No Means Yes … If Consent Is Obtained: An Exploration into the Psychology and Legality of BDSM and S

No Means Yes … If Consent Is Obtained: An Exploration into the Psychology and Legality of BDSM and Sexual Sadism

Zaina Mahmoud


This article looks the differences between BDSM and sexual sadism through both a
healthcare and legal lens. Through examination of the psychological characteristics of
BDSM participants, it is shown that they are psychologically healthy adults who
engage in consensual “kinky” activities, with no malicious intentions. Examining the
psychological profiles of sexual sadists demonstrates that these individuals tend to
have psychopathic traits and engage in such behaviour with non-consenting persons.
Looking at past assault cases related to BDSM and sexual sadism demonstrates the
lack of regulation and understanding in the Canadian judicial system when discussing
sexual activities.

“BDSM” is an acronym for various sexual
preferences that lie outside of the realm of
“vanilla” sex: bondage and discipline,
domination and submission, and
sadomasochism. Sometimes referred to as
“kink,” BDSM includes power exchange, roleplay,
and consent. Power exchange refers to the
submissive (“sub”) giving control to the
dominant (“dom”) for the course of their
relationship (Kleinplatz & Diamond, 2014).
Although many participants role-play total
power exchanges, it is prior and ongoing consent
that distinguishes BDSM from sexual assault—
primarily sexual sadism.

At the heart of every definition related to
BDSM is consensual pain as pleasure. For a
sexual practice to be considered BDSM, it
requires one individual to inflict harm or pain,
through suppression, physical restriction, and
role-playing games on another consenting
individual for sexual and/or psychological
satisfaction (Kolmes, Stock & Moser, 2006;
Wismeijer & van Assen and Marcel, 2013). This
type of sexual behaviour is not uncommon: up to
14% of American males and 11% of American
females have engaged in some form of BDSM
sexual behaviour (Kolmes et al., 2006). Other
studies have shown that engagement in BDSM
activities is much lower, with a mere 2.2% of
men and 1.3% of women partaking in BDSM
activities (Richters, de Visser, Rissel, Grulich, &
Smith, 2008).

Consent is paramount in these activities, for
both the safety and enjoyment of all those
involved. BDSM play is “safe, sane, and
consensual” and must be “risk aware consensual
kink” (Barker 2013, p. 896). Consent,
negotiations and safe-words operate within the
BDSM community, ensuring that these practices
are safe (Barker 2013). These practices are in
place and echo the requirements of the law,
whereby consent is in place to ensure that
participants are not victims of assault and that
they are able to ask their partners to stop at any
point.

Many assume that those involved in the
BDSM scene are somehow psychologically
troubled, whether through a history of sexual
abuse, psychopathic streak, or a sexual
deficiency, requiring strong stimuli to reach
orgasm (Richters et al., 2008). In the largest
study regarding BDSM proclivities, Richters et
al. (2008) examined the claim that BDSM is
practiced by people with a history of sexual
coercion, sexual difficulties, and/or
psychological problems. There was a significant
association between engagement in BDSM and a
greater number of sexual partners over the
lifetime, but no association between the
incidence of sexual coercion before the age of 16
and involvement in the BDSM scene. Among
women, engagement in BDSM was significantly
related to having been imprisoned within the
past 15 years. BDSM participation strongly
correlated with a large number of sexual practice
measures associated with greater sexual activity
and interest in sex. The researchers concluded
that BDSM is simply a sexual interest attractive
to a minority, and that for the majority of participants, BDSM activities are not a pathological symptom of past abuse or difficulty with “normal” sex. Wismeijer et al.

(2013) studied the psychological characteristics of BDSM practitioners (N = 942), examining the differences between BDSM participants and a control group, as well as within BDSM participants—specifically focusing on doms, subs, and switches. Switches refer to participants of the BDSM community who take on the role of either “dom” or “sub”, depending on the situation. The researchers assessed psychological well-being based on attachment, the NEO-Five Factor Inventory, and rejection sensitivity. Attachment style is an important determinant of sexual behaviour and pleasure; securely attached individuals are more likely to
give their partner control and are more open to
new experiences in sexual behaviour.

BDSM
participants were found to be more securely
attached than the control group, with female
BDSM players having more confidence in their
relationships, requiring a lower need for
approval, and a lower incidence of anxious
attachment.

Given that BDSM participation involves
potentially new and unusual sexual experiences,
participants would benefit from increased
extraversion, openness and conscientiousness.
The results of the NEO-Five Factor Inventory
are summarized in the table below. As can be
seen in Table 1, BDSM participants are more
extraverted, open to experiences, and
conscientious than the control group. They are
also less neurotic than their control counterparts.


