Dominate and submissive contract

Added: Laurren Milburn - Date: 04.03.2022 09:35 - Views: 12495 - Clicks: 4066

To the shock of critics, Fifty Shades of Grey has become a cultural phenomenon, sweeping from fan-fiction websites to bestseller lists and garnering a multimillion-dollar movie deal. TimesFeb. Of course, like any movement or activity, BDSM is far from a homogeneous or unified practice and may comprise practitioners with varying motivations and beliefs.

See, e. By performing sexual acts through scripts of subjugation, discipline, and punishment, participants recognize and revel in sex as a practice replete with inequality, ambiguity, and shame, blurring the lines society purports to maintain between pleasure and pain, fulfillment and frustration.

More famously, the way in which this commitment Dominate and submissive contract exploring power has been effected through physical punishment and nonconsent has historically rendered BDSM an object of controversy and scorn. Yet even as BDSM takes popular culture and criticism by storm, its relationship to the law remains surprisingly obscure.

Acts, like those in Fifty Shades of Greyinvolving sexual domination devoid of or barely tinged with pain seem to exist largely beyond investigation, the legal gaze averted until the locked playroom doors open to reveal an unwilling or oppressed participant. Far from locking law out of its bedrooms, mainstream BDSM has deliberately imported one unlikely legal form: contract.

These contracts are negotiated, drafted, and framed in much the same manner as conventional contracts and have become an increasingly accepted part Dominate and submissive contract BDSM practice. James, supra note 3, at — Though popular, these contracts represent functionally extralegal documents, as BDSM contractors have yet to bring a contractual dispute to court and, indeed, often expressly draft the contracts in the belief that they are legally unenforceable.

Turning to these foundations, this Note explores why BDSM contracts persist in the absence of enforcement by investigating theoretical advantages contract offers the practice of BDSM. This Note proceeds in four parts. Part II considers the extrajudicial use of these contracts, examining areas of conceptual unease in BDSM that Dominate and submissive contract stands to mitigate: namely, contract law enables assumptions about fairness in exchange and the knowability of interests that BDSM may be seeking to incorporate.

Part III then reconsiders this seemingly antagonistic relationship, suggesting ways in which contract principles may correspond to or even elevate those of BDSM, creating a critical dialectic. See supra note 4. Above all, BDSM acts, scenes, and relationships ask parties to inhabit positions of power imbalance. McClintock, supra note 4, at BDSM has committed itself to the exploration and performance of power. Katherine M. BDSM seeks to cultivate pleasure by fostering sex overtly based on mastery and punishment.

Devoted to openly acknowledging and appreciating sex as an act of domination and submission, BDSM engages in a radical honesty about sexual power. This commitment to exposing and enjoying sex-as-power makes BDSM a useful centerpiece for broader debates about sex and sexuality.

In legal literature, however, the debate over BDSM has primarily operated through the flashpoint of pain and consent. See Twyman v. Twyman, S. Brown, [] 1 A. Laskey v. United Kingdom, 24 Eur. Legal scholarship has generally followed suit, focusing on whether consensual but harm-inflicting sex should be criminal given legal acceptance of consent to harm in sports and body modification.

For instance, they contain sections for both dom and sub to underscore that, despite the seeming one-sidedness of the relationship, each party receives benefits and suffers restrictions, affording the consideration necessary for legal contract formation. Some contracts discuss dispute resolution, specifying forms of redress in case of breach.

Dominate and submissive contract

Nevertheless, as many BDSM sites note, these contracts are not expected to be enforced in a court of law. Emens, Compulsory Sexuality66 Stan. If you are entering into a BDSM relationship, you should still have some kind of agreement. A formal agreement, although not binding, [is] best.

Dominate and submissive contract

Where the contracts do show up in court documents, it is generally not because the state is enforcing their promises but because the state is punishing the promisors under the aegis of criminal or tortious wrongdoing. BDSM contracts would not seem to be worth much. The persistence of such agreements, with their diligent adherence to legal doctrine and pointed legal styling, then raises a thought-provoking implication: the relationship between contract and BDSM must go deeper than the promise of liability. See Eric A. This observation, in turn, raises a more foundational question: why should BDSM incorporate contract theory?

Social identity becomes commutable, and the boundaries of gender and class open to invention and transfiguration. William Shakespeare, Hamlet act 3, sc. Press For, in holding that sexual power is unfixed and changeable, BDSM also assumes that power is transferable — that it can be deliberately allocated or exchanged between parties. If a dom must assume this mantle, it follows both that she did not already carry Dominate and submissive contract and that she must have actively acquired it from somewhere — namely, from the sub, who temporarily ass her power to create the dom.

