BDSM, the law, and you

[Pure]

WHAT YOU SHOULD KNOW ABOUT THE LAW:
A WELL-KNOWN COURT JUDGMENT

It's often said that
1) the difference between abuse and bdsm is consent, and
2) if there's abuse there's always lack of consent

Both of these statements suggest that

3) if there is consent (along with common 'sane, safe' bdsm precautions), there is no abuse.

The further suggestion might be

4) 'If you get (informed, sane) consent for the acts that are planned (and you act safely), you can't rightfully be prosecuted for abusing someone by doing those acts.'

In simple terms, the issue is, "Is following the safe, sane consensual approach a reliable way to avoid prosecution?"

Both suggestions 3) and 4) are inaccurate, as the following case material demonstrates, for a British case. I give a short summary, then make a few further points, then give an extensive quotation from the actual judgement.

Short summary by 'pure':

Three gay males, one 17, practiced various forms of beating and genital torture. They made videotapes, not sold, for others in the bdsm group. The acts were consented to, and they had 'safe words'. There were convicted of several counts of assault since actual wounds-- breaking the skin with bleeding-- were inflicted. At least one 'victim', sub, was convicted of aiding and encouraging the assault, apparently on himself.

Upheld on appeal: It was stated that society has an interest in regulating such acts, which amount to assault, because of the dangerousness and cruelty of them, which breeds further cruelty, even though there is consent. The person's right to do with his body as he chooses is limited to lawful acts; unlawful ones, such as drug taking, are illegal for reasons of public policy. "the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer." In short, if the skin is broken, if there's bleeding, or a wound--non-trivial injury--both are subject to prosecution for assault.

The European Court's decision agreed with the above points,and the convictions of the men were upheld.


My personal view: Sexual acts of adults, in private, with consent of all persons, should not be prosecuted unless there's serious bodily harm. Let's hope that laws against s/m sex will change, as did the laws, in many Western countries, against adult gay and lesbian sex. In the mean time, I think you should know your vulnerability. If you want to help, visit the website listed at the end. Help bdsm orgs lobby the legislators in your area (state, country).

To continue: "Abuse" is not a common legal term in dealing with or defining assault, excepts perhaps in relation to domestic and child welfare legislation. Common terms that you see, are mistreatment and bodily harm. In any dictionary, ordinary or legal, abuse and mistreatment are almost identical concepts in the present area of discussion.

We're not talking about the dom/me's mind, his or her (subjective) intent; nor whether the sub considers him- herself mistreated. But the judgment below shows how the British courts use objective standards--i.e., is there a wound?-- to decide on the issue of mistreatment.

See especially sections 10 and 20, 21 below, which I put in bold. You should notice also that not merely the domme is prosecuted, but the 'sub'/victim' for 'aiding and abetting' his own wounding.

As for the US, there is a similar, though not identical legal tradition. Check it out. It appears that the laws in some states, for instance, the State of Washington, would have similar effect in making 'consent' NOT count as defense. See Bergstedt's site,

http://www.io.com/~ambrosio/law/law.html

All this may seem like niggling or 'semantics' to some. If so, don't read any further.

Lastly, I am not a lawyer.

This case, appealed to the European Court of Human Rights, 1997 was originally a British case [1990; appeal jgmt, 1993]. The following summary of the earlier case is from the judgement of the European Court case.

Text excerpts from

http://www.io.com/~ambrosio/law/judge.html

=================
CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM EUROPEAN COURT OF HUMAN RIGHTS

CASE OF LASKEY, JAGGARD AND BROWN v. THE UNITED KINGDOM (109/1995/615/703-705)

JUDGMENT STRASBOURG February 1997

[...]
AS TO THE FACTS
I. The circumstances of the case

7. Mr Laskey, Mr Jaggard and Mr Brown, all British citizens, were born in 1943, 1947 and 1935 respectively. Mr Laskey died on 14 May 1996.

