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BDSM refers to bondage and discipline (B&D), dominance and submission (D&S
A frequent question is whether and to what extent discipline, dominance, and sadism are legal under Texas law. So is BDSM legal in Texas? The short answer: yes, but depends on whether both parties consent and if anyone gets seriously hurt.
Most criminal offenses have two parts; the act (actus reus ) and the required mental state (mens rea). For any act of BDSM, an act will have been completed that qualifies the first half of criminal conduct. As you will see, it is the mental state that will determine whether these acts are crimes in Texas.
At any level of BDSM, you have engaged in the actus reus required to be charged with criminal conduct. Here are some examples:
Texas Penal Code 22.06 provides some exceptions that allow for a victim to consent to certain activities, but only if the conduct did not threaten or inflict serious bodily injury. In essence, 22.06 recognizes that some acts of dominance or even violence may occur with the mental state required for this to be a crime. A victim may consent to:
A few things are worth pointing out here. First, this is not a defense if someone suffers serious bodily injury. Second, the defense is ineffective if there was even a threat of serious bodily injury.
“Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Notice that the statute also provides that explicit consent is not required. An actor’s reasonable belief that the victim consented is sufficient. Whether or not there was consent, and certainly whether or not someone acted with a reasonable belief as to whether there was consent, is an issue for the fact-finder to decide.
When it comes to BDSM in Texas, you want a BDSM Agreement rather than a BDSM contract. A contract implies an offer and agreement…for consideration (generally thought of as something of value.) Rather than overcomplicate the matter, you are just looking to document that certain activities were consensual. It’s not required, but this mood-killer is a bit of insurance that costs you nothing. There’s even a Harvard Law Review article on why these aren’t really contracts.
Why would you want to have your consent documented in writing? It’s not unheard of for someone to engage in consensual activity and later claim it was without consent. Similarly, we have had cases where police officers saw bruises or other physical injuries that they called assaultive injuries – even when the “victim” claimed there wasn’t an assault.
Keep in mind that this article is for Texas residents. The laws in your state may vary. Also, again, think about this as insurance – it is not a guarantee that a case won’t be filed against you. It just puts you in the best possible position to protect yourself later.
There are limitations on what you can consent to under Texas law. you cannot consent to something illegal. Fortunately, Texas law allows a person to consent to some types of bodily injury – but not the threat of, or actual, serious bodily injury or of course, death. (See Penal Code 22.06) In Texas, serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
If you look at Penal Code 22.06, it says you can give consent to aggravated assault – and then it says you can’t threaten or cause serious bodily injury. So what does that leave us? It leaves the use or exhibition of a deadly weapon. That means you could consent to gun-play and knife-play, among other things.
This BDSM Agreement is for individuals who reside in Texas. It is not for minors.
It should identify the parties by their full legal names. You can agree upon what names or titles you are to use. You can agree on the acts and levels of injury you are agreeing to. You can agree on safe words. You can agree upon a date on which the consent is revoked.
From a criminal perspective, consent to assaultive behavior is the core of what are looking for. While several online “BDSM contracts” read like questionnaires for likes and dislikes, you should not leave room for ambiguity in your written agreement. Instead, focus on communicating with your partner extensively but limit your agreement to make it as direct as possible.
Access your free BDSM Agreement: BDSM AGREEMENT
As outlined above, in general terms, a sub or would-be victim can consent to assault, choking, and dominance that does not involve the threat of serious bodily injury and does not result in serious bodily injury. In other words, consenting adults may agree to cause pain to another using safe words as long as the threat of and infliction of pain and bodily injury does not rise to the level of serious bodily injury.
Every situation is unique, and this article cannot be taken as legal advice for your particular situation. If you are charged with an assaultive offense where consent or the extent of the injury may be an issue, you will need an experienced criminal defense attorney at your side. Call the Criminal Defense Attorneys of Varghese Summersett PLLC at (817) 203-2220.
