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The Fallacy Of Consent Defense

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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.

Properly Preparing To Play

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If you have been following my ASK BAADMASTER series here on kinkweekly.com, you might conclude that I am over-covering the pandemic on a kink site. I think I would be remiss in ignoring the pandemic as it has affected the kink community on many levels. For starters, live dungeons have been mostly closed. I would hope the new vaccines are a bright light at the end of a very dark tunnel. So I would like to answer questions that prepare us for the non-covid days ahead. Much will be review; so if your were a BDSM player and have not played for almost a year, you might want to go over aspects of play that you might have forgotten. There is never too much knowledge.

Reader: Recently, my kink group has been discussing what to do if something goes wrong or a pre-existing condition manifests itself during a scene. This kind of safety concern is beyond the usual. But, how can you prepare for any eventuality?

As a general rule, it is impossible to prepare for EVERY eventuality. If I could do this, I would be working for President Biden eliminating terrorism. But seriously… Regarding medical pre-existing conditions — you might open a productive dialogue before your scene, especially between first-time players. Make sure the players are aware of any pre- existing conditions and what its symptoms are so you can stop the scene quicker than usual.
Now onto safe words. Depending solely on safe words is not the end-all and be-all to safety. (Although they are definitely better than anything that comes in second).

The trick to using safe words effectively (and this seemingly obvious bit of advice might be extremely valuable to you) is “simplicity.” Although the standard safe word is “red,” many people try to pick out their own personal safe word. They want style. “Greef” might be a cool safe word between ‘Mandalorean’ fans, but when panic time sets in and the mind starts spinning, these words might not be at the tip of the tongue. “Red” works for stop signs. “Red” works for scening. Use “red.”

I also advocate the use of a safe signal. When you use a ball gag in a scene, the bottom –unless he/she is a ventriloquist — cannot give a safe word. So agree on a safe signal based on what type of scene you are doing. A great one is a shaking of the head continuously left to right — like a “no” signal. This is unmistakable, and does not require the hands, which might be bound. Between safe words and safe signals, you have increased safety a hundred fold.

Most BDSM writers always talk about a “safe call.” In this case the old expression –“after all is said and done, more is said than done” — is applicable. Most people never use the safe call procedure. But if used properly, safe calls are really good tools. In this age of the cell phone, it is really easy to have someone standing by waiting for your call to see if all is well – and to arrange for any contingency plans should help be required.
Another safety key is…not playing with unsafe players! Sometimes there are players who have gained a reputation for being unsafe; most times these reputations — if they are widespread and repeated by respected members of the community — have some basis in fact. Stay away. But there are other red flags. When playing for the first time, a big red flag is when the Top says, “I never allow a safe word.” They might rationalize it by saying something like, “I am into TPE and do not believe in safe words.” Well, many in TPE relationships do eschew the safe word. But this only happens after a relationship is established; eliminating the safe word is generally negotiated after playing for awhile. Anyone who says “no safe words” right out of the box really hasn’t got a clue.

As for the scene itself, the oft-repeated advice of planning a scene in advance will add to the safety of it. Some scenes are pretty safe in and of themselves — an interrogation scene, for example. Others — such as mummification or breath play — are much more dangerous. Make sure the skill level of the Dominant (as he/she is in control) matches the danger quotient (D.Q.) of the scene being attempted. If you notice, I would rather head off problems before they arise. “An ounce of prevention is worth a pound of cure” also applies in BDSM play.

If you have extra time on your hands, I have written a companion piece on safety on this site: https://www.kinkweekly.com/?s=safe+words Play safe when you return to play! And if you have not played in a while, there is nothing wrong in going over safety essentials (as in “Don’t forget aftercare”) before you re-visit your favorite dungeon!

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.

Keeping Our Community Saf-er During the Pandemic

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These are unprecedented times indeed. Regardless of where people stand in regards to the pandemic itself, one thing we should be able to agree on is the impact it is having on our kink communities. Individuals are struggling with finances, and dungeons who rent or own space are likely struggling to maintain the financial commitment for these spaces without large events funding them.

