BDSM and the Law

This is not an easy job. Not just because of everything you have to learn or acquire or manage, but because of the mores of the society in which we live and how they have affected the creation of laws and the enforcement of those laws. It's a consideration that those of us on the providing end think about regularly -- if not daily.

Offering BDSM/kink professionally involves navigating some choppy waters. While many of us have been doing what we do without incident for years -- if not decades -- there have been some arrests, prosecutions, and lawsuits relating to the practice of BDSM. This can create what is called "precedent", or a court decision used as an example or authority to help resolve subsequent cases which are similar in nature. Though rulings in our favor can offer potential help, they can only help if they're out there. And I don't think there's a lot of precedent out there.

While we tend to live in what one kink-friendly attorney called, "a culture of tolerance", which means that while some things may technically not be deemed "permissible", the laws around them are not really enforced. As a result, the unpredictability of this, mixed with a lack of precedent, means these waters are uncharted. So, if you want to explore these waters, it behooves you to understand what you might find in them.

People may not be aware of this but offering BDSM professionally is actually illegal in some places. New Jersey is one of them. This means that someone could conceivably be arrested for offering to tie you down and spank you for payment. (Wild, huh?) It means that advertising yourself as offering or looking for pro play would be a violation of the law.

In other places professional BDSM itself isn't illegal but certain activities might be. Do you have a fetish for strap-on play (aka "pegging") or forced "cock" sucking? Or do you have a fantasy of being Dominated by more than one person or being in a "forced bi" scene? That's hot and all, but in some jurisdictions those things could be construed as "prostitution" or "pimping", respectively.

"Is this truly risky?", you may ask. This is the nature of uncharted waters. We don't always know the level of risk we're taking. It's dependent on various factors -- some which we have control over and some that we don't.

This is one reason why you may see differences in how Dommes advertise themselves. Some don't advertise at all or don't talk about what they do or don't discuss payment. This can be because it's beyond Her comfort zone to be so open, whether it's for privacy reasons or legal ones.

If you're thinking, "If this is true, then why have I seen Dommes offer all these things?" Sometimes it's because the Domme honestly doesn't care and is willing to assume the risk, in other cases She doesn't know the law and the risk She's taking.

Whatever the reason for the Domme, it's in your best interest to learn the law in the area in which you play. This does not mean you have to give up on your kinky dreams. It just means you should be wise and pursue your passions carefully.

So, before sending a message to a Domme and asking, "Can you fuck me in the ass?" or "Can you pimp me out to your other clients?", know that it may be met with silence and ruin your chances of sessioning with Her. You may need to prove yourself trustworthy before some of these things are discussed -- if they ever will be at all.

I have included a few legal resources within the full article originally posted in my blog: BDSM and the Law

This was very informative and well written. Thanks for taking the time to compose it.

Hi Mistress Tissa,

This is a very important discussion for all BDSM practitioners. Thank you very much for posting.

The Supreme Court of Canada struck down Canadian Prostitution Law (which was/is within Federal Jurisdiction) as causing much more harm than good. This was done largely through the efforts of a Retired Dominatrix - Teri-Jean Bedford.

https://globalnews.ca/news/1043102/who-i...stitution-laws/

It's unfortunate that the Government of Canada then did an end run around the point of ruling by implementing "Nordic" Prostitution laws which, theoretically, would limit any "legal harm" only to Clients, but in effect put us back almost where we started.

It's unfortunate (or not, depending) that these laws are exclusively the state's responsibility in the US.

po

Mistress Tissa,
Thank you for the very thoughtful discourse on this topic, especially from the risk that Dommes take in providing professional BDSM. Makes me appreciate them even more.

Jack

Thanks for reading, everyone.



Thanks for sharing that article. I'm familiar with the story. It's inspiring to activists like me who are trying to speak out and get the laws changed.



