Fifty Shades of Grey and the legal limits of BDSM

Fifty Shades of Grey creates a minefield on the issues at play in consensual acts of violence. Universal Pictures

Fifty Shades of Grey and the legal limits of BDSM

Fifty Shades of Grey creates a minefield on the issues at play in consensual acts of violence. Universal Pictures

Christian Grey knows exactly his hard limits in sadomasochism and he may also know a thing or two about his legal limits. The Dominant character Grey in the fantasy fiction Fifty Shades of Grey is bent on alluring his coprotagonist, Anastasia (Ana) Steele, to become his Submissive in a BDSM – Bondage & Discipline (BD) Domination & Submission (DS) Sadism & Masochism (SM) – relationship.

The layers of coercion, consent, pleasure and pain are as complex as the acronym itself and defined by the participants themselves. The cinematic account of this fiction – released this past weekend – illustrates some of the problematic demarcations in the law of assault in the real world.

When Grey informs the innocent Ana about the unnegotiable “hard limits” he sets down in a contract governing their BDSM activities – including no fire play, cutting, piercing, bloodletting, gynaecological instruments, scarring, permanent disfiguration, breath control, defecating/ urinating or use of electric current – she is confounded (probably with a blush and the cautious words of her subconscious). The law is a bit confounded too.

“Hard limits” – in the BDSM arrangement between Grey and Ana – are those activities excluded from the pair’s BDSM arrangement as a safety precaution. “Soft limits” – such as caning and flogging – are more negotiable: Grey does not regard them as a safety issue but they’re left open for negotiation on the grounds that they may cause unbearable pain.

So what does the law have to say about legal status of the sadomasochistic acts?

A legal perspective

For criminal lawyers, for humans in general, the hard limits described above may look a little bit like assault. The offence of wounding or grievous bodily harm with intent – which includes where there is permanent disfiguration or serious harm – attracts a maximum sentence 25 years imprisonment.

In Australia’s Northern Territory, mandatory prison sentences apply to first-time serious violent offenders. This may include acts involving cutting, scarring, whipping or caning. But the legislation does not prescribe the nature of violent activities or whether inflicting pain in the name of sexual pleasure is permissible.

In principle, if the participant suffering the harm consents to the violence, this would legalise what would otherwise be deemed assault.

In Fifty Shades, Christian Grey’s relentless pursuit of Ana’s consent before engaging in BDSM was well-advised, as consent provides an important pillar in nullifying assault claims – but it’s not the only pillar. There are, it seems, at least 50 shades of grey when it comes to the application of the laws relating to consensual bodily harm.

The law on consensual violence is cobbled together from a small pool of legal cases. The parameters are rarely tested, given that consenting and willing participants are hardly going to complain to police and press charges. Cases are often brought to the attention of authorities when something goes wrong or evidence emerges during an investigation for another crime (such as video tapes found during a drug investigation).

Demarcations of acceptable harm, beyond which would constitute serious assault, appear to hinge on the participants. In cases of “rough but innocent horse-play” in heterosexual relations, or manly violence inflicted in boxing or prize fighting, courts have refrained from convicting participants of assault due to the presence of consent.

Consent also legalises bodily harm arising in the normal course of surgery, contact sports, ritual circumcision, tattooing and ear piercing. But the law has been less accommodating with similar acts and similar levels of harm in different contexts.

Beyond consent

Courts have condemned consensual acts of gay sadomasochism or Indigenous law punishment. The Northern Territory Supreme Court in the 2004 bail case of Re Anthony held that it could not condone the offender being let into the community to allegedly have Elders in the Tanami Desert community of Lajamanu spear him in the leg and hit him with nulla nullas.

The Court regarded that it was immaterial that the offender consented to the spearing, on the grounds that it would restore relations and remove the curse of his offence, because the serious nature of the harm meant it was not in the community’s interest. In the 1994 case of R v Brown, the House of Law found that consensual sadomasochistic activities involving a group of gay men was illegal.

This case was brought to the House of Lords to determine whether proof of wounds or harmful assaults in the course of sadomasochism required the prosecution to prove a lack of consent. The majority held that the gay sadomasochistic assaults were unlawful “because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men”.

It also regarded the availability of code words that the participants could pronounce to discontinue the act as insufficient evidence of ongoing consent. This may be news to Mr Grey, in Fifty Shades, who sets down safewords (“Yellow” for caution and “Red” to stop) for Ana to use when the violence becomes unacceptable.

Permissible harm

Apart from courts relying on morality and colonial jurisdiction to set limits for lawful bodily harm, there is a spectrum of permissible harms in the context of consensual force (at least as far as BDSM and Indigenous law is concerned) that does not extend to wounding or serious harm.

The law may differ in other settings, such as permitting wounding in a tattoo parlour or through an elective caesarean. In R v Brown, where the House of Lords considered the legality of harm in gay sadomasochistic acts, it prohibited genital torture, violence (including beating) to the buttocks, anus, penis, testicles and nipples, branding, bloodletting and wounding with instruments.

The majority described these acts as uncivilised, involving the indulgence of cruelty by sadists and humiliating and degrading activities such as defecation. There is a lack of legal precedent on whether public policy would grant heterosexual couples with greater latitude to exact consensual sadomasochistic harm.

The excluded “hard limits of harm”, such as bloodletting and permanent disfigurement, in Christian and Ana’s arrangement is a sensible legal precaution (and naturally speaks to Christian’s high romantic ideals).

For Ana, however, it is the soft (more negotiable) limits inflicted in the punishment process that terrify and upset her they most. They include flogging, spanking, whipping and caning to maintain Grey’s control over Ana as part of their Dominant and Submissive relationship.

The punishment not only applies to Ana’s defiance in the Playroom (aka Red Room of Pain) but also contravening Christian’s decrees on her eating, exercise, sleep, dress, grooming, relationships and forms of communication. Ana is reluctant to offer her consent to the acts of punishment.

However, even with consent, it is unlikely that the acts would escape lawful punishment based on the level of serious harm and the intimidation that underpins the procurement of Ana’s consent.

Fifty Shades of Grey opens up a minefield on the issues at play in consensual acts of violence and their legal status in and out of the pleasuredome.


See also:
Violence dressed up as erotica: Fifty Shades of Grey and abuse

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