Bawden, Edward (1903–89)

A Fine Line Between Pleasure and Pain: Would Decriminalising BDSM Permit Nonconsensual Abuse?

“…could be used to mask domestic violence and could provide an additional obstacle to claims of domestic abuse', 63 and that the 'BDSM narrative is being appropriated by defendants to disguise what is essentially cruel and misogynist conduct as a strategy to manipulate trial and sentencing outcomes'. 64 These arguments envisage the decriminalisation of BDSM activities as opening a floodgate of bogus exculpatory BDSM claims; '[i]t is certainly not difficult to imagine abusers arguing that the injuries they have inflicted upon their partner were part of a consensual S&M encounter', 65 indeed it is likely that men will 'inevitably claim there was consent in circumstances in which even major injuries have been inflicted'. 66 Such claims would pose a significant problem for law because they will be 'easy' for defendants to raise but very difficult for prosecutors to refute, 67 it may even be the case that they 'cannot be reliably tested by the courts' at all.…”

“…66 Such claims would pose a significant problem for law because they will be 'easy' for defendants to raise but very difficult for prosecutors to refute, 67 it may even be the case that they 'cannot be reliably tested by the courts' at all. 68 The concern here is that defendants will argue that 'a "no" is really a "yes," and [that] seemingly coercive conduct such as strangulation, slapping, bondage, threats, and name calling' will be characterised as just 'part of a [BDSM] game'. 69 The fear of legal under-inclusivity justifies the legal status quo because it is argued to be better for the law to maintain the criminalisation of BDSM activities than to permit nonconsensual abuse.…”

“…Edwards, for example, has identified that 'narratives of BDSM are entering the criminal law with greater frequency as part of defence submissions and considered [sic] by judges in trial and appellate courts' within both non-fatal offence cases and fatal offence cases. 72 The particular concern for fatal offence cases revolves around what is known as the "rough sex" defence. The "rough sex" defence gained notoriety following the high-profile New York "Preppie Murder" case in the late 1980s.…”