Men, Friendly Tip From A Lawyer: Never Engage In BDSM

Men, Friendly Tip From A Lawyer: Never Engage In BDSM

If a woman regrets and later reports consensual acts—BDSM or not—as rape and it comes down to her word against his, then he will lose.
Leslie Loftis
By

The “Fifty Shades of Grey” hype has started its saturation run-up to the movie release this week. I expected the music video releases, the Super Bowl commercials. I did not expect the branding promotions.

I am a lawyer. Ever since their first year of law school, lawyers see liability. And in this bondage-for-amateurs fandom that is 50SOG (hat tip to Tracinski for the abbreviation) liability lurks everywhere.

We live in an era of “yes means yes” and “always believe the woman.” Fun or not, consent or not, signed document or not—no man should ever engage in bondage sex behavior. The best of the law doesn’t allow contracts for bodily harm, no matter the parties’ intent. Some of the worst law throws out the constitutional standard of innocent until proven guilty. If a woman regrets and later reports consensual acts as rape and it comes down to her word against his, then he will lose.

In this legal environment, this sort of sex play is high-risk. So I was shocked to learn that mainstream chain Target was selling 50SOG-branded toys. I saw the 50SOG display and my mind immediately went to the McDonalds’ coffee-burn case. They are selling candles…for bedrooms…next to blindfolds. No potential problems here.

Then, I saw the hotel promotions.

What the Corporate Lawyers Would Have Said

Imagine, if you will, a conference call. On this conference call are the public relations and legal departments for the company making the erotic pleasure items Target is selling and for the hospitality management companies of the hotels offering various promotions for 50SOG after-parties.

‘You want to sell oil candles, as in the items with an open flame and that are a common cause of house fires,and you want to instruct people to pour the melted oil onto their partners, possibly on sensitive areas.’

The PR pitch: “Alright everyone, we have these really great black and purple products—lube, vibrating rings, blindfolds, and hot pourable massage-oil candles—to sell at Target. Then, for the big release, we will team up with the hotels offering 50SOG after-party rooms for couples—or whoever—and sell them the toys for their promotions. They are offering promotional room rates, other bondage toys like handcuffs and paddles, themed drinks like cosmos renamed ‘The Red Room of Pain’—”

The lawyers interrupt, standing up with both arms braced on their desks, leaning over the speaker for the conference call, no longer doing mostly mindless menial tasks that lawyers typically do on conference calls, because the PR people had their full attention at blindfolds and candles and pourable oil. One voice is finally is heard over the clamor of interjections: “Let me get this straight. You want to sell oil candles, as in the items with an open flame and that are a common cause of house fires, especially when placed in bedrooms, and you want to instruct people to pour the melted oil onto their partners, possibly on sensitive areas.

“Furthermore, you want to sell these flaming sex toys next to blindfolds…at Target where impulse dabblers—not actual dominates and submissives, who at least have some previous knowledge and experience with bondage sex play—shop. Then, when the hyped bondage-for-amateurs movie comes out, you want to have these items available at hotels—hotels which have essentially advertised ‘Go see a bondage movie and then come to our establishment for a night while we ply you with drinks, give you implements of restraint and violence, and encourage you to get it on.’ Do I have all that correct?”

The PR team: “Yeah, basically.”

The lawyers: “No. Just no. The products alone are a lawsuit waiting to happen. Hot oil? Doesn’t anyone remember what happened to McDonalds and the coffee? As for the hotels, we could draw up a liability waiver for customers to sign at check-in, but it’d be longer and possibly just as flimsy as the notorious contract from the books that inspired this event movie. (Common law doesn’t allow people to contract for bodily injury. It’s a contract for show. You know that, right?) The waiver would have to cover fires, burns, injuries, and sex crimes.”

Thoughtful pause.

‘Go see a bondage movie and then come to our establishment for a night while we ply you with drinks, give you implements of restraint and violence, and encourage you to get it on.’

“Wow. Well, we can draft a waiver of liability for rape, but using it during a promotion that encourages customers to drink and copulate when intoxication negates consent—that’s a potential gross negligence problem. And then, mood-killing, voidable-to-unenforceable liability waiver contracts aside, there are the public relations and secondary suit issues. If someone made a rape allegation, then we would look as bad as the fraternities. Even when real reporters discovered the story was false, the frats’ image hardly improved. But then they can wait for truth and lawsuits because they aren’t a business. We get that kind of bad PR, we lose customers. Also, the alleged victim might be able to sue the hotel for knowingly encouraging violent male behavior. On the other hand, if the story turned out to be false, then the falsely accused might find a tort theory for suing us for the collapse of their life in face of false accusations…”

I don’t think any such conference call took place, at the individual companies or as a group. It is inconceivable to me that teams of lawyers would approve this kind of risk. I think they just didn’t get consulted. Since the advertisements started, however, there might be some company conference calls going on now, with the same general “You want to do what?!” tone.

Leslie Loftis is a lawyer and senior contributor here at The Federalist. Find her on Twitter at @LeslieLoftisTX.

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