No, this article isn’t about condoms or the Mafia protection racket. But, for a few of you, this could be one of the most important articles about BDSM you will ever read. Hyperbole, you ask? Maybe – but it could save you incredible expense and even jail time.
This headline was featured in the September 21, 2016 New York Post —
“Authorities picked up a kinky Soho couple Wednesday for extradition to Utah to face charges that they forced a brunette beauty into a S&M threesome in their hotel room while they were in town for the Sundance Film Festival.
Anne Harcastle, 27, and Michael Taylor, 45, have been held in jail since their Sept. 9 arrest for allegedly raping the 23-year-old woman. The lovebirds appeared in Manhattan Criminal Court separately and will take different flights to Utah, law-enforcement sources said.”
Note that these people might very well be innocent. They are, in point of fact, innocent until proven guilty. However, even if guiltless, they face significant legal fees to beat the rap, stiff civil fines and the possibility they could spend time in jail. (Obviously, if guilty, they deserve serious prison time.)
Since we do not know the particulars of this case, let us use this unfortunate incident (for at least some of the participants) for what is often called a “teachable moment.”
I have observed three innocent BDSM-oriented situations that could lead to this kind of disaster. But it is a calamity that can easily be prevented. Let’s examine these three scenarios; afterward, I will give you an effective way to “inoculate yourself.”
1. “Buyer’s remorse.” Here a newbie submissive/bottom interested in BDSM meets a Dom/Domme (off Craig’s List?) and agrees to play with him/her for the first time. After some heavy spanking and flogging, all seems well. Aftercare in place. The submissive goes home seemingly happy. Two days later, what were light markings turn black and blue. The pain increases. “This is not what I signed up for.” Enter a lawyer – or even police – when the submissive claims abuse. And there are marks to prove it. What should you have done to protect yourself? The answer — after the third scenario.
2. “Hell hath no fury…” After what appears to the sub to be a bonding S&M encounter, with whips and canes, the Top never calls – or even texts — the bottom again. “I gave him/her my body to use and he/she rejects me? I’ll show him/her.” Once again, armed with serious markings, the bottom is on the warpath. Poor Top. He/she is likely sunk.
3. “I thought I would like it.” The bottom in this case has no idea what to expect; “Fifty Shades of Grey” is her/his sole source of BDSM information. Even if given a safe word, he/she might not be skilled enough to use it. The flogging – and possibly sex – are exciting but go way past what she had envisioned. Next day, the bottom is in pain and thinks she really didn’t agree to all this. Once again, the sue-happy lawyers and the arrest- happy police make their unwelcomed entrance stage right.
So, could these legal/police endings – in these or similar situations — have been prevented? Assuming all these scenes were consensual, the answer usually is, “Yes!”
The key is that one must have evidence that these scenes were, in fact, consensual. In the pre-camera phone days, one needed to have the submissive sign a consensuality agreement complete with driver’s license information. But now, with iPhones, it is much easier.
Simply video the bottom stating that you are all friends and everything you are planning to do – including sex if that is on the program — is completely consensual. Have her/him hold up a driver’s license and you are good to go. If the bottom refuses, then you must make your decision whether to continue on or not. That is your call; but you have no protection. (If you are playing in a dungeon, the presence of witnesses would likely make this step unnecessary. We are discussing private play here. However, if you are a heavy player with a newbie, you might want to be doubly safe and take a quick consent video.)
Legally, one cannot consent to being beaten; and there are some conservative jurisdictions that might not accept a “consent defense.” Still, an agreement such as this “visual consent form” will likely stop all proceedings in its tracks. At the very least, you will “have a leg to stand on,” in pop legalize.
Usually, if the Top practices safe, sane and consensual BDSM, these problems will never arise. But, in the words of the Mafia boss in Martin Scorcese’s Casino, “Why take a chance?”
After a ten year run as head writer for the legendary bondage.com, and an equally long run as the host of the hit internet show “Baadmaster’s Dungeon,” we are pleased to welcome the one and only Baadmaster to KinkWeekly. His thoughts about all things BDSM will now appear regularly on these pages. From the mental aspects of D/s to the nuts and bolts of S&M play, Baadmaster will cover every facet of this ever expanding lifestyle.
Actually one can consent to assault and have it stand up as a defense. The following from the FindLaw website sums up the situation pretty well:
Consent may be available as a defense to an assault/battery charge, depending on the jurisdiction. Where available, if an individual has consented voluntarily to a particular act, then that same act generally cannot be asserted to constitute an assault and battery. But if the extent of the act exceeds the permission provided, it can still provide grounds for assault and battery charges. Also, it should be noted that courts scrutinize consent as a defense closely, and tend to find that harmful actions, even if consented to, violate public policy and should still be punished under assault, battery, or other laws.
Obviously consent is far from a perfect shield. The more extreme the damage done the less of a shield it is apt to be. It is worth remembering exactly what is said in any formal recording of consent. It is a two edged sword. It can save the Dom or it can hang the Dom by showing that what was done went beyond what was consented to.
Richelieu, good analysis. Consent — with proof — may not be an infallible defense. That depends on the jurisdiction and what actual damage was done — and a zillion other factors. But with a “video consent form (or a written one)” the Dom/me has, as I stated, a legal leg to stand on. It will likely mitigate any charges made by the submissive/bottom.
In general, it is best to go slowly; don’t go full bore Sado-maso/TPE sex slave on first meeting. Also make the video consent form when you first play — especially if you just met. Once the Top knows the bottom, then you can take it to the next level without worry.
people don’t think about all the different levels of “protection you actually do need