Kinky Sex and the Law
by James
Albert Queen
first published
in Stern Magazine (Vol 1, Issue2)
Law touches everything, including erotic BDSM. (Note: we use the all-encompassing
abbreviation "BDSM" for mutually consensual bondage, discipline, domination,
submission, and sadomasochism, when used in sexual expression.)
Erotic
BDSM however, imposes a real dilemma both for people who enjoy it
and for the legal system. This is because even at its most innocuous, erotic
BDSM usually masquerades as deeds that would otherwise be criminal. After
all, confinement, torture, and aggressive role-playing figured prominently
in some of the most horrific
crimes committed.
Immediately the names of Bernardo and Homulka, and the grotesque murders
they committed just down the Queensway in the late 1980's come to mind. Because
of atrocities like theirs, some observers will not distinguish between crime
and erotic BDSM. They argue that erotic BDSM is inherently harmful, even
when practised by consenting adults or when explored only vicariously in
books, magazines, and film. They view it, especially domination of women,
as degrading and contend that it fosters a tolerance of violence, perhaps
even promoting it. They would happily outlaw Erotic BDSM, and ban its
depiction on the grounds that if it is not a crime to be punished, then it
is at least a depravity to be treated.
Early theory bolstered this view. Initial psychological research focussed
on those BDSM practitioners most available to a psychiatrist - the mentally
disturbed. This statistically biassed research, coloured by the existence
of sadistic criminality, sustained the accepted dogma that Erotic BDSM was
an inherently dangerous psychopathology.
Certainly, erotic BDSM is a sexual preference on the margins, but it
is (and probably always has been) a prominent part of human sexuality. Furthermore,
the psychologist's view of erotic BDSM has changed sharply. Modern research
shows it to be intrinsic to the sexuality of many, the vast majority of whom
do not commit crimes, and wouldn't dream of harming or exploiting their partners.
Certainly, there is potential danger if a person with a propensity for erotic
BDSM suffers from other behavioural ills (such as anti-social personality
disorder or psychopathy), or exhibits criminal or moral failings.
But this
falls far short of proving that everyone inclined towards BDSM is dangerous.
Themes of erotic power exchange appear in both classic art and literature,
and in popular culture - from Modigliani to Madonna. Surprising numbers actually
play out their fantasies, using restraints and inflicting mild hurt on one
another to stimulate endorphin flow, thereby enhancing sexual pleasure.
Even more people contemplate these fantasies vicariously through books,
magazines, videos or cyberspace. The 1993 Janus Study revealed that sexual
BDSM fantasies or activity were a consistent characteristic in the sexuality
of between 10% and 15% of the population.
In the middle of it all, we have laws and a legal system that must
administer justice fairly. Laws are a mirror to the society they serve, so
anyone interested in Erotic BDSM should understand how the law relates to
it. Unfortunately when we examine it, we often come away with more new questions
than answers. If erotic BDSM was so evil, it ought
to figure
more prominently in criminal prosecutions than it actually does, especially
in rape and assault trials. But it does not. In fact, there has long been
both popular and judicial recognition of consensual erotic BDSM as a non-criminal
sexual preference. Nonetheless social conservatives abhor it, an abhorrence
sometimes reflected in the courts. Small wonder that decent BDSM people
are becoming paranoid!
Legal disputes involving erotic BDSM can occur in many areas, but this first
article examines the way the law is applied to actual BDSM play.
PART
I - HOW TO AVOID WEARING HANDCUFFS WHEN YOU REALLY DON'T WANT TO.
In 1980, after hearing evidence of extreme and heavy sadomasochism during
sexual activity, an English court convicted 5 men on serious assault charges.
Their sentences ranged from 6 months to 30 months. Significantly, the
men were arrested even though no one had ever complained to police, who first
learned of their activities in videotapes. The tapes were seized during unrelated
investigations, and showed SM acts heavy enough that at first, police thought
they had found "snuff films". In fact, they were "home movies" taped in private
by the men themselves over a 10 year period, never intended for sale or distribution.
Though the SM depicted was extreme, no one suffered permanent injury, there
was complete consent, and the pain was inflicted and endured purely for sexual
excitement. These assault convictions, despite participant's mutual consent,
stirred much legal debate, and the men appealed. Ultimately the highest English
court,
the House of Lords, upheld the convictions in a 3-2 split decision. This
is the notorious "Spanner Case," now a lightning rod for debate about the
law and erotic BDSM.
The Spanner case is a useful start for anyone interested in learning about
how the law treats erotic BDSM. The Spanner case took place in England, but
those who enjoy erotic BDSM anywhere should pay attention. