Editing BDSM (section)

== Legal status ==
{{Main|BDSM and the law}}

=== Austria ===
[[File:Dripping wax on buttocks.jpg|thumb|Consensual giving or receiving of pain is legal in [[Austria]],<ref name='Aus'/> showing [[wax play]] at the Eros Pyramide [[sex show]] in 2009]]

Section 90 of the [[Austrian criminal code]] declares bodily injury (Sections 83–84) or the endangerment of physical security (Section 89) to not be subject to penalty in cases in which the victim has consented and the injury or endangerment does not offend moral sensibilities. Case law from the Austrian Supreme Court has consistently shown that bodily injury is only offensive to moral sensibilities, thus it is only punishable when a "serious injury" (damage to health or an employment disability lasting more than 24 days) or the death of the "victim" results. A ''light injury'' is generally considered ''permissible'' when the "victim" has consented to it. In cases of threats to bodily well-being, the standard depends on the probability that an injury will occur. If serious injury or even death would be a likely result of a threat being carried out, then even the threat itself is considered punishable.<ref name='Aus'>{{Cite web |url=http://www.legislationline.org/download/action/download/id/6386/file/Germany_CC_am2016_de.pdf |title=Strafgesetzbuch (StGB) |website=Legislation Online |access-date=25 May 2018 |language=de |archive-url=https://web.archive.org/web/20190419105057/https://www.legislationline.org/download/action/download/id/6386/file/Germany_CC_am2016_de.pdf |archive-date=19 April 2019 |url-status=live }}</ref>

=== Canada ===
In 2004, a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.{{sfn|Barker|Iantaffi|Gupta|2007}}

In 2011, the [[Supreme Court of Canada]] ruled in ''[[R. v. J.A.]]'' that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person—whether or not that person consented in advance.<ref>{{cite news |title=Woman can't consent to sex while unconscious, Supreme Court rules |author=Mike Blanchfield |url=https://www.thestar.com/news/canada/article/998055--woman-can-t-consent-to-sex-while-unconscious-supreme-court-rules?bn=1 |newspaper=[[The Toronto Star]] |date=27 May 2011 |access-date=27 May 2011 |archive-url=https://web.archive.org/web/20110530000708/http://www.thestar.com/news/canada/article/998055--woman-can-t-consent-to-sex-while-unconscious-supreme-court-rules?bn=1 |archive-date=30 May 2011 |url-status=live }}</ref>

=== Germany ===
[[File:2014 WGT 264 Umbra Et Imago.jpg|thumb|[[Human sexual activity|Sexual activity]] may occur in BDSM, but it is not essential part of BDSM.<ref name='sexual'/> Photo shows [[erotic humiliation]] of sexual nature being performed at {{lang|de|[[Wave-Gotik-Treffen]]|italic=no}} music festival, Germany, 2014. The submissive woman is [[Striptease|stripped]] [[naked]], [[Suspension bondage|hung upside down]], [[Whipping|whipped]] and a [[Master/slave (BDSM)|master]] doing [[sexual roleplay]] of a [[devil]] forces himself on her to cause vagina torture.]]

According to Section 194 of the German criminal code, the charge of insult (slander) can only be prosecuted if the defamed person chooses to press charges. False imprisonment can be charged if the victim—when applying an objective view—can be considered to be impaired in their rights of free movement. According to Section 228, a person inflicting a bodily injury on another person with that person's permission violates the law only in cases where the act can be considered to have violated good morals in spite of permission having been given. On 26 May 2004, the Criminal Panel No. 2 of the [[Bundesgerichtshof]] (German Federal Court) ruled that sado-masochistically motivated physical injuries are not per se indecent and thus subject to Section 228.<ref>Decision of the Bundesgerichtshof, 26 May 2004, 2 StR 505/03, which may be found at: BGHSt 49, 166 ([http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=2004-5&Seite=0&nr=29672&pos=19&anz=244&Blank=1.pdf bundesgerichtshof.de] {{Webarchive|url=https://web.archive.org/web/20181118164537/http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=2004-5&Seite=0&nr=29672&pos=19&anz=244&Blank=1.pdf |date=18 November 2018 }})</ref>

Following cases in which sado-masochistic practices had been repeatedly used as pressure tactics against former partners in custody cases, the Appeals Court of [[Hamm, North Rhine-Westphalia|Hamm]] ruled in February 2006 that sexual inclinations toward sado-masochism are no indication of a lack of capabilities for successful child-raising.<ref>Appeals Court of Hamm in its judgement of 1 February 2006, case number 10 UF 147/04, available online at the [http://www.justiz.nrw.de/ses/nrwesearch.php Portal of the North Rhine-Westfalian Ministry of Justice] {{webarchive|url=https://web.archive.org/web/20041217060746/http://www.justiz.nrw.de/ses/nrwesearch.php |date=17 December 2004 }} (German)</ref>

=== Italy ===
In Italian law, BDSM is right on the border between crime and legality, and everything lies in the interpretation of the legal code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context, though, "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); the second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This could make it somewhat risky to play with someone, as later the "victim" may call foul play citing even an insignificant mark as evidence against the partner. Also, any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it.<ref>[http://www.ayzad.com/ Ayzad] {{Webarchive|url=https://web.archive.org/web/20071214043804/http://www.ayzad.com/ |date=14 December 2007 }}, ''BDSM – Guida per esploratori dell'erotismo estremo'', Castelvecchi, 2004 {{ISBN|978-88-7615-025-8}}</ref>

=== Nordic countries ===
In September 2010, a Swedish court acquitted a 32-year-old man of assault for engaging in consensual BDSM play with a 16-year-old girl (the [[age of consent]] in Sweden is 15).<ref>{{cite web|url=http://www.thelocal.se/29302/20100928|title=Man freed in landmark S&M case|access-date=6 October 2014|date=2010-09-28|archive-url=https://web.archive.org/web/20130921220947/http://www.thelocal.se/29302/20100928|archive-date=21 September 2013|url-status=live}}</ref> Norway's legal system has likewise taken a similar position,<ref>[http://www.revisef65.org/loven.html SM og loven] {{Webarchive|url=https://web.archive.org/web/20100625161819/http://www.revisef65.org/loven.html |date=25 June 2010 }} (Norwegian)</ref> that safe and consensual BDSM play should not be subject to criminal prosecution. This parallels the stance of the mental health professions in the Nordic countries which have removed sadomasochism from their respective lists of psychiatric illnesses.

=== Switzerland ===
The age of consent in Switzerland is 16 years, which also applies to BDSM play. Minors (i.e., those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices, however, require granting consent for light injuries, with only those over 18 permitted to give consent. On 1 April 2002, Articles 135 and 197 of the Swiss Criminal Code were tightened to make ownership of ''"objects or demonstrations [...] which depict sexual acts with violent content"'' a punishable offense. This law amounts to a general criminalization of sado-masochism since nearly every sado-masochist will have some kind of media that fulfills this criterion. Critics also object to the wording of the law which puts sado-masochists in the same category as [[Pedophilia|pedophiles]] and [[Pederasty|pederasts]].<ref>[http://www.ig-bdsm.ch/index.php?pid=24 Interessengemeinschaft BDSM Schweiz] {{Webarchive|url=https://web.archive.org/web/20071228062604/http://www.ig-bdsm.ch/index.php?pid=24 |date=28 December 2007 }} (German)</ref>

=== United Kingdom ===
In British law, consent is an absolute defense to common assault, but not necessarily to actual bodily harm, where courts may decide that consent is not valid, as occurred in the case of ''[[R v Brown]]''.<ref>{{cite web|url=http://www.spannertrust.org/documents/sexualoffencesreview.asp|title=Spanner Trust submission to the Home Office Review Board on Sexual Offences|publisher=The Spanner Trust|access-date=27 January 2008| archive-url= https://web.archive.org/web/20071214235525/http://www.spannertrust.org/documents/sexualoffencesreview.asp| archive-date= 14 December 2007 | url-status=live}}</ref> Accordingly, consensual activities in the U.K. may not constitute "assault occasioning actual or grievous bodily harm" in law. The [[Spanner Trust]] states that this is defined as activities which have caused injury "of a lasting nature" but that only a slight duration or injury might be considered "lasting" in law.<ref>{{cite web|title=The History of the Spanner Case|url=http://www.spannertrust.org/documents/spannerhistory.asp|publisher=[[Spanner Trust]]|access-date=8 February 2011|archive-url=https://web.archive.org/web/20110517122950/http://www.spannertrust.org/documents/spannerhistory.asp|archive-date=17 May 2011|url-status=live}}</ref> The decision contrasts with the later case of ''R v Wilson'' in which conviction for non-sexual consensual branding within a marriage was overturned, the appeal court ruling that ''R v Brown'' was not an authority in all cases of consensual injury and criticizing the decision to prosecute.<ref>R v Wilson (1996). Text of ruling online at: {{cite web|title=R v Wilson (1996) 2 Cr App Rep 241|url=http://www.lawteacher.net/criminal-law/cases/consent-Wilson.php|publisher=LawTeacher.com|access-date=8 February 2011|archive-url=https://web.archive.org/web/20101228001313/http://www.lawteacher.net/criminal-law/cases/consent-Wilson.php|archive-date=28 December 2010|url-status=dead|df=dmy-all}}</ref>

