BDSM, Kink, and Consent: What the Law Can Learn from Consent-Driven Communities

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.