Table 1

NEO-Five Factor Inventory Results in BDSM Practitioners and Control Group
NEO-Five Factor Trait highest → lowest
Extraversion sub, switch, dom control
Openness to Experience switch, dom sub control
Conscientiousness dom sub switch control
Neuroticism control sub switch dom
Agreeableness control sub switch dom

Rejection sensitivity refers to the
overestimation of the possibility of being
rejected by others by others and of the emotional
impact that will occur following rejection
(Wismeijer et al. 2013, p.1945). BDSM
practitioners were less rejection sensitive when
compared to the control group and had higher
subjective well-being scores. This could be due
to BDSM scenes frequently dealing with themes
of humiliation and rejection, and sensitivity to
rejection could result in displeasure. These
findings suggest that BDSM practitioners are
characterized by greater psychological and
interpersonal strength and autonomy, indicating
that BDSM practitioners are not psychologically
stunted in some way.

However, many BDSM participants believe
they receive biased mental healthcare. A study
conducted by Kolmes et al. (2006) investigated
psychotherapy with BDSM clients. They
recruited BDSM participants who were either
currently in therapy or had sought out therapy in
the past. Most of the participants had disclosed
their sexual proclivities to their therapist and felt
they experienced biased therapy as a result.
Although most had not sought therapy as a result
of their sex life, they were told that BDSM was
unhealthy and, to continue with therapy, they
had to give up all BDSM activity.

Most of the
time, BDSM was confused with abuse and they
felt they had to educate the therapist about
BDSM. Many felt as though the therapist
assumed that BDSM interests were indicative of
past family/spousal abuse. These biases are seen
primarily as a result of sadism and masochism
being listed as paraphilias in the DSM-5, and
many researchers agree with the detrimental
effects of continuing to list these sexual
penchants.

Sadism was first coined by Richard von
Krafft-Ebing, after the writings of the Marquis
de Sade, a French writer and philosopher known
for his erotic works that depicted sexual
fantasies with themes of violence. Krafft-Ebing
defined sadism as a feeling of deriving sexual
pleasure, sometimes involving orgasm, in
response to observing or taking part in cruelty
toward human beings or animals. He organized
sadism into a number of sub-classifications,
divided into two subgroups: mild sadism in a
consensual sexual relationship, and injury or
death, usually referring to actions that occur
within a non-consensual relationship. The
former refers to the sadistic activities in BDSM
play, whereas the latter refers to the forensically
relevant sexual sadism.

Sexual sadism has remained in the realm of
mental disorders until the present day. The most
recent edition of the Diagnostic and Statistical
Manual of Mental Disorders, the DSM-5, has
kept it under the section related to paraphilias,
much to the outrage of the sexual science
community. According to the DSM-5, sexual
sadism requires:
“recurrent and intense sexual arousal
from the physical or psychological
suffering of another person, as
manifested by fantasies, urges, or
behaviour over a period of at least 6
months, and the individual has acted on
these sexual urges with a nonconsenting
person, or the sexual urges or
fantasies cause clinically significant
distress or impairment in social,
occupational, or other important areas of
functioning” (APA, 2013, p.695 ).

Here, the prevalence is thought to be
between 2-30% (APA, 2013, p.695 ). The
World Health’s Organization ICD-10 also has a
similar definition regarding sexual sadism: “a
preference for sexual activity which involves the
infliction of pain or humiliation, or bondage; the
provider of such stimulation” (WHO, 2014, p.
220).

Sexual sadism is especially studied in
forensic populations. Psychologists have
examined a multitude of databases with the goal
of identifying certain crimes and offenders as
sexually sadistic. The National Center of the
Analysis of Violent Crime, established in 1984
by President Ronald Reagan, aimed at
identifying and tracking repeat killers. Dietz,
Hazelwood and Warren (1990) used this to
gather 30 cases of offenders deemed to be
sexually sadistic so as to conduct their study.
The researchers were careful to distinguish
sexually sadistic offenders from offenders who
had previously experienced a psychotic break,
leading to their bizarre fantasies. After careful
selection of the 30 participants, the researchers
looked at their personal and offense
characteristics.

