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Explicit Prior Permission

“Affirmative Defense of Explicit Prior Permission” for consent to erotic force or restraint (known as Kink or BDSM) was created by the American Law Institute (ALI) as Section 213.10 of the revised Model Penal Code: Sexual Assault and Related Offenses. The Model Penal Code is an influential model act for state criminal laws first issued by the ALI in 1962. In 2012, the ALI began a long-term project to revise Article 213 of the Code which addresses sexual assault, and in June 2021, the ALI membership approved Section 213.

Explicit Prior Permission is intended to be adopted by States as the legal framework that distinguishes BDSM from assault and violence. The ALI states:

“Once it is approved by the membership at an annual meeting, a tentative draft or a proposed final draft represents the most current statement of the American Law Institute’s position on the subject and may be cited in opinions or briefs until the official text is published.”

The ALI’s reasoning for Explicit Prior Permission is based on Lawrence v. Texas, 539 U.S. 558 (2003), which holds that competent adults have constitutionally protected privacy and autonomy rights to engage in mutually consensual sexual activity, as long as it doesn’t involve “persons who might be injured or coerced or who are situated in relationships where consent might not be easily refused.”

Definition

Explicit Prior Permission requires that you be informed of the risks, and personally agree to the specific acts and the intensity of those acts before engaging in erotic force or restraint. Participants must also adhere to the limits that are set in advance, and there must be words or signals agreed on that can stop the acts at any time. Participants must be over 18, and of sound mind. Explicit Prior Permission prohibits serious physical injury, including permanent marks and impairment, or the risk of a life-threatening injury. (See Text of Explicit Prior Permission below)

Scope

According to the ALI Comments for Section 213.10: “Physical force and other coercive measures cannot be authorized under Section 213.10 merely by a nod or shrug, much less by a person’s silence in the face of actual or threatened violence. Nor can permission be considered sufficient under Section 213.10 even when given verbally, if the words used are vague, such as ‘I’m okay with BDSM.’… Just as consent to an act of oral sex does not imply consent to sexual penetration or other sexual acts, explicit permission for some BDSM acts does not imply permission for others.”

For example, Illustration #1 states: “Before a date, the accused sends the complainant a text asking, ‘r u into BDSM?’ The complainant responds, ‘Maybe tonight?’” This would not be considered Explicit Prior Permission because the specific BDSM acts and their intensity are not discussed and personally consented to before starting. In addition, there was no agreed-upon safe word to stop what is happening at any time.

Explicit Prior Permission also does not apply to the problematic “rough sex” defense, wherein an accused person can sometimes successfully argue that they obtained blanket consent for a wide range of undisclosed behaviors, including some that could cause serious bodily injury (such as choking/strangulation or punching), simply by asking “Are you into rough sex?” and being told “Yes.” The ALI states:

“Indeed, defense efforts to present a ‘rough sex’ defense, apparently an increasingly common tactic, can present an unjustified and insurmountable obstacle to conviction even when inexcusable violence and sexual overreaching is clear.”

The ALI Reporters’ Notes to Section 213:10 cites evidence that police and prosecutors are especially reluctant to investigate and file charges for sexual assault when the complainant has engaged in erotic use of force or restraint “because they assume that a person who is injured or sexually violated in such a case ‘must have asked for it.’”

Assault Case Law on BDSM

A summary of some of the problematic case law involving BDSM activities and charges of assault or battery can be found in Consent to Harm by Vera Bergelson, in Chapter 8 of The Ethics of Consent: Theory and Practice. According to Bergelson, criminalization of the erotic use of force and restraint was based on “moral judgments about the iniquity of the conduct,” with courts tending “to inflate the risk and harmfulness of an activity they want to denounce.”

The Reporters’ Notes in the ALI’s MPC on Sexual Assault that accompany Section 213.10 states:

“Social disapproval on moral grounds was once, and to some extent still is, widespread. Nonetheless, as long as the person giving consent is a competent adult, and as long as the force poses no risk of serious bodily injury, death, or harm to others, respect for individual autonomy requires deference to these choices, which the person may regard as a cherished vehicle for personal and sexual fulfillment.”

Even when cases are prosecuted and result in convictions that reach the appellate courts, some decisions purport to accept the consent defense for BDSM in principle but reject it on the fact due to “overly strict interpretation of the serious-bodily-injury limitation.” It is therefore important not to stretch “serious bodily injury” under Section 213.10(3c) to include “freely accepted physical discomfort, bruising, and even shaper pain associated with paddling, slapping, handcuffing and the like.” Rather, “serious bodily injury” under the Model Penal Code requires “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Because Section 213.10 was drafted as part of the section of the Model Penal Code on sexual assault, by its terms it only applies to incidences which involve “sexual penetration, oral sex, or sexual contact.” However, the problems which gave rise to Section 213.10 also apply to assault case law when the conduct involves BDSM. The ALI states in regards to assault law:

“These encounters nonetheless may constitute an offense of simple or aggravated assault under the 1962 code, which permits a defense of consent to assault under specific circumstances.”

Text of Explicit Prior Permission, Article 213.10

AFFIRMATIVE DEFENSE OF EXPLICIT PRIOR PERMISSION: you may personally give another person explicit prior permission to use or threaten to use physical force or restraint, or to inflict or threaten to inflict any harm in connection with an act of sexual penetration, oral sex, or sexual contact, as long as it doesn’t cause serious injury. Permission is “explicit” under subsection (1) when it is given orally or by written agreement:

(a) specifying that the actor may ignore the other party’s expressions of unwillingness or other absence of consent;

(b) identifying the specific forms and extent of force, restraint, or threats that are permitted; and

(c) stipulating the specific words or gestures that will withdraw the permission.

Prohibited acts under Section 213.10 are: (1) The defense provided by this Section is unavailable when:

(a) the act of sexual penetration, oral sex or sexual contact occurs after the explicit permission was withdrawn, and the actor is aware of, yet recklessly disregards, the risk that the permission was withdrawn;

(b) the actor relies on permission to use force or restraint or ignore the absence of consent when the other party will be unconscious, asleep, or otherwise unable to withdraw permission;

(c) the actor engages in conduct that causes or risks serious bodily injury and in doing so is aware of, yet recklessly disregards, the risk of such injury; or

(d) at the time explicit permission is given, the other party is, and the actor is aware of, yet recklessly disregards, the risk that the other party is:

i. younger than 18;

ii. giving permission while subjugated to physical force or restraint;

iii. giving permission because of the use of or threat to use physical force or restraint or extortion if that party does not give the permission;

iv. lacking substantial capacity to appraise or control his or her conduct due to intoxication, whether voluntary or involuntary, and regardless of the identity of the person who administered the intoxicants;

v. incapacitated, vulnerable or legally restricted;

vi. subjected to prohibited deception;

vii. subject to trafficking.

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