BDSM Gone Wrong: Potential Legal Issues with Sexual Kink Practices

Last updated on June 6, 2024

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The novel, Fifty Shades of Grey, which explores BDSM themes, caused quite a stir internationally when it was first released in 2011. Even in Singapore, owners of adult toy shops noticed a significant uptick in the purchase of adult toys and other BDSM products, such as handcuffs, bed restraints, floggers etc.

BDSM may be a lifestyle choice that is unlike others, as it can have potential legal ramifications due to the very nature of BDSM itself.

This article will cover the following topics:

What is BDSM?

BDSM is an umbrella acronym describing a variety of categories of behaviour such as Bondage and Discipline, Dominance and Submission, and Sadism and Masochism. While BDSM encompasses a combination of these categories, each of these terms means something specific and different:

  • Bondage: Involves physically restraining a partner’s freedom of movement, with items like ropes, handcuffs, or other restraints.
  • Discipline: Refers to the institution of agreed-upon rules, which is a key part of BDSM, as well as corresponding agreed-upon punishment for flouting those rules.
  • Dominance: Refers to the act of exercising control and authority over a partner. The dominant partner is often the party making and enforcing the above-mentioned rules.
  • Submission: Refers to the act of giving up control and authority to one’s partner. The submissive partner obeys the rules set, and accepts the punishment meted out for flouting the rules.
  • Sadism: A sadist is someone who enjoys inflicting pain (which can be physical or emotional) or humiliation on others.
  • Masochism: A masochist is someone who enjoys being on the receiving end of pain.

There is currently no law that explicitly states whether BDSM is legal or otherwise in Singapore. The general view is that such acts are generally permissible if engaged in by consenting adults, with such consent (i.e. agreement to the specific conduct in question) being given voluntarily.

In fact, various news outlets have interviewed and reported on professional dominatrixes who provide services to their clients desiring to participate in BDSM activities. Such services often do not involve sexual contact, and have clear limits and boundaries.

However, it must be noted that the nature of BDSM is such that it comprises a range of acts, and when taken to the extreme, it can potentially give rise to legal issues and criminal charges. These will be explored further below.

What are the Potential Legal Issues That Could Arise (and Give Rise to Criminal Charges) When Engaging in BDSM?

Consent

One situation where potential legal issues can arise when engaging in BDSM activities is when the parties involved did not give their full and informed consent to doing so, and/or did not give their full and informed consent to engaging in the particular acts of BDSM. Full and informed consent refers to consent that is given by someone:

  • Who can understand the nature and consequences of giving their consent. This means that the person cannot be intoxicated (e.g. drunk or under the influence of drugs), of unsound mind, or does not have the mental capacity to provide consent (e.g. someone with impaired intellectual functioning).
  • Who is well-informed of all the facts involved in the decision that they are making. For example, the person must be aware of the nature of the act, purpose of the act and the identity of the person doing the act. As mentioned above, the consent given must not just be for engaging in BDSM in general, but also for engaging in the particular acts of BDSM.
  • Who is not under any fear of injury or restraint when giving their consent.

When full and informed consent is absent, BSDM can amount to sexual assault or even rape, and the parties involved may be charged accordingly. For example, in 2018, a former auxiliary police officer was sentenced to 23 years and 11 months in jail, along with 24 strokes of the cane, for arranging for his girlfriend to be raped by a stranger. The offender, who became interested in bondage after watching a movie, asked his girlfriend to take part in such acts with him. Even though she was initially uncomfortable, she eventually relented, and would allow herself to be physically bound during their sexual interactions. On two separate occasions, the victim was blindfolded with her hands tied together with a rope, and sex acts were performed on her. However, she later discovered that she had in fact been raped by a stranger and reported the matter to the police.

Breaking down the above example, what must be noted is that the offender’s charges were not for engaging in the BDSM acts, especially since in the previous instances, the victim had given her full and informed consent to participating in such activities with him. Instead, what the offender was charged with was for allowing and arranging for the victim to be raped by a stranger while engaging in the BDSM acts, which was something that she did not consent to. In fact, he had, at one point during their relationship, brought up the idea of having a third person join the couple in sexual activity, but she rejected the idea firmly.

