The Legal Bonding of Anastasia and Christian
A CLOSE FRIEND—actually one of my divorce clients—asked me what I thought of the contracts presented in the Fifty Shades trilogy, and it made me imagine how I would have counseled Ana and/or Christian if either had sought my legal advice. I had just returned from a national lawyer convention where every female attorney was talking about these books, yet no one had talked about the contracts.
I had a field day.
I looked at the ins and outs, legally speaking, of the relationship between Anastasia and Christian. I tried to imagine the rules and contractual provisions that would best enhance their pleasure as well as serve and protect the submissive Anastasia and Dominant Christian.
Anastasia and Christian are sexual partners who dabble in bondage, paddles, whips, and commands. If they hope to have their deepest desires met while utilizing the process of legal bonding and fair negotiation, they clearly need a unique agreement: a special prenuptial, or nonnuptial (if marriage was not foreseeable), agreement with terms that recognize and embrace their roleplaying. This would be similar to a domestic partnership document, however it would focus less on housekeeping and more on tying the knot through ropes and chains. Ana and Christian would need a contract that permits them to engage in a sexual BDSM rendezvous in the Red Room of Pain without getting sued and with each adult maintaining safety. I would have told the submissive Anastasia in particular that she needed a paper and/or digital file that expressed her wishes and rights equally to the Dominant, Christian.
But first we have to explore the philosophical and legal question is: Can two people consent to physical aggression towards each other? The criminal code and family law protect a partner from violence against the other if it is against one’s will and is intended to cause harm.
What if the painful acts are intended to give pleasure and are desired by both parties? Does it matter if the beatings are solely inflicted by Christian against Anastasia? Should the submissive, Anastasia, be permitted in the contract to switch roles if she wants to become the Dominant, compelling the Dominant Christian to play the role of a sex slave? Can pain and pleasure exist at the same time, and if so, is there a limit? How many lashes or strikes are physically permitted so as not to cause harm, injury, or death?
These are the kind of questions and issues a lawyer would raise.
But let’s return to the book itself, and look at the legal agreements found there.
Nondisclosure Agreement (NDA)
The first step in the process of legal bonding between Christian and Anastasia in Fifty Shades of Grey is the Nondisclosure Agreement (NDA). A nondisclosure agreement is a contract to keep certain items or a subject confidential. It is a document to keep a secret. NDAs are valid under certain circumstances, but the one that Anastasia signed would be subject to challenge.
A good lawyer would question whether Anastasia was of sound mind to sign a legal document when she was filled with desire and yearning. She barely read it and did not have representation or the advice of counsel. It was fully drafted by Christian’s lawyer and given to her in a nonneutral setting, in a nonbusinesslike manner. Anastasia was at Christian’s house on a date; sexual heat was in the air. I do not know if you could go as far as suggesting this was entrapment, but it was certainly enticement. It is hard to think clearly and soberly when endorphins are kicking in, not to mention the distraction and awe of being in the company of a wealthy, glamorous man with Christian’s lifestyle—the helicopter ride and the luxurious abode.
Anastasia was literally swept off her feet into a different world; she was under the influence of seduction.
Did Anastasia and Christian have equal bargaining power? Their difference in age and experience suggests a lack of the preparedness and astuteness needed for Anastasia to sign a document legally binding her to Christian.
Until she met Christian, Anastasia was a virgin, in not only sexual but also legal and business matters. The NDA was Christian’s idea, as he had carried out relationships with seventeen others before Anastasia. The process of legal bonding requires mutual consent, and that consent must be given of one’s free will, without duress or coercion. It also requires mutual benefit and consideration. In other words, you give to get. If the NDA bound both lovers to silence, it could be argued that both benefited, if both desired confidentiality. However, in this case, it appears that Christian had more of an interest in and concern for secrecy, to protect his reputation in business and thus his wealth. Anastasia may not have realized her own interest in confidentiality to protect her reputation and future career. But there is no mention of Christian’s obligation to ensure confidentiality in the NDA. Admittedly, he states that in return for Anastasia’s submitting to his NDA and the “rules,” she will get a “huge” benefit. He did live up to his promise that first night and gave it to her good.
If I had been Anastasia’s lawyer, at the very least I would have added a clause to the NDA with an exception for:
a) a couple of personal confidantes, like Kate
b) doctors
c) mental health professionals
d) financial advisors
e) lawyers
I also would have suggested that the NDA include a clause that neither party could speak with the press and that each could obtain a gag order from a court if need be for any potential slips of the tongue.