Ah: the "Nordic Model". Very discouraging to see how many people think criminalizing the client is a good idea that doesn't create harm for the provider they profess to want to keep safe. Furthermore, they keep trying to back up their opinions with junk science. It's maddening.

The kicker in all this is: eroticism and sex for pay aren't real crimes. There are no victims. It's beyond time we evolve out of this neurotic and puritanical thinking.

Thank you for the post. I thought I had some idea about the topic but I had no idea that BDSM was illegal in NJ. Has it always been like this? All BDSM activities? This is food for thought. Thank you again for this.

It seems so logical that eroticism and sex aren’t real crimes but unfortunately anything outside of marital sex is still considered dirty and immoral and is embedded in the culture. Ridiculous.

Stephen Harper choose the Nordic model because he could get groups that are typically hostile to his politics to look the other way while he implemented them.

The only reason why they have not been challenged, yet, is because the Police in most jurisdictions are VERY selective about enforcement.

po

Hi Mistress Tissa:

Legal considerations are more relevant now than they ever have been. Despite the many gray areas out there when it comes to enforcement, providers may think it best to assume a "better safe than sorry" approach. I can't say I blame them. With the advent of SESTA/FOSTA, advertising on the Internet suddenly became a minefield. The authorities may decide to blithely ignore providers for years, then bring the hammer down unexpectedly. It's like a game of cat and mouse.

Before I send a polite e-mail of introduction, I make sure to research a domme's interests first, so I don't have one of those embarrassing "can you fuck me in the ass?" moments. Even in this paranoid Internet environment, it should be at least somewhat clear from her website whether our interests align or not. I find it also helps as a client to be open to different styles of domination. Not every domme does every activity and that's okay. I find it best to remain open and I'm usually curious to explore the activities she enjoys doing most, especially if we share interests in common. I don't insist on having it my way or doing the same session every time.

I agree it is not an easy job. I have tremendous respect for the dommes I am privileged to know. I'm also pretty darn grateful. Thank you for doing what you do.

Thank you, kbb

Some of us are being more cautious than others because we really don't what's going on behind the scenes. Stings have been happening around the country. Although pro Dommes aren't considered "low-hanging fruit", in this climate I think the "better safe than sorry approach" is wise.



...unless your interest is in an overt sex act, such as being penetrated, as that is what some considered the point at which you cross over into (dun dun DUN!) PROSTITUTION!

Others think anything erotic for money is prostitution. This is where you need to know your local laws. Even then, they are often vague.



That's cool. While I completely understand that some people have those buttons they absolutely must have pushed, I always appreciate your kind of mindset.

Komodo thought that what I said about BDSM being illegal in New Jersey was unbelievable, so here you go:

https://lis.njleg.state.nj.us/nxt/gateway.dll?f=templates&fn=default.htm&vid=Publish:10.1048/Enu

(link not purposefully make active so the NJ website doesn't see a bunch of referrals from this site)

In statute 34:1, it defines "prostitution" as including "sadistic or masochistic abuse and other deviate sexual relations."

The others states in which their prostitution statutes specifically includes sadomasochistic abuse or some variant as a "sexual act" or "sexual contact":

Arizona
Hawaii
Louisiana
Maryland
DC

States in which toilet play (urine and/or feces) is included in the statute about prostitution:

New Hampshire
North Carolina
North Dakota


States in which the definition of "touching genitals" and/or "masturbation" could include CBT:

Oklahoma
Rhode Island
South Dakota
Texas
Washington

States in which there are extremely broad definitions which include anything designed for "sexual gratification" or that which is "lewd" and "lascivious":

Delaware
Oklahoma

State in which a live BDSM show is considered illegal due to "indecency":

Oregon

State in which "basic dominance and submission" are specifically EXCLUDED from the prostitution statute:

New York

This is not a complete list of all statues and it doesn't qualify as a substitute for legal advice from an attorney.

(Credit to attorney Steven Sandler for the source I'm citing.)