Age

Another scenario where engaging in BDSM activities may give rise to a criminal charge is where the acts involve a minor. Under Singapore law, the legal age to have sex is 16 years old. In other words, it is a punishable offence to have penetrative sex with a minor who is below 16 years old. Further, if a man has penetrative sex with a girl under 14 years old, then he will be guilty of rape.

Therefore, if an adult engages in BDSM acts with a minor which involves sexual penetration, the potential charges they can face are as follows:

  • If the minor is under 14 years old, the adult can be charged with rape, regardless of whether the minor had given consent.
  • If the minor is between 14 and 16 years old, the adult can be charged with rape if the minor had not given consent. However, if the minor had given consent, the adult can be charged with having underage sex. One key difference is in the possible sentence for each of those offences. For rape, the offender can be jailed up to 20 years and also be caned or fined. For underage sex, the offender can be jailed for up to 10 years and fined, or both.

In 2014, a man was found guilty of two counts of underage sex with a girl who was then 15 years old, and sentenced to 12 months in jail. The man had befriended the girl on an outline dating site where in his profile, he professed that he engaged in BDSM. Subsequently, the pair engaged in sexual acts (including sexual penetration) at his apartment, which included him tying her to a metal frame which he had constructed.

In another case in 2018, a different man was found guilty of three counts of underage sex with another girl who was 15 years old and sentenced to 5 years’ jail. He met the girl online, on a website where men seek women for paid sex. In her profile, she wrote that she was looking for someone to pay her tuition fees, and he responded favourably. During their conversations, the man found out that she was 15 years of age, and he shared that he was into BDSM and expected her to comply. Even though she was initially uncomfortable with it, she eventually agreed after he said he would pay her a hefty monthly allowance. The two met, and the man gave her alcohol and a liquid to sniff to get her “high” before engaging in BDSM activities (including sexual penetration) with her.

However, even where sexual penetration is not involved, the involvement of a minor while engaging in BDSM acts can also lead to potential criminal charges if sexual contact is present. In 2021, a man was found guilty of one charge of committing an indecent act with a 13-year-old girl, and sentenced to a minimum of 6 months’ reformative training (as he was then under 21 years of age). The pair had met at a cosplay event, where the man claimed that he was a photographer. The victim agreed to try a private photoshoot involving BDSM but clarified that she did not want to pose naked. The man proposed to meet at a mall toilet, and when they met, he blindfolded and handcuffed her. After physically restraining her, he then molested her.

Physical Injury/Death

Lastly, engaging in BDSM may also potentially expose participants to criminal charges for causing physical injury or even death. This is especially since some BDSM activities involve the inflicting of physical pain on others. For example, in one of the above-mentioned cases, the victim was hit repeatedly with a wooden spoon, as part of the BDSM play. In another case of a man who pimped a group of 6 women to provide BDSM sexual services, the services provided included caning, face slapping and even trampling on a customer’s private parts.

Under Singapore law, inflicting hurt on other persons is punishable under the following offences:

  • Voluntarily Causing Hurt (VCH): Doing an act that causes hurt to another person while intending to cause hurt to that person or knowing that you are likely to cause hurt to that person. Hurt is defined as any kind of bodily pain, disease, or infirmity. This means that a large range of afflictions, from the stinging pain of a slap to more serious injuries, like bruised ribs, can fall under the meaning of “hurt”.
  • Voluntarily Causing Grievous Hurt (VCGH): Doing an act that causes grievous hurt to another person while intending to cause grievous hurt to that person or knowing that you are likely to cause grievous hurt to that person. Extremely severe injuries, such as fractures, dislocations, permanent disfigurations of the head or face, loss of sight, hearing or limb, and death, are classified as forms of “grievous hurt”.

If found guilty of committing VCH, the maximum punishment meted out can include imprisonment for up to 3 years, and/or a fine up to $5,000. On the other hand, the maximum punishment for committing VCGH is an imprisonment term of up to 10 years, and a fine or caning.

In the most extreme case, death can also arise because of BDSM activities. For example, one type of sadomasochistic activity called sexual choking involves the use of one’s limb or a ligature to press or squeeze a partner’s neck during sexual activity. While the occurrence of such an incident has not been reported in Singapore yet, such incidents have received much attention abroad. In 2019, in the UK, a victim was reported to have died in a “sex game gone wrong” at home, where she was having sex with the accused, her husband,  which involved a bathrobe cord being tied around her neck. After some time, she slumped to the floor, and the accused then realised that she had died. The defence raised by the husband, that the victim’s death was caused by a “sex game gone wrong”, was eventually disproved, as it was not consistent with the forensic evidence. The evidence revealed that the victim’s injuries could not have been inflicted by a bathrobe cord, and the force used exceeded that of the accused’s version of the events. The case nevertheless brought to light the rising trend of “sex game gone wrong” defence killings.

