Criminalization of consensual BDSM practices is usually not with explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights , which in principle constitutes a criminal offense. In Germany , Netherlands , Japan and Scandinavia , such behavior is legal in principle. Spectacular incidents like the US scandal of People v.
Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved, and the importance of knowing the legal status of the right of consent in the judicial statue of the country of resident for the practitioners of BDSM.
In Australia, the law on BDSM is "cobbled together from a small pool of legal cases", under common law. A senior lecturer in law from the University of Technology Sydney said that "it is unlikely that acts such as bloodletting and permanent disfigurement would escape lawful punishment based on the level of serious harm and the intimidation that may underpin the procurement of consent.
In the Northern Territory in , consensual harm was discussed as part of an Aboriginal tribal punishment, not sexual gratification, in Re Anthony. The Northern Territory Supreme Court held that it could not release on bail a defendant charged with manslaughter over the death of his wife, because he was going to be "speared" by his community, a traditional tribal punishment involving piercing the criminal's leg with a spear and being hit with sticks, despite his consent.
The court found the serious nature of the harm meant it was not in the community's interest. In New South Wales , a reform of domestic violence law meant that a person can choke someone with their consent, however consent is not a defense if the choking is to the point of someone being "unconscious, insensible or incapable of resistance, whilst being reckless as to doing so".