The fundamental dynamic of BDSM is then one of a temporary or performed power exchange. Of course, contract law is likewise founded on the paradigm of exchange between parties. Contract, however, adds an important element to this premise: it assumes parties can engage in fair exchanges. As opposed to its sister fields of restitution or tort, in which law intervenes to correct unjust enrichment or diminishment, contract law exists precisely to allow individuals to transfer interests affirmatively with the sanction of the state.

In taking up contract law, then, BDSM practitioners appear to be grasping for this element of fairness in their performance of inequity, suggesting that the commodity transferred in BDSM — power — Dominate and submissive contract be transferred fairly and justly. In particular, contractual BDSM seeks to divorce the sexual scene from external reality by establishing equality between the parties both before and after the contract for sexual domination. Presupposition of Equality. Restatement Second of Contracts ch.

Further illuminating this concern is contract nullification through unilateral mistake, which arises when the advantaged party had reason to know of the mistake or himself caused it — again avoiding contracts where one party has exploited an Dominate and submissive contract informational inequality. See id. The existence of these defenses then conversely implies that any contract still standing has Dominate and submissive contract created between two parties with sufficiently commensurate will and knowledge. In sharp contrast, BDSM seeks to dissociate itself from normative concerns for substantive equality.

Instead, its scenes announce that, while a particular hierarchical makeup may be subject to reversal, structures of inequality are endemic and inexorable — and, moreover, can lead to pleasure and growth. Nevertheless, as BDSM has become popular, discomfort with the implication that its practice exploits existing inequalities to the detriment of participants has grown.

Regardless of who will be the dominant, nobody is the boss at this stage in the relationship. Contract offers BDSM a key instrument with which to carve out this distinction. Contractual BDSM thus suggests that it parodies, but does not traffic in or perpetuate, existing power imbalances. One of the major complaints levied against BDSM is that it seems, definitionally, the opposite of quid pro quo: power is expropriated, taken from one and given to another, resulting in a seemingly clear winner and loser of the exchange.

It is for this reason that many BDSM contracts contain explicit sections detailing what each party is to gain from the relationship — generally, objectives like sexual satisfaction, emotional connection, and personal growth. This is for the benefit of us both. I shall redraft. Indeed, the idea that one can desire masochism or that profit can be found in expropriation is inherently paradoxical and meant to chafe, to sit uneasily with both participant and observer.

By declaring that there has been a bargained-for exchange, the contract reassures us that each party has in fact gained something from the transaction — even if that gain takes the outward shape of a loss. The contract thus assures us not only that both parties were equal to start and will be equal again once the scene is over, but also that they remain equal even when in the scene in their reciprocal exchange of pleasure, self-knowledge, or growth.

Janet Halley, Split Decisions Gloria G. Brame, William D. De Sade would be disgusted. Contract not only contributes to, and helps formalize, these rituals of consent, but brings its own arsenal of tools of certainty to bear on the sexual scene. This conviction is manifest in the principle of consideration and its presumption that parties Dominate and submissive contract only recognize their interests but contract in order to further them. In addition to asserting, on a theoretical level, that interests are knowable, contract law promotes on-the-ground investigation into and discussion of interests.

For one, it punishes nondisclosure and failure to investigate, encouraging parties to communicate fully about their desires and insecurities. It also privileges specificity, using the specter of enforceable but undesirable judicial interpretations of ambiguous clauses to impel precision and comprehensiveness in drafting. Elizabeth F. Finally, the requirement of bargain and its counterpart negotiation suggests that any contract will be preceded by meaningful examination and weighing of desires and benefits by parties, both independently and tly.

Given their inherently information-forcing nature, contracts appear to represent the reasoned culmination of self- and mutual exploration of what is wanted and unwanted. By interposing contract, BDSM then suggests that its commitment to the problematic of wantedness is not so problematic: as in contract law, whatever is contracted for is pd to be wanted, and whatever is excluded is not. By requiring negotiation and drafting, contractual BDSM insists that its participants are aware and protective of their interests.

Dominate and submissive contract

Moreover, because BDSM contracts ask parties to consider and communicate limits before committing to the relationship, they enable the assumption that a contractual scene is the product of specific informed consent — that whatever happens, even if that is loss of certainty as to wantedness, has been Dominate and submissive contract, weighed, and affirmatively wanted.

