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Golden Gate University Law Review

Abstract

The recent article Nonbinding Bondage: Exploring the (Extra)legal Complexity of BDSM Contracts encapsulates the aesthetic legacy of the sex contract and its embodiment in what this Comment calls “legal role play,” or how individuals perform contractual play-acting for sexual gratification. In Part I, this Comment challenges Nonbinding Bondage’s historical arc, using this writing as a launchpad for a more extensive discussion of the sex contract’s aesthetic interpretation. Employing a vocabulary of parody, play and performance (all aesthetics terms), Nonbinding Bondage presents the most popular reading of subcultural BDSM contracts: that they mime aspects of traditional contracts to unearth truths about power relations. Through the contractual mimesis of legal role play, BDSM practitioners experience with pleasure and gusto distorted versions of traditional societal power exchanges.

In Part II, this Comment examines how mimesis and desire intertwined for two Washington State Pups—gay men whose fetish entailed dressing up as dogs—Noodles & Beef and Tank. Pups engage in a range of practices: they variously display symbolic contracts (doggie collars, chains), draft and sign consequential written agreements, and may even agree to have tracking software installed subcutaneously (“chipping”). This Comment looks to the notorious sex contract that Tank posted to his Tumblr page on December 20, 2012 in its social and legal context. Though legally unenforceable, Tank performed the terms of this document to the letter, and it became a fatal fetish. This fatality derived from the fact that the contract contained an implied provision mandating testicular silicone injections by the submissive Pup. These injections killed Tank, but they did not have to.

Next, Part II turns to the meretricious contract, or contract involving sexual exchange, as analogue to a BDSM contract like Noodles & Beef’s. Though legally unenforceable, the meretricious contract can itself become the site of social and political liberation and empowerment, as critical California cases Marvin v Marvin and Jones v. Daly have demonstrated. Such a contract will typically lose in court, as it did in both cases. Still, its loss can trigger the birth of new rights for genders and sexualities typically excluded from the protection afforded by constitutionally derived fundamental rights, like the right to marry. Contracts that are meretricious in nature can also create new rights for victims of detrimental reliance—whose non-monetary contributions to a non-marital arrangement have come to amount to nothing after the arrangement disintegrates—helping to equalize a gender imbalance. Because the unenforceable meretricious contract can increase sexual freedom and equality through notoriety, the performative aesthetics of Noodles & Beef’s sex contract might contain a silver lining after all, adding to its legal and cultural importance.

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