‘Page three, Section 15.20: “The Submissive shall submit to any sexual activity demanded by the Dominant, and shall do so without hesitation or argument.”’ The Submissive’s Contract Scene, Fifty Shades of Grey (2015)
The myth of legally binding contracts for BDSM (Bondage, Dominance and Submission, Sadism and Masochism) has been propagated by the series of Fifty Shades of Grey books by E.L. James, and the subsequent films depicting these books for screen.
Whilst there are multitudinous concerns regarding Fifty Shades of Grey, the issue explored in this post is a scene in Fifty Shades of Grey (2015), known as ‘The Submissive’s Contract’. During this scene the protagonists are sat at an excessively large board room table in a dimly lit room, having a meeting about the contract which Christian Grey (the Dominant partner) has presented to Ana Steele (the Submissive partner). Here, the characters seem to be determining the parameters of their BDSM-related relationship as if they were embroiled in a legal battle of wits. I am not sure if this is intended to be thrilling, or to comfort the audience with notions of transgression being contained within a contractual agreement.
This scene has resulted in further concerning derivatives of the franchise, extending to Fifty Shades-branded ‘resources’ on sex contracts, and ‘play kits’ including mock contracts to ‘spice up’ the intimate encounters of fans. This ‘50 Shades contract’ has been closely critiqued, and has been found unsuitable for its intended purpose, due to ideas of blanket consent, and the language being archaic, repetitive and redundant. It seems that the creators of said contract have an even looser grip of Contract Law than they do on accurate conceptions of BDSM.
The Fifty Shades of Grey series has seen overwhelming success, with the first Book (released 2011) selling over 100 million copies worldwide by the end of 2014, and with the first film in the series (Fifty Shades of Grey, 2015) making $569,651,467 at box office. The popularity of Fifty Shades is particularly concerning, as there has been ample research on the issues with the series, which indicates that rather than being an accurate depiction of BDSM and Kink expressions of intimacy, it is an egregious and ill-informed caricature of the BDSM communities, and unreliable appropriation of BDSM and Kink concepts. The Fifty Shades series is more focused on racy titillation than accurate insight into BDSM and Kink intimate relationships. This is reflected in the thoughts of the participants of the study conducted for my thesis research (BITM [forthcoming]), with participants stating that:
‘The problem with 50 Shades is it is presented as a typical BDSM relationship, and I don’t think the author understood that she was writing an abusive relationship. She seems to think that what she’s writing is just Kinky, and because it blew up so big, it’s being consumed by people who have no prior knowledge of kink. No prior experience. No way of putting it into context…just saying this is how to explore kink, and I think there are people who are doing things dangerously and potentially abusively because of it.’ – (BITM Participant)
The idea of being bound into a contract with an intimate partner is particularly dangerous for people new to the BDSM and Kink Scenes, as this implies that their agency, consent and bodily autonomy will be superseded by the desires of their partners. As the introductory quote of this article demonstrates, the clauses presented in this contract are concerning, leaving the impression that a Submissive partner in a BDSM-orientated relationship must, under all circumstances, submit every whim and crochet of their Dominant counterpart, whilst bound to these agreements by contract. Therefore, such a contract could not adequately include dynamic (and revocable) consent, which is a key tenet of BDSM alongside personal safety, limits and boundaries. If these facets are not present in any intimate relationship, then we must consider the potential for said relationships to involve intimate partner coercion and domestic violence.
Whilst BDSM-orientated individuals following best practice are not in the business of trapping an intimate partner in a pseudo-contract, we tend to engage in lengthy consent negotiation, which can sometimes be formalised in Consent Negotiation Documents, kept privately by the parties concerned. These agreements, which are often set out on paper, are subject to further negotiation at any time, with boundaries and limits being adjusted accordingly. These documents are not intended to be used as a defence or justification in a court of Law, but a learning experience for BDSM-orientated intimate partners concerning their partner’s boundaries, and to consider what they themselves might want to consent to, in a structured manner.
Although, it is usually Criminal Law that aims to govern BDSM activity, questions have been raised regarding the potential for Contract Law to contribute to this also. Even though Criminal Law provisions regarding BDSM and notions of consent are often dubious, as demonstrated in the R v Brown case, guidelines on consent to harm for the purposes of sexual gratification, Section 70 of the Domestic Abuse Act, and sections 74, 75, and 76 of the Sexual Offences Act 2003), the employment of Contract Law to govern BDSM and consent is more ill-fitting.
There are numerous incompatibilities between Contract Law and the governance of BDSM intimate practices. This post explores the three that are most relevant to the contract presented in Fifty Shades of Grey (2011/ 2015). First, is the aim of Contract Law is to seek justice through the defendant providing remedy through damages. The idea of providing a remedy rather than seeking justice and protection when a person has had their intimate or sexual consent violated is not fit for purpose.
Secondly, as a contract must be ‘perfectly formed’ in order to be enforceable and legally binding, including the intention to create legal relations, BDSM agreements cannot be legally binding or enforceable, as there is no intent to create legal relations. Additionally, rather than an offer containing a promise, BDSM agreements can be considered as more of an invitation to treat, or an informal domestic arrangement (usually unenforceable under Contract Law), as parties do not have to engage in the activities suggested.
Thirdly, any contract can be rendered void by a vitiating factor, such as illegality. Where contracts constitute an agreement to commit a crime, this can be considered a conspiracy – even under circumstances where there is an agreement between two parties of sound mind, who are aware of the agreement they are making without duress, and who follow all of the required procedures to form a contract. Whilst BDSM is not explicitly illegal in England and Wales, much like sex work, the acts associated with BDSM-related activity (and resultant outcomes) are heavily criminalised in the interests of ‘public policy’, and to deter people from engaging in ‘morally offensive’ behaviour. As such, BDSM agreement documents do not constitute legally binding or enforceable contracts, as an agreement to a crime is not enforceable.
As BDSM-related activity can result in marks that could legally be classed as assault, ABH or GBH (depending on the severity), and it is outlined in statute that consent to BDSM resulting in what statute considers harm cannot be legally upheld, this could amount to criminal liability for both parties. The Dominant Partner for committing a ‘violent’ criminal offence, and the Submissive for ‘Aiding and Abetting’ an assault against their own person.
Additionally, there may be concerns that if BDSM contracts were legally recognised that this would create room for the ‘rough sex defence’ to allow for legal indemnity for perpetrators of sexual and intimate violence, using a BDSM agreement as evidence of consent of the victim. However, it is generally illegal to attempt to ensure indemnity against criminal liability for crimes such as assault, ABH and GBH, under Contract Law.
Whilst myself and members of the BDSM communities understand the need to protect women and girls against the potential for and experience of intimate partner violence and the injustice of the ‘rough sex defence’, consideration needs to be taken of the differences between BDSM practice and these crimes. BDSM practice is built on understandings of consent and bodily autonomy for all parties engaging in these acts and scenes, whilst intimate partner violence is manifestation of control and abuse, with victims of these crimes not consenting or exercising any agency over the abuse that they have suffered.
BDSM is an unlikely but informative source for understanding consent and agency, with BDSM agreement documents being just one of the intra-community safeguarding measures demonstrated within these communities (as demonstrated in my forthcoming paper: Bound in Safety). Contract Law serves many purposes, but setting out the parameters for BDSM is not one of them.
For socio-legal understandings of BDSM and Kink to become reflective of the lived experiences of these communities, focus should be placed on shortcomings of the Criminal Law of England and Wales in governing BDSM, and the starting point should be a comprehensive review the Law concerning consent.
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