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. More than sex with some handcuffs thrown in, BDSM takes part in a broader project 4 that seeks to expose and investigate the ways in which sexual desire and experience reflect and construct systems of power.
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 to 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 Grey , involving 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 of BDSM practice.
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.
