Bdsm and the Law. How important is Consent as a legal defense?

KrissyNovacaine KrissyNovacaine
So, the NCSF is a group that is working to make BDSM legal. BDSM activities are prosecuted as Assault. When assault is prosecuted, the victim cannot decide to press charges or not. Consent is not a resonable defense because the courts run on precedent, and that's been the precedent in courts and appeals courts.

In your opinion, how important is this to change.

(I seriously debated making this poll private or public. A private poll would probably be more accurate to people's knee jerk reaction, but I kind of wanted people to see how that would impact their answers.)
Answers (public voting - your screen name will appear in the results):
It's really important. Consentual sexual activities should be legal.
LoveBug721 , GirlOnGirl , bratcat , Kallekanin , satinlady550 , Dixiemomma , Gdom , PeaceToTheMiddleEast , Rokmai , Airen Wolf , marmouse , charletnarouh , DolphinGirl , TheirPet , gorgeous , SaucyxGirl , Love Bites , SMichelle , gsfanatic , Pierced Blaqk Skies , GonetoLovehoney , chicagobearsfan
22  (88%)
It's kinda important. There are more important legal battles.
kendra30752 , joolie , SelectZen
3  (12%)
I don't care.
It should stay this way.
Other
Total votes: 25
Poll is closed
04/25/2013
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Gary Gary
I had wondered about this type of situation a few times, but I had no idea that it was considered assault. If there was an accident and someone died, I can def see the gray area of trying to prove consent in a court of law; especially considering that most of the people in the court and jury will likely not quite understand it.

I am not saying I agree with the laws, I am just saying I can see how it's a touchy topic to address. If there was always a notarized letter of consent, then there would be no guessing, but I don't see that happening.
04/25/2013
*Camoprincess* *Camoprincess*
I am not really into this type of thing but I don't think is should become legal, I see it as what if things get out of hand an the other person KNOWS that this stuff is legal and takes it too far? I just can't see something like this being legal. If you do it in your own home an you and your partner are fine with it then so be it but I would like to know that if things got completely out of hand an way out of my comfort of save zone something could be done about it.


I have read somethings where people have said that their owner/dom or what have you has used the BDSM as a way to keep them in a relationship they wanted out of. That is my personal thoughts and opinions. To each their own if you are into this lifestyle that is fine I don't judge or look down on anyone for it.
04/25/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by *Camoprincess*
I am not really into this type of thing but I don't think is should become legal, I see it as what if things get out of hand an the other person KNOWS that this stuff is legal and takes it too far? I just can't see something like this being ... More
You have valid points. The problem arises when police get called for a noise complaint. Everyone is fine and happy, but the Dom can still be prosecuted and jailed.

Kind of extreme to get a felony conviction for a noise complaint, in my opinion.
04/25/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by Gary
I had wondered about this type of situation a few times, but I had no idea that it was considered assault. If there was an accident and someone died, I can def see the gray area of trying to prove consent in a court of law; especially considering ... More
Heh, I am terribly entertained now about calling in a notary whenever my partner and I are going to kink.
04/25/2013
*Camoprincess* *Camoprincess*
Quote:
Originally posted by KrissyNovacaine
You have valid points. The problem arises when police get called for a noise complaint. Everyone is fine and happy, but the Dom can still be prosecuted and jailed.

Kind of extreme to get a felony conviction for a noise complaint, in my opinion.
I agree with that as well but if that is the case then it is best to keep the noise down the best you can unless you don't live next to nosy people or out in the boonies.
04/25/2013
Gary Gary
Quote:
Originally posted by KrissyNovacaine
Heh, I am terribly entertained now about calling in a notary whenever my partner and I are going to kink.
Hey, you gotta do what you gotta do!
04/25/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by Gary
Hey, you gotta do what you gotta do!
All joking aside, confirmation from outside parties of consent still hasn't held up in court.
04/25/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by *Camoprincess*
I agree with that as well but if that is the case then it is best to keep the noise down the best you can unless you don't live next to nosy people or out in the boonies.
Its kind of extreme to regulate bedroom activities, don't you think?
04/25/2013
Sammi Sammi
Consent's kind of a tricky beast, and other types of cases try to use it as a defense with mixed results. While I don't think having a signed document for sexual activity of any kind makes a whole ton of sense, it almost seems the way to go to avoid situations where consent would come into question (BDSM related or otherwise). It'd be interesting to read some of the cases that site lists (I haven't had time to yet), but some of the issue seems to be that there isn't a federal law - it varies state to state - and that, I would imagine, would affect some of the defenses.
04/25/2013
bratcat bratcat
While i can see how the laws in place can, in some cases, be very helpful for those who are part of the BDSM community with doms who have possibly taken things too far - but that is outside of the realm of consent. Because these cases are often sparked by noise complaints, i too feel that slapping a felony charge on a sexual act between two (or more) consenting adults is a little much, and therefore think the laws should maybe be looked over more carefully and revised.
While there is a chance that rapist/abusers could possibly co-opt this defense if it we're legal, i don't see that working out too well, especially since then the victim would be able to testify against their abuser.
04/26/2013
kendra30752 kendra30752
Quote:
Originally posted by KrissyNovacaine
So, the NCSF is a group that is working to make BDSM legal. BDSM activities are prosecuted as Assault. When assault is prosecuted, the victim cannot decide to press charges or not. Consent is not a resonable defense because the courts run on ... More
Even anal sex is illegal in a lot of states. However, people don't just go to jail for having consentual sex in the privacy of their homes. There isn't any reason for it to come out and get you into trouble for performing BDSM activities unless something more was going on such as a reported rape, sexual assault or minor stuff or some kind of thing like that being reported. A family member of mine was sexually assaulted & the assaulter had sodomy charges and all, but from what we learned, they don't actually do anything about sodomy or BDSM activities that are "illegal" unless there's something being reported that it's not consentual or something. I mean, if I told the police my partner and I were having anal sex, they wouldn't do anything about it, even though it is illegal. I'm not sure what that law is all about.

