Consensual kink activities are decriminalized in the revised Model Penal Code on Sexual Assault under Section 213.10: Explicit Prior Permission. The National Coalition for Sexual Freedom (NCSF) worked with the American Law Institute (ALI) for 6 years to create Explicit Prior Permission, and is recognized in the ALI’s reporters notes of Section 213.10 for its many contributions. Learn more about this legal framework for consent to kink at NCSF's APA Booth #145.
The 5 steps to get Explicit Prior Permission (EPP) involve personally agreeing, verbally or in writing, to:
1. Specific acts and the intensity before you start (including sexual contact)
2. A way to stop at any time (a safeword or safe signal)
3. What roleplay resistance is okay to ignore?
4. You must be adults of sound mind
5. You aren’t allowed to cause serious injury
“Before this change, even mild, consensual use of erotic force or restraint could be violating the law,” says Susan Wright, Spokesperson for NCSF. “In fact, there is not a single Appellate court decision in the U.S. that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct.”
EPP is intended to address the “rough sex” defense when someone is injured or experiences nonconsensual acts. Prosecutors don’t press charges because they assume the complainant “asked for it” because they’ve engaged in kink activities.
EPP is also intended to prevent criminal charges and prosecution based on someone else's moral objections to activities that are truly consensual and do not result in serious injury. Survivors who are sexually assaulted during kink activities also may now be covered by “rape shield” laws. This means that their prior sexual behavior with others generally can’t be used as evidence. This reduces the stigma attached to kink activities.
Watch the ALI video summarizing the new MPC on Sexual Assault – Affirmative Defense of Explicit Prior Permission starts at 14:20.
Read the text of the new MPC: Sexual Assault Section 213.10 – Affirmative Defense of Explicit Prior Permission.
Explicit Prior Permission may be cited in opinions and briefs in cases involving BDSM activities, even in states where the legislature has not adopted it. NCSF has published public policy papers adapting EPP to state assault, sexual assault, domestic violence laws, and strangulation laws.
Adoption of EPP can help reporting assault cases easier. Currently there are major barriers to reporting to the police. It provides a legal framework that can include BDSM-related cases. For example, less than 3% of the 1,041 people who had nonconsensual experiences in a kink context reported it to the police (NCSF Consent Violations Survey, 2015).
A national prevelence survey in 2017 found that 30% of adults in the U.S. like to be spanked during sex. Some 20% enjoy bondage, 13% enjoy “playful whipping,” and 22% engage in roleplay (Herbenick, 2017).
Since the founding of Consent Counts in 2006 at the Leather Caucus at National Gay and Lesbian Task Force (NGLTF) conference, Creating Change, the project has worked to decriminalize BDSM activities. NCSF assumed responsibility for Consent Counts in 2007, and broadened the mission to decriminalize sexual conduct between consenting adults.
#
The NCSF is committed to creating a political, legal and social environment in the US that advances equal rights for consenting adults who engage in alternative sexual and relationship expressions. The NCSF aims to advance the rights of, and advocate for consenting adults in the BDSM-Leather-Fetish, Swing, and Polyamory Communities. We pursue our vision through direct services, education, advocacy, and outreach, in conjunction with our partners, to directly benefit these communities.
Contact:
Susan Wright, NCSF Spokesperson
susan@ncsfreedom.org
www.ncsfreedom.org
602-851-1590