Is BDSM a Solid Criminal Defense for Sex That Ends in Injury or Death?

 Posted on August 15, 2022 in Criminal Defense

There is no accounting for taste, as the old saying goes, and nowhere is this more true than when it comes to sexual preferences. Yet there is growing concern that some people - men in particular - are successfully using their personal taste as an illegitimate defense in horrific murder crimes. When violent sex results in inadvertent injury or death, is the perpetrator truly culpable of assault or murder? And do people who enjoy BDSM need to be worried about potentially facing criminal penalties in a Texas court? 

Is BDSM Legal in Texas? 

Bondage, discipline, dominance, submission, and sadism, or BDSM, is a broad term that is used to describe sexual behaviors that are often considered deviant in nature. While some types of BDSM are objectively harmless, others can be violent, humiliating, and sometimes dangerous. 

When it comes to potential criminal prosecutions for sexual behavior, things can get complicated. Most criminal acts are considered criminal not only because of the act itself but because of the intent behind the act. For example, slapping someone in the face at a bar without their consent and with the intent to provoke or offend could be a Class A misdemeanor. Yet the same act, done in the consensual context of BDSM, is almost certainly legal. What determines whether sexual acts are criminal ultimately comes down to whether the acts were consensual, whether someone was, or could have been, seriously injured, and what the intent of alleged perpetrator was. 

Consent Is Not a Defense for Certain Acts 

Recognizing that consenting adults have varying preferences, Texas law has a section that explicitly states that consent is a valid defense to prosecution for assault and deadly conduct. However, this law has its limits. The conduct in question must not inflict or even threaten seriously bodily injury. How can consent be a defense against deadly conduct, if, at the same time, an act must not threaten serious bodily injury? The law specifically gives the example of consenting to medical treatment; consider open-heart surgeries which, although in most cases are life-saving, sometimes prove to be fatal.

So, what happens if someone is seriously hurt or killed during consensual, or allegedly consensual, sex? While BDSM-related deaths are very rare, injuries are much more common; one study showed that more than 10 percent of people who practiced sexual kinks experienced injuries. 

If someone is injured or killed during allegedly consensual behavior and charges are brought against the alleged perpetrator, the defendant may need to prove the behavior was consensual and his or her intent was not to cause the victim serious bodily harm or death. A great criminal defense attorney can help build a comprehensive defense case that takes into consideration the victim’s testimony, the circumstances surrounding the injury, and any other relevant factors. 

Meet with a Dallas-Fort Worth Criminal Defense Attorney

If you have been charged with homicide or other violent crimes during consensual sexual intercourse, get help from the team of Collin County criminal defense attorneys with The Crowder Law Firm, P.C.. Regardless of the accusations against our clients, we build strong, aggressive defense cases and fight to protect our clients’ constitutional rights. Call us today at 214-544-0061 to schedule a free consultation. 

Sources: 

https://www.webmd.com/sex/what-is-bdsm-sex

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.22.htm

https://www.sciencedirect.com/science/article/pii/S174360952100624X