Is BDSM a Criminal Offence in New South Wales?

New South Wales man James-Robert Davis is facing several fresh criminal charges after having already spent 21 months behind bars on remand over what has been described as an “obedient BDSM relationship” with numerous women.

The alleged leader of ‘House of Cadifor’, and former Australian Defence Force soldier and prison guard was finally released from custody after his third bail application, since being charged with 40 criminal offences. Mr Davis was initially charged with offences including causing sexual servitude and slavery. Those offences were later withdrawn by the prosecution. The slavery charges did not involve the women with whom he had a polyamorous relationship at his rural property near Armidale in the Northern Tablelands of New South Wales. The successful bail application was made after the most serious of those charges were withdrawn.

The latest charges relate to four women and include several counts of assault occasioning actual bodily harm, distributing intimate images without consent and intimidation with intent to cause physical or mental harm.

He has pleaded not guilty to all of the charges and is scheduled to face District Court jury trials in April and May of this year.

Not as uncommon as some might think 

It has been estimated that around 2% of Australians regularly engage in some form of BDSM; which is an acronym for Bondage, Discipline, Sadism and Masochism.

BDSM activities can include everything from the use of restraints, pain/sensation play, power exchange, impact play, piercing leathersex and role-playing.

Whilst the claims against Davis are one of repeated abuse, the line between consensual “kinky fun” and a criminal charge in NSW is more complex than you’d think.

R v Brown and The Limits of Consent

The legality of consensual BDSM was the subject of the influential British case of R v Brown, from the early 1990s.

In Brown, the House of Lords upheld the conviction of a group of gay men who engaged in BDSM activities the caused injuries to their bodies even though they were freely consented to.

The court found that consent was not a barrier to prosecution for BDSM inflicted injuries which amounted to “actual bodily harm”. The majority distinguished the unique harms of consensual BDSM from a wide range of harmful activities where consent has been recognised: including surgery, authorised sporting activities and corporal punishment.

Following Brown, it is widely acknowledged that consent of the complainant in New South Wales is not a barrier to a prosecution for assault occasioning actual bodily or other, more serious, assault charges if harm is caused within the context of BDSM activities.

Impact Play 

Impact play includes spanking, caning, flagellation and whipping for mutual sexual gratification. Due to the application of Brown, impact play which results in actual bodily harm in NSW could result in a criminal prosecution even if the “victim” consents.

Actual bodily harm can include scratches or bruises (R v Lardner (unrep, 10/9/98, NSWCCA), or any bodily harm which is “more than merely transient or trifling” (McIntyre v R [1965] VR 593).

The offence of assault occasioning actual bodily harm is outlined under s58 of the Crimes 1900 (NSW) and carries a maximum penalty of 5 years imprisonment. More serious charges could apply in cases of wounding (where bleeding occurs) or grevious bodily harm (really serious injury).

If whipping or spanking doesn’t leave a mark, the principles of Brown don’t apply, meaning lighter verisons of impact play can be freely consented to.

Bondage 

Bondage incorporates the consensual tying, binding or restraining of a partner for sexual gratification.

It’s unlikely that bondage in itself would amount to actual bodily harm, but there have been a small, but notable, number of successful prosecutions for involuntary manslaughter in cases of consensual bondage resulting in accidental death.

In the Victorian case of R v McIntosh, a man was asphyxiated to death by his lover who pulled too hard and long on a cord (consensually) wrapped around his neck. 

In accepting a plea of involuntary manslaughter, Justice Vincent grappled with the relevance of the victim’s consent to erotic asphyxia. He noted that although the victim did consent to bondage activity which resulted in strangulation, he “did not agree to be strangled with the application of sufficient force that the horns of the thyroid cartilage were fractured”.

In another Victorian case, R v Stein, a sex worker and her “pimp” tied up a client and put a gag in his mouth seemingly all with his full consent. The client died soon after the application of the gag, although a definitive cause of death wasn’t determined. Applying Brown, Kellam JA wrote:

“[E]ven though it might be accepted that the deceased had consented to bondage activity, the application of a gag to his mouth, whether or not he had consented, involved exposure to the risk of serious physical injury to him… Once the gag had been placed on him, he was totally in the hands of the applicant.  Once that had occurred in circumstances where a risk of serious injury arose, the issue of consent became irrelevant.”

Recently, sex worker Madeline Lewin was found guilty of manslaughter for restraining her client face down on a bed with a gag in his mouth and a hood over his head, an act prosecutors called “inherently dangerous”. 

The client died as a result of a lack of oxygen to the brain, which prosecutor’s alleged reflected Lewin’s carelessness towards her client’s safety.

Choking

Sexual choking is a common BDSM activity which involves using one’s limb, or a ligature to press or squeeze a partner’s neck during sexual activity.

In 2014, NSW offences regarding “choking, suffocating and strangulation” were reformed to recognise the role of non-fatal strangulation in circumstances of domestic and family violence. However, this reform also partially acknowledged the ability to consent to some forms of sexual choking.

Three different choking offences of escalating severity are outlined under section 37 of the Crimes Act 1900 (NSW), only one of which acknowledges lack of consent as an element.

Section 37(1A) of the Act applies if a person intentionally chokes, suffocates or strangles another person without their consent. This offence carries a maximum penalty of 5 years imprisonment. 

Section 37(1) of the Act applies if a person intentionally chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance, whilst being reckless as to doing so. This offence carries a maximum penalty of 10 years imprisonment and consent is irrelevant to the prosecution of this offence.

Similarly, s37(2) of the Act applies if a person intentionally chokes, suffocates or strangles another person so as to render them unconscious, insensible or incapable of resistance, and does so with the intention of enabling the commission or assisting in the commission of indictable offence. This offence carries a maximum penalty of 25 years imprisonment and consent is once again irrelevant to the prosecution of this offence.

In short, NSW choking offences will not apply to consensual sexual choking which does not render the other person “unconscious, insensible or incapable of resistance”. 

It should be noted that, as with bondage, consent is not necessarily a barrier to successful prosecution for involuntary manslaughter in cases of consensual sexual choking resulting in accidental death.

Slave Contracts 

A “master/slave” or “dominant/submissive” contract is a fetishised document which involves a promise of obedience and a set of obligations owed by the submissive partner to the dominant partner, either in a discrete “scene” or as part of an ongoing relationship.

From a legal perspective a “slave contract” is pure fantasy. Such “contracts” are not legally enforceable and their existence will not act as a shield to charges of rape or sexual assault.

Whilst the details of a slave contract may assist defence lawyers in deciphering what sexual activities were initially freely and voluntarily consented to, section 61H of the Crimes Act 1900 (NSW) makes it clear that consent can be withdrawn at any time. 

Promising to perform certain sex acts in a slave contract does not, in itself, detract from the ability for a person to withdraw consent.

Taking slave contracts too far also raises the risk of further criminal charges including causing sexual servitude under section 80D of the Act and slavery under section 93AB of the Act. 

Accused of assault or a sexual offence?

If you or a loved-one has been charged with an offence arising from a BDSM relationship, call Sydney Criminal Lawyers now to arrange a conference with an experienced defence lawyer who will advise of the options available and the best way forward, and fight for the optimal outcome.