8. In 1987 in the course of routine investigations into other matters, the police came into possession of a number of video films which were made during sado-masochistic encounters involving the applicants and as many as 44 other homosexual men. As a result the applicants, with several other men, were charged with a series of offences, including assault and wounding, relating to sado-masochistic activities that had taken place over a ten-year period.

One of the charges involved a defendant who was not yet 21 years old -the age of consent to male homosexual practices at the time. Although the instances of assault were very numerous, the prosecution limited the counts to a small number of exemplary charges.

The acts consisted in the main of maltreatment of the genitalia (with, for example, hot wax, sandpaper, fish hooks and needles) and ritualistic beatings either with the assailant's bare hands or a variety of implements, including stinging nettles, spiked belts and a cat-o'-nine tails. There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring.

These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification. The infliction of pain was subject to certain rules including the provision of a code word to be used by any "victim" to stop an "assault", and did not lead to any instances of infection, permanent injury or the need for medical attention.

9. The activities took place at a number of locations, including rooms equipped as torture chambers. Video cameras were used to record events and the tapes copied and distributed amongst members of the group. The prosecution was largely based on the contents of those video tapes. There was no suggestion that the tapes had been sold or used other than by members of the group.

10. The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the "victims" as an answer to the prosecution case.

11. On 19 December 1990, the defendants were convicted and sentenced to terms of imprisonment. On passing sentence, the trial judge commented: "the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them. The homosexuality of the defendants is only the background against which the case must be viewed."

Mr Laskey was sentenced to imprisonment for four years and six months. This included a sentence of four years' imprisonment for aiding and abetting keeping a disorderly house (see paragraph 31 below) and a consecutive term of six months' imprisonment for possession of an indecent photograph of a child. Under section 47 of the Offences Against the Person Act 1861 ("the 1861 Act" - see paragraph 27 below), Mr Laskey also received concurrent sentences of twelve months' imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm.

12. Mr Jaggard was sentenced to imprisonment for three years. He received two years' imprisonment for aiding and abetting unlawful wounding - contrary to section 20 of the 1861 Act (see paragraph 25 below) -, and a further twelve months' imprisonment for assault occasioning actual bodily harm, aiding and abetting the same offence, and unlawful wounding.

13. Mr Brown was sentenced to imprisonment for two years and nine months. He received twelve months' imprisonment for aiding and abetting assault occasioning actual bodily harm, a further nine months' imprisonment for assault occasioning actual bodily harm, and a further twelve months' imprisonment for further assaults occasioning actual bodily harm.

14. The applicants appealed against conviction and sentence.

15. On 19 February 1992, the Court of Appeal, Criminal Division, dismissed the appeals against conviction. Since, however, the Court found that the applicants did not appreciate that their actions in inflicting injuries were criminal, reduced sentences were imposed.

16. Mr Laskey's sentence was thus reduced to 18 months' imprisonment as regards the charge of aiding and abetting keeping a disorderly house. This sentence was to run concurrently with another three months' sentence in respect of the various counts of assault and consecutively with six months' imprisonment for the possession of an indecent photograph of a child, totalling two years' imprisonment.

17. Mr Jaggard's and Mr Brown's sentences were reduced to six months' and three months' imprisonment respectively.

18. The applicants appealed to the House of Lords on the following certified point of law of public importance: "Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on the part of B before they can establish A's guilt under section 20 or section 47 of the 1861 Act?"

19. On 11 March 1993, the appeal, known as the case of R. v. Brown ([1993] 2 All England Law Reports 75), was dismissed by a majority of the House of Lords, two of the five law lords dissenting.

20. Lord Templeman, in the majority, held after reviewing the case-law that: "... the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the Act of 1861. They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sado-masochistic encounters ...

Counsel for the appellants argued that consent should provide a defence ... because it was said every person has a right to deal with his own body as he chooses. I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken. It is an offence for a person to abuse his own body and mind by taking drugs. Although the law is often broken, the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally.

In any event the appellants in this case did not mutilate their own bodies. They inflicted harm on willing victims ... In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous.

I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty ... Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised."

