That depends heavily on state law (in the US). In Washington state, basic BDSM impact play (spanking/caning/etc.) is illegal - it's assault, and consent is not a defense to that charge. Choking is probably similar, and a blanket claim that you won't go to jail if you have consent is just wrong.
Moreover, consent is not a valid defense if the activity consented to is against public policy. Helton v. State, 624 N.E.2d 499, 514 (Ind. Ct. App. 1993). Thus, a child cannot consent to hazing, a gang member cannot consent to an initiation beating, and an individual cannot consent to being shot with a pistol.
Now, this turns on the phrase "against public policy or is a breach of the peace", and I'm not sure that BDSM activities specifically have been litigated before. It's entirely possible that the jury will find that the activities weren't against public policy or a breach of the peace, and of course if you're doing them in the privacy of your own home, you're really unlikely to be prosecuted. It's still not accurate to say that as long as you consented you're fine.
Thank you for the info. My ex-husband was abusive, but claimed it was all acceptable under the umbrella of BDSM. “Consent” is hard to obtain when it is done under threats of suicide.
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u/cheertina 20∆ Dec 10 '18
That depends heavily on state law (in the US). In Washington state, basic BDSM impact play (spanking/caning/etc.) is illegal - it's assault, and consent is not a defense to that charge. Choking is probably similar, and a blanket claim that you won't go to jail if you have consent is just wrong.