The Contract and Suggested Amendments
Christian, in all fairness, gives Anastasia time to think about the rules independently, away from his presence. He sincerely wants her to make a thoughtful and informed decision. He recognizes that these provisions are asking a lot of Anastasia and wants her to be sure that she is ready and consents for the adventures ahead. He hands her the contract and tells her to research it. He also encourages her to add her own rules and limits.
The full contract grants both parties confidentiality (thus correcting the NDA) and safety, and includes protection from sexual disease. However, the contract is very strict in its requirement that the submissive offer the Dominant pleasure at his request, without hesitation or question. It sets out that decisions concerning everything from schedules to hygiene to the type of sex play are to be made solely by the Dominant, and the submissive must negotiate for her preferences. It also provides for punishment and discipline for violations as the Dominant determines. These punishments may include flogging, spanking, whipping, corporal punishment, restraints, and handcuffs.
Christian’s hard limits give some important protections from physical harm as a result of that punishment; in particular, there is to be no blood and there may be no acts that can cause permanent marks. The contract emphasizes the submissive’s health and safety more than once, noting that all instruments used must be hygienic. (A sense of some ethics is also displayed in Christian’s hard limits, in his prohibition against the inclusion of children and animals. But the submissive must determine if she is comfortable with not looking at or touching Christian without permission.)
I like the specificity and the lists of the type of sex, toys, bondage, and restraints that can be used. But I would argue that the Dominant should not be able to do anything not listed, and a clause should be added specifying that. The types of punishments to be utilized should be itemized. I’d also suggest adding an opportunity for both to consent to items and acts not specified in the contract.
I like the submissive safety code words: yellow—close to her limit; and red—actions cease. Anastasia can decide herself whether she cannot tolerate any more. The code words give her significant control of the situation.
As an additional safety measure, Anastasia should be able to determine by herself if she needs to go to the doctor, and clause #15.8 should be amended so that she can get medical attention at any time she sees fit. The way it is currently drafted, the wording is vague and overly broad. And it is not necessarily in Christian’s interest to send her to the doctor and disclose what he is doing.
Christian’s rules and the hard limits he would like as part of the contract include many vague and broad terms, like obeying any instruction and agreeing to any sexual act except those on Anastasia’s list of hard limits. The contract needs more specificity in these areas, as well as on exactly what beauty treatments Anastasia, as submissive, will undergo. Perhaps Anastasia could have made her own list of what she would not do treatment-wise as well sexually. (It should be noted, however, that contracts for sexual favors are void as a matter of public policy. They are not legally binding or valid in America.)
The rules provided by Christian require Anastasia to be monogamous to him. This requirement should be mutual, something Christian would likely not object to, because he likes and wants monogamy.
In this sort of agreement, there should be escape clauses and a sunset clause. If either party wants to stop at any point for whatever reason, the curtain should rise. And indeed, there is a sunset clause included. The three-month contract automatically expires without a signed renewal. The renewal provides the opportunity for further negotiation and modification. There are also several escape clauses: one providing that all that occurs must be consensual; another that if there is a breach of the contract, it is void; and a third stating that if the Dominant violates the safety clause, the submissive can leave without notice. In addition, the Dominant can stop the contract at any time; clause #13 states that the submissive cannot, unless the Dominant gives permission. I would argue, however, that according to the contract, she can. Clause #3 says that all actions will be consensual. Thus, if the submissive, Anastasia, does not consent to an act, she is not obligated. It just needs to be stated more clearly, so there is no misinterpretation.
Anastasia’s Initial Reaction and Subsequent Negotiation
Anastasia is bright and becomes a good negotiator for herself. She first negotiates for when she will wear the clothes Christian purchases for her and how often she wants to exercise with the personal trainer Christian will provide. Anastasia also solicits and receives Christian’s verbal permission (which should have been put in writing) for an exception to the NDA—to disclose some issues in the contract with her best friend, Kate.
Once Anastasia returns home, she reviews the contract more closely in her bedroom. Her immediate concerns are that the contract is too short and Christian will be on to the next girl very quickly. She is extremely worried about a lack of commitment on his part.