21. Lord Jauncey of Tullichettle found that: "In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by section 47 of the 1861 Act, with the result that consent of the victim is no answer to anyone charged with the latter offence ... unless the circumstances fall within one of the well known exceptions such as organised sporting contests or games, parental chastisement or reasonable surgery ... the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer.

[an older case cited]
28. In the case of R. v. Donovan ([1934] 2 King's Bench Reports, at 498), the accused had beaten with a cane a girl for the purposes of sexual gratification, with her consent. Swift J. held: "It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence, and when such an act is proved, consent is immaterial."
[end excerpts]

===
If there is an interest, I will post further excerpts. You may visit the website mentioned above or go to http://www.spannertrust.org

 

[Ebonyfire]

All I will say is this

That is why people do not "out" themselves. The same things can happen to you if your kids say you abused them or if the school thinks you have abused your kids.

it behooves you to be careful who you play with, and whom you play with around your children too.


Eb

 

[Ysandre]

It's nice that you can bring light to different laws and copy texts and rulings and let people know there are defences.
As one who has been ripped from their home with the Dom of their choice, forced thru the judicial system to plead against Him due to lack of marriage or written contract, and watched his eyes as he was taken away to prison on multiple assault charges.
I think there is more to the cases than plain written text.
Until you've had to deal with it in your face and had it be your reality.
It's only pretty words in a textbook.

 

[Ebonyfire]

It's nice that you can bring light to different laws and copy texts and rulings and let people know there are defences.
As one who has been ripped from their home with the Dom of their choice, forced thru the judicial system to plead against Him due to lack of marriage or written contract, and watched his eyes as he was taken away to prison on multiple assault charges.
I think there is more to the cases than plain written text.
Until you've had to deal with it in your face and had it be your reality.
It's only pretty words in a textbook.

You definitely got that right. I post on a few other lists, and have had others tell what has happened to them too.

You just have to be so careful.

For example, I always know when my subs are going to the doctor for any kind of checkup.

Why? Cause you do not want them going to the Doctor with assorted bruises etc. that are the result of D/s play.

One sub has surgery for a hernia, and we had to be careful what we did prior so that the doctor would not question him.

It is wise to be proactive, and look out for and avoid situations that will bring you to the attention of non sympathetic law enforcement.

I was lucky when I started in that I had police in my BDSM group. They were very helpful let me tell you.

I can sympathize with you Ysandre, but I have not walked in your shoes. I hope that your Master has been returned to you, and that time will heal Y/your hurt.

Ebony

 

[Pure]

My sincere sympathies, Ysandre. A legal discussion and texts are meant to inform of legal matters. To alert people. They are dry, though I've added explanations in ordinary non-legal English. But they are not intended to shut out anyone's personal stories, which of course have a much greater emotional impact on the reader.

The best to you.

 

[lark sparrow]

WHAT YOU SHOULD KNOW ABOUT THE LAW:
A WELL-KNOWN COURT JUDGMENT

It's often said that
1) the difference between abuse and bdsm is consent, and
2) if there's abuse there's always lack of consent

Both of these statements suggest that

3) if there is consent (along with common 'sane, safe' bdsm precautions), there is no abuse.

The further suggestion might be

4) 'If you get (informed, sane) consent for the acts that are planned (and you act safely), you can't rightfully be prosecuted for abusing someone by doing those acts.'

In simple terms, the issue is, "Is following the safe, sane consensual approach a reliable way to avoid prosecution?"

Both suggestions 3) and 4) are inaccurate, as the following case material demonstrates, for a British case.

My personal view: Sexual acts of adults, in private, with consent of all persons, should not be prosecuted unless there's serious bodily harm. Let's hope that laws against s/m sex will change, as did the laws, in many Western countries, against adult gay and lesbian sex. In the mean time, I think you should know your vulnerability. If you want to help, visit the website listed at the end. Help bdsm orgs lobby the legislators in your area (state, country).

