, no, stop!”
- Everyone must be of sound mind – not intoxicated or having a mental health crisis
- You aren’t allowed to seriously injure someone, which includes permanent marks or the risks that come with erotic choking.
Explicit Prior Permission does not apply when:
- Permission is withdrawn
- Someone is unconscious, asleep, incapacitated
- The person is under age 18
- When serious injury is caused or risked
Permission given by gestures or other nonverbal conduct signaling assent is not “explicit,” nor are vague statements that someone is “kinky.”
This is shown in Illustration #1 in the ALI’s Reporters Notes: “Before a date, the accused sends the complainant a text asking, ‘r u into BDSM?’ The complainant responds, ‘Maybe tonight?’” This would not be considered Explicit Prior Permission because the specific acts of force and restraint are not discussed and consented to before starting. In addition, there was no agreed-upon safe word to stop what is happening at any time.
Use in addressing the “Rough Sex” Defense
Adopting Explicit Prior Permission would address the problematic “rough sex” defense, wherein currently an accused person can sometimes successfully argue that they obtained blanket consent for a wide range of behaviors that could cause serious physical injury, including choking (strangulation), punching, and slapping simply by asking “Are you into rough sex?” and being told “yes.”
Conclusion
The NCSF is advocating for States to adopt the new legal framework of Explicit Prior Permission into their assault and sexual assault laws. This will allow those who engage in alternative sexual expression to follow the steps to get Explicit Prior Permission and avoid the risk of criminal charges, while helping police and prosecutors to distinguish and focus on truly non-consensual acts.
For Further Reading
Article 213.10. Affirmative Defense of Explicit Prior Permission (PDF Download)
1Alternative Sexual Expression (alt-sex) includes a variety of behaviors between consenting adults, including power exchange, BDSM, fetishes, and polyamory to name a few.
2Herbenick, D., Bowling, J., Fu, T. J., Dodge, B., Guerra-Reyes, L., & Sanders, S. (2017). Sexual diversity in the United States: Results from a nationally representative probability sample of adult women and men. PloS one, 12(7), e0181198.
3Wright, S., Bowling, J., McCabe, S., Benson, J. K., Stambaugh, R., & Cramer, R. J. (2022). Sexual Violence and Nonconsensual Experiences Among Alt-Sex Communities’ Members. Journal of Interpersonal Violence
4American Law Institute. (2022). Model penal code on sexual assault : Tentative Draft No. 5. and explanatory notes : Section 213.10. Affirmative Defense of Explicit Prior Permission was adopted at the 2021 annual meeting of the American Law Institute at Washington, D.C., June, 2021. Philadelphia, Pa. :The Institute, 462-480.
5Bergelson, Vera, ‘7 Consent to Harm’, in Franklin Miller, and Alan Wertheimer (eds), The Ethics of Consent: Theory and Practice (New York, 2009; online edn, Oxford Academic, 1 Feb. 2010).
6Lawrence v. Texas, 539 U.S. 558 (2003).
