Criminalization of consensual BDSM practices usually does not involve explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights, which in principle constitutes a criminal offense. In Germany, Netherlands, Japan and Scandinavia, such behavior is legal in principle. In Austria the legal status is not clear, while in Switzerland and parts of Australia some BDSM practices can be considered criminal.
Highly publicized cases, such as the US scandal of People v. Jovanovic and the British Operation Spanner, demonstrate the degree to which legal grey areas can pose a problem for the individuals and authorities involved, and the importance of knowing the legal status of the right of consent in the judicial statue of the country of residence for the practitioners of BDSM.
Australia In Australia, the law on BDSM is "cobbled together from a small pool of legal cases", under common law. A senior lecturer in law from the University of Technology Sydney said that "it is unlikely that acts such as bloodletting and permanent disfigurement would escape lawful punishment based on the level of serious harm and the intimidation that may underpin the procurement of consent."
In the Northern Territory in 2004, consensual harm was discussed as part of an Aboriginal tribal punishment, not sexual gratification, in Re Anthony. The Northern Territory Supreme Court held that it could not release on bail a defendant charged with manslaughter over the death of his wife, because he was going to be "speared" by his community, a traditional tribal punishment involving piercing the criminal's leg with a spear and being hit with sticks, despite his consent. The court found the serious nature of the harm meant it was not in the community's interest.
In New South Wales, a 2014 reform of domestic violence law meant that a person can choke someone with their consent, however consent is not a defense if the choking is to the point of someone being "unconscious, insensible or incapable of resistance, whilst being reckless as to doing so".
In Australia, the legality of BDSM is often discussed under the 1994 UK House of Lords R v Brown framework, despite it not being legally binding in Australia. UK court decisions are no longer binding in Australia, with the Australia Act 1986 of the UK and Australian parliaments rendering the ability of Australians to appeal to the UK courts a "legislative dead letter", despite it technically remaining in the Constitution.
BDSM pornography is banned nationwide and any pornography containing BDSM is classified RC (refused classification) in Australia. However, it is still widely accessible online, as there are fewer rules governing pornography available via the internet rather than released in physical media.
Austria §90 of the criminal code declares bodily injury (§§ 83, 84) or the endangerment of physical security (§89) to not be subject to penalty in cases in which the "victim" has consented and the injury or endangerment does not offend moral sensibilities. Case law from the Austrian Supreme Court has consistently shown that bodily injury is only offensive to moral sensibilities (and thus punishable) when a "serious injury" (meaning a damage to health or an employment disability lasting more than 24 days) or the death of the "victim" results. A light injury is considered generally permissible when the perceived victim has consented to it. In cases of threats to bodily well-being, the standard depends on the probability that an injury will actually occur. If serious injury or even death would be a likely result of a threat being carried out, then even the threat itself is considered punishable.
Canada In 2004, a judge in Canada ruled that videos seized by the police featuring BDSM activities were not obscene, and did not constitute violence, but a "normal and acceptable" sexual activity between two consenting adults.
In 2011, the Supreme Court of Canada ruled in R. v. J.A. that a person must have an active mind during the specific sexual activity in order to legally consent. The Court ruled that it is a criminal offence to perform a sexual act on an unconscious person – whether or not that person consented in advance.
European Court of Human Rights The European Court of Human Rights has considered multiple cases involving BDSM and has upheld convictions for BDSM activities based on the principle that people cannot renounce their fundamental rights. It has ruled that "criminal law cannot, in principle, intervene in the field of consensual sexual practices which fall under the free will of individuals", but that this guideline is not applicable in especially serious cases.
France In France, consensual BDSM activities resulting in serious harm are prosecutable.
Germany The practice of BDSM is not generally penalized in Germany if it is conducted with the mutual consent of the partners involved.
The following sections of the criminal code may be relevant in certain instances for BDSM practices:
| width="50%" align="left" valign="top" style="border:0"| Sexual assault (§177) Sexual abuse of persons unable to resist (§179) Insult and insult by deed (§185) Battery (§223) | width="50%" align="left" valign="top"| Aggravated battery (§224) False imprisonment (§239) Coercion (§240)
To fulfill the charge of coercion, the use of violence or the threat of a "severe mistreatment" must involve an endangerment to life and limb. In cases where the continued application of the treatment could be ended through the use of a safeword, neither coercion nor sexual coercion may be charged. In the case of charges of sexual abuse of people incapable of resistance, similar principles apply. In this case, taking advantage of a person's inability to resist in order to perform sexual acts on that person is considered punishable. The potential use of the safeword is considered to be sufficient possibility for resistance, since this would lead to the cessation of the act, and so a true inability to resist is not considered to be in effect. The charge of insult (slander) can only be prosecuted if the defamed person chooses to press charges, according to §194. False imprisonment can be charged if the victim—when applying an objective view—can be considered to be impaired in his or her rights of free movement.