To continue: "Abuse" is not a common legal term in dealing with or defining assault, excepts perhaps in relation to domestic and child welfare legislation. Common terms that you see, are mistreatment and bodily harm. In any dictionary, ordinary or legal, abuse and mistreatment are almost identical concepts in the present area of discussion.

We're not talking about the dom/me's mind, his or her (subjective) intent; nor whether the sub considers him- herself mistreated. But the judgment below shows how the British courts use objective standards--i.e., is there a wound?-- to decide on the issue of mistreatment.

See especially sections 10 and 20, 21 below, which I put in bold. You should notice also that not merely the domme is prosecuted, but the 'sub'/victim' for 'aiding and abetting' his own wounding. I've put my short summary at the end.

As for the US, there is a similar, though not identical legal tradition. Check it out. It appears that the laws in some states, for instance, the State of Washington, would have similar effect in making 'consent' NOT count as defense. See Bergstedt's site,

http://www.io.com/~ambrosio/law/law.html

/B]

Thank you for posting this, Pure. Despite the new accessibility of BDSM, the rise of aspects into mainstream culture and the positive community image, standards and tenants - none of us are above the law, and the law has not caught up. A crucial point, and not simply a cautionary tale (though an excellent one), but as pointed out a way to possibly become involved in change. Thanks again for the reminder on keeping ourselves safe and aware in the world at large.

 

[Siren]

 

[maddi]

My question is how do you advocate for change with out being outed?

We are military and my master would be prosecuted very harshly if anyone ever found out?

That is part of the reason I am afraid also to join some groups. What if someone saw me at the group and knew what it was for? Such as the munch at the mall.

I just don't understand why this is such an issue? Or why we have to defend ourselves?

If I like to be tied up and spanked that is nobody's business but my own!

I guess I am naive.

Maddi

 

[Lancecastor]

I'm sure there have been several threads containing legal/abuse issues here before.

Here's a sampling:

R49's marital breakdown

The Jovanovich Case in New York

The Mega Thread

Cheers;

Lance

 

[Pure]

Lance
Thanks for bringing those up. There's nothing new under the sun, as they say. People should check out law related sites.

At the same time I don't see much overlap with previous threads. There's a bit of overlap with the Jovanovich case, but it's rather complicated, and involved a rape shield law, as you know. Based on a quick reading, the dom Jovanovich won on appeal, because it was held that the application of the Rape Shield law was unfair and prejudicial to his defense. Iow, he should have been permitted to bring out her emails attesting to her interest in submission and her agreement to undergo what he did to her-- and indicating, through inconsistencies, possible fabrication or lies on her part.

 

[Lancecastor]

her agreement to undergo what he did to her.

You mean: 'their agreement to do what they did together".

 

[Pure]

Hi Lance,
Yes, I believe it was consensual.

I guess I had in mind the part where he tied her to the bed--with her cooperation-- and dripped hot wax on her. In that way, he
was 'doing' and she was 'undergoing.'

I'd be very interested in the outcome of the re-trial, which must have started in 1999, and must have ended. Google search, as far as I can find yields no recent news. (But does give the name of the law firm handling the defense.)

By the way, in reading the case, there's clear signs the young lady was mentally unbalanced. Would a thread on that topic be in order? "Signs that your prospective 'sub' is mentally unbalanced." (Of course any party in a scene may be unbalanced, but I don't recall this topic being discussed, though maybe it's been demonstrated ;-) )

J.
=================
Originally posted by Pure
"her agreement to undergo what he did to her. "
--------------------------------------------------------------------------------

Lancecastor commented

You mean: 'their agreement to do what they did together".

 

[Lancecastor]

Hi Pure;

The facts of that case make it sound like they were both kooky to me, but that might have simply been the slant of the legal establishment in the way the facts were presented and recorded.

I think the appeal was quashed; there was something recent posted about that case in one thread I saw about it, I'm sure.

Cheers;
L

Hi Lance,
Yes, I believe it was consensual.

I guess I had in mind the part where he tied her to the bed--with her cooperation-- and dripped hot wax on her. In that way, he
was 'doing' and she was 'undergoing.'