I have been peripherally involved with some local efforts to create safer ways to restart events, though most of the credit for the hard work of researching and implementing has to go to the local dungeon owner here. The strategies we’ve adopted here may be helpful to others who are looking for ways to kink outside of their homes in safer ways, or who are struggling to maintain their spaces.

Handle Immediate Financial Need

Our first step was mid-May/June when we realized this was going to seriously impact whether or not our dungeon would still be in existence when all of this does finally resume some semblance of normality. We opened a Go Fund Me and dropped the link in our local community space. It was truly humbling to to watch people respond with an outpouring of support in the midst of feeling powerless. Every single donation was appreciated and we raised enough to maintain the rental space through the end of 2020 in that opening drive.

Some of that money went to upgrading the space in ways to make it safer, such as hand sanitizer units, a digital thermometer, a heavy duty sprayer to clean with, and a plexiglass shield for the check-in area. The rest went to keeping the rent current until virus urgency level started to recede in our region. Plans began being made for what we affectionately refer to as LAT parties, or limited attendance and time.

Once we felt safe enough, we rolled out the plan and gave community members opportunities to discuss and make suggestions before any implementation. The owner consulted local experts in the medical field and in engineering and sanitization at every step. He has made transparency his goal, from the way the money is spent, to what all of his procedures are. That transparency has helped people feel safer attending events, since it means they know exactly what to expect.

Opening the Dungeon Again

For indoor events, such as any rope classes or dungeon events there is a clear procedure. Tickets are purchased in advance through Square, which allows an individual to keep their anonymity and credit card information safe, but allows for a comment to be dropped with the user’s scene name so the dungeon knows who will be attending. Attendance is limited to ten individuals, since that was the recommendation as of the time of planning. Any new attendees are sent the membership form and covid waiver that discusses the recommendations for how to handle contact tracing in the event of any incidents (don’t mention fight club, if it is necessary, please contact dungeon owner and he can let others know they need to go for testing). Leading to the door, waiting spots are marked six feet apart. People can peek in the window to see if the prior group is clear of the entryway before entering. Masks are absolutely required while people area present in the building.

Upon entering, guests have a touchless hand sanitizer unit immediately to their right, and are expected to use it prior to moving into the space. They are then greeted and announce their name for verification on the list and to confirm they returned their forms. Stepping forward, the person manning the plexiglass enclosure can remain behind it while reaching around to digitally check the temperatures of each attendee. The CDC states that a reading of 100.4 constitutes a fever, so anyone with a reading there or above is asked to leave (though that has not happened to date). Attendees are then expected to leave the entryway and go down the hallway to the dungeon area.

The dungeon area has been modified from its pre-covid layout. The setup was workable before to allow for whip space between furniture, but has been adjusted to take half of the furniture temporarily out of commission. Those pieces have been turned around or otherwise adjusted so that it clear they are not for use. With a maximum of five couples having scenes at one time, there are a few more pieces available than people, which allow for some equipment choices.

Individuals are permitted to allot their time however they please. They can watch others scenes, they can socialize, or they can choose to indulge in their own scenes. As their time slot nears to a close, a ten minute warning is announced to allow people to wrap up scenes and pack their gear. Once everyone is out, the owner dons protective gear and thoroughly disinfects the entire space with a spray that should not be touched or inhaled, and then clears out for a minimum of twenty minutes, as recommended for usage of that chemical. The sessions are scheduled in two hour blocks with a thirty minute window for cleaning between them.

Because people have freedom to purchase tickets, but they are limited to 10 available ones, a group looking to make sure they are only sharing space with one anther can purchase the entire block of ten when dates and times are released and basically have a private event. For those with immunocompromised partners, that option can be sanity-saving.

Restarting Vendor Events

Because vendor events typically have more of a revolving door type atmosphere, we struggled some with finding the right balance of safety in order to comfortably begin holding those again. For vendors of kink gear and implements, some of them are truly hurting right now after ten months of few to no options when it comes to in-person events. Often, those in-person events tend to be hugely important for clientele, particularly newer community members who may not know what to expect in regards to appearance or quality of offerings. Being able to see and touch items is a vital part of their education, and a piece that has been noticeably absent this year.

