Are so-called "BDSM Contracts" legally enforceable? What specific laws would forbid this?

Question

This is a serious question, and I'm hoping and thinking the answer is no, but I was hoping to get perspective. I heard from someone online claiming to be a law student that they might be, and I was disturbed at the thought that a court could potentially enforce physical contact.

For a specific example, let's say there's a contract that allows one party to spank the other at their discretion. Let's also say that the victim in this contract also receives some monthly stipend (just to take care of the "consideration" rules, maybe $200).

Let's also say there's some sort of outrageous, one-sided termination clause--like $100,000 for the victim to terminate the contract.

I'm thinking this wouldn't be enforceable for the following reasons:

• Spanking an adult constitutes battery/assault, which is a criminal offense, and a contract cannot have terms that are illegal or criminal.
• If there was a prior romantic relationship between the two parties, the contract might have been made under coercion (I'm not sure of the exact terms, obviously IANAL)
• The outrageous, one-sided termination clause might be used as evidence the contract was signed under duress, or it might violate some other principle that would void the contract

I'm mostly interested in what specific laws/legal principles would prevent this from being enforced, or if I'm wrong and the law student was actually right.

Thanks!

Answer 1

Sexual contact that is not consented to is a crime.

Physical contact where the receiver is under the apprehension of imminent risk is the crime of battery. However, spanking in the context of a consensual sexual encounter does not have that apprehension and is therefore not battery. It is akin to the consent given by people who take part in a contact sport.

Contracts cannot permit criminal actions.

The permission given by the submissive in this agreement would be valid only at that point in time that the contract was made and could be revoked at any time: such revocation could be explicit or implicit.

As continuous consent is required for a sexual act and revocation of permission would introduce the apprehension of harm. Whenever the permission was revoked the agreement would be unenforceable. At best, you have a agreement that is enforceable when the permissive wants it to be and not otherwise: more likely, you have a totally unenforceable agreement.

More generally, contracts that involve sex acts as consideration are enforceable to the extent that prostitution is legal in the jurisdiction. However, an order for specific performance would not be granted where either of the parties was no longer consenting to the sex act because that would be a court order to commit a crime. Other remedies for breach like damages would be available. For example, if you contracted with a prostitute and refused to pay for services delivered, you could be successfully sued for the fee, any damages, costs and interest.