I'd be very interested in the outcome of the re-trial, which must have started in 1999, and must have ended. Google search, as far as I can find yields no recent news. (But does give the name of the law firm handling the defense.)

By the way, in reading the case, there's clear signs the young lady was mentally unbalanced. Would a thread on that topic be in order? "Signs that your prospective 'sub' is mentally unbalanced." (Of course any party in a scene may be unbalanced, but I don't recall this topic being discussed, though maybe it's been demonstrated ;-) )

J.
=================
Originally posted by Pure
"her agreement to undergo what he did to her. "
--------------------------------------------------------------------------------

Lancecastor commented

You mean: 'their agreement to do what they did together".

 

[jfaustus]

DISCLAIMER: Nothing in this post should be construed as legal advice. If you want a professional opinion on the legality of BDSM practices in your area, consult a criminal lawyer.

Great thread!

A quibble: Pure, the US is a common law country, along with the UK, Canada, Australia, South Africa, India, New Zealand and quite a few others. It's true that in a lot of instances staute has trumped the old common law, but tha't's true in those other countries as well.

On the specific case mentioned: The European Court of Human Rights, in typical fashion, found that there was no invasion of the defendant's right to privacy. If it had had the courage to decide otherwise, the law all across Europe would have immediately changed. Alas, the ECHR is usually very timid when deciding on questions of sexuality and human rights.

On the US: the case law is very ambiguous. Most of the ones I found dealt with situations so egregious that they could hardly be defined as either safe or consensual. Janovic was the hardest one, and the what the court did there was very interesting (btw: the prosecution tried to overturn the appeal in 2000 and was rejected. There's no further record of the case, so it's likely the prosecution decided not to retry.)

The court in Janovic held that he hadn't received a fair trial because evidence -- explicit emails written by the victim -- was improperly excluded by the trial court. What they didn't say, directly, was that consent would have been a defense. But by saying that evidence of the victim's experience and attitude should have been admitted, the court strongly implied that such evidence could be relied on by a jury to find a defendant in a BDSM case not guilty.

This is, it should be noted, a departure from other case law but -- as I mentioned before -- most of the other cases were thinly disguised abuse. Whether other courts, if presented with a case of genuine but extreme consensual BDSM, would follow is impossible to predict.

All of this is yet another really good reason to maintain a very clear checklist. It could serve as evidence of what, exactly, was consented to. That wouldn't matter if the court decided that consent wasn't a defense, but if it did or was wavering a checklist would stand you in great stead.

I found a really, really good article that takes a hard look at whether the criminal law doctrine of consent to violent activities should be modified to allow for BDSM. The author decided, after a very honest evaluation, that it shouldn't. I disagree with her conclusion, but she makes a very persuasive case that touches not only on law but on the very nature of what it means to consent to pain and violence. It's a dense law review article, but if you're into that kinda stuff you can find it here.

If anyone does get around to reading it, please PM me. I'd love to discuss.

-jfaustus

 

[Pure]

Yes, sex is sometimes a sport

Hi JFaustus,

Thanks for the lead in that article. I've not had a chance to look at that many cases.

Readers here should note that the article surveys a number of current and past cases of bdsm violence, and summarizes them rather nicely, except that her summary of Jovanovich, imho, is rather biased.

Here's an abstract and a brief excerpt. She concludes that the present legal situation and evolution is unfolding as it should.

There should be [she says] no defense of 'consent' in bdsm/sexual activity, as bdsm legal activists and practitioners have advocated.

She holds that (allegedly) male violence is being curbed, as it should be, and that the law is properly, in her opinion, narrowing the range of 'consent' defense in cases of bodily injury, including in sport (though she does not entirely accept the analogy with sport.) Hanna's reasoning is not unlike the European Court's, which I haven't reproduced, here, yet: Society, she says, has an interest in discouraging violence, and in particular in protecting the vulnerable--esp. women but also brutalized male subbies--from bodily harm.

