Consent within BDSM is an issue that attracts much attention in the field. Practitioners' interests are in ensuring appropriate consent for personal, ethical, and legal reasons. The law also has its own approach to consent in deeming certain acts legal or illegal (see consent (criminal)).
Non-consensual play is considered abuse and not accepted by the BDSM community.
Types of consent
Consent is a vital element in all psychological play, and consent can be granted in many ways. Some employ a written form known as a "Dungeon negotiation form"; for others a simple verbal commitment is sufficient. Consent can be limited both in duration and content.
Consensual non-consensuality is a mutual agreement to be able to act as if consent has been waived within safe and sane limits. In essence it is an agreement that, subject to a safe word or other restrictions and reasonable care and commonsense, consent (within defined limits) will be given in advance and with the intent of being irrevocable under normal circumstances, at times without foreknowledge of the exact actions planned. As such, it is a show of extreme trust and understanding and usually undertaken only by partners who know each other well or otherwise agree to set clear safe limits on their activities.
It is not unusual to grant consent only for an hour or for an evening. When a scene lasts for more than a few hours, some might decide to draft a "scene contract" that defines what will happen and who is responsible for what. Some "contracts" can become quite detailed and run for many pages, especially if a scene is to last a weekend or more.
For long term consent, a "Slave Contract" is sometimes used. BDSM "contracts" are only agreements between consenting adults and are not legally binding; in fact, the possession of one may be considered illegal in some areas. Slave contracts are simply a way of defining the nature and limits of the relationship. Other couples know each other's likes and dislikes and play accordingly. Such arrangements typically use a safeword, a signal that the action in question has gone too far and that those in a dominant role should either stop that particular activity or that the session should end completely.
However, rulings on consent make all negotiations null and void at the moment the one submitting withdraws consent. The concept of "Consensual non-consensuality" is voided by the right to "informed consent."
Several of the activities in sexual BDSM play would be considered illegal and fall under the definitions of rape, assault or similar crimes or torts, if performed without consent. However, most legal systems include a general defence that activities performed with the victim's consent shall not be considered a crime or a tort. This raises some legal and ethical issues, such as:
- What is consent?
- Who can express consent? (For example: children are typically not considered to be able to give consent to sex.)
- When do we define consent as given?
- When is given consent invalidated?
- And are there activities that we still cannot allow, even with the victim's consent?
These concerns apply not only to BDSM but to every kind of interaction between persons. See Consent (criminal) for the general discussion.
The issue of consent in BDSM has caused a controversy in some countries since certain activities, (including some kinds of edgeplay) remains unlawful even when consent has been freely given. In such countries, these activities will always be viewed by law enforcement as unlawful when discovered, even though the activities have been entirely private. The Spanner case in England demonstrates the point, where participants in a consensual mutual BDSM play party were arrested. At all stages, the national and European Court ruled against them on the basis that a person under English law may not give consent to anything more than minor injury. Interested people may think that private mutual activities should not be the subject of law as a matter of public policy, a view which has some legal backing in the United States from the case of Lawrence v. Texas where it was effectively ruled that the state lacked the power to declare an activity illegal purely on the basis of moral opinion. But, even in the U.S., arguing by analogy with consensual sexual relationships is not likely to succeed in cases involving the use of more violent force, e.g. as in knife play or branding.
The March 5th 2007 conviction of Glenn Marcus on counts of sex trafficking & forced labor renewed much debate on this issue. Likewise in April 2007, two UK men were convicted of false imprisonment in a case where a third party who had been treated like a dog asserted the matter had not been consensual.