However, I don't think that BDSM between two consenting ADULTS should be considered assault unless it is assault. But again, I don't think anything would ever be done about it unless for some reason the police caught word that it was not consentual.
04/26/2013
kendra30752 kendra30752
Quote:
Originally posted by bratcat
While i can see how the laws in place can, in some cases, be very helpful for those who are part of the BDSM community with doms who have possibly taken things too far - but that is outside of the realm of consent. Because these cases are often ... More
We have to remember that real abusers tend to be very good at keeping the victims silent too, though.
04/26/2013
kendra30752 kendra30752
Quote:
Originally posted by *Camoprincess*
I am not really into this type of thing but I don't think is should become legal, I see it as what if things get out of hand an the other person KNOWS that this stuff is legal and takes it too far? I just can't see something like this being ... More
I understand this because I too like some kind of outside safety, even if it's not they aren't reliable authorities. It's still nice to know that if you are ever in a situation that anything gets out of control, that you may somehow come out of it safe. I feel you there. I tend to be really fearful of things though. But I can see how it'd be a pain for people who both just want to do BDSM loudly & those who need to know there's a safety plan in place for them.
04/26/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by kendra30752
Even anal sex is illegal in a lot of states. However, people don't just go to jail for having consentual sex in the privacy of their homes. There isn't any reason for it to come out and get you into trouble for performing BDSM activities ... More
In many states, yes, there are mitigating circumstances that cause arrests, but in other places it doesn't matter because it is a more conservative part of the country.
04/26/2013
Gdom Gdom
Sorry to be "that guy," but most of you are using the term "assault" incorrectly here. The legal definition of the term differs substantially from the everyday usage (but since we're talking about criminal charges, the legal definition is the one that matters).

Law lesson of the day: in the United States (under common law), a person commits assault when they possess an apparent, present ability to cause bodily harm and either threaten or attempt to cause such harm to another person. When a person actually and intentionally causes bodily harm, they've committed battery. I'm guessing any cases actually brought against BDSM practitioners would be charges for battery (i.e. actually causing harm) and not for assault (i.e. the mere attempt or credible threat to cause harm).

That said, consent frequently IS an affirmative defense against a whole host of charges, from assault to battery to false imprisonment (all relevant to BDSM). That's not to say that every jurisdiction or every judge works the same way--and the case law does suggest that there's a supposed limit to what a person can legally consent to--but light to moderate BDSM is not illegal per se.
04/26/2013
Airen Wolf Airen Wolf
Quote:
Originally posted by *Camoprincess*
I am not really into this type of thing but I don't think is should become legal, I see it as what if things get out of hand an the other person KNOWS that this stuff is legal and takes it too far? I just can't see something like this being ... More
Using the abusive behaviour of a few people to judge and condemn an entire sexual relationship should make marriage completely illegal due to domestic abuse. The VAST majority of BDSM relationships are safe, sane and consensual just as the vast majority of marriages are safe, sane and consensual. Not every man is a wife beater and BDSM is not abuse...abuse is abuse and legalizing consent won't stop people from being able to show a pattern of abuse and take it to court. It will stop people from using BDSM to legally beat the shit out of someone they want to hurt, though.

If someone dies as a result of something you have perpetrated then the law will get involved because we demand that his sort of check and balance be in effect. For instance: if you serve alcohol, which is legal, and someone dies because the alcohol you served poisoned them, the law is gonna inquire and assign blame regardless of the legality of the practice of serving alcohol.