Since the data was obtained from a small,
highly selected pool, it must be interpreted
cautiously. Of the 30 offenders, 29 were white,
47% were from homes characterized by parental
infidelity and the same proportion had been
sexually or physically abused during their
childhood. Their occupations varied, but all had
contact with the public. Almost all the offenders
had carefully planned out their offenses by
studying law enforcement procedures, studying
and collecting weapons, constructing a torture
rack, etc. The majority of the offenders—77%—
engaged in sexual bondage of one or more
victims. The offenders all performed some sort
of forced sexual act on the victim, and many
forced the victim to engage in at least three
different acts. Every single one of the offenders
intentionally tortured their victims, in extreme
and exceptionally cruel ways, including electric
shock, burning, and amputation.

The researchers found that regardless of the
sex of the victim, the offenders tended to
commit forcible penetration of the anus and
mouth, rather than vagina, probably because
these penetrative acts are seen as more
degrading than vaginal penetration. Given the
small and carefully selected population, no
concrete conclusions regarding sexually sadistic
offenders can be drawn. The lack of empathy
and emotionality experienced by the offenders
was thought to reflect psychopathy and
narcissism.

These links are reinforced by the findings
Mokros, Osterheider, Hucker, and Nitschke’s
research into a model explaining the comorbidity
of psychopathy and sexual sadism (2011).
Through an exploration of 100 male forensic
patients, half of whom were diagnosed as sexual
sadists, Mokros et al. (2011) examined the
prevalence of psychopathic and antisocial
tendencies. Of the 50 sexual sadists, 31% of the
sexual sadists had a concomitant diagnosis of
antisocial personality disorder.

After

administering the PCL-R (Psychopathy
Checklist-Revised) and examining both DSM and ICD criteria, the researchers found that psychopathy and sexual sadism share important characteristics like detachment, callousness, and lack of remorse about the suffering inflicted on others. Both psychopathy and sexual sadism are likely characterized by deficits in the processing or experience of emotions as well as by behavioural consequences of this condition, primarily evidenced by a disposition toward instrumental violence, which refers to actions that cause harm but are not motivated by causing harm. Sexual sadists share with general psychopaths the relative inability to mirror the suffering of others emotionally. Robertson and Knight (2014) sought to determine the role of sexual sadism and psychopathy in the prediction of non-sexual violence and sexual crime behaviours, as well as the relation between sadism and psychopathy facets.

Using 314 incarcerated adult male sex offenders, the researchers administered the PCLR, MIDSA (Multidimensional Inventory of Development, Sex, and Aggression) and USAG (Unsocialized General Aggression) to test their hypotheses. They found that sexual sadism and psychopathy are significantly, positively correlated. The correlation found between sexual sadism and psychopathy is due to the similarities between the different facets of the PCL-R and sexual sadism. For both diagnoses, there is evidence of a desire to control and dominate others, organized and planned out offenses, and evidence of early behavioural problems, such as verbal and physical aggression.

The researchers also noted that sexual sadism was associated with non-sexual violence, sexual violence, increased instances of violence, and elevated severity of violence. Sadists may not be aroused by the sexual acts themselves: these acts may be a means of degradation and control. It is important to note that results of the aforementioned studies pertain to sexual sadists and not sadomasochists in the BDSM community. The potential for confusion is at the source of the stigma associated with sadism. This confusion has led to many complaints regarding the DSM’s diagnostic criteria for sexual sadism. Krueger (2010) addressed these criticisms through extensive empirical literature review from 1900-2008 on sexual sadism. The DSM and ICD diagnoses of sexual sadism have been cited as “pathologizing, stigmatizing, and discriminating” (Krueger, 2010, p.325) against individuals who engage in alternative sexual practices.

Sweden and Denmark have removed sadomasochism from their official lists of diseases and mental disorders to avoid such discrimination. Although the definition of sexual sadism has changed from the DSM-III to the DSM-5, many key features have remained.

BDSM practitioners believe that this updated definition stigmatizes their sexual proclivities, especially since their sadistic tendencies do not increase in severity over time. This increase is solely seen in sexually sadistic serial offenders. It is important to note that power, and not the giving and receiving of pain is at the core of consensual BDSM activity, whereas pain and power are at the heart (or lack thereof) of sexual sadism. Krueger concludes that sexual sadism should be retained in the DSM, as it is a prominent diagnosis in forensic populations, however there should be some changes in the diagnostic criteria, including the exploration and validation of other possible items that may be relevant to sexual sadism in the clinical and forensic areas. A diagnosis of sexual sadism bears serious implications for decisions related to an offender’s confinement and release, which makes it important to ensure that professionals understand and apply this diagnosis appropriately. The changes in the diagnostic criteria in tandem with the development of a scale would aid with the diagnosis of sexual sadism. Nitschke, Mokros, Osterheider and Marshall (2013) sought to develop a scale to help with the vagueness currently surrounding the definition of sexual sadism. They distinguish sadomasochistic role-play, which requires a mutual agreement between consenting individuals who share sadomasochistic interests, from the forensically relevant form of sexual sadism, which requires the coercive subjugation of a person against his/her own will.

