Abstract
Contracts are the common legal solution provided to those entering into agreements who wish to decrease their liability. However, there is a limit to which communities can take advantage of these legal protections. As previously taboo sexual practices like BDSM become more popular, those seeking to engage in the practices may think it reasonable to enter contracts to protect themselves from potential harm. Those who practice BDSM have indeed often turned to contract creation to memorialize the sexual agreements they have made with each other. Sex workers may especially seek to protect themselves from the harm that could result from the riskier aspects of consensual BDSM play with their clients, including acts that overlap with existing definitions of sexual assault. This Article argues that both traditional principles of contract theory and modern conceptions of sexual consent prevent these contracts from being legally enforced. It uses the current state of sex work regulation in the United States, archival BDSM contracts between private parties, and the history of relationship-based contract enforcement to determine how close to legally sound these contracts can be. While sex work regulation suffers in the United States from over-criminalization and a lack of attention to those practicing consensual sex work, contract theory is unfortunately not yet a place where sex workers practicing BDSM can find safe legal harbor.
Recommended Citation
Sam Wise,
ANALYZING THE LEGAL ENFORCEABILITY OF BDSM CONTRACTS BETWEEN SEX WORKERS AND CLIENTS,
34 J. L. & Pol'y
164
(2026).
Available at:
https://brooklynworks.brooklaw.edu/jlp/vol34/iss2/4