You may have the right to practice BDSM you don't have the right to imprison, rape, beat or torture. You don't have the right to kill your fellow players. Legalizing the practice won't make hurting someone legal...it will make the practice of enjoying safe, sane and consensual pain legal.
04/26/2013
charletnarouh charletnarouh
i attended a workshop held by the BDSM club in my area about what to do if you are at home and the police knock on the door due to a noise complaint or the police arrive at a BDSM play party you are attending. There's tons of a grey areas and a lot of discretion on the part of the cops. Ultimately, it's vital to know your rights and make informed decisions about when to exercise them and when to forfeit them and cooperate. For example, you don't have to answer the door when the cops come knocking, you don't have to let them in, you don't have to talk to them, but once you do any of these things, you are forfeiting rights, but by not doing them, you may incite the cops to get a warrant if there is enough cause. It's tricky. my Mistress and i got to talking later about it. One way to assuage officer's concerns is, obviously, to have all involved parties come to the door and politely and willingly assure the officers that everything is fine and consensual and things just got a little noisy and we promise we'll be quiet, etc. But, certain situations might be a little hard to get people out of to allow them to come to the door in an expedient manner. How do you get someone out of extreme bondage or suspension quickly enough that the officer's suspicions won't be further aroused? Do you invite the cops in to see your partner hanging there naked and debauched? How do you even leave the room to go answer the door to the officers without leaving your restrained or suspended partner which is, of course, a big safety no-no? Another point Wwe discussed without being able to come to any kind of answer was the concern of the bodily chemical reactions some people have to BDSM play. Many types of play evoke a very high endorphine response that can appear similar to a drug "high" or alcohol influence. How do you explain to the officers that your partner who is acting strangely, has dilated pupils and is demonstrating general "loopiness", isn't high on anything but the chemicals produced by their own body? And would they believe you or would you be leaving in handcuffs while your partner goes to get a drug test? i'm not sure there are any good answers.
i definitely think the law should more accurately provide for the rights of adults to engage in consensual play to be legally protected. Then officers and others in the justice system could be informed and educated to recognize the difference between consensual BDSM and rape, assault, battery, kidnapping, torture, etc.
04/29/2013
KrissyNovacaine KrissyNovacaine
Quote:
Originally posted by Gdom
Sorry to be "that guy," but most of you are using the term "assault" incorrectly here. The legal definition of the term differs substantially from the everyday usage (but since we're talking about criminal charges, the legal ... More
I will double check, but the stats I've looked at from places don't show your facts. Do you have sources that I can read?
04/29/2013
charletnarouh charletnarouh
The comments about getting a notary involved for every time you play reminding me of something. Incidentally, one of the things that was brought up in the workshop i attended was that some BDSM relationships employ the use of contacts between partners. Though these contracts are not legally binding and would not hold up in court, and in fact they might not even be admissible, it was suggested that it might not be a bad idea, if you have one, to have it readily available to share with the police if consent is ever questioned. They might, at least, be convinced by it that their perceived "victim" is willingly and knowingly consenting and let the incident go without further action.
04/30/2013
SaucyxGirl SaucyxGirl
I think it should be legal.

Slightly off topic, but somewhat on topic at the same point.
A friend and I were discussing the fact that while it possible to be arrested for assault for consensual BDSM activities boxing and martial arts is fine. She was of the belief that boxing and martial arts is fine in the majority of peoples mind behind because there is no component of sex or relationships there, while some people have issues with BDSM and actually view it as a form of domestic violence. She also said that if the public can be educated to at least grasp that BDSM and domestic violence are two very different things that then laws may change.
04/30/2013
Love Bites Love Bites
Quote:
Originally posted by KrissyNovacaine
So, the NCSF is a group that is working to make BDSM legal. BDSM activities are prosecuted as Assault. When assault is prosecuted, the victim cannot decide to press charges or not. Consent is not a resonable defense because the courts run on ... More
It should be changed to meet the needs of those who practice BDSM. I'd just be wary of people using it as a defense for true crimes.
04/30/2013
charletnarouh charletnarouh
Quote:
Originally posted by SaucyxGirl
I think it should be legal.

Slightly off topic, but somewhat on topic at the same point.
A friend and I were discussing the fact that while it possible to be arrested for assault for consensual BDSM activities boxing and martial arts is ... More
This is a great point!
04/30/2013
gsfanatic gsfanatic
It's critical and that should be change. Nice point about the boxing being assault
04/30/2013
chicagobearsfan chicagobearsfan
The boxing point is a good one. Although it is scary to think that someone could use BDSM as a shield for abuse, I don't think it would be a common occurrence. But it would help protect a lot of people's consensual activities from being seen as criminal or bad :p
05/09/2013
Total posts: 25
Unique posters: 13