BDSM contracts … sigh, I never got to study these in law school.
Apparently, these non-legally binding agreements are used to layout the terms of a BDSM sexual relationship between two or more individuals. Since I still not have read or watched 50 Shades of Grey and apparently do not get out enough to know about these contracts independently, I was not aware of these types of contracts until I read the article “Nonbinding Bondage” in the Harvard Law Review. To my credit I have watched the trailer to 50 Shades of Grey and analyzed it in a previous blog post through the lens of obscenity in movies, if that counts for anything.
These contracts are not legally enforceable because contracting for sex is generally against public policy. A special problem with BDSM is determining where consent exists because otherwise it could be rape. As in State v. Van the men sent hundreds of letters back and forth outlining what they wanted in their BDSM relationship. However, the court had difficultly ultimately determining if there was consent during the sexual acts itself because one of the participants was saying ‘no’ when he said ‘yes’ in the exchanged letters.
Even with contracts, or extensive prior writings, as in the Van case, courts can still struggle with whether there is consent during the act. In my opinion, this is one of the biggest hurdles to legitimizing BDSM.
Part of a BDSM Sample Contract
Even though presently BDSM contracts are not viewed with any legal backing, I could envision that possibly changing one day. Some academics argue the concept of BDSM is becoming mainstream not only because of 50 Shades of Grey, but also due to its cinematic predecessor the Secretary (2002).
Perhaps with the ever “evolving standards of decency that mark the progress of a maturing society,” BDSM contracts may be legally binding one day in the future.
Until then the possibilities are fun to think about.
The rise of Fifty Shades of Grey, however, points to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in “kinky sex” — so vast the adaptation is expected to become the biggest film of 2015 — but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such “transgressive” sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether “victims” can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant.
If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law. Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. Indeed, the contract’s popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple’s negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms and the parties’ enumerated objections and amendments.
— Nonbinding Bondage, 128 Harv. L. Rev. 713 (2014).