She also thinks that it imposes too much on her time by committing her to be with Christian every weekend. She wants a weekend a month to herself. She shudders at the flogging and whipping, thinking that she could tolerate the spanking and the hand restraints but is not comfortable with the request not to look into his eyes and not to touch him unless requested to do so. Part of her is excited about the whole arrangement, however; her inner goddess jumps up and down at the thought. Anastasia enjoys Christian; he turns her on like electricity and she likes his playfulness.
Anastasia does research about the contract on the computer that Christian has given her, which he has the password to, meaning he could check her browser history. He even tells her how to start the research—nearly as unfair an advantage as the bribery via expensive gifts, first edition books, the laptop that was not on the market yet, a new car, and oysters and wine.
Christian and Ana had agreed she would be able to think about the contract away from his presence. However, Christian distracts Anastasia’s independent thinking when he comes over unexpectedly and they have sex. Christian gives her a taste of what is to come if she signs the contract when he ties her hands above her head and teases her, covering her eyes with her shirt and using ice, bringing her close to orgasm but not completely, using the technique as punishment.
Doing so before Anastasia is about to sign the contract puts her under his influence, a sexual drug of endorphins that affects the brain and prevents her from approaching the discussion from a rational, sober, and neutral place. Christian even resumes their discussions of the contract immediately after sex. He only does so, however, to encourage Anastasia to share her issues and questions and to negotiate with him. It is not a take-it-or-leave-it contract. This makes it more of a document based on mutual consent and input by both parties. Anastasia asks about being collared by Christian and states that she does not want to do it.
Once Christian is gone, Anastasia puts together a more formal response to the contract in writing, but it is not compiled with much contemplation or after any discussion with a lawyer or mental health professional. The response is written almost immediately after sex, and with Anastasia upset at feeling like a sex receptacle, in addition to being concerned about Christian not being able to give her the commitment or affection she desires.
In her response, Anastasia makes it clear to Christian that she feels the contract is for his benefit. She also asks about his drug use, in order to protect her safety. She notes that she likes that she can terminate the contract at any time if Christian violates it.
Anastasia requests a shorter term of one month instead of three months, and suggests three weekends a month instead of four. To her credit, she asks for specificity concerning how Christian can use her body sexually or otherwise. She also recognizes that to obey in all things and accept discipline without hesitation is very broad, and notes that she wishes to discuss this further.
She is concerned about sadism, and expresses a lack of desire to be whipped, flogged, or subjected to corporal punishment. She also does not want to be restricted when it comes to masturbation. She questions why she cannot touch him and look into his eyes. The food list is also a deal breaker. (Many women might differ on this, liking the idea of having a healthy food list and a nutritionist and making the deal breaker some of the violent actions.) The clothes and exercise issues had been negotiated previously, without a hitch.
Anastasia rejects or questions only a couple of the soft limits, like fisting, genital clamps, and suspension. I was surprised she did not reject or add more limits. I was also surprised to read that Christian thought she quibbled with too many points.
Christian and Anastasia later meet in person to negotiate before finalizing the contract. They both verbally agree it is legally unenforceable—that it exists only to set parameters for their relationship and expectations, but that the agreement will help stop any lawsuits and make Anastasia less subject to legal maneuvers from Christian.
Christian responds to Anastasia’s written points one by one. He agrees to state that the contract is for the benefit of both of them, not just him. He discloses that he does not do drugs and is clean of all sexual diseases. He agrees that she can walk away anytime but then coldly points out that, if that occurs, it will be the end of their relationship and contact with each other.
Christian does not compromise on Anastasia obeying him. She shares her concerns with him about getting hurt emotionally and physically, but eventually gives in to obeying Christian. Both agree that there will be no suspensions. Christian counteroffers Anastasia’s request for days off away from him by giving her one day out of one weekend per month, in exchange for her spending a midweek night with him that week. She accepts.
Christian pushes for his terms on the three-month contract length and on discipline. Christian gives in about ordering Anastasia on the eating issue. He does not give in about not allowing her to look at or touch him, or masturbate without his permission.
He does agree verbally to go slow. Anastasia points out Christian’s leverage points, using sex and seduction to get what he wants. When Christian is in front of her it is more difficult for her to refuse him, and many of the times that Anastasia is required to make decisions, there is wine involved. She also recognizes her lack of experience compared to his, and leaves without consenting to the contract and without giving in to her desire to have sex with him.
Sealing the Deal
Christian has by this point made it clear that the Dominant/submissive roleplay is the only way he knows (or wants) to be in a relationship. It is a complete question mark at this point which way Anastasia will go, given her preference for affection and emotion.
