The Fallacy Of Consent Defense

But They Said Yes!! – The Fallacy of Consent as a Legal Defense

Consent is a cornerstone of Kink and BDSM. So much so it has been ingrained in how we talk about play since the 80’s when Safe, Sane, and Consensual was coined. But what are we consenting to if we do not really understand all the risks? One of those risks is legal. What are we up against if things go terribly wrong?

If you are the type that is just into a little slap and tickle, you probably have nothing to worry about. But if you are thinking about getting into heavy play, or are playing heavy already, keep reading. 

Since BDSM and Kink have come more into the mainstream in the last decade, the light shown on what we do has become immense, and not all of it good. In fact, if you include the Hollywood portrayals of our lifestyle it has been somewhat damaging to the community. Public opinion is still very mixed, and the majority out there still have a limited understanding of BDSM, or worse, completely the wrong idea. 

This public attitude toward our lifestyle is reflected in the courts. 

What is a Consent Defense?

According to University of Minnesota Law School, a consent defense is when the accused claims they have the consent of the alleged victim. But for it to work, it has to meet several criteria:

1. Consent was given knowingly and willingly by a person who could legally give it.
2. In most jurisdictions consent can only work as a defense to a crime in the case of sexual conduct.
3. The alleged crime does not result in serious bodily injury or death. (definition of serious bodily injury varies by state)

We must be able to claim the person consented, the act was sexual in nature, and it did not result in serious bodily injury. Which might work, if things have not gone horribly wrong, such as broken bones, near asphyxiation, lacerations, heavy bleeding etc. All of which are potential risks for heavy players. Again, risk is the driver here. The bigger the risk you take in play, the more likely things will go badly, and the less likely consent will be a defense you can use.

Will a Consent Defense work for me?

I would not count on it. There have been many legal opinions handed down at the federal level which have all but made the consent defense impossible to use in a case where Kink and BDSM are involved. In the United States harming another person is considered to be a crime, regardless of how the harm came to be. A person cannot legally give their consent to a criminal act. 

The notable cases which have gone against consent as a defense date back to the People v. Samuels (1967) in a California case where Martin Samuels after his consent defense was rejected by the court was convicted of assault for participating in a film which included a BDSM scene. (Crim. No. 5577. First Dist., Div. Two. Apr. 28, 1967./ 250 Cal. App. 2d 504). To more recently Doe v. Rector and Visitors to George Mason University where the court ruled there is no constitutional right to engage in BDSM. If that is the case, then there are no legal defenses to it either. In fact, the opinion of the court stated, 

“Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity. Thus, as in Cruzan v. Glucksberg, a legislative restriction on BDSM activity is justifiable by reference to the state’s interest in the protection of vulnerable persons, i.e. sexual partners placed in situations with an elevated risk of harm.

Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest un the Due Process Clause of the Fourteenth Amendment to engage in BDSM activity.”  (United States District Court for the Eastern District of Virginia, Alexandria Division, Case No. 1:15-cv-209)

Not only is the court stating you have no constitutional rights pertaining to BDSM, the court asserts a state has the potential ability to restrict it, or even criminalize it if they deem it in the interest of public welfare.

The current trend is not getting better for BDSM legally, at least not on the federal level. Unfortunately, it is case law like this which will be referenced in the future should we find ourselves being tried by a jury of our “peers.”

Marriage and Domestic Partnership can complicate things even more:

We would think being in a loving, trusting union might shield us somewhat. It probably does to some extent as far as our partner is concerned. However, most states in the US can charge someone with domestic abuse regardless of whether the, “victim,” is cooperative or not. Medical providers are mandatory reporters, as well as other professionals, and if they see what they believe to be signs of abuse, they are legally obligated to report them.

Is there light at the end of the legal tunnel?

There has been headway on the legal front. Several states, such as New Jersey, have added laws to their books which may not alleviate criminal charges altogether, but reduce them so the penalties are not as severe. (Everyday Health Is BDSM Legal in US and Other Places, Sept. 19, 2019, Julie Marks)

There are also organizations which are working hard to lobby for more kink friendly laws. However, support for them is limited. (here is my no to subtle pitch) If you care about the lifestyle and kink, get involved with one. It does not have to be out in the open, it could be a five-dollar donation. Small bits of help add up to moving mountains, as long as we all get involved.

What do we do to protect ourselves?

Know the law where you live. If you are going to engage in risky behavior, have an idea of the penalties for it and what the legal downside is. Do some research in your local area to see if there are kink friendly professionals who provide services. Lawyers, doctors, mental health professionals etc. They are much less likely to report something they understand as not being abusive. The National Coalition for Sexual Freedom (ncsfreedom.org) has populated a database where kink friendly professionals can register. It is not a golden egg, but it is a start.

Refrain from playing intoxicated or impaired. Whether it be a legal, prescribed, or an illegal substance, it does not matter. Our judgment can be severely impaired making safety a serious concern and, legally, we cannot give consent if we are impaired.

For the new or less initiated, do not play with people you do not know well and trust. All it takes is someone you barely know getting their feelings bent out of shape and off they go to show their newly acquired bruises to their favorite law enforcement officer. For the love of Pete…. do not play with random strangers you do not know at all.

Get first aid training. No, it does not cover the big stuff, but you can possibly prevent some small injuries, from becoming serious ones. Marks happen, know wound and welt care to prevent them from becoming a significant injury.

Know what you are doing so you can play as safely as possible. If you are into rope, get yourself to rope classes. If whips excite you, click the red x in the corner of your screen, close Youtube, and find someone in your community who really knows the skills and safety which goes with it. Pick an implement or type of play, the advice is the same. Get real mentorship and/or training from a reputable source. Online is great, but it generally only scratches the surface.

Unless you are a very light player, try not to buy ultra-cheap gear. I have seen more than one submissive get serious splinters from a budget paddle disintegrating on their rear end; a cane end go flying into an audience; or rope lose its bite creating a dangerous constriction.

The last bit of advice is take it slow and have fun. I do not want to scare the pants off everyone, but you should learn the risks, even the legal ones, which go with play. Take your time and learn your craft. In the process you will develop relationships with people you can trust and who trust you. 

Oh…. Did I say…HAVE FUN!

TAC is a lifestyle writer, dominant, and mentor who contributes to several online educational groups such as the BDSM Alternative Lifestyle Discussion and Education; Information Exchange for Dom/mes, Masters, and Mistresses; and the Virtual Munch. His writing includes information on self-improvement, growth, dominance, trauma, power dynamics and power exchange, and safety. His goal is to continue giving back to a community of friends who have supported him for nearly three decades. He can be found on Fetlife at TAC_1.