A Woman’s Right to Be Spanked? BDSM and IPV in the CJS

Nadia David1
1Charles Sturt University, Beechworth, Australia

Feminism has played an integral and life-saving role in the development and implementation of contemporary legislation and changing law enforcement approaches to domestic and family violence. There is no doubt that, without significant, lasting pressure from feminist activists, the pro-arrest/pro-prosecution policies of Australian police would not exist. And courts would not be gaoling abusive men.

But, has the focus on intimate partner violence driven bondage, discipline and sadomasochistic (BDSM) relationships into a legal no-man’s land? What of a woman’s right to be spanked? A woman’s enthusiastic consent to BDSM in a heterosexual relationship has proven both irrelevant and pivotal in court, leaving a problematic ambiguity around consensual BDSM.

A lack of fluency in the well-established rules of a ‘real’ BDSM relationship or encounter is creating uncertainty in the criminal justice system. When an accused insists that the injuries occasioned to the victim were consensually inflicted, how can the judge or prosecutor or police officer know if that’s true?

This paper presents the argument that the ‘Sex Wars’ of the 1980s are still on and causing uncertainty in the CJS around consensual BDSM vs abusive sexual violence. Further, having adopted the radical feminist view that BDSM is truly misogynistic at its core, courts are not using an underlying theory or evidence-base for decisions regarding the authenticity of alleged consent. This paper suggests the development of a ‘toolkit’ identifying the indicia of a ‘real’ BDSM relationship so that CJS professionals can separate BDSM from abuse.

Nadia is originally from Tasmania and grew up in Launceston. After finishing a Bachelor’s degree in Philosophy she joined the New South Wales Police Force and was duly sent to Redfern. During her 6-year career in the police, Nadia completed her Master of Criminology while working as a Police Prosecutor, specializing in family violence. She went on to complete a Juris Doctor while working in the Australian Public Service. Nadia now lives in beautiful Beechworth, Victoria, with her husband and two kids on their horse stud. She is currently undertaking a fulltime PhD at Charles Sturt University.

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