I don't know how much detail other readers are interested in, but here is my opinion of Hanna's position. She's concerned about the tradition of male violence and 'gentlemanly' practices that lead sometimes to death. These, e.g., duelling, have been protected. The prime examples in the present case are fighting and sports like hockey and boxing. I share that concern.

At the same time, if you look at the Spanner foundation website, their position seems, on balance, more reasonable. They suggest that yes, the law should deal with major and life threatening injuries in bdsm. But the law should leave alone the routine 'bodily harm' that sometimes occurs in some sexual practices, provided it is agreed to, and part of safe practice. In simple terms, the Spanner bdsm lawyers want the threshold *raised.*

There is presently a threshold, as Siren pointed out, at the level of 'trivial' harm, like the redness from a spanking. But 'stripes' and bruises are non trivial, and above line of permissable acts; they are substantive 'bodily harm' and the law, in may areas, including parts of the US, agrees with the "Spanner" judges quoted. This is the present situation.

My own view, is that this 'feminist' slant to law is unduly invasive: "protect the vulnerable no matter what their stated wishes, agreements, (alleged) consents, and lifestyle they (think that they) have chosen." This sort of approach, often involves, for example, arguing FOR the criminalization of adult prostitution and of production of pornographic films of adults' activity.


In my opinion, given the increasing intrusiveness of the state, esp. in email evesdropping, phone tapping, monitoring of surfing and IMs, I think the law should protect consenting adults in most private consensual sexual activity, even where there is non-trifling bodily harm (provided there is no major threat or major injury to life and limb).

I think the autonomy and privacy arguments should prevail, and the only exceptions I would make are when there is MAJOR OR LIFE THREATENING injury, and where a non-complaining, beaten spouse has a history of being threatened and intimidated. The autonomy and privacy approaches would hold, then, that bdsm consensual abuse, where there is no major bodily harm, should properly be outside the scope and reach of the law, as is the case for homosexual activity.


================

Abstract of Hanna's article in Boston College Law Review (student) vol 42?

http://www.bc.edu/schools/law/lawreviews/meta-elements/journals/bclawr/42_2/01_FMS.htm

SEX IS NOT A SPORT:CONSENT AND VIOLENCE IN CRIMINAL LAW

Cheryl Hanna*

(Law Prof. U. of Vt.)
[verbatim quote]
Abstract: Does consent excuse violence against another? Generally, it does not. Recently, however, criminal defendants charged with violence against their sexual partners have asked courts to treat violent sex or sadomasochism (S/M) as a sport, like prize fighting and hockey. While most courts have refused to do so, a recent New York case, People v. Jovanovic, let stand a ruling that effectively permits a defendant to argue consent as a defense. This Article argues that the liberal argument treating S/M as a matter of sexual autonomy fails to account adequately for the history and practical application of the doctrine of violent consent. It concludes that by recognizing consent in the S/M context, the law is evolving in a direction that could lead to the glorification of sexual violence, rather than the sexual liberation of consenting adults.

We are in bondage to the law so that we may remain free.

—Marcus Tullius Cicero [end verbatim quote]


Hanna's conclusion in part:

To suggest that anyone should have the right to control, beat, or brutalize another and escape culpability under a theory of sexual consent violates our deepest notions of freedom, human rights, and civility. We have outlawed the most violent of sports and set clear rules for organized competition. We now criminalize domestic violence and [*PG290]have expanded the definition of rape, thereby sanctioning violence that takes place within the confines of a sexual relationship. The law has evolved to set norms of civilized masculinity, and, increasingly, civilized humanity.

Recent cases involving injury that results during an S/M encounter force us to stop at that crossroad between sex and violence. When we ask in which direction the law ought to travel, it is clear from our journey thus far that to follow the path of sexual autonomy will lead us on the path to violence. While the sports exception to assault and battery is embedded with its own set of cultural norms and values about the benefit and inevitability of male aggression, at the very least the law has sought to confine the detour from the doctrine of violent consent. We can accept some intentional infliction of harm so long as the path of the law is marked with rules and regulations and referees, and where the power among the participants is relatively balanced.

