Is BDSM Legal in Texas? Consenting to BDSM in Texas | Felony BDSM

What is BDSM?

BDSM refers to bondage and discipline (B&D), dominance and submission (D&S), and sadism & masochism (S&M). These terms are collectively referred to as BDSM. Whether you decide to have rough sex or you live the lifestyle on a daily basis, you may be wondering if certain acts can lead to you being in the wrong kind of cuffs.

Is BDSM legal in Texas?

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: It depends whether both parties consent and if anyone gets seriously hurt.

Determining if BDSM is Illegal

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:

1. Intentionally or knowingly physically contacting another person and you knew or reasonably should have known the contact would have been provocative or offensive. That’s a Class C misdemeanor. If you are wondering if the legislature gave us a definition for “provocative” in this context, it did not.
2. If the physical contact caused any pain, you could be charged with assault causing bodily injury, a Class A misdemeanor in Texas punishable by up to one year in jail.
3. Like choking? Assault by Impeding Breath/Circulation could get you two to ten years in prison if the person you choked was your spouse or someone you were dating. That is a third degree felony.
4. If you threaten to hurt someone imminently while displaying what could be considered a deadly weapon (whips, chains, and even hands are all deadly weapons), you could be looking at 2 to 20 in prison on a second degree aggravated assault felony offense. Notice that’s just a threat, there’s no requirement to show any actual injury.

Can a person consent to BDSM?

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:

1. Assault, including choking
2. Aggravated Assault, or
3. Deadly Conduct.

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.

BDSM is legal under certain circumstances

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.