This is not legal advice, and it is not a map of fifty states. No federal statute says that BDSM is legal. No federal statute says that BDSM, as a category, is a crime. What gets charged is a specific act under a state assault statute, a sex-offense statute, a prostitution statute, or a law about images. Consent answers some of those charges and, in the cases below, does not answer others. A chart that sorts states into tolerant and hostile columns is not law. California and New York have both been described that way, and both have published opinions rejecting consent as a defense to injurious assault.
The distinction that matters
- Consent can be relevant to whether a sex act was a crime. It is often irrelevant to an assault that caused injury or used a weapon.
- People v. Jovanovic did not hold that consensual BDSM is legal. The court said there is no consent defense to an assault that causes injury or risks serious harm.
- A safeword, a negotiation, and a written contract are not a statutory exception. They describe what the people claim they agreed to.
- Lawrence v. Texas protected private consensual sex. The opinion said the case was not about people who might be injured or coerced.
- Images of minors are never legal. Explicit images of adults are a separate federal record-keeping question, covered in the 2257 article.
Sex offenses and assault are different charges
A prosecutor can charge both. On a sex-offense count, lack of consent is often an element, so evidence that the contact was agreed, and that the agreement was not coerced, can matter. On an assault count, many statutes do not list lack of consent as an element at all. They ask whether the defendant caused injury, or caused it with a weapon, on purpose. If the statute is written that way, a sincere yes before the scene does not erase the element the state has to prove, because that element was never "the person did not agree."
That is the rule in the opinions kink discussions usually misquote. In Commonwealth v. Appleby, 380 Mass. 296 (1980), the Massachusetts Supreme Judicial Court held that consent is not a defense to assault and battery with a dangerous weapon. The weapon in the case was a riding crop. The court said the statute is not a regulation of sex, and that tying the beating to sexual activity does not create a defense the assault statute does not contain.
People v. Samuels, 250 Cal. App. 2d 501 (1967), rejected consent as a defense to an aggravated assault filmed as sadomasochism. State v. Collier, 372 N.W.2d 303 (Iowa Ct. App. 1985), refused to treat BDSM as a "social activity" exception to assault. These are not a fifty-state survey. They are the cases later courts cite when they state the public-policy rule. Anyone who tells you California is a safe state for injurious play is not reading Samuels.
What Jovanovic actually says
People v. Jovanovic, 263 A.D.2d 182 (N.Y. App. Div. 1999), is the New York case most often used to claim the opposite of its footnote. The defendant was convicted after a scene the complainant said had gone past what she agreed to. The trial court excluded email in which the two had discussed sadomasochism. The Appellate Division reversed and ordered a new trial, because that exclusion gutted the defense on the charges where consent and the defendant's understanding of consent were relevant.
The same opinion, in a footnote, says there is no consent defense to assault under the New York provisions at issue when the assault causes injury or carries a risk of serious harm, even if the person asked for the act. The court said a constitutional claim of a right to consensual sadomasochism was, at the very least, too broad, because serious injury is not justified by agreement. The reversal is about evidence. It is not a holding that injurious BDSM is lawful in New York, and it is not a holding anywhere else. One judge wrote separately because the footnote and the reversal are in obvious tension. That tension is a reason to hire a New York lawyer. It is not a reason to treat the case as permission.
Privacy cases do not cover injury
Lawrence v. Texas, 539 U.S. 558 (2003), held that a statute criminalizing private sexual conduct between consenting adults violated due process. The opinion is explicit about what it does not decide. It does not involve public conduct, prostitution, or people who might be injured or coerced. Quoting Lawrence at a party does not authorize rope, striking, or choking. The case limits the state's power over private adult sex that does not add those facts.
British law is harsher on the injury question and is not American precedent. The short account of that ruling is in the note on the British cases. If you travel, the law of the place you are standing in is the one that applies, not the law of the city where you learned the scene.
What a negotiation is worth in court
A safeword, a checklist, and a contract can show what was discussed and when someone says they withdrew agreement. On a charge that has lack of consent as an element, that evidence can matter, which is the lesson of the emails in Jovanovic. On a charge the cases above say cannot be consented to, the same papers do not add a defense. They can also be read the other way: as proof that injury was planned. Write them because they make the ethical agreement clearer. Do not write them because someone told you a PDF keeps you out of jail.
Alcohol collapses the ethical agreement and the legal one. A person who cannot track the terms cannot give the consent a sex-offense defense depends on. Continuing anyway is the fact pattern in the abuse article, and it is also the fact pattern prosecutors use. Community vocabulary, a collar, or a FetLife message does not replace a yes to the specific act.
Strangulation is a useful example of why a house rule is not a criminal code. A number of states punish strangulation as its own crime, separate from a general assault statute, and those statutes are not written with a BDSM exception. This page will not teach the act and will not list a workaround. If it is on your menu, assume you need a lawyer in that state before you treat consent as the end of the analysis. The same is true of any injury you cannot undo: a blow to the head, a loss of consciousness, a cut that needs a clinician.
Money, pictures, and minors
Getting paid does not make an assault into a contract. Prostitution statutes are a separate question, and they turn on sexual contact, the state's definition, and the facts of who paid whom. This page will not explain how to structure a professional session so that it misses those statutes. A professional dominant who causes injury is still inside the assault cases above. Payment is not the defense Appleby withheld.
Photographs and video add federal record-keeping law for many producers of explicit images, described in the 2257 article. A model release is not that record. A party rule against phones is not that record either, if someone published the images anyway.
No state, and no reading of Jovanovic, makes sexual activity with a minor legal. Adult age play does not lower the age of the people in the room. That limit is in the age-play article.
If the legal system is already involved
Stop the scene. Get medical care for anyone who needs it. Do not explain the scene to the police before you have a lawyer. Ask for one. Bring the lawyer the facts, including what was agreed, what was refused, and what injury exists, without first editing them into a slogan about consent. The National Coalition for Sexual Freedom, at ncsfreedom.org, keeps a public list of consent cases and does policy work. That list is a reading list. It is not a retainer, and it will not be current for your county on the night something goes wrong.