According to §228 of the German criminal code, a person inflicting a bodily injury on another person with that person's permission violates the law only in cases in which the deed can be considered to have violated good morals in spite of permission having been given. On 26 May 2004, the Criminal Panel No. 2 of the Bundesgerichtshof (German Federal Court) ruled that sado-masochistically motivated physical injuries are not per se indecent and thus subject to §228.Decision of the Bundesgerichtshof, 26 May 2004, 2 StR 505/03, which may be found at: BGHSt 49, 166 (bundesgerichtshof.de) Still, this ruling makes the question of indecency dependent on the degree to which the bodily injury might be likely to impair the health of the receiving party. According to the BGH, the line of indecency is definitively crossed when "under an objectively prescient consideration of all relevant circumstances the party granting consent could be brought into concrete danger of death by the act of bodily injury." In its ruling, the court overturned a verdict by the Provincial Court of Kassel, according to which a man who had choked his partner and thereby involuntarily strangled her, had been sentenced to probation for negligent manslaughter. The court had rejected a conviction on charges of bodily injury leading to death on the grounds that the victim had, in its opinion, consented to the act. Following cases in which sado-masochistic practices had been repeatedly used as pressure tactics against former partners in custody cases, the Appeals Court of Hamm ruled in February 2006 that sexual inclinations toward sado-masochism are no indication of a lack of capabilities for successful childraising.Appeals Court of Hamm in its judgement of 1 February 2006, case number 10 UF 147/04, available online at the Portal of the North Rhine-Westfalian Ministry of Justice (German)
Italy For Italian law, BDSM is right on the border between crime and legality, and everything lies in the interpretation of the Code by the judge. This concept is that anyone willingly causing "injury" to another person is to be punished. In this context, though, "injury" is legally defined as "anything causing a condition of illness", and "illness" is ill-defined itself in two different legal ways. The first is "any anatomical or functional alteration of the organism" (thus technically including little scratches and bruises too); The second is "a significant worsening of a previous condition relevant to organic and relational processes, requiring any kind of therapy". This makes it somewhat risky to play with someone, as later the "victim" might call for foul play using any sort of little mark as evidence against the partner. Also, any injury requiring over 20 days of medical care must be denounced by the professional medic who discovers it, leading to automatic indictment of the person who caused it. BDSM play between nonconsenting adults or minors or in public is of course punished according to normal laws.Ayzad, BDSM – Guida per esploratori dell'erotismo estremo, Castelvecchi, 2004
Scandinavian countries In September 2010, a Swedish court ruled that a 32-year-old man was acquitted of assault for engaging in consensual BDSM play with a 16-year-old girl (the age of consent in Sweden is 15).Man freed in landmark S&M case Norway's legal system has likewise taken a similar position,SM og loven (Norwegian) that safe and consensual BDSM play should not be subject to criminal prosecution. This parallels the stance of the mental health professions in the Scandinavian countries, which have removed sadomasochism from their respective lists of psychiatric illnesses.
Switzerland The age of consent in Switzerland is 16 years, which also applies for BDSM play. Children (i.e. those under 16) are not subject to punishment for BDSM play as long as the age difference between them is less than three years. Certain practices, however, require granting consent to light injuries and thus are only allowed for those over 18. Since Articles 135 and 197 of the Swiss Criminal Code were tightened, on 1 April 2002, ownership of "objects or demonstrations [...] which depict sexual acts with violent content" is punishable. This law amounts to a general criminalization of sado-masochists, since nearly every sado-masochist will have some kind of media which fulfill these criteria. Critics also object to the wording of the law, which puts sado-masochists in the same category as pedophiles and pederasts.Interessengemeinschaft BDSM Schweiz (German)
United Kingdom British law does not recognize the possibility of consenting to actual bodily harm. Such acts are illegal, even between consenting adults, and these laws are enforced (R v Brown being the leading case). R v Brown dismissed the defence of consent, meaning that the men charged of sexual offences could not defend their actions. It has been pointed out that people can consent to activities such as boxing and body piercing, which also result in pain, but apparently cannot consent to BDSM. This leads to the situation that, while Great Britain and especially London are world centers of the closely related fetish scene, there are only very private events for the BDSM scene which are in no way comparable to the German "Play party" scene.