We decided to hold our events outdoors, and to require masks. We release an informational document with safety info at the time of advertising these events. We are clear that face shields may not be used as a substitute for masks, due to the most recent research available. Additionally, we hold it in the dungeon’s gated lot so we can limit attendance to two individuals per vendor, and do thermometer checks. We have a security person and someone handling an outdoor handwashing station, stocked by a local soapmaker. Additionally, each vendor has a bottle of hand sanitizer on their table and requires people to use it prior to making contact with any merchandise.

Vendors occupy parking spaces to make things simple. Ones with larger vehicles (vans mostly) park next to the gate to block the view of anyone walking past. They set up tables in the parking spot directly next to their vehicle and are able to space it as they like. Some bring canopies. By alternating car – vendor – car – vendor, we are able to space vendors out nine feet plus add a blockade of the vendor’s car. Vendors remain masked for the duration of the event. One person or germ group may shop a given vendor at a time. A second may wait six feet distant until that group has finished. Additional interested shoppers must browse elsewhere or wait outside of the gate, physically distanced. We encourage anyone who wants to crack a whip to briefly step inside, but other than that and brief bathroom visits, the event is able to operate fully outdoors.

Our first event went well. We didn’t have a high number of attendees, but the ones who came clearly had full intention to purchase from our local people. All the vendors felt satisfied that they were safe and also able to accommodate shoppers. Vending fees are minimal and go directly to the dungeon to help make sure it continues to operate as we move forward.

Neither event is perfect. They don’t have huge attendance. Some people are unwilling to use masks during play and choose not to attend the dungeon events. Some are unwilling to wear them outdoors and choose not to attend the vendor events. Others feel both events are still beyond their risk profile and also choose not to attend. We support their choices either way, but have to move forward in ways that provide the highest level of comfort and safety to the highest percentage of our kink community’s population. As things change, we are doing our best to change with them.

Do you have any additional safety measures your community is taking? Feel free to let us know in the comments.

Christmas bunny has been exploring kink since she was legal to do so.  Her serious writing started in college, where she accidently got some of her papers published in educational journals.  She has recently expanded her writing to include her kink journey.  She began writing in the physical realm, but shed some of her inhibitions and began sharing those entries with others.  She now keeps an active blog of her personal growth and her relationship with her Master / Daddy Dominant and writes helpful educational posts on a variety of subjects.

Changing Safewords

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So the rule of thumb is typically that it’s better to stick with the more widely known Safewords. In Southern California we use the “traffic light” safewords of green, yellow, and red. It may or may not be different in different parts of the country or internationally – however, since I didn’t research that I won’t presume to know.

First I will explain what (basically) these safewords mean in case any readers are newer to the scene. Green means the bottom is enjoying what’s happening. Now, you don’t hear “green” very often because typically if a bottom is really enjoying themselves they are just in the moment and perhaps all that’s coming out of their mouth are pleasurable moans, screams, etc. Red means the Top needs to stop whatever they are doing and check in with the bottom. It may mean there is one aspect of the scene that needs to stop or that the entire scene needs to end. Yellow has a more flexible meaning. To some it may mean don’t stop and check in – just lighten up on what you’re doing or switch to doing something else or use a different implement. It could, however, mean to others that they want a verbal check in from their Top – although they aren’t in as much distress as if they call red.

Now the reason I typically don’t recommend changing the safewords you use is for two reasons. One – if you keep changing them it will be harder to remember them in the moment you may need to use them. Two – if you are playing in a public play space then the DMs (Dungeon Monitors) will know what words to listen for in case they need to step in.
So let’s discuss the only time I suggest changing your safewords. Let me say first – if you decide to change them you NEED to let the DMs know and maybe even a few more people who may be around for your scene. If you call one and your Top doesn’t stop, you have people around who will know that and can step in if you need help.

Ok, so, in the 7ish years I have been playing I have only changed my safewords twice. Both for scenes that leaned heavily on role-play. In my case, interrogation role-play. The reason they were changed was to be able to call safewords while still staying in character and using words or techniques to maintain the scene itself.