[my emphasis; Hanna's words, quoted verbatim]
But to allow the doctrine to detour at sex on the road to autonomy, without the safeguards and protections and rules and referees intrinsic to sport, to veer off into an area where power imbalance between the parties, be it physical or economic or social, is far too common, is to travel dangerously close to violating notions of fundamental freedom and human rights. To follow the path of violence is to travel backwards. Today, here in Zion, we remain free by staying in bondage to the law.

?? ?? [end quote]

 

[Pure]

JFaustus has reminded me that I did not address one main part of Hanna's argument, a portion of which is quoted below.
I'm not a lawyer, and what's below is not to be taken as legal advice.

In simple terms, she says that society is moving toward lesser tolerance of violence. Why open the door, in the area of SM? In hockey, some players are actually charged for malicious violence outside the rules, though it's rare. We no longer tolerate the beating of children with sticks, and even belts/straps are getting 'iffy.'

We don't tolerate the beating of spouses, usually wives by husbands, but also gay and lesbian spouses by their SBVO. Significant But Violent Other.
To suppress spouse abuse we even rule out of court any statements of the victim about her consent/agreement/acceptance of what happened. We want a medical report of injury to speak for itself, to be the sufficient objective proof of bodily harm, and be an adequate basis for conviction, in most non-accidental cases.

Surely, then, says Hanna, it would be a backward step if the bdsm legal lobby got its way and got a law passed saying
[call this, 'the bdsm exception' ]:

violence and bodily harm in an SM relationship are allowable--i.e. do not count as assault--provided there is informed, prior consent, there is no major injury, and there are properly 'safe' circumstances.

Further, this intimate area is one of frequent power inbalances, and there's no 'ref' around, as in sports. Iow, it's dangerous, even more than sports, and so society shouldn't permit it.

Two Answers

1 Within the sports analogy provided by Hanna, there could be regulatory agreements in standard form. Just as when purchasing a house, there is a standard agreement. Even companies providing risky services, like parachuting, have standard agreements, which mention risks.

Let BDSM couples follow a standard form that says,

"We (names) are planning to these acts, followed by a list for check-offs:

__spank
__whip with narrow lash
__flog with knotted cords
__cut with knife, superficially
__drip hot candlewax
__suspend
__gag etc.

We agree to a safeword/signal of ______. If given by the 'sub' the activity is to cease.

The 'sub' understands that there will by some long term effects, for some activities, e.g. scarring, and consents to these. BUT the sub does not agree to major injury, disfigurement, loss of function, or of life. The dom/me agrees to take reasonable precautions to avoid such.

Both persons acknowledge the unusual possibility of major injury, and the sub agrees NOT to complain if reasonable precautions were taken. ('to hold the dom/me harmless', as the lawyers say)

Signed, ____ (dom/me) ____sub
Witnessed___ Date_

If one wanted to go further, such activities could be lawfully done only in certain clubs, who would monitor the activities in 'play rooms'.

2 The state can and should only go 'so far' in attempting to lessen violence. Going into the bedrooms--or dungeons-- of consenting adults is too far, unless major injuries occur.

Further, while the state should recognize 'power inbalance' and abuse of power--e.g. a spouse who often threatens the other with a knife-- this should not be assumed generally for all SM consensual adult relationships. The woman, in particular, should not be assumed inherently to have less power, nor should her statements about consent be automatically voided because of that assumption.

She deserves to be treated as an autonomous adult capable of making decisions, just as is the case when she considers surgery. We do not ask the authorities or her husband, any more.

Lastly, a 'bdsm exception' need not weaken rape and domestic abuse laws, if the 'bdsm exception' requires explicit, prior consent following a frank, full discussion of what is to occur, by the two parties. Just as is the case in surgery.

A male's speech "I'm sure you'll like this, baby." does not count! Further the word of the man is not to be sufficient, by itself; the word of the woman and the evidence of the circumstances and what the man--or a reasonable person-- *ought* to have known, is relevant.

