BDSM and legality

Domination/Submission and BDSM within the Framework of Spanish Legislation

The Law assumes the regulation of the coexistence of people in a given society. It can regulate both behaviors that have public relevance and also affect the private sphere.

In general, the practice of sexual relations is within the private sphere of each individual, however, these must be completely consensual among the practitioners of the same, with this consent meeting a series of requirements to be considered valid by law and not to persecute such behaviors.

One of the main problems we encounter is the lack of definitions, both doctrinal and legal, regarding what type of behaviors should be framed within BDSM relationships and what these consist of.

In Spanish legislation, and almost assuredly in the jurisprudence of our courts, there is no direct reference to the terms domination, submission, sadomasochism, as we understand them.

Next, we will analyze behaviors that are more or less common in BDSM and could be framed in conduct that could have a perfect impact in the field of criminal law.

It should be added that an action can be caused by active behavior (actually causing harm) or by passive behavior (allowing a situation in which harm may occur). This second option (in which the simple omission is penalized, regardless of the fate that the abandoned victim may suffer) encompasses two types of crimes collected in Article 195 of the Penal Code (hereinafter referred to as C.P.), interpreted in relation to Article 11 C.P.:

Simple omission of the duty to assist: the person who does not assist another who is in manifest and serious danger when they could do so without risk to themselves or others. For the person who did not act to be considered guilty, it is not necessary for them to have caused the situation of risk; it is enough that they are aware of the risk to the integrity of the passive subject and do nothing to avoid it (with their own means, or by demanding help from the police, emergency services,...). This could be the situation of all those who observe a session.

Commission by omission: the person who omits the action of assistance in the face of a risk that they themselves have created. A timely visit to the hospital can prevent certain injuries from worsening.

Necessary collaborator: the person without whose collaboration the crime would have been more difficult to commit, being a provider of unusual goods or services in commerce or, in general, in society. For example, the person who lends instruments of torture, a dungeon, etc., could be seen as implicated in a criminal case.

CONSENT.

Basically, for the criminal law not to act and not pursue and punish practices, the essential cause of limitation and even exoneration of responsibility is the consent of the victim to submit to such activities. But, beware, not in all circumstances.

This consent must ...