Fetish Friday: The Questionable Legality of Consent

Welcome to the second Fetish Friday here on Lawyers & Liquor where I’m going to walk you leather and latex clad fetishists through a legal issue surrounding the world of, quite literally, Fucking kinks. So Bigs, cover the eyes of your littles or send them somewhere to go play, owners go crate your pups, and scat enthusiasts, put a plug in it and hold it for later because this morning I’m gonna run my mouth like a bad boy about legality of consent in a BDSM atmosphere, namely, does consent remove the risk of legal action.

Hold on to your paddled-red asscheeks, folks, because the answer is “Probably not.”

Some Shit To Understand First.

Few things I want to get started before you motherfuckers (I should probably be a little more careful about the terms I’m using around you assholes) start freaking the fuck out: this is an academic and esoteric discussion of the legality of obtained consent for the causing of physical harm to another person in a sexual act. This is not fucking legal advice, do not fucking run out there screaming that the world is ending at your next Kink Night because a lawyer on the fucking internet said some shit to you. The laws that apply to this shit are state-specific, and if you’re genuinely worried you need to contact and meet with a licensed attorney in your jurisdiction, preferably without the riding crop being involved, but hey, your sweaty dollars spend the same as everyone else’s.

The second thing is, because this shit is so fucking state specific, I’m going to be basing this shit off of the Model Penal Code, which is a suggested criminal code created and given to the states. However, not all states adopt the Model Penal Code, and a lot of them adopt it only in part or with significant alterations. I’m talking about a general set of suggested laws that may or may not have been adopted in your jurisdiction in the same form. Even fucking then, the interpretation of the law is very much based on case law. That means that one court may have decided a matter WAY FUCKING DIFFERENTLY than another state. Your local laws are probably going to fucking vary.

So, in essence: This is an article based on the Model Penal Code, and you need to check with your own fucking lawyers before throwing our sex swings in the trash and confusing the fuck out of your garbage man, Grandma.

Now, let’s get on to the meat of this matter.

Can A Person Consent To Being Whipped Like A Bad Little Boy?

SURE! I mean, you can consent to fucking anything guys. I can consent to someone shoving a carrot up my ass and calling me a Pretty Pony, and I can consent to someone fucking shooting me in the head and eating my goddamn body. I’m capable of providing the consent for both of these activities, and so are you! Isn’t America fucking grand? But that’s not the question we’re talking about here today, you little deviants. What we’re talking about here today is whether or not consent is an effective and accepted defense  to criminal prosecution for BDSM related activities, i.e assault charges.

There, the answer is “Nope, not if you’re into the physical harm shit.”

Wait, fucking what?

Fucking what indeed, Mistress.

Alright, first we have to understand the limitations of consent in the criminal context, and for that we’re going to look at the Model Penal Code, specifically Section 2.11, which defines the “defense” of consent to a criminal charge as follows:

(1) In General. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

Cool, cool, so what does this fucking mean? In legal terms, it means that where there is a victim of a crime, and the crime has an element that requires the victim to not be engaging in something consensually, then the consent is a defense to the charged criminal offense, and therefore the prosecution can’t occur. This, read alone, seems to negate the risk of criminal prosecution for a couple in a BDSM relationship, because obviously the alleged victim in any of these circumstances, the person whose ass cheeks are being beaten with a spiked paddle, wants it to happen.

But we can’t fucking stop there, can we? No, no we can’t you sick fucks. We gotta move on to the next part of the MPC, which specifically talks about the effect of consent when the charged crime is one related to bodily injury:

(2) Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:

(a) the bodily injury consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law; or

(c) the consent establishes a justification for the conduct under Article 3 of the Code.

Oh shit. Alright, let me break down this one real fast, because this is the section that’s going to affect most of the BDSM practitioners out there, isn’t it? Okay, so consent is a defense to a criminal charge related to causing injury or harm to another person where (a) the injury is not serious; (b) the injury is part of a sport or medical procedure, or; (3) the consent is a “justification for conduct” under another section of the code. Now, quite frankly, I’ve never seen the “Dominatrix Olympics” on NBC, and since speculums may be used but definitely not by M.D.’s, I think we can safely rule out section (b) there as being the circumstance in which consent would apply, and likewise section (c) ain’t gonna be a part of this (Go fucking read Article 3 yourself, I’m not writing a dissertation on this shit). That means the sole standing argument for “consent to a BDSM relationship” that could apply is (a) – It doesn’t cause serious bodily injury.

And, you know, unless you’re into some really fucking extreme shit, it probably doesn’t, maybe a swollen lip, some welts on the ankles, wrists, hips, buttocks, and some severe bruising. All shit that will heal up in a short order and is just reminiscent of a rather tame session for some of you.

And, you know, exactly enough to get your ass convicted despite there being consent.

FUCKING WHAT?

Oh, shit, did I forget to mention this exact question has been before the courts before? Yeah, sorry about that, gotta bury the lede a bit or you guys won’t read any of this.

Those injuries I just fucking listed there, “a swollen lip, some welts on the ankles, wrists, hips, buttocks, and some severe bruising,” were the exact injuries of the victim in a 1985 case in Iowa, State v. Collier, 372 N.W2d 303 (Iowa Ct. App. 1985).  Section I of the decision goes into the discussion, but essentially the crux of the court’s reasoning in upholding the conviction is this gem:

“Whatever rights the defendant may enjoy regarding private sexual activity, when such activity results in the whipping or beating of another resulting in bodily injury, such rights are outweighed by the State’s interest in protecting its citizens’ health, safety, and moral welfare.”

