INTRODUCTION
“In the dance of dominance and submission, trust is the choreographer, and consent is the music.”
BDSM, is an acronym for bondage, discipline (or domination), sadism (or submission), and masochism[1]. According to the Cambridge Dictionary[2], sexual activity involves, for example, tying a partner up, games in which one partner controls another, or giving and receiving pain for pleasure.
It must be emphasized that these activities are legal only when they involve fully informed and voluntarily consenting adults. However, in some jurisdictions, BDSM activities may be subject to legal scrutiny and classified as a crime due to various factors. The outlaw of BDSM depends to a great extent on the particular laws and directions of a given purview.
Technically, any type of “impact play[3]” is prohibited. A single individual cannot lawfully consent to being physically assaulted. In the eyes of the law and the courts, the issue is one of violence, not sex. A criminal offence is when one individual causes physical injury to another. In contrast, the issue of consent in BDSM situations differs from that in a rape case, for example. In a rape case, the sex act is not considered criminal unless one partner fails to consent. In a BDSM case, however, causing physical harm is a crime in and of itself. The question then becomes how far the courts will go to enable such criminal behaviour to continue.
The criminalization of BDSM and the common misguided judgments encompassing it contributes to its marginalization and doubt in society. To address the lack of legal knowledge regarding BDSM and to properly handle litigation related to BDSM claims, there is an urgent need to educate legal authorities and legal processes about the norms and practices of BDSM culture. This will allow law enforcement to distinguish between genuine BDSM cases and those involving false claims or non-consensual activities disguised as BDSM.
EVOLUTION OF BDSM
The practice of BDSM has historical roots in various cultures and eras. Elements of his BDSM, such as bondage and domination, can be found in ancient texts and works of art from various civilizations. The works of the French writer and liberal Marquis de Sade (1740-1814) played an important role in popularizing certain aspects of sadism and masochism, which are key elements of BDSM. Publications such as The Story of O (1954)[4] and Venus in Furs (1870)[5] helped bring the subject of BDSM into the mainstream.
The modern BDSM subculture[6] has a long history, dating back to the leather subculture of the 1930s. However, the rise of the Internet in the late 1980s was an important milestone in the development of subcultures, as it provided a platform where people with the same interests could easily communicate and spend time together in a virtual space. We believe that this virtual space is very important for the formation of a BDSM subculture based on conferences and sub-cultural events. Using a virtual ethnographic approach, this analysis focuses on shared BDSM sub-cultural knowledge about what is “theirs” and what is the dominant view of them. Specifically, we reconstruct commonly shared group cultural knowledge using a virtual ethnographic method that adapts face-to-face ethnographic research techniques to study communities formed in part through computer-mediated communication.
LEGAL ASPECTS OF BDSM
In some cases, participating in or fantasizing about BDSM can have legal ramifications, especially in custody matters. If he engages in BDSM or other sexual activity in a way that may adversely affect the child’s well-being, there may be legal consequences in a custody case. For example, parents who participate in BDSM may have had difficult custody battles in the past because they believed that their involvement in BDSM made them unfit to be parents. Nevertheless, it is worth noting that this flawed discussion of BDSM serves as a warning that the lack of legal knowledge surrounding BDSM needs to be urgently addressed. This knowledge will empower the legal system to differentiate between cases involving her BDSM claims effectively.
CONSENT:
Certain BDSM sexual activities are punishable under state criminal statutes that address assault, aggravated assault, sexual assault, or sexual abuse. This also includes explicit consent. However, in India, Section 87 of the Indian Penal Code[7] states that “an act not intended to cause death or grievous bodily harm to a person over the age of 18 who consents to be harmed is not a crime.” There are no exceptions for consent that is socially valued. An agreement is made when both parties mutually agree that the agreement is legally considered, according to contract law. As a result, participation in BDSM requires consent. Such behaviours result in consensual misery for the individual. Inflicting pain without the agreement of the victim.
[8]Some countries and states, such as the United States, have laws that prohibit certain BDSM acts. After a landmark case, [9]Doe v. Rector & Visitors of George Mason University, BDSM acts are legal in other countries, such as Japan, the Netherlands, and Germany. Talking about India, after the point of interest administered within the case of Navtej Singh Johar v. Union of India[10], the Incomparable Court unequivocally made carnal intercut as a non-criminal offence, so it can be said that the hone of BDSM has substantial lawful status in India. But it is still ambiguous, as BDSM isn’t just a play of carnal interplay, but it is additionally a play of torment, which is done by different unusual objects and as per the overjudgment. Talk about infiltration through the penis is non-criminal, and it is not a conversation about infiltration through an object.