But at her graduation, Anastasia consents to the contractual offer.
When Anastasia expresses to Christian that she wants more from him, the “hearts and flowers” of a relationship, and Christian asks her to try the relationship he has suggested, she softly responds, “okay.” That little quiet, verbal murmur seals the beginning of their Dominant/submissive contract and entry into the Red Room of Pain. She then confirms and accepts the contract in writing by scribbling on the wrapping paper of the first-edition Thomas Hardy books gifted to her by Christian. But although Anastasia has accepted the conditions, she never actually signs the contract.
The legal bonding process continues after their agreement on the Dominant/submissive roles, however. At their next meeting, they review the soft and hard limits—what will and will not take place. Christian agrees to no fisting and agrees to go slow with anal sex and not to pursue it further if Anastasia does not like it the first time. Many items that Anastasia does not understand, she goes along with, like butt plugs, beads, and eggs. She glosses over most of the bondage terms, except the spreader bar. After Christian defines it, she consents to including it in the contract. Anastasia still has issues with gagging, and Christian takes a note of this but does not delete it. Again, a discussion of the contract is occurring with alcohol; perhaps if she had been sober, Anastasia would have pressed him to remove gagging entirely.
Next, they review items that can cause pain. Genital clamps are deleted and caning gets taken off the list. Christian verbally agrees to go slow and then only later increase the intensity. Anastasia appears to be in shock, and she remains concerned about punishment and violence.
Christian does offer “more” after Anastasia’s request and agrees to try one night a week together outside of their D/s contractual relationship. Christian is agreeing to go outside of his comfort zone a little, but this is a verbal promise, not a provision in the agreement. In return, Anastasia must accept Christian’s graduation gift of a new car.
Finally, they seal the contract not by signing it, but with a verbal consent, passionate kisses, and thrusting. The legal bonding of Anastasia and Christian is sexually consummated!
The Final Contract
The crux of Christian and Anastasia’s final agreement is as follows: Christian needs permission to punish Anastasia from Anastasia herself. However, she may still be punished if she breaks the rules, as she has agreed to be obedient to Christian.
Despite this agreement, Anastasia remains still as uncomfortable with punishment as Christian is with being touched, and states that she accepts punishment only for his benefit because he needs that in a relationship. Anastasia wants to be with Christian and she does not want to lose him. She does not hate the contractual relationship, but she does not like the discipline and the pain and she would prefer the contract without it. Anastasia is very worried about being hurt, physically as much as emotionally. Their contract does not protect her from this.
Near the end of the book, Anastasia revisits and raises issues in the contract. Christian makes it clear that he wants them to continue to follow the rules all of the time and to follow the spirit of the contract when they are in the “playroom.” And at Anastasia’s request, Christian breaks the rules to punish her, hitting her with a belt on her ass, very hard, six times in a row, and further, spanking her repeatedly, eighteen times.
In both instances, Anastasia ends up in tears, sore, and injured. And so in the end, whatever their final arrangement, the two must include in their relationship a clause, whether written or verbal, that there will be no punishment. It is clearly too much for Anastasia to bear and does not make her happy. Unwanted punishment violates the very purpose of the contract: for both parties not only to be protected, but also have their most fundamental needs and desires met.
SHERRI DONOVAN has over twenty-five years of experience in divorce and family law and has operated her own law firm, Sherri Donovan & Associates, P.C., since 1988. Ms. Donovan is a certified mediator, parenting coordinator, professor of family law, published author, and neutral evaluator for New York City courts for matrimonial cases.
Ms. Donovan is the author of Hit Him Where it Hurts: The Take-No-Prisoners Guide to Divorce, Alimony, Child Support, and More, and has recently published an article on special needs children and divorce in the Huffington Post. Ms. Donovan is a seasoned public speaker and lectures extensively for a variety of organizations that include the United Nations, New York County Lawyers Association, and New York City Bar Association. Ms. Donovan has spoken on many public forums, including television appearances on CBS, NBC, and MSNBC, and radio appearances on WWRL Radio Program, The Joey Reynolds Show, and over fifty syndicated shows across the country. Ms. Donovan has many professional affiliations, including but not limited to: member of the United States Supreme Court Bar; professor at the Gordon F. Derner Institute of Advanced Psychological Studies, Adelphi University; divorce clinic specialist for the National Organization for Women (NOW), New York City, since 1990; and legal counsel for New York City’s Small Business Congress.