Academic journal article Harvard Law Review

Nonbinding Bondage

Academic journal article Harvard Law Review

Nonbinding Bondage

Article excerpt

To the shock of critics, Fifty Shades of Grey has become a cultural phenomenon, sweeping from fan-fiction websites to bestseller lists and garnering a multimillion-dollar movie deal. In the narrative that has spawned over a hundred million copies, (1) a naive female coed sparks the interest of a handsome magnate who takes the heroine (and ideally the reader) on a journey of sexual awakening. The hero, a self-described "Dominant," introduces the virginal heroine not only to sex but to the practice of BDSM, a compound acronym that connotes sexual interactions involving bondage/discipline, domination/submission, and sadism/masochism. (2) From his "Red Room of Pain," filled with "ropes, chains, and glinting shackles," (3) the hero shows the heroine how to be a "Submissive," experiencing sexual pleasure by yielding to acts of domination and control within the bounds of a negotiated contract.

More than sex with some handcuffs thrown in, BDSM takes part in a broader project (4) that seeks to expose and investigate the ways in which sexual desire and experience reflect and construct systems of power. By performing sexual acts through scripts of subjugation, discipline, and punishment, participants recognize and revel in sex as a practice replete with inequality, ambiguity, and shame, blurring the lines society purports to maintain between pleasure and pain, fulfillment and frustration. BDSM's seeming rejection of equality as a predicate to good sex has made the practice a particularly provocative one, attracting heavy criticism from many who see in BDSM a haven for sexual victimization and exploitation. More famously, the way in which this commitment to exploring power has been effected through physical punishment and nonconsent has historically rendered BDSM an object of controversy and scorn.

The rise of Fifty Shades of Grey, however, points to a sea change in attitudes toward BDSM. The erotic novel has not only exposed vast popular interest in "kinky sex"--so vast the adaptation is expected to become the biggest film of 2015 (5)--but has raised the critical profile of BDSM, bringing commentators to look more closely at the practice and significance of such "transgressive" sex. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure. A mere handful of cases and articles address the legal questions posed by BDSM, and these generally confront the practice at its most extreme, asking whether "victims" can consent to violence. Acts, like those in Fifty Shades of Grey, involving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant.

If law has been slow to recognize mainstream BDSM, however, BDSM has not forgotten law. Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract. Lifestyle guides encourage the use of BDSM contracts, which employ contract forms to set limits and rules of play for BDSM sex. These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part of BDSM practice. (6) Indeed, the contract's popularity is evidenced by its very inclusion in Fifty Shades of Grey, as E L James not only references such an agreement but takes pages away from erotic play to depict the couple's negotiations and to reprint in full the draft contract, complete with twenty-one different sets of terms, (7) and the parties' enumerated objections and amendments. (8)

Though popular, these contracts represent functionally extralegal documents, as BDSM contractors have yet to bring a contractual dispute to court and, indeed, often expressly draft the contracts in the belief that they are legally unenforceable. However, this seeming "illegality" stands to make these contracts more, not less, interesting to the legal academic: the very existence of such contracts in the absence of expected enforcement suggests an interaction between law and BDSM that goes beyond the functional, providing unique access to the practice's conceptual foundations. …

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