Id. at 307.

Oh yeah, and this shit isn’t just limited to Iowa.  Nope.  Let’s see, the defense of “consent” of the victim to BDSM related activity has been…rejected in pretty much every goddamn state that has ever had it actually raised in a criminal proceeding. Oh shit. Oh…shit.

WHY? OH GOD, WHY?

Well, that’s a bit more complex, but what is comes down to is the idea of “serious physical injury” and the exact nature of the state laws that criminalize the causing of bodily harm to others.  You have to recognize, there’s very rarely a legal definition of “serious bodily injury” that will be widely accepted, although the one that is proposed the most is “one that results in a permanent impairment or disfigurement.” But that shit goes out the window when you get shit in front of a judge or jury, who may view the whole circumstance and then say “Nope, we’re gonna count ‘serious pain’ as a serious bodily injury and convict your ass.”

You know, like what happened in State v. Guinn in Washington regarding heated nipple clamps and bondage.

Or the state-specific statute could be written in such a way that the activities that are forbidden include not only serious bodily injury, but shit like bleeding and bruising. Those statutes exist, and they are enforced, and yep, they’ll likely rope in your kinky off-the-clock sex games into them as well.

Unless you’re asking why “consent isn’t a defense.” Well, the court in Iowa set it out pretty damn well, and that is the state has a legitimate interest in protecting the safety and well-being of its citizens, and therefore has the ability to regulate your conduct, including the conduct that you can or can’t legally consent to.

So BDSM is Illegal and Dangerous.

I didn’t fucking say that. The cause of injury can be considered illegal, and it may result in a criminal prosecution regardless of consent, but you’ll notice a common thread in every case that you look at here: in the vast majority of them, the person who is alleged to have given the consent in the first place is the person reporting the alleged crime after the fact.  There are very few situations where the state is taking it on themselves to come into your bedroom, toss you in cuffs, take you out of cuffs the moment they realize that’s your thing and put you in zipties, and hauling you both off to the county jail to await trial. Believe it or not, prosecutors are aware a jury is unlikely to convict a person when their partner sits on the stand and says “I was enjoying this shit right up until the motherfucking cops came in” so long as it doesn’t set a dangerous precedent.

However when you have a person that shows up with bruises and shit and says you did things they didn’t fucking consent to, the risk of prosecution goes right the fuck up and, in those cases, it doesn’t appear to fucking matter how much consent there was in the first goddamn place because the law right now is coming down against you being able to legally smack your spouse during sex.

Are you getting the difference between the two? One looks fucking ridiculous, the other appears to have a real goddamn victim.

So…I mean, What Do We Do?

Shit man, what do I look like, a goddamn guru on bondage porn? I mean, I may be, you motherfuckers don’t know what I’m into, but…here’s the few general tips I can give, and do with them what you will:

  1. The more fucking extreme the harm is, the more likely a prosecution will result if you get caught. Don’t leave permanent fucking marks.
  2. The more fucking public the harm is, the more fucking likely it is you’ll be in a situation where you’ll be found and arrested. Don’t fuck in public.
  3. The less of a loving and healthy, and trusting, relationship you have with your partner, the more likely it is they’re going to report you and thus you will be fucking prosecuted.
  4. The less planning you do, the more likely your partner will report you.

Wait, “Planning?” Yeah. Yeah assholes. Plan this shit.  Here’s the deal, you need to be sitting down with your partner and outlining what is and isn’t fucking okay, having words or phrases that they can use to withdraw consent, and then fucking listening to them, because if you piss off the sub or make them feel violated because you’re a goddamn power-tripping asshole, you’ll eventually get reported for this shit and dragged in front of a court, as every goddamn case I looked at pretty much fucking proves.

ALSO, remember that your partner can stop this shit at any goddamn time. Consent at the fucking beginning is not fucking consent throughout. Ignore them at your own goddamn peril.

Oh, and while we’re on the issue of consent…

Even if it does matter, it can be invalid.

I talked about how consent and BDSM is still up in the air legally, but even if you find a judge and jury willing to listen to and consider the defense, let me be clear there are certain fucking situations where it doesn’t fucking matter at all, based on subsection 3 of that MPC section we reviewed earlier:

(3) Ineffective Consent. Unless otherwise provided by the Code or by the law defining the offense, assent does not constitute consent if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or

(b) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(d) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

Pay special fucking attention to (b) and (d) on this. Why? Well, look, I’m not going to dance around the goddamn mulberry bush here: we all fucking know there are people in the BDSM community who are heavily fucking into “playing” while under the influence. You can very easily find yourself on the wrong side of a consent argument by doing so, because they could be determined to be so gone they can’t consent.

Also, yeah, consent under (d)…I mean, that one’s kind of fucking self-explanatory, isn’t it?

 

Alright you lovely little kinksters, I’m out of here until next month. Next week is Furry Friday, where I’m talking about the law surrounding convention hotel rooms.  Until then, clench those cheeks tight for your lawyer daddy.

-B(ondage)B.

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.