Legal position of BDSM

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This article lists the legal situation of BDSM in individual states. Regardless of this, pornographic depictions of sexual violence can be illegal despite legal opportunities to practice BDSM.

Germany

BDSM practices carried out with mutual consent are generally not punishable in Germany. The following criminal offenses can become relevant in the context of acts in the field of BDSM:

For the fact of coercion to materialize, the use of force or the threat of a “sensitive evil” must be given, in the case of sexual coercion there must be a threat to life and limb. If the continuation of the action can be ended immediately through the use of a safeword, both facts cannot be realized. The same applies to the offense of sexual abuse of incapable persons. According to this, anyone who takes advantage of his inability to perform sexual acts on another is to be punished. As long as the necessary resistance to interrupt the continuation of the action can be raised through the use of the safeword, the offense cannot be realized, since there is no real lack of resistance.

According to § 194 StGB, an insult can only be prosecuted at the request of the offender. A deprivation of liberty is realized when the victim is restricted in the freedom of choice of his whereabouts according to objective observation.

According to Section 228 of the Criminal Code, a person who carries out bodily harm with the consent of the injured person only acts illegally if the act, in spite of the consent, offends against common decency. On May 26, 2004, the 2nd Criminal Senate of the Federal Court of Justice (BGH) decided that sado-masochistically motivated bodily harm is not in itself immoral and that Section 228 of the Criminal Code applies in principle to sado-masochistic practices. However, the “judgment on the immorality in the individual case depends on the degree of the violation of legal interests”, in other words, on the threatening health consequences of the physical harm. The border with the moral standards is loud BGH exceeded in any case, if "is placed in forward-looking objective consideration of all the relevant circumstances of consenting by personal injury action in concrete danger of death." In the landmark decision , the Supreme Court overturned a judgment of the District Court of Kassel , into which a man who had strangled his partner at her request and unwillingly strangled her, was sentenced to a suspended sentence for negligent homicide . The district court had rejected a conviction for bodily harm resulting in death , as in its opinion the act had taken place with the consent of the victim.

After sadomasochistic practices had repeatedly been used in custody proceedings to exert pressure on former partners in the past , the Hamm Higher Regional Court found in February 2006 that the sexual inclination to sadomasochism did not conflict with the parent's ability to bring up children. The sexual orientation of a parent is basically his or her private matter, unless it has negative effects on the child. The sexual predisposition of a parent is not in itself a disqualification as a custodian. Assessments of lifestyle and morals are also only ever to be assessed in terms of their effects on the child, which can vary depending on the age of the child.

A neurosurgeon with several criminal records and with a significant criminal record, who marked his profile with the statement "dominant sadistic" and was accused by two patients of sadistic sexual practices, received a decision on March 10, 2010 from the district government to revoke his license to practice . In response to the doctor's action, the Arnsberg Administrative Court revoked the district government's notice of revocation and allowed him to continue his medical practice because his behavior did not meet the requirements for revoking his medical license.

Austria

Pursuant to Section 90 (1) StGB , bodily harm ( Section 83 (2 ) StGB) or endangering physical safety ( Section 89 StGB, with reference to Section 81 , negligent homicide) is not punishable if the “victim” consents and the injury or endangerment as such does not violate (currently applicable) good morals . A slight injury (in the judgment: “welts after being tied up and whipping”) is generally allowed with the consent of the “victim” . In any case, it is punishable if it results in foreseeable serious bodily harm ( Section 84 (1) StGB, that is damage to health or an occupational disability lasting longer than 24 days) or the death of the "victim". In the course of the fight against the circumcision of female genitals , according to Section 90 (3) StGB, an injury that is capable of "causing lasting impairment of sexual perception" is explicitly excluded from possible consent. When it comes to endangering physical safety, it depends on how likely it is that an injury will actually occur. If the serious injury or even death is likely, the endangerment is in any case punishable.

However, there is no established case law on the specific case of minor bodily harm through actions in the BDSM area. It may well be that the Supreme Court in the BDSM area also regards minor bodily harm apart from welts as immoral and therefore punishable. Whether an act offends against morality depends in Austria on whether caring for the health of the “victim” is more important to an exemplary person than consideration for his or her wishes. So there is no legal certainty.

Switzerland

Sexual maturity begins in Switzerland at the age of 16, which also applies to BDSM games. Even children (i.e. under 16-year-olds) are not liable to prosecution, provided that the age difference between those involved is less than three years. However, certain practices require consent for minor bodily harm and are therefore only allowed from the age of 18. Since the tightening of the Swiss Criminal Code Art. 135 and 197 on April 1, 2002, the possession of "objects or demonstrations [...] which contain sexual acts with violence" has been punishable in Switzerland. This law comes close to a blanket criminalization of sadomasochists, since media that meet these criteria can be found in almost every sadomasochist. Critics continue to complain that, according to the wording of the law, sadomasochists are placed in the vicinity of pedophiles and pederasts .

Great Britain

British criminal law does not recognize consent in bodily harm, such acts are illegal even among adults by mutual consent, this legal situation is also enforced. This leads to the somewhat bizarre situation that Great Britain and especially London are considered the world center of the closely related fetishism scene, but that there are almost exclusively private events for the BDSM scene and no events comparable to the German game party scene. This fact is z. B. in the film Preaching to the Perverted comedically targeted. Above all, several legal proceedings, which are grouped under the name Spanner Case and which serve as the basis for this film, attracted attention . In the course of these trials, a number of homosexual BDSMers were convicted of consensual sadomasochistic practices in the UK.

On February 19, 1997, the European Court of Human Rights ruled in relation to these proceedings that each state may pass its own laws against bodily harm, regardless of whether the bodily harm is consensual or not. In June 2007 the British government used this decision to classify and therefore prohibit image and film material that depicts consensual behavior among adults as part of the Criminal Justice And Immigration Bill as "Extreme Pornography" .

Individual evidence

  1. ↑ repealed with effect from November 10, 2016, Art. 1 No. 8 of the law of November 4, 2016 ( BGBl. I p. 2460 )
  2. ↑ BGH , judgment of May 24, 2004 ( Az. 2 StR 505/03), printed in: BGHSt 49, 166 ff., Link to the full text (PDF; 54 kB)
  3. ↑ OLG Hamm , decision of February 1, 2006 (Az. 10 UF 147/04), link to the full text
  4. ↑ Administrative Court Arnsberg , judgment of June 16, 2011 (Az. 7 K 927/10), link to the full text
  5. ↑ Legal sentence to OGH 12Os180 / 76, March 10, 1977 at the RIS
  6. ↑ a b legal sentence RS0092851 to OGH 12Os17 / 89 & 11 Os 134 / 06z , June 29, 1989 & January 23, 2007; this is expressly contrary to the legal sentence to OGH 12Os180 / 76 , from March 10, 1977.
  7. ↑ Helmut Graupner : The late human right - sexuality in law. ( Memento of February 25, 2013 in the Internet Archive ) (PDF; 645 kB), elective course Interdisciplinary Sexology, University of Innsbruck, SS 2006, version: November 21, 2006, p. 31
  8. ↑ datenschlag.org (October 2001). Retrieved November 11, 2010 .
  9. ^ House of Commons : Criminal Justice And Immigration Bill. Retrieved November 11, 2010 .