BDSM As A Transaction – Risk and Rewards

bdsm-detective-part-2Note: 1**

Before I get to the disclaimers, I am going to say from the outset that I have been wanting to write this blog post well before I ever thought about starting this blog. I looked around and wondered “why aren’t we were seeing the re-emergence of Dungeons and BDSM clubs” and it got my brain ticking. With the rise of BDSM in mainstream sexual discussion (lets not mention THAT book just yet), why would they not capitalise on this “new” (ahem?) form of sexual activity? Here’s why – public liability insurance and workers compensation insurance problems. This is why this blog exists.

Now The Disclaimers…..

Firstly, as usual, any controversial blog needs a whole lot of disclaimers!
*THIS BLOG SHOULD NOT BE CONSIDERED AS LEGAL ADVICE NOR DOES IT OUTLINE ALL ISSUES RELATING TO BDSM. IF YOU HAVE ANY CONCERNS OR QUERIES ABOUT THIS SUBJECT, PLEASE CONTACT THE WRITER OF THIS BLOG*
Secondly:

*THIS BLOG TALKS ABOUT CRIMINAL OFFENCES. I HAVE NOT STATED SPECIFICALLY THE TYPE OF CRIMINAL OFFENCES THAT COULD ARISE (DUE MAINLY TO STATE LEGISLATIVE DIFFERENCES), PLEASE CONTACT ME FOR FURTHER INFORMATION OR DISCUSSION.*
Thirdly:

*I DO NOT HOLD MYSELF OUT TO BE AN EXPERT ON BDSM NOR AM I PART OF ANY FORM OF BDSM COMMUNITY. IF AT ALL I OFFEND THE BDSM COMMUNITY IN MY WRITING OR MISUSE ANY TERMINOLOGY IN THIS BLOG, PLEASE CONTACT ME AND I WILL RECTIFY IT AS SOON AS POSSIBLE*

Fourthly:

*THIS IS A HIGHLY CONTROVERSIAL SUBJECT……BUT NO ONE EVER SAID I WAS AFRAID OF APPROACHING CONTROVERSIAL SUBJECTS 🙂 I INTEND TO DO FURTHER RESEARCH IN THIS AREA SO THIS IS JUST THE BEGINNING*

The Happy Happy Land of BDSM
Vulnerable girl falls in love with millionaire rich boy who then takes her into a dungeon and does horrible stuff to her which she secretly loves and then (apparently – because I never got further than the second book) he nearly dies in an airplane crash and then he realises that he actually truly loves her despite his mummy issues and they live happily ever after together, united in their bliss of tying her up with rope and spanking her bottom.

REWIND!

BDSM has been going on for a lot longer than THAT book. It has been seen as somewhat “deviant” but who is to judge on deviancy? It is a legitimate form of sexual activity when two people are engaged in doing so in a consensual and safe environment. And just quietly, it can be pretty amazing! So everyone rejoice in BDSM, explore it, educate yourself on it and have fun in a safe manner!

The “Rise” Of BDSM As A Form Of Service

I don’t know know whether I should pay even the slightest credence to THAT book but the word on the street is that there is a growing need for sex workers to provide BDSM services in various forms to their clients. This is a good thing! Sex workers can charge a greater fee for doing it, and many sex workers are already part of the BDSM community so they are well equipped to provide these services in a safe and comfortable environment for clients who may not necessarily be part of that community. As much as we talk about THAT book, BDSM still has a certain mystique about it and many people are not quite ready to accept (in their “normal” sex lives) that BDSM sexually excites them. Sex workers are able to deliver these services in a way which leaves the client satisfied that they have explored their sexual desires in a way that is acceptable to them.

Why The Blog Post About It Though?

I would like to give thanks to a kind Senior Constable at a Sydney Metropolitan Police Station who, when I asked whether it was safe for a sex worker to provide BDSM services, politely told me that if I were to provide sexual services of this nature, I could land myself into trouble.

No, the police are not going to break down the doors when they hear wild screams of “stop!” and “no more” – unless of course the neighbours make a noise complaint. However, think of it like this…..

The Worst Case Scenario

You and your client engage in BDSM activities. There are bruises left. Some scratch marks. For some reason, your client is not happy with your service or becomes disgruntled with you (for whatever reason). He/she walks into a police station, shows the police the marks and bruises and claims that he/she was in fact assaulted, or worse still, sexually assaulted. She or he claims that at first things were heated and fun and things got a “little rough” but in no way did he or she consent to the use of a whip or a cane (for example) – let alone a butt plug! “I never thought she/he would tie me up!” The client claims that yes, they paid for sexual services but in no way did she or she envisage for it to become so painful nor did the client envisage that they would be deprived of their liberty by being tied up.

