The Court of Appeal’s decision was based on a shaky understanding of BDSM sex and consent. The decision reeks of a conservative mindset and a weak grasp of matters of sexuality. The central and crucial error of the judges was that they did not understand a consent practice, which is very familiar to the BDSM community: pre-negotiated ongoing consent.
In its ruling, the Court of Appeal required that separate explicit consent should be obtained immediately before each sexual act. A requirement that is unfounded and unsustainable.
The public statement about the case gave a completely misleading impression, which I am trying to correct in this text. Unfortunately, the picture will still stay incomplete, because I cannot reveal personal details about my ex-partner: their identity, mental health or the actual claims they made, even though they would be relevant for understanding the case fully. Still, I try to shed as much light as I can without violating court-imposed confidentiality.
I would be ok with total disclosure, because I know I have not done anything wrong, but the court chose to protect the liar and their own incompetence by issuing a non-disclosure ruling. However, I’d be happy to discuss the case in depth, if someone wants to contact me about it.
The justice system’s practice of keeping all sexuality-related cases secret must be criticised in this case and in general. Such practice is increasingly criticized in research, but the arguments never see the light of day due to the rampant secrecy rulings. Researcher Antti Korpi (2024) considers the evidentiary threshold for sexual crimes too low and calls it a violation of the presumption of innocence. Secrecy means that judicial blunders do not face public scrutiny, because all crucial information is withheld.
This case is naturally personally important to me, but it is also important as a question of sound principles regarding sexual ethics. I have worked a couple of decades as an activist and as an expert promoting a sex-positive and consent-based sexual culture. I think that it is extremely important that a question concerning the acceptability of consent practices within the BDSM community and sexual minorities does not rest on a flimsy Court of Appeal ruling.
My case unfolded as follows. On New Year’s Eve 2021, my ex-partner and I engaged in a BDSM session involving consensual sleep sex. It is a power exchange session in which I have sex with my sleeping partner, who has given me the power to act in the sex session in the way I see fit, but within pre-negotiated limits.
Because I am very careful with consent matters, we had beforehand discussed our BDSM practices in detail, creating a consent framework: a mutual understanding of boundaries and desires that would govern all BDSM sessions between us. We discussed and decided to do a sleep sex session in the evening and carried it out in the same night. There was no need to negotiate details of the session at that moment because both of us knew very well each other’s limits and what kind of sex was desired. As always, there was a possibility to voice any specific wishes and limits during the discussion, but nothing specific did not emerge.
Several months later I ended our relationship, because my ex-partners behavior has become increasingly toxic and unhinged. My ex-partner reacted with aggression, rage and violence. And immediately after that, they made the claim that the anal sex in the sleep sex session had not been consensual.
The claim was blatantly false, of course. In fact, there was pre-negotiated ongoing consent in place to anal sex and many other sexual and BDSM acts. These acts had been an essential part of our everyday sex. We also discussed them explicitly, because we were doing BDSM and roleplay sessions involving CNC and rough sex scenes, which were included in my ex-partners must have list. In BDSM explicit discussions regarding consent are vital to safe and fulfilling sessions.
Due to my ex-partners life situation at the time, I chose to document our pre-agreed consent framework. We used the online service Kinx List, filled the checklists, and printed them. Just by chance my ex -partner also signed their list as a joke. All of the various sexual acts done in the sleep sex session were included in the Kinx List under general consent. All of the acts were agreed upon in the same way, including anal sex, which was common between us. No hard or soft limits were breached, which was not even claimed by them. It is important to note that it is not acceptable to withdraw consent months after the fact.
The Court of Appeal argued that it was a sexual offence, because I had not asked for permission for each sexual act separately immediately before the session. A carefully created, implemented and documented ongoing consent was not enough for the Court of Appeal, even though all the sex that occurred was within the pre-agreed limits.
By that point, our relationship had already lasted about one and a half years, so all sex acts included in the sleep sex session were common and known to us, and well desired by my ex-partner. BDSM sex had been a central part of our relationship from the very beginning. At our first meeting, we discussed fantasies involving power play and even rougher sexual desires like violent rape fantasies and such. During our relationship, we had had multiple sessions that were similar to the New Year’s Eve session.
