Introduction

In New South Wales, what counts as assault mostly depends on if there’s consent or not. Consent usually means there’s no assault when it comes to sexual activity. But things get pretty tricky when it involves BDSM. Aussie laws, especially in NSW, have rules about how far consent can go, especially if someone gets hurt.

This article aims to clarify how NSW law addresses consent in BDSM activities, especially concerning potential assault charges. It will explore the legal implications of activities that may cause injury, even when participants consent. Understanding the nuances of consent and assault is crucial for individuals engaging in BDSM in NSW to navigate the line between consensual sexual activity and potential criminal offences.

Understanding Consent and Assault Under NSW Law

Defining Assault in NSW

In NSW, the concept of assault is legally defined as applying force to another person without their consent. This definition is broad and encompasses various forms of physical contact, whether direct or indirect. Even actions that apply heat, light, or any substance can be considered applying force. Therefore, in legal terms, assault in NSW is fundamentally about the application of force without valid consent.

The Role of Consent in Assault Cases

Consent plays a crucial role in determining whether an act constitutes assault under NSW law. If an act is genuinely consented to, it is generally not considered assault. In essence, consent negates the element of assault, meaning that a consented act is not an assault in the first place. It is important to note that consent in this context is not strictly a defence, but rather an integral element of the definition of assault itself. This means that for an act to be legally defined as assault, it must occur without the consent of the person involved.

Limitations to Valid Consent

While consent is fundamental in NSW assault law, it is not without limitations. The law recognises that there are certain types of harm to which an individual cannot legally consent. Specifically, one cannot consent to serious harm or injury. This principle is derived from the English case of R v Brown, which has significantly influenced Australian courts. The principle in NSW is that consent is not a defence to assault if actual bodily harm is caused, particularly within the context of activities like sadomasochism. This sets important boundaries on the extent to which consent can legitimise actions that result in physical harm under NSW law.

The R v Brown Case and its Relevance to NSW

Details of the R v Brown Case

The legality of consensual BDSM activities became a focal point in the influential British case of R v Brown in the early 1990s. In this case, the House of Lords upheld the conviction of a group of gay men who willingly participated in BDSM activities that resulted in actual bodily harm. Despite the injuries being inflicted with consent, the court determined that this consent was not a sufficient defence against prosecution for injuries amounting to “actual bodily harm”. The court drew a distinction between the unique harms of consensual BDSM and other activities where consent is typically recognised, such as surgery, authorised sporting activities, and corporal punishment.

The Application of R v Brown in NSW Criminal Law

Following the precedent set by R v Brown, it is widely accepted in New South Wales (NSW) that consent from a complainant does not prevent prosecution for assault occasioning actual bodily harm or more serious assault charges if harm arises from BDSM activities. This means that in NSW criminal law, even if all parties involved in BDSM activities willingly consent, this consent is not considered a barrier to criminal charges if those activities result in actual bodily harm. Therefore, the principles established in R v Brown significantly influence how Australian courts, particularly in NSW, approach consent within the context of BDSM and the legal ramifications that may occur.

Consensual BDSM Activities and Potential Assault Charges in NSW

Impact Play and Actual Bodily Harm

Impact play, which includes activities like spanking and whipping for sexual gratification, is a form of BDSM activity. In NSW, even if participants consent to impact play, it could still lead to assault charges if it results in actual bodily harm. This is due to the application of the principles established in the UK case of R v Brown, which are relevant in NSW.

Actual bodily harm is legally defined as any injury that is more than “merely transient or trifling”. Scratches and bruises are examples of injuries that are considered actual bodily harm. Therefore, if impact play causes injuries like bruises or scratches, it could be classified as assault occasioning actual bodily harm under section 58 of the Crimes Act 1900 (NSW), despite the consent of those involved. This offence carries a maximum penalty of imprisonment of five years.

However, it is important to note that if impact play does not result in actual bodily harm, the principles of R v Brown may not apply. This means that lighter forms of impact play that do not leave marks may be considered as activities that can be freely consented to under NSW law.

Bondage, Choking, and Manslaughter Risks

Bondage, which involves consensually tying or restraining a partner for sexual gratification, is another BDSM activity. While bondage itself is unlikely to cause actual bodily harm, dangerous practices associated with it can lead to serious legal consequences. In cases of consensual bondage that result in accidental death, there have been successful prosecutions for involuntary manslaughter.

Consider the Victorian case of R v McIntosh, where a man died from asphyxiation during consensual bondage. His lover had applied excessive force with a cord around his neck. The court accepted a plea of involuntary manslaughter, highlighting that even though the activity was consensual, the victim did not consent to the level of force that caused serious injury.

Similarly, sexual choking, which involves applying pressure to a partner’s neck during sexual activity, carries risks. While NSW law acknowledges consent in some forms of sexual choking that do not render a person unconscious, insensible, or incapable of resistance, it does not negate the risk of manslaughter charges in cases of accidental death. As with bondage, consent is not necessarily a defence against prosecution for involuntary manslaughter if consensual sexual choking leads to accidental death.

Slave Contracts and Legal Enforceability in BDSM Contexts

The Legal Status of BDSM Contracts

BDSM contracts, often referred to as “master/slave” or “dominant/submissive” contracts, are fetishised documents within BDSM relationships. These contracts typically outline promises of obedience and obligations from the submissive partner to the dominant partner, either within specific scenes or as part of an ongoing dynamic. However, from a legal standpoint, these “slave contracts” are considered “pure fantasy”.

Such contracts are not legally enforceable in NSW and do not offer any protection against criminal charges like sexual assault or sexual servitude. They are viewed as agreements made within a specific subculture that do not hold weight in the eyes of the law. Therefore, individuals cannot rely on BDSM contracts as a legal defence in criminal proceedings.

Consent Withdrawal and Contracts

While BDSM contracts themselves are not legally binding, details within them may be considered by defence lawyers to understand the initially consented sexual activities. Despite any prior agreement in a BDSM contract, section 61(H) of the Crimes Act 1900 (NSW) clearly states that consent to sexual activity can be withdrawn at any time. This means that even if a “slave contract” exists, a person can still withdraw their consent to any sexual acts at any point.

Promising to engage in specific sexual acts within a slave contract does not negate an individual’s legal right to withdraw consent. If sexual activity continues after consent has been withdrawn, it may constitute sexual assault under NSW law, regardless of any prior contractual agreements. Furthermore, taking “slave contracts” to extremes can potentially lead to additional criminal charges, including causing sexual servitude under section 80(D) and slavery under section 93(AB) of the Crimes Act 1900 (NSW).

Conclusion

In NSW, the legal landscape surrounding BDSM activities and consent is complex. While consent is a fundamental element in determining assault, it is not absolute. NSW law, influenced by the precedent set in R v Brown, does not recognise consent as a defence to assault occasioning actual bodily harm within BDSM contexts. This means that even when activities are consensual, participants may still face criminal charges if actual bodily harm occurs. Furthermore, so-called “slave contracts” hold no legal weight and do not protect individuals from potential assault or sexual servitude charges.

Navigating these legal complexities requires careful consideration and expert guidance. If you are involved in BDSM activities and have concerns about consent and the law in NSW, it is crucial to seek advice from experienced criminal lawyers. Our team at Daoud Legal possesses the necessary expertise to provide you with tailored legal advice and representation, ensuring you understand your rights and obligations under NSW law. 

Frequently Asked Questions