Life

The BDSM Community Is Worried About Changes to the Domestic Abuse Bill

The much-welcomed end to the "rough sex defence" has some kinky people concerned about the implications for BDSM.
19 August 2020, 8:15am
BDSM male submissive in black leather slave collar
Photo: Getty

In July of this year, politicians in the UK hailed an amendment to the long-awaited Domestic Abuse Bill as the end of the "rough sex defence”. The new legislation states that consent can never justify grievous or actual bodily harm, even if it was perpetrated for the purposes of sexual gratification.

While the bill itself has been rightly celebrated as a groundbreaking step forward for victims and survivors, many people in the BDSM community have expressed specific concern over this new amendment.

Actual bodily harm (ABH) can include bruising, scratching and bite marks, which means that many forms of BDSM – where the mixing of sex and pain is done safely and consensually – could fall squarely within the remit of the new law.

“Any marks that last on skin for longer than 20 minutes class as ABH, and impact play is commonly seen within a BDSM context,” says Aleph*, who is a top (the person in control during play).

During impact play, for instance, Aleph might consensually spank his submissives – but “the sub’s safety is paramount”, he tells me, explaining they always pre-discuss limits and safe words in case things go too far.

The “rough sex defence” was a phrase originally coined by domestic violence campaigners in response to the rising numbers of men using it in murder cases to get a lighter sentence. In court, these men claimed that the fatal injuries of their victims had actually been caused during BDSM and consensual sex. But contrary to the initial headlines that this draft bill puts an end to the defence, it actually criminalises any actual bodily harm, even if it happens consensually, safely and for the purposes of sexual pleasure.

Aleph is a regular at fetish nights like Torture Garden, and he’s concerned that the bill means that “you can now never consent to any rough sex acts. And I know people who are worried – those who play in public [inside sex and fetish clubs] and dungeon masters [who teach people how to do certain acts safely at clubs].”

Instead of stating that no one can consent to harm, people in the BDSM community think we should be looking closer at the context of such incidents. One of the most harrowing cases highlighted by We Can’t Consent To This, the campaign group that have been the driving force behind this bill, is that of Natalie Connolly. The 26-year-old mother was beaten and killed by her partner John Broadhurst, who was later sentenced to three years and six months for manslaughter.

There was no real sense that anything on her body could have been caused through safe BDSM practice. A post-mortem examination showed that she’d suffered more than 40 injuries, including a blow-out fracture to her eye and internal trauma. For some BDSM practitioners, seeing the language of BDSM used alongside this horrific case was infuriating. It wasn’t kink – it was violence and abuse.

“Aftercare is always waiting for you to reconnect with your partner. What's being described in these cases is far from the type of BDSM you’d experience with a trained and educated dom,” explains Daniel from play party organisers NSFW. “Some people still don't see the benefits of BDSM and only think of it as a way to hurt others or abuse people.”

Broadhurst’s legal team used the rough sex defence at his trial, but their argument was thrown out by the court by referencing the 2018 case of Brendan McCarthy, a body modifier who was imprisoned for grievous bodily harm in 2018 for performing a consensual tongue split, an ear removal and nipple removal.

None of McCarthy’s “victims” complained, but he was charged in the same way as if he’d attacked someone in the street. This case, although vastly different – no one died – was cited in the case notes for Broadhurst: “a person cannot in law consent to being subjected to actual bodily harm or grievous bodily harm for the purposes of sexual pleasure”. McCarthy’s appeal was later rejected on the basis that that his clients’ consent provided no defence.

Both men got roughly same amount of time in prison. But, crucially, the new amendment would have been unlikely to change the outcome for either. “The body modification case is a perfect example of how the law was already operating,” explains criminal barrister Genevieve Reed. “It shows that consent was never a defence that was available.”

In other words: although the new law states that consent isn’t a defence, it’s only put in writing what could and has been proven already. What feels like a step in the right direction, then, is less radical or as new than feminist campaigners might, at first, think.

There’s already a long and worrying history of police investigating BDSM relationships. In one case from 1996, a couple in a consensual dominant/submissive relationship wound up in court after the husband branded his wife’s bum with his initials. When the wound got infected, the woman went to see a doctor who reported her spouse to the police. Against her wishes, he was hauled before a judge and charged for assault occasioning actual bodily harm.

When I first came across the case, I thought of anyone who has carried the marks of consensual BDSM around on their body, like a rope tied around your wrist or that bruised bum from a caning. Will more people practicing S&M end up in court?

“I don’t think the campaign groups know what this bill is actually doing, otherwise they wouldn’t be hailing it as a victory,” says Reed. “According to the law, nothing has changed.”

When men like Broadhurst disingenuously incorporate BDSM into their defence, it suggests to non-kinky people that the practice falls into the same category as abuse – something that only further sullies the reputation of an already misunderstood community that takes pains to emphasise consent. It’s already having real ramifications on BDSM clubs and gatherings.

“We rely on an accepting public opinion to exist in many cases,” says Hannah Bea, a sex event producer at the Slap Stick Club. “[The new bill] could affect the licensing of spaces, pushing activities further underground.”

London-based LGBTQ+ fetish club Klub Verboten recently had their club licence application refused in Tower Hamlets. The report produced by the council was rife with prejudice, explicitly stating that it expected an increased risk of sexual assault at the location because BDSM was to be practiced there.

But more fundamentally, people in BDSM like Bea believe that the new law attempts to reduce our lives to a set of black and white principles “which aren’t fit for purpose,” she says.

Conscious kink practitioner Divine Theratrix agrees. “Words on a piece of paper cannot address the complex interweaving of factors that must be looked at to determine whether or not someone was choosing what they experienced during a sexual act,” she explains. “There should be access to expertise throughout the legal process so that juries understand the components of BDSM and better evaluate the question of whether or not an act was consented to.”

Rather than just write into law that you can never agree to any kind of harm for sexual pleasure, we need to open up conversations about consent. In the UK, for instance, 37 percent of women under 40 have experienced unwanted slapping, choking, gagging or spitting during sex. But when Men’s Health published an article about how to safely and consensually choke your partner during sex, Conservative MP Laura Farris called it “deeply irresponsible journalism”.

I wanted to celebrate the end of the rough sex defence with all the other feminists on my newsfeed. What I found instead was a bill that effectively states that no one should engage in BDSM practices unless they want to be criminalised. Amending a bill is easier than changing the culture through social reform, education and public awareness – but that’s precisely what’s needed most.

@alicecscape