A queer-feminist analysis of BDSM jurisprudence in common law courts

Jain, Dipika and Rhoten, Kimberly (2022) A queer-feminist analysis of BDSM jurisprudence in common law courts. Berkeley Journal of Criminal Law, 27 (1). pp. 87-139. ISSN 1934-9629

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In this Article, we explore the ways in which the legal system engages with litigants who practice bondage, discipline and domination, and submission and sadomasochism (BDSM), examining salient case law and legislation from the United Kingdom, Canada, and the United States. Despite gains in social acceptance of the sexual practice, we find that BDSM participants in criminal and family law courts are predominantly viewed as sexual deviants deemed worthy of moral censure and legal punishment. Criminal courts within all three jurisdictions have held that certain BDSM activities amount to violations of assault and battery laws. This is particularly true for those activities that the courts perceive as risking "serious" or "non-trivial" injury. As a result, even though the relevant battery and assault laws were not written with BDSM activities in mind, the courts nevertheless conflate certain sexual, pleasurable activities with criminalized non-pleasurable violence. Further, family law courts in the United States and Canada have denied adult parents who participate in consensual BDSM their full rights to child custody, finding that persons who engage in such court-determined "immoral" activities lack sufficient legal capacity to parent. These judgements indicate that court-operationalized censure against BDSM reaches beyond the fundamental issue of sexual autonomy to other aspects of a litigant's legal and social personhood, including their parental status

Item Type: Article
Keywords: BDSM | Jurisprudence | Queer | Sexual Autonomy
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 30 Aug 2022 07:21
Last Modified: 30 Aug 2022 07:21
Official URL: http://dx.doi.org/10.15779/Z38BC3SZ17
URI: https://pure.jgu.edu.in/id/eprint/4328


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