The former refers to sadomasochism in a BDSM context, whereas the latter refers to sexual sadism and lack of consent. Three behaviours are deemed most indicative of severe sexual sadism: (1) the use of threats to evoke fear, not just to gain compliance; (2) cutting, stabbing, strangling, biting, beating the victim during sexual assault; and (3) the infliction of pain to sexual areas by the use of a physical object. The researchers constructed a 17-item Severe Sexual Sadism Scale (SEAS) after examining past studies of sexual sadism. Some items were considered more important in making a diagnosis of sexual sadism, including the offender being sexually aroused by sadistic acts, the offender exercising power or control or domination over the victim, the offender humiliating or degrading the victim, the offender torturing or acting cruelly towards the victim, and the offender mutilating sexual parts of the victim’s body. The researchers proposed that a person would be classified as meeting the diagnostic criteria for sexual sadism if he/she meets at least four of the criteria in the elevenitem set.

This scale would serve as a diagnostic aid in the realm of forensic psychology, and hopefully would aid with the distinction between sexual sadism and BDSM in the eyes of the law. When looking toward the law, BDSM is in a grey area. Many Supreme Court of Canada rulings have stated that an individual cannot consent to assault leading to bodily harm (R v. Jobidon, 1991). Although this ruling was specifically in relation to a bar brawl that led to manslaughter, other cases have been brought to the Ontario Court of Appeal and the Supreme Court with regards to sexual activities. In each case, the judge ruled against the accused. In cases of sexual activity, the law requires that consent is ongoing and conscious, to ensure that participants are not victims of assault and that they are able to ask their partners to stop at any point. This resonates with the BDSM community’s requirements that play is “safe, sane, and consensual” and that it qualifies as “risk aware consensual kink” (Barker, 2013, p.896).

There are many cases related to BDSM activity and the question of whether consent was obtained, including R v. Welch (1995), which is considered to be a landmark case regarding BDSM. The complainant testified that she was tied up and beaten all over as well as penetrated repeatedly by the appellant, all without her consent. The appellant admitted that the conduct occurred but maintained that consent had been obtained prior and that the complainant was enthusiastic about the acts. The complainant suffered severe bodily harm due to these activities, resulting in vitiated consent. As such, the judge ruled that previously obtained consent could not be used as a defense to sexual assault resulting in bodily harm. However strict BDSM playrooms and dungeons are when it comes to consent and safety, many of the activities that occur would be considered assault (causing bodily harm) and are chargeable offenses—especially if erotic asphyxiation is involved. Such was the case in the ruling of R v. J.A. (2011), where one of the participants had inserted a dildo anally on the unconscious partner and bound her wrists. Upon her return to consciousness, they proceeded to have vaginal sex.

The partner maintained that she had consented to the erotic asphyxiation and to the sex, but not to the anal play. The courts ruled in her favour and deemed the insertion of the dildo to be assault, since consent does not extend to advance consent to sexual acts committed while the complainant was unconscious. When separating BDSM from sexual assault, the complainant’s consent to the insertion of the dildo is of utmost importance. If her partner inserted the dildo, without her consent, specifically to cause her unwanted harm then this would be considered assault. However, if he was simply acting as her sexual partner and she had previously consented to this act, then he was acting in the spirit of a BDSM relationship. BDSM and sexual sadism are not the same, and although BDSM has elements of sadism, consent, willing partners, and safety are paramount. BDSM is a form of sexual expression; it is not assault nor is it an indication of underlying psychological issues.

Sexual sadism is not within the realm of BDSM and is a form of sexual assault, and frequently comorbid with other psychological issues, such as narcissism and psychopathy. Much like how the difference between consensual coitus and rape is consent, the difference between consensual BDSM and sexual violence is consent. By conducting a review of psychological articles related to the

mental well-being and psychological
characteristics of BDSM participants, it is clear
that they are individuals who are in no way
acting out instrumental aggression towards
another non-consenting individual. Looking at
studies related to sexual sadism demonstrates
that these individuals are acting out violent
tendencies on unwilling victims. These
differences are important in understanding and
differentiating these sexual proclivities for both
the healthcare and judicial system.

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( http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1035&context=wupj )