Following [[Operation Spanner]], the [[European Court of Human Rights]] ruled in January 1999 in ''[[Laskey, Jaggard and Brown v. United Kingdom]]'' that no violation of [[Article 8 of the European Convention on Human Rights|Article 8]] occurred because the amount of physical or psychological harm that the law allows between any two people, even consenting adults, is to be determined by the [[Jurisdiction (area)|jurisdiction]] the individuals live in, as it is the State's responsibility to balance the concerns of [[public health]] and well-being with the amount of control a State should be allowed to exercise over its citizens. In the Criminal Justice and Immigration Bill 2007, the British Government cited the Spanner case as justification for criminalizing images of consensual acts, as part of its proposed criminalization of possession of "[[extreme pornography]]".<ref>House of Commons: ''[https://publications.parliament.uk/pa/cm200607/cmbills/130/en/07130x-n.htm#index_link_206 Criminal Justice And Immigration Bill] {{Webarchive|url=https://web.archive.org/web/20170706232658/https://www.publications.parliament.uk/pa/cm200607/cmbills/130/en/07130x-n.htm#index_link_206 |date=6 July 2017 }}''</ref> Another contrasting case was that of Stephen Lock in 2013, who was cleared of actual bodily harm on the grounds that the woman consented. In this case, the act was deemed to be sexual.<ref>{{cite news | url=https://www.independent.co.uk/news/uk/crime/gardener-cleared-of-assault-after-fifty-shades-of-greyinspired-sadomasochistic-sex-session-8461714.html | location=London | work=The Independent | first=Ben | last=Kendall | title=Gardener cleared of assault after Fifty Shades of Grey-inspired sadomasochistic sex session | date=22 January 2013 | access-date=24 August 2017 | archive-url=https://web.archive.org/web/20150925160100/http://www.independent.co.uk/news/uk/crime/gardener-cleared-of-assault-after-fifty-shades-of-greyinspired-sadomasochistic-sex-session-8461714.html | archive-date=25 September 2015 | url-status=live }}</ref>

=== United States ===
[[File:S&M Dungeon 2 by David Shankbone.jpg|thumb|Spanking with a [[Paddle (spanking)|paddle]] in a BDSM dungeon in [[Lower Manhattan]]]]
The United States Federal law does not list a specific criminal determination for consensual BDSM acts. Many BDSM practitioners cite the legal decision of ''[[People v. Jovanovic]]'', 95 N.Y.2d 846 (2000), or the "Cybersex Torture Case",<ref>{{cite web |url=https://caselaw.findlaw.com/ny-supreme-court/1144529.html |title=The PEOPLE of the State of New York, Plaintiff, v. Oliver JOVANOVIC, Defendant |date=September 25, 1997 |website=FindLAw |access-date=April 13, 2021 |archive-date=13 April 2021 |archive-url=https://web.archive.org/web/20210413231913/https://caselaw.findlaw.com/ny-supreme-court/1144529.html |url-status=live }}</ref> which was the first U.S. appellate decision to hold (in effect) that one does not commit assault if the victim consents. However, many individual states do criminalize specific BDSM actions within their state borders. Some states specifically address the idea of "consent to BDSM acts" within their assault laws, such as the state of New Jersey, which defines "simple assault" to be "a disorderly persons offense unless committed in a fight or scuffle ''entered into by mutual consent'', in which case it is a petty disorderly persons offense".<ref>{{cite web|url=http://njlawman.com/legal%20research/2c.htm|title=New Jersey Criminal Offenses|website=njlawman.com|access-date=28 November 2016|url-status=dead|archive-url=https://web.archive.org/web/20161104155828/http://njlawman.com/legal%20research/2c.htm|archive-date=4 November 2016|df=dmy-all}}</ref>

[[Oregon Ballot Measure 9]] was a [[Popular initiative|ballot measure]] in the [[U.S. state]] of [[Oregon]] in 1992, concerning sadism, masochism, [[gay rights]], pedophilia, and [[public education]], that drew widespread national attention. It would have added the following text to the [[Oregon Constitution]]:
{{Blockquote|All governments in Oregon may not use their monies or properties to promote, encourage or facilitate [[homosexuality]], [[pedophilia]], [[Sadism and masochism|sadism]] or masochism. All levels of government, including [[public education]] systems, must assist in setting a standard for Oregon's youth which recognizes that these behaviors are abnormal, wrong, unnatural and perverse and they are to be discouraged and avoided.}}
It was defeated in the 3 November 1992 [[general election]] with 638,527 votes in favor, 828,290 votes against.<ref>{{cite web|url=https://sos.oregon.gov/blue-book/Documents/elections/initiative.pdf|title=Oregon Blue Book: Initiative, Referendum and Recall: 1988-1995|website=state.or.us|access-date=28 November 2016|archive-url=https://web.archive.org/web/20181108224519/https://sos.oregon.gov/blue-book/Documents/elections/initiative.pdf|archive-date=8 November 2018|url-status=live}}</ref>

The [[National Coalition for Sexual Freedom]] collects reports about punishment for sexual activities engaged in by [[consenting adults]], and about its use in [[child custody]] cases.<ref>{{cite web |title=Incident Response |url=https://www.ncsfreedom.org/key-programs/incident-response-97241/incident-response |publisher=National Coalition for Sexual Freedom |access-date=11 October 2019 |archive-url=https://web.archive.org/web/20191011195244/https://www.ncsfreedom.org/key-programs/incident-response-97241/incident-response |archive-date=11 October 2019 |url-status=dead }}</ref>