Both scenes involved my Top trying to get information out of me. In both cases we also had several other people involved in the scene to various degrees of involvement. In one scene she was trying to extract a location. In this case we had one other person who was the only other person (besides me) that knew the “location” who was not directly involved in the physical aspects of the scene but was there the whole time. When I would “give in” and state a location, my Top would verify with the other person. If she stated that was not the location then the scene continued, however, the check in gave me a little break and also represented my “yellow”. If I gave a location and it checked out – that was my “red” and indicated that the scene was over. Basically that the interrogation “broke me”.
In the other example my Top was trying to get a “secret code” out of me. In this case I would give a password for my email. (Yes this was someone I was in a relationship with and trusted.) If I needed to “call yellow”, aka needed a break, I would give the wrong password. It gave me a few minutes while she attempted to use her phone to open my email. However, when I was ready to end the scene (aka red) I gave the correct password. Once she could open my email she knew I was calling the scene.

Yes I changed my password the next day.

I hope these examples made sense. If not, feel free to comment below with questions. The bottom line is that it’s better to stick to the universally recognized safewords. Only change them if you feel it will otherwise be a detriment to the scene and always make sure the DMs or others around you know what’s up.

Jennifer Masri is a Licensed Marriage and Family Therapist, specializing in Alternative Lifestyles for individual and relationship issues. She also teaches the BDSM 101 class series at Sanctuary LAX in Los Angeles every Monday evening. Read more about Jennifer on her blog, A Kink Shrink.

A PSA on Safe words: RED to safe word shaming

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So lately I have been hearing about, reading about, and having people I play with suffer from safe word shaming. Briefly, for those of you newbies out there, safe BDSM play involves the incorporation of calling “yellow” or “red” when you have reached your threshold of pain, tolerance or discomfort or to check in with your Dom/Top.

I think safe word shaming is bull shit. Plain and simple.

A friend that I have never played with before said yellow in the middle of a scene recently. Like any good player, I stopped and checked in. She told me what was wrong and we fixed it. Done and done, no harm no foul. We continued to play and at the end during our aftercare she apologized for calling yellow during the scene and held me tighter. I was blown away by this and told her never to be sorry for that.

A safe word does not make you weak at all. It makes me know, as a Dom, that you are a safe player who is smart enough to not want to be broken. Safe words were invented so that players could let their partner know that something was wrong during a scene. I am not sure where this whole thing of shaming a safe word came from, but I think it’s foolish for people to succumb to such thinking.

A sub needs to be able to communicate that something is wrong during a scene. If the cuff is too tight and your hand is going numb, let me know. If your butt can’t take anymore punishment and I need to stop or move to another spot, let me know. If you feel like you can’t take any more and you’re done, LET ME KNOW.

On the other side of the coin a Dom should NEVER take a safe word away from you, especially if you are a newbie. There is a mentality in some circles of, “I have been doing this for years so I know what I am doing. We don’t need a safe word.” Bull shit and RED TO THAT! A Dom you just met will not know anything about playing with you. They will not know anything about emotional triggers or hard limits that you may not have thought about. Doms are not mind readers! No amount of negotiating will prepare you for everything that can happen during play.

Lastly if a Dom makes fun of you or holds it against you for calling a safe word during a scene…. RUN! THAT DOM IS A DICK! (and most likely an unsafe player). In closing to my public service announcement, I will say that safe words are a critical tool to play in any sort of scene. Don’t be afraid to use it because and smart Dom will respect you more for using it when needed. If anyone makes fun of you for using a safe word, they are not worth your time.

So now that my rant is done, what’s your safe word? The best one I have ever heard, because it made the ENTIRE dungeon stop, was “Peanut Butter Jelly Time!” Let us know if you have a better one in the comments.

Sir Gear has been an active member of the local Los Angeles BDSM scene since 2009. In that time he has become a member of House RavynBlood and the student of Master Gabriel. Sir Gear is the promoter of Club THIRST out of Sanctuary LAX and is best known as his character, The Reverend, that has been featured at the AVN Expo, DomCon and even the Ice House Comedy Club in Pasadena.

Follow him on social media as JordanTheComic or here.