Kink and Sex Are Not the Same

After over 20 years in and around the kink community, I thought this wasn’t an issue. Apparently, it is.

I thought that it was generally agreed upon that “kink” is not the same as sex, especially when considering who is old enough to consent. The states have various laws about what age people can consent to having sex. All of them that set the age below 18 were created to prevent teenagers from being subject to prosecution for statutory rape.

Whether it’s a website about kinky sex, or an online group discussing it on social media, the standard is an age restriction – you must be 18 years of age to view or participate, at least in the US. It’s true that there isn’t a real way to verify these things online, but when it comes to groups in real life, those restrictions are definitely enforced. If someone is running something like a BDSM social group or club in person and isn’t doing that, they are begging for legal problems. Even nearly complete novices to the lifestyle know this, if only because of the somewhat logical connection to pornography. It makes sense that the same age restrictions would apply to actually doing things that are (usually poorly) depicted in pornographic materials.

Unfortunately, Michael Segaloff, aka Michael Makai, decided that it was a good idea to instruct his defense attorneys to suggest in court documents that he thought the age of consent for BDSM activities was the same as the age of consent for just sex. That is setting aside the fact that most laws regarding teens consenting to sex were not intended to include sex with individuals who are significantly older. Segaloff got into legal difficulties over a 17-year-old girl he took across state lines, and brought to his home in part to engage in BDSM activities. While there is extensive information available on this case elsewhere, here I will focus on the legal issues as they relate to age of consent in the lifestyle.

Because Segaloff chose to use his experience as an author and speaker on the lifestyle – as Michael Makai – for part of his defense in sentencing, he opened the door to debate over age of consent for BDSM and kink in general. His case also leaves room for debate over the intent of age of consent laws in general, since he slipped through a loophole that probably was not intended. These laws were created to prevent statutory rape charges being brought against teens, not declaring anyone under the age of 18 as free game for adults. Segaloff ended up being charged under Federal law because his actions involved crossing state lines – physically and virtually. He couldn’t be charged in either state involved, because their sex consent laws did not specify that individuals over the age of 21 could not engage in sex with anyone under the age of 18.

Tempting as it may be to suggest a Federal level solution, neither of the options are appealing. If there is a Federal age of consent for sex, that would mean that all statutory rape cases would have to be handled on the Federal level. The existing judicial system could not handle it, so it would increase the likelihood that people would not be held accountable for their actions. It also would not be a good idea to have the Federal government force states to fix their age of consent laws as they have done in the past with laws regarding alcohol and tobacco. The concept of holding Federal funding hostage is legislative extortion and unacceptable. That leaves lobbying for change state by state.

Encouraging states to change sex consent laws so that they prohibit adults aged 21 and older from engaging in any sexual activity with minors under the age of 18 is the best option. If this push came from the kink community and sexual freedom activists, it would not only be at least a little surprising to the public, but it would hopefully build some goodwill in legislative bodies nationwide. It certainly wouldn’t hurt later efforts to legally protect the rights of consenting adults to engage in at least some of the activities involved in BDSM and kink. No matter what, it would undo any damage Segaloff has done to the community by suggesting that anyone in it thinks it is acceptable to involve minors in BDSM activities.

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