When does BDSM cross the line into abuse and slavery?

Last night, Four Corners revealed a number of allegations against a self-described “BDSM master”, James Davis, recently charged with federal slavery and servitude offences by the Australian Federal Police in New South Wales.

The alleged offending occurred within the context of a polygamous BDSM lifestyle, with a number of young women allegedly pressured into sexual activity and subjected to physical violence by Davis and other men.

BDSM activities pose a number of unique challenge for police and prosecutors, who may not be aware of the distinction between consensual fun and abuse and other crimes under criminal law.

One of the authors here, Nadia David, has spent six years researching BDSM, consent and the criminal law, speaking with hundreds of people who engage in these activities to gain a better understanding for the community.

What is BDSM?

BDSM (which stands for “bondage submission sadomasochism”) is a broad term used to describe sexual activities involving dominance, submission and control.

BDSM activities range from rope play and spanking to piercing and nipple clamps, but all typically involve one (or more) partners taking on a more dominant role during sex, while others are more submissive.

Most BDSM activities are limited to discrete play sessions between partners, but some people engage in “full-time” or “24/7” relationships involving dominance and submission.

BDSM practices and interests are not in themselves pathological, nor is there a strong connection between engaging in BDSM practices and risks of sexual offending.

Read more: Fifty Shades of Grey and the legal limits of BDSM

A recent study in Belgium found that 46.8% of the general population had engaged in BDSM-themed activities at least once, with 12.5% doing so on a regular basis.

One Australian study from 2008 found that 1.8% of sexually active people (2.2% men and 1.3% women) had engaged in BDSM activity in the previous year. This study didn’t find any significant differences between people who took part in BDSM activities and the general population in terms of mental health.

What’s the difference between BDSM and abuse?

One of the most vehemently argued positions taken by anti-BDSM commentators is that BDSM is a replication and extension of male violence against women and other men and the broader misogynistic patriarchy in which women are oppressed.

There is certainly a more than passing similarity between BDSM and gendered violence to the casual observer.

But there are two elements in authentic BDSM practices and relationships that are simply absent in abusive relationships and sexual encounters: consent and rules. These include myriad tools to ensure the safety of participants, such as checklists and traffic light systems.

Our research reinforces that all BDSM practitioners consider consent to be absolutely fundamental. Consent is so ingrained in BDSM culture and practice that discussions before sexual play usually involve every detail of the planned session, including the exact activities that will be undertaken.

BDSM players use systems to ensure their partner is still consenting throughout the session and any transgression of this approach is taken extremely seriously as a violation of consent. Spontaneity is not prized in the BDSM world – consent is.

In BDSM, consent is not a passive acceptance of a proposition. It is very common for “dominant” players to only perform acts with “submissive” partners when that person asks for it. Dominants who push submissives or start play without explicit agreement are considered to be potentially abusive within the BDSM community.

Read more: Are you a pervert? Challenging the boundaries of sex

What does the law say?

Davis, the subject of the Four Corners story, was charged with a number of federal offences, including reducing a person to slavery, intentionally possessing a slave and causing a person to enter into or remain in servitude.

A wide range of other criminal offences could apply to BDSM activities that are abusive.

Under NSW criminal law, for example, consent requires a person to freely and voluntarily agree to sexual activity. (Other states and territories have similar laws.) The use of “slave contracts” and other fantasy objects in BDSM activities does not alter the requirements for free and voluntary agreement under the law.

Sexual consent can be withdrawn at any time. Moreover, consent in response to intimidating or coercive conduct or other threats is not real consent.

In addition, in common law jurisdictions, a person can be charged with assault or injury offences whether or not the injured person had consented to the conduct. This places “riskier” forms of BDSM, such as piercing and knife play, in a legal grey area, even when enthusiastic consent is given.

Read more: We need a new definition of pornography - with consent at the centre

BDSM practitioners, however, are often failed by the criminal justice system. Those who report non-consensual play to police are often met with derision and a refusal to investigate, including victim-blaming and slut-shaming.

Domestic and family violence can exist in all forms of relationships, including BDSM relationships. So it’s crucial for everyone who engages in BDSM activity to be aware of the distinction between harmless kink and violence, and take consent seriously.

What is also important to remember is that BDSM is not domestic violence in itself. If all players are enthusiastic and consenting, then it can be a perfectly healthy form of sexual expression.

If this article has raised issues for you, or if you’re concerned about someone you know, contact 1800 RESPECT through their toll-free national counselling hotline or online. You can also call Lifeline on 13 11 14 or the Red Cross Support for Trafficked People Program on 03 9345 1800.