It seems to me that your common rapes and domestic assaults could not slip through this set of conditions to the 'bdsm exception.'

===
[Hanna said, in part, in "Sex is not a Sport"

"While the sports exception to assault and battery is embedded with its own set of cultural norms and values about the benefit and inevitability of male aggression, at the very least the law has sought to confine the detour from the doctrine of violent consent. We can accept some intentional infliction of harm so long as the path of the law is marked with rules and regulations and referees, and where the power among the participants is relatively balanced. "

[my emphasis; Hanna's words, quoted verbatim]
"But to allow the doctrine to detour at sex on the road to autonomy, without the safeguards and protections and rules and referees intrinsic to sport, to veer off into an area where power imbalance between the parties, be it physical or economic or social, is far too common, is to travel dangerously close to violating notions of fundamental freedom and human rights."

 

[jfaustus]

First off, a retraction: It was Siren not Pure with whom I had a quibble about common law vs. statutory law.

Pure, you could have been reading my mind. The lack of regulation of BDSM as opposed to, say sports, was the hidden assumption of her argument. But I held back in posting that as a possible solution because I think its potentially problematic.

First off, the whole thing is about consent. So a piece of paper (checklist) with two signatures on it would be worthless. There would likely have to be witnesses. In addition, one of the government's interest here is in protecting people from the injuy that might result from mistakes, bad practices, truly evil dom/mes etc. Not that the government is anywhere near being willing to legitimize BDSM by regulating it, but if it did I would bet a lot of money it's something you'd have to get a license for. You know, take a course, pass a test about responsible dom/me or sub practices, get screened for STD's...

In short, inviting the government to regulate an activity is not the way to keep it private. It also inevitably takes the decision about what constitutes best practices away from the community.

Dunno ho to resolve the dilemma; it's a toughie.

-jfaustus

 

[Pure]

J Faustus,

You expressed some reservations about using the sports analogy and trying to formalize it in agreements that include checklists. I called this answer 1, to the problem, trying to stay in Hanna's framework.

I tend to agree about huge problems, but there are some analogies. In general, the signed witnessed agreement does NOT have to be immediately registered with the DA, for some events. Consider my joining a kick boxing club. I might well have to sign such an agreement, but it needn't be filed. Same for a sky diving club. Obviously some agreements, like those involving sale of real estate, do have to be registered.

There are problem with her analogy, anyway. Can I and my neighbor not agree to a boxing match? And have no or casual refereeing by another neighbor.? Can't my neighboorhood guys play hockey against the next neighborhood, with no ref? Or letting Little Stinky down the block do it?

But a checklist certainly does take away bedroom/dungeon spontaneity! I agree. To enumerate _who is to do what to whom_, is, potentially very invasive. Do you keep such an agreement in your harddrive or in the kitchen cupboard? Do you have weekly updates?? Do you have to produce it, if a cop hears screams and comes knocking at the door?

So answer 1 is not really very good, though it's good, informally to discuss odd, intended practices with one's partner. Of course *I* may not think them odd.

So, right now, my thinking is with answer 2. Let the government stay out, but let there be a 'bdsm exception' provided it's not to license major bodily harm.

As to the spousal problems I've mentioned, there is no obvious answer, but I do want wives protected, and abusive husbands jailed despite the wife's testimony about consent. And same for other abusive spouses, or any sex or orientation.

J.

==========
JFaustus said in part,
First off, the whole thing is about consent. So a piece of paper (checklist) with two signatures on it would be worthless. There would likely have to be witnesses. In addition, one of the government's interest here is in protecting people from the injuy that might result from mistakes, bad practices, truly evil dom/mes etc. Not that the government is anywhere near being willing to legitimize BDSM by regulating it, but if it did I would bet a lot of money it's something you'd have to get a license for. You know, take a course, pass a test about responsible dom/me or sub practices, get screened for STD's...

In short, inviting the government to regulate an activity is not the way to keep it private. It also inevitably takes the decision about what constitutes best practices away from the community.

 

[pierced_boy]

bump

Indeed