If such a situation were to occur in Singapore, depending on the circumstances of the offence and the evidence available, the accused person could be charged with VCGH, culpable homicide not amounting to murder (CH), or even murder. The eventual charge would primarily turn on the intention/knowledge of the accused person and whether there are any general exceptions or special exceptions available to the accused person, which can reduce the charge from murder to CH. More details on such special exceptions can be found in our other article on murder vs culpable homicide in Singapore.

That said, there may be some legal defences that the accused person could raise if faced with such a charge, such as:

Accident

Under the Penal Code, nothing is an offence which is done by accident or misfortune. To succeed in raising this defence, the accused person must prove the following 3 elements:

  1. That the alleged offence was the result of an accident or misfortune (i.e. it is not done with the intention of causing it). For example, a husband and wife engage in BDSM activities, during which the wife is leashed by her neck and asked to crawl around the house. During their play, the wife crawls down some stairs, but misses her footing and falls down the stairs. As she falls, she snaps her neck and dies. The effect, i.e. causing death to the wife, was not done with the intention of causing it, and would be considered an accident.
  2. That the act giving rise to the accident was lawful and was performed in a lawful manner by lawful means. This requires the accused person to have been doing a lawful act which led to the accident, i.e. an act which is not an offence under the Penal Code or any written law. For example, using the example above, the mere act of leashing someone by their neck, with their consent, is not an offence under the Penal Code or any written law. Thus, this element may be satisfied in the above hypothetical. However, if for example, the act involved the husband choking his wife using the leash, by which her death was caused, then it is likely that this element would fail, since choking someone would constitute an offence.
  3. That act was done with proper care and caution. In other words, the accident must not be a result of the accused person’s negligence, and the accused person must have taken reasonable precautions to prevent the accident. For example, using the example above, if all precautions were taken, such as making sure the leash was not too tight such that the wife could not breathe or get out in a pinch, making sure that the wife’s hands were free so that she could deal with any emergencies immediately, and the husband warning the wife about the flight of stairs, then it is possible that this element may be satisfied. On the other hand, if no precautions were taken – perhaps if the wife was blindfolded, and the husband did not tell her about the stairs, then it is likely that this element would fail.

That said, this defence has not been tested in the context of BDSM-related deaths in Singapore, and therefore it is difficult to predict how the elements would be applied in that context.

Defence of consent

The defence of consent is a special exception, which are defences found in section 300 of the Penal Code and apply only to reduce a charge of murder to one of CH. Broadly speaking, the defence of consent operates in this way: if a deceased person above the age of 18 years is killed with their own consent, then the accused person’s charge will be reduced from murder to culpable homicide not amounting to murder.

An illustration of this is as follows: A and Z are both above 18 years of age. The pair decide to commit suicide together by drinking poison. With Z’s consent, A pours poison down Z’s throat, and Z dies. Thereafter, A changes his mind and decides not to drink the same poison. As A has caused Z’s death, albeit with Z’s consent, A has committed CH and not murder.

In the context of death caused by BDSM activities, if the victim, who is above 18 years of age, had consented to being choked to death during the play, and there is evidence to prove this, then the accused’s charge may be reduced from that of murder to CH.

The 2 elements to be proven to raise the partial defence of consent are:

  1. The victim must be above 18 years of age.
  2. The victim must have unequivocally given his consent to being killed, with full knowledge of the identity of the person who is to kill them and the method of killing.

That said, as is the case above, this defence has also not been tested in the context of BDSM-related deaths in Singapore, and thus remains to be seen.

In conclusion, BDSM activities can give rise to multiple potential legal implications, including potential liability for various offences.

If you have been charged with one or more of the above offences for engaging in BDSM, you should seek further guidance and advice from a criminal lawyer. A criminal defence lawyer can help you better understand your situation and will be able to advise you on which defences are available and applicable in your case, as well as represent you in the matter if necessary.

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