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BDSM and the Law

IANAL ("I Am Not A Lawyer"): The Webmaster is not a lawyer and this section is not offered as legal advice or an attempt to interpret the law. These links are a starting point -- not the final word on legal issues. I do not mean to endorse a site or article by including a resource here. For reliable legal advice, you must talk to a real lawyer.

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The Law as it Relates to BDSM

Laws are always changing. With that in mind, the links below are listed by year in reverse chronological order.

  • 2021 - Is BDSM Legal in Texas? Consenting to BDSM in Texas by By Benson Varghese. Published on: February 15th, 2015. Last Updated: June 24th, 2021.
  • 2020 - BDSM, Kink, and Consent: What the Law Can Learn From Consent-Driven Communities (PDF) by Mika Galilee-Belfer in the Arizona Law Review
    "Millions of Americans participate in consensual, mutually agreed-upon activities such as bondage, dominance, and submission—collectively referred to as BDSM or kink—yet the relationship between individual consent to such participation and consent as legally understood and defined is imperfect at best. Because the law has not proven adept at adjudicating disputes that arise in BDSM situations, communities that practice BDSM have adopted self-policing mechanisms (formal and informal) aimed at replicating and even advancing the goals and protections of conventional law enforcement. This self-policing is particularly important because many jurisdictions hold there can be no consent to the kind of experiences often associated with BDSM; this is true in practice irrespective of the existence of statutory language regarding consent. In this Note, I compare legal communities and BDSM communities across three variables: how consent is defined, how violations are comparably adjudicated, and the types of remedies available by domain. In the process, I examine what norm-setting and rule adjudication look like when alternative communities choose to define, and then operate within, norms and controls that must be extra-legal by both necessity and design."
  • 2020 - BDSM and the Law: Assault or Consent? (Pride Legal) November 16, 2020
  • 2019 - Is BDSM Legal in the US and Other Places? By Julie Lynn Marks. Reviewed: September 26, 2019
  • 2016 - No constitutional right to engage in consensual BDSM sex By Eugene Volokh. March 4, 2016 at 2:16 p.m. EST
    Besides the interesting free speech and due process holdings, the federal district court’s decision in Doe v. Rector & Visitors of George Mason Univ. also discusses whether there is a constitutional right to engage in consensual BDSM sex. No, says, the court, rejecting the view that Lawrence v. Texas creates a general constitutional right to adult noncommercial sexual autonomy.
  • 2013 - The Legal Side of BDSM/Topping by Sir Gustav Minnesinger.
    Original Post 8/1/2013
    Major Edits 8/13/2013
    Edits and Additions 12/5/2020
  • 1999 - Improving the Legal Standing of Non-Traditional Relationships by Jay Wiseman
  • 1998 - BDSMD/s and the Law by Rumpoule at Gloria Brame's Dominant Ideas website. Another informative article by "a criminal defense lawyer for over twenty years." 1998.
  • 1994 - The Law, S/M and You by A. Spencer Bergstedt, Attorney At Law. 1994. Legal advice from a real lawyer.
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Some Legal Cases and Crimes involving Consensuality, Homosexuality, and Sadomasochism

I've moved this content to it's own page: Legal Cases and Crimes (Some Legal Cases and Crimes involving Consensuality, Homosexuality, and Sadomasochism)

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Encountering Law Enforcement

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Finding Kink Aware Professionals

If you're looking for a kink friendly doctor, therapist, or lawyer, I'd suggest starting with the following resources.

  • The Kink Aware Professionals (KAP): a national "privately funded, non-profit service dedicated to providing the community with referrals to psychotherapeutic, medical, dental, complementary healing, and legal professionals who are knowledgeable about and sensitive to diverse expressions of sexuality." The list is broken down geographically.
  • Local ACLU Affiliate Offices
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Responding to Crimes

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Leftist, Liberal, and Libertarian: Editorials, Opinions, and Arguments

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Privacy Advocate and Civil Liberty Groups

Mainstream

Technological

Sexual Expression

  • Lambda Legal and Education Fund
  • The National Coalition for Sexual Freedom engages in national advocacy on issues related to sexual identity, expression and orientation by participating in the development of public policy and by supporting positive media presentations of diverse sexual practices. NCSF is a voluntary, not-for-profit association that offers a free membership to individuals and organizations who support the rights of adults to engage in safe, sane and consensual sexual expression.
  • Sexual Freedom Legal Defense and Education Fund, Inc.: People who practice alternative sexual expression can sometimes find themselves in trouble. Like the "Paddleboro" defendants in Massachusetts, they may be charged with crimes under archaic laws. They may face the loss of custody of their children. The Sexual Freedom Legal Defense and Education Fund, Inc. has been established to help people who find themselves in this kind of trouble. Valerie White, the agency's executive director, says the new agency hopes for several responses to this announcement. "We hope people who need financial assistance with legal fees and the expenses of litigation will contact us for help. We hope lawyers and child-development specialists who are willing to work with this population will permit us to put them in a referral database. And we hope people who share our dedication to sexual freedom will help us build our fund." In the first week it was in business, the group received five inquiries. It has already made a grant to help a woman find an expert witness in a child custody case. The agency has applied for 501c3 status as a tax exempt organization. "We want to focus on alternative sexual expression among consenting adults, like polyamory, swinging, BDSM, fetishism and so forth" White says. "GLBT folks already have a great resource in the Lambda Legal Defense and Education Fund."
  • The Woodhull Freedom Foundation: Victoria Woodhull was the out-spoken, “racy” activist who introduced sex-positivist values to America during the Victorian era. She believed that both men and women had a right to “free love" without government or public intervention. Throughout the 1870s, she lectured and published, arguing against society’s sexual double standard. Woodhull advocated sexual satisfaction and love for all, legal prostitution, the right to multiple partners, and supported people’s abilities to make their own decisions about consensual sexual activities.
    To those who denounce me, I reply: Yes I am a free lover. I have an inalienable, constitutional and natural right to love whom I may, to love as long or as short a period as I can; to change that love every day if I please. - Victoria Woodhull
Caricature of American suffragist Victoria Woodhull (1838-1927) by Thomas Nast (1840-1902).

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Information for Law Enforcement

For police, lawyers, and the media who are interested in BDSM in a professional capacity.

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