BDSM thus uses contract to suggest that the threat of unwantedness is, again, merely performative: though featuring ambiguity, obscurity, and nonconsent, the scene is derived from the certainty, openness, and consent inherent to contract. This contractual framing in turn provides the element of certainty that noncontractual BDSM eschews, the clear line without which BDSM and sex itself seems dangerous, helping to ease anxiety about the composition it contains even if no change has been made to that composition.

Taken at face value, these contracts thus seem to run counter to, or at least dilute, the ostensible aims or tenets of BDSM. Deploying the principles underlying contract to render the inequality and uncertainty definitional to the BDSM scene purely performative, BDSM contracts seem to meld contract and BDSM theory to assure observers that the Dominate and submissive contract are equal, self-aware, and self-promoting even as they engage in acts of domination, disadvantage, and asymmetrical control.

Such a vision, however, assumes that BDSM and contract are countervailing forces, with BDSM calling on contract to deliberately weaken its radical aims or tendencies. Pa, supra note Dominate and submissive contract, at Halleysupra note 44, at 5. Like queer theory, BDSM is committed to disrupting cultural paradigms not on behalf of the currently undervalued paradigm but on behalf of the act of disruption; for taboo regardless of what that taboo might constitute, pro-subversion rather than pro- or anti-equality.

Martha T. Regardless of which vision is accurate — whether BDSM champions amorality or immorality — it seems clear that BDSM opposes the liberal ethos and the concern for equality and safety that currently dominates the rhetoric of sexual morality. Consequently, if. To claim that BDSM serves equality and certainty by espousing sex based on inequality and uncertainty would be to claim not only that BDSM operates through performance, but that it itself is a performance — that its practices, principles, and messages are instrumental fictions.

This in turn renders BDSM an embodiment of paradox and problematic wantedness not merely in its practices but at its theoretical core, affording it a subversive or queer subtext even when placed in support of conventional aims. By providing novice practitioners with a rubric for constructing scenes, these contracts provide practical, on-the-ground support that further facilitates the practice. Contract has thus been co-opted by a transgressive sex practice from which it otherwise seeks to detach itself, used to actively empower and advance that transgressive sex. This premise can be taken yet further.

Namely, in addition to enabling BDSM and thereby its dangers, contract may in fact increase those dangers, creating new power imbalances and uncertainties for the sexual participants. In other words, contract may not merely be a neutral tool open to mis appropriation by BDSM, but may itself operate through and produce inequality, opacity, and contradiction. Keeping Wantedness Problematic. As part of its commitment to bargain and consideration, contract forces parties to choose and commit to interests upfront, often far in advance of contractual fulfillment, thereby treating such interests and desires as essentially static.

In promoting such predetermination, contract further penalizes a converse failure to identify and specify desires. Emens, supra note 51, at No mere speculative consequence, penalty forms a central component of a legal system that expects its subjects to transgress, feel the bite of punishment, and mend their ways. In contractual BDSM, where contract circumvents a default of complete sexual control and compliance, failure to contract or to do so with adequate specificity likewise in a penalty: unwanted sex.

Dominate and submissive contract nature of sexual desire makes its incorporation into a contractual regime yet more problematic. If, as BDSM itself recognizes, sexual desire — unlike contractual interest — is messy, fluid, and fluctuating, it is near impossible to pin down at any given moment, no less in a negotiation pointedly set aside from the sexual scene itself.

Still, BDSM contracts p that negotiation is distinguished from, and occurs before, the scene, and subsequent drafting often requires a gap between contracting and sex. To hold any person to contractual terms of sexual desire is then to all but assure that he will at some point face the penalty of unwanted sex.

Indeed, it is just this notion of preset consent that renders BDSM so objectionable to many who worry that it renders the submissive partner a slave to her words rather than her desires.

Dominate and submissive contract

One expects that BDSM contractors have chosen to engage in BDSM precisely because they desire the problematized wantedness BDSM claims to espouse, seeking loss of certainty as to wanted sex as well as the intermingling of shame, indignation, and satisfaction that comes of this lack of certainty. Rather, participants will almost certainly keep taking risks through and with the medium of contract, pointedly leaving terms open to interpretation and sex open to surprise.

It is worth noting that in choosing a guiding structure, BDSM was not bound to contract; rather, its appropriation of theater analogies would seem to call for narrative scenes. A scene, however, contains an end as well as a beginning, setting Dominate and submissive contract the shape of the entire interaction, with no provision for breach, efficient or inefficient.

BDSM contracts may also problematize wantedness in their simultaneous reinforcement and subversion of trust.

Dominate and submissive contract

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