What Happens Then?

I expect the first thing the police will look at whether there was consent. Importantly, please note, consent with respect to offences relating to assault, and offences relating to sexual activities are two different things. It is very unlikely that you can ever “consent” to being assaulted physically. If you punch or strike someone (with or without a weapon), consent is going to be irrelevant to much a degree. Various legislation throughout Australia does not take into account “consent” with respect to acts intending to cause any injury, be it serious injury or grievous bodily harm.

For sexual offences, consent is definitely looked into a little more (for obvious reasons). With the exception of the ACT, every Australian jurisdiction has a statutory definition of consent based on one of the following formulations:
• free agreement;
• free and voluntary agreement; or
• consent freely and voluntarily given.
The legislation of all jurisdictions—except Queensland—also specifically addresses the continuation of sexual intercourse after consent has been withdrawn (see http://www.alrc.gov.au/publications/25.%20Sexual%20Offences/consent)
How Can You Prove Consent?

If you have taken a booking, and much of your discussion about what is required in that booking has occurred over the telephone, then you are unlikely to be able to prove that the nature (and limits) of the BDSM activities were explained and no express statement would have been given as to consent – unless you recorded the discussion (which is very unlikely and in some cases, illegal).

If you have taken a booking over email, and discussion arises as to the nature of the services, this could be used as evidence against any crime that the client fully intended for the services to be provided. However, it is not foolproof as the email may not outline the risks involved in the activities nor outline the scope of the services expected so one could easily argue that “I never thought it would get THAT bad!”

If you are in a booking and the idea of BDSM arises in the booking, then you unlikely to have any evidence whatsoever to suggest that the client knew the risks associated with the activities and there is little you can do to provide the police evidence that consent was given.

Can I Get The Client To Enter Into An Agreement?

You can try. You can draft an agreement that outlines specifically the type of activities that will occur, the requirements of a “safe” word, the need for after-care and perhaps a requirement for feedback before and after the booking occurs. However, I need to be clear on this – you cannot “contract” out of a criminal offence. The contract would be unenforceable on the basis of illegality so the agreement isn’t really worth the paper it is written on, unless it can be used to assist the police in working out whether consent was provided (but remember, consent can be withdrawn at any time).

Besides, having to have clients sign a contract before a booking is a bit of a mood killer!

Some Tips To Navigate Your Way Through This Minefield

• You can simply stop providing BDSM services. You need to weigh up the risk verses the reward. Yes, it is rare for a client to become disgruntled and have “The Worst Case Scenario” happen, and you may well justify that risk by the amount of money you make as a result of providing these services. It is not my job to tell you what services you can and cannot provide. Sex work is about free will. You do not need a lawyer dictating what you should or should not be doing via a blog.
• You can have them enter into an explicit agreement that they sign before the activity, and also sign AFTER the activity to state that consent was given and that it remained (note my comments above about not being able to contract out of criminal offences).
• You can provide BDSM services but develop a very good spiel in email correspondence that outlines the nature of the activities that you will be engaging in, and make sure that the scope you provide is clear and concise. Yes, it kills the mood to some extent and ruins the element of surprise but that will be when your expertise in delivering services will come into play. Ask them whether they consent to the scope of work that you have outlined in the email correspondence and ask them to respond back to you stating that they fully understand the consequences of what is to occur (note again my comments on not being able to contract out of criminal offences).
• When providing BDSM services, be acutely aware of when the person is becoming distressed. I will leave this to the BDSM experts because I am well aware that there is a difference between pain in BDSM and the distress caused by being subject to a non-consensual activity.
• Standard BDSM 101 – always have a safe word. I think I’ll leave that one to the BDSM experts.
• Always debrief your client after the BDSM session (if you do not already do so) to ensure that they consented to activities that occurred in the previous hour or so so that you can feel satisfied that they will not walk straight from the hotel/premises straight to a police station.
More Information On This Topic
Frankly, no one has really liked talking about this so there isn’t much out there to look at. Again (I hate doing this), I refer you to Wikipedia which at least talks about the worldwide issues of BDSM and the law – http://en.wikipedia.org/wiki/BDSM_and_the_law – the page is terrible but it at least talks about the issues.
This particular journal interests me somewhat but doesn’t satisfy me entirely – http://sydney.edu.au/law/slr/slr_35/slr35_3/Bennett.pdf
I hope you enjoyed this blog. If you have any further questions, please contact me.

KVA

@KVALEGAL

Note 1: Image: http://bdsmcafe.com/bdsm-story-case-undercover-dick-part-2/

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