Our pre-negotiated consent framework formed the basis for all BDSM sex. In case of any new or unusual practices, I always negotiated separately, but when we went for familiar sessions, we didn’t need to ask for consent again and again, but instead relied on known and documented limits and desires. This is called opt-out consent practice, and my ex-partner even admitted that this was the case. I had no reason to believe that this one time should have been treated differently, nor did my ex-partner set any special boundaries for that session when we discussed it beforehand.
On New Year’s Eve, the sleep sex session was consensual in two ways:
- Sleep sex is a power-transfer session in which the submissive partner consciously gives the dominant partner the authority to act as they see fit in the session within pre-negotiated limits. By desiring to do sleep sex with me, my ex-partner knew and accepted that I would make the decisions alone during the session regarding what sexual acts to perform. Merely this fact, their informed acceptance, made everything done during sleep sex consensual. Power transfer explicitly includes acceptance that agency is temporarily handed over, within mutually pre-agreed boundaries.
- We had negotiated and documented our boundaries and desires for BDSM sessions in advance, thus making them well known to both. The Kinx-List document was also printed and our names were written there by hand. During the sleep sex session, I stayed completely within the agreed boundaries and only did what my partner had explicitly desired.
From the perspectives of sexual ethics and philosophy of law, a pre-agreed consent framework, a mutual ongoing understanding of boundaries and desires, is legitimate consent to sex, unless it is explicitly withdrawn or limited. Such a consent framework actually exists, in all relationships, at least implicitly, through a practice established over time. In most relationships, kissing, hugging, erotic touching, changing sex positions or engaging in familiar sexual practices are accepted based on implicit mutual understanding without needing to ask consent every single time.
In relationships that include BDSM sex, consent frameworks are often explicit and detailed. It’s common to negotiate boundaries and desires beforehand, and to talk through different possible session scenarios. Many even write down the consent framework, either informally or using ready-made checklists (like we did). Different ways of documenting the consent framework may vary, but most of them include personal limits and boundaries, desired sexual acts, and potential interests for future exploration.
The Court of Appeal’s requirement that consent must always be requested explicitly just before every sexual act would, when broadly applied, mean that many previously acceptable BDSM sessions would suddenly become rape or assault. And not only BDSM sessions, but thousands of regular sexual situations as well. For example, a sudden hug, an erotic kiss, waking one’s partner up with sexual touching, or initiating any sexual activity spontaneously would now count as sexual crimes according to the Court of Appeal, unless there were an explicit consent request each time, even if there was a prior mutual agreement ongoing in the relationship.
Such a strict and rigid stance on consent is unsustainable. It undermines individuals’ sexual autonomy in a way that turns back on itself. The purpose of legislation and jurisprudence is to protect sexual autonomy, not needlessly and arbitrarily restrict it. The Court of Appeal’s stance removes the right of the individual to use their sexual autonomy freely, to negotiate and agree on their sexual practices in a way all parties choose themselves. An individual should always be able to exercise their sexual freedom to act as they wish within ethical limits, provided that they have not been subjected to coercion or manipulation. Limiting this freedom, especially in cases involving marginalised sexualities, is discrimination.
In an earlier blog post I explained in detail how I negotiated consent and ensured my ex-partner’s wellbeing even during intense BDSM sessions. I have always sought to act clearly, transparently and kindly in sexual situations, and did so in this relationship as well. I even documented our consent framework in writing, because I thought that was necessary given my ex-partner’s condition at the time. And it is only fair to remind that the responsibility to do so was not solely mine, but it is always shared equally in all relationships.
I’m unfortunately not allowed to share all the details about my ex-partners condition and behaviour, and their shadow dancing with the truth, because the court has declared such matters confidential. What I can say, though, is that during the process they were caught distorting the truth multiple times; their story changed a lot during the process and it did contain essential false claims and contradictions. The Court of Appeal gave this no weight even though in cases like this it is crucial to assess the plausibility and coherence of testimonies.
This was a mistake of which I will hold them accountable. My sense of justice cannot accept that a lie can win, or that a court of justice can work so carelessly and incompetently. I remain, perhaps naively, convinced that the injustice must be corrected, and that the legal protection of thousands of BDSM practitioners must not collapse just because authorities are clueless about the complexities of sexuality and consent.