Are these enforced? I can't tell you the extent of the enforcement of these laws. It doesn't seem they are for the most part because otherwise you wouldn't have people in these areas advertising the things which are included in the statutes. Ignorance of the law wouldn't last long.

That said, it's still worthwhile to be familiar with the statutes in the places we play so we can go about this wisely.

Holy Moly, I am a habitual criminal. Damn.
I love what you posted. Great information. I am in no way putting the burden on the Domme but a really common question I have been asked is “What have been my experiences”? Depending on my answer, I will get a response like, “ we will fit well together” or “ you may want to look for someone else”.
I remember one Domme telling me if she is talking to someone with no experience she will ask them what type of BDSM porn they like to watch. The answer gives her everything she needs to know without implying strapon or bi will be part of the scene. Thanks

Great list. Thank you for posting!

I do believe Massachusetts outlaws it as well, though at which tier I'm not sure

Here's the MA statute:

malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section53A

(Again, intentionally not linked.)

They use the phrase "sexual conduct" (for a fee). But of course we ask: what defines "sexual conduct"?

There is a case cited in my info Commonweatlth vs. Lavigne (1997) for which details are found here:

masslawyersweekly.com/fulltext-opinions/1990/01/01/commonwealth-v-lavigne/

In it is the phrase "manipulation of genitals". It then goes on to say, "Such an act is unquestionably sexual conduct violative of § 53A when offered or requested for a fee."

So, I would infer that in the very least CBT could be construed as prostitution.

Of course, because so many people conflate eroticism and sex, anything of an erotic nature could violate this statute. And MA is hardly the one, or one of the few, who use vague language.

I have heard various mumblings about Boston, in particular, but I honestly don't know what, if any, specific things apply to the municipality of Boston or the real issue is MA in general.

Thanks for posting. Would you happen to know if the same law applies when doing a video vs just a regular session?

Can we cut to the chase? States that someone can strap a big ole strapon and use it on me and it’s not illegal?
Sorry if too direct. Thanks

In some states this is legal...not a lot but, a few. Most states, break down into counties that are either conservative on these type activities or, not. It is really about knowing where you are and, what the local area will turn a blind eye to. For example, Columbus, Ohio is very blind eye to these things. As long as an adult service is not a public nuisance, they don't really care. 90 minutes to the south, in Cincinnati and, you could get arrested for having an immoral thought.

I stand corrected. Not about this being unbelievable but about it being true. Maybe I should not be surprised since there are places in NJ where drinking or even working on a Sunday is illegal.

If the world comes to an end, I want to be in Cincinnati. Everything comes there ten years later. Mark Twain

LOL!

That's not my thing, but spanking is. I was going to the Dallas area for work and was tempted to see a domme there who promoted herself on her web site as specializing in domestic discipline. She agreed to meet for coffee to discuss a session. and, if we were in tune, we'd go back to her place and do it.

When I told her that I was seeking a plain ol' bare hand OTK spanking, she told me that she couldn't do that. Apparently, at the time (or as she interpreted it) a bare hand on a bare butt was considered "sexual contact" and that, when pay-for-service is involved, was illegal. She could spank me with a paddle over a bed, but that doesn't do anything for me but hurt, so I passed.

While I haven't been back to Texas with time for a spanking since then, there seem to be a few disciplinarians there who, according to their web sites, specialize in my flavor of spanking kink. So either that never really was "the law," the law had changed (unlikely), or they just don't care any more.

All I can say is Thank God not everyone follows the law. Especially when it comes to unharmful fun.
You should have suggested taking her out to a nice dinner and then going back to her place to get spanked. Isn’t that the way it works outside of BDSM?
Ladies, in no way am I suggesting all it takes is dinner but you know where I am going.

And by the way I am pissed at you Cheyenne. I used to go to Columbus every month from 2000-2006. The word on the street was Cheyenne doesn’t do strapon. Then I find out recently that you eventually embraced it. Damn you.
I am joking about being mad but I missed out.