CONCERN FOR PROSTITUTION
Within the context of BDSM and prostitution, the issue of extortion can raise legitimate and moral concerns. Extortion in this context ordinarily refers to circumstances where one party is locked in BDSM exercises with a sex worker while distorting their eagerness, personality, or budgetary agreements. For example, a client may betray a sex worker by pretending to be fascinated by BDSM exercises but eventually denying to pay for administrations rendered or abusing assent boundaries during the session. Fraud in prostitution, including BDSM-related activities, can lead to legal consequences and ethical problems, like criminal offences, consent violations, safety concerns, and damaging reputations.
It is important for all parties involved in BDSM and sex work, whether customers or providers, to be transparent, honest, and respectful in their interactions with each other. To maintain the integrity and legality of these activities, it is important to employ consensual, safe, and transparent practices. Legal provisions and definitions of fraud may vary by jurisdiction. Therefore, we recommend that you familiarize yourself with the specific laws in your area and prioritize ethical behaviour in all your activities.
All sex workers should be aware of the difference between their sex work and BDSM. They should not be in a dilemma of whether BDSM is normal or part of their work.
DISPUTE
Law: There is no adequate underlying law to regulate such activities, and without it, the degree of pain or punishment cannot be determined.
Human Cognition: Human cognition is one in which individuals do what they want, regardless of the idea of sanctions. For example, a person knows that murder is a crime and yet commits it, and the same applies to this act. Although this act is not yet a crime, it can later become a crime, and the pain can exceed its limits.
Violence: Inflicting pain[11] for pleasure may amount to violence from the point of view of the common man, and the same should be regulated under the IPC.
Vogue Power Play: In [12]Doe v. Rector and Visitors of George Mason University, the woman resisted, but the man continued to act out against BDSM and he said she did not use the word security. Here we see that there is a use of power to completely control the submissive against one’s will. Therefore, the practice becomes confusing at first glance.
Open Approach: [13]Many societies consider BDSM unthinkable, and revealing such honing inside the society may prevent open arrangements. In India, although the Order Rule of State Approach is mandated in nature and not obligatory, the same ought to be given the most extreme significance.
CONCLUSION
Currently, there is no basic law regulating such behaviour. If a law were to be enacted regarding such behaviour, the state would not enforce the behaviour based on the psychological desires of the dissolute party, rather than the law. It should be noted that the general public of the country needs to be aware of its limitations and how healthy BDSM can be achieved. Therefore, before starting such activities and after completing them, a proper medical examination must be carried out, and above all, they must be protected by security personnel. If a particular act is illegal by the state, the parties should refrain from, for example, hitting the girl, punching her body, piercing her skin with needles, or any kind of BDSM activity.
Raising awareness about BDSM is a step toward reducing disgrace and advancing a more open and accepting society where people can investigate their sexuality in a consensual and capable way. Everybody should be aware of these exercises to take a stand for their rights and protect themselves from any wrongdoing. It is time to raise our voices and request legitimate law from the government for such hones.
Author(s) Name: Mahima Singh (Integral University, Lucknow)
References:
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[9] “Doe v. Rector and Visitors of George Mason University” (Practical Law) <https://uk.practicallaw.thomsonreuters.com/Document/I59b49669613b11e590d4edf60ce7d742/View/FullText.html?originationContext=docHeader&contextData=(sc.PracticalLaw)&transitionType=Document&needToInjectTerms=False&firstPage=true>accessed april 2016.
[10] Navtej Singh Johar v. Union of India, (2018) AIR SC 4321
[11] Islamaj R and others, “NLM-Chem-BC7: Manually Annotated Full-Text Resources for Chemical Entity Annotation and Indexing in Biomedical Articles” (2022) 2022 Database <http://dx.doi.org/10.1093/database/baac102> accessed 7 2023.
[12] “Doe v. Rector and Visitors of George Mason University” (Practical Law) <https://uk.practicallaw.thomsonreuters.com/Document/I59b49669613b11e590d4edf60ce7d742/View/FullText.html?originationContext=docHeader&contextData=(sc.PracticalLaw)&transitionType=Document&needToInjectTerms=False&firstPage=true>accessed april 2016.
[13] “Feminist Views on BDSM” (Wikipedia, August 3, 2023) <https://en.wikipedia.org/wiki/Feminist_views_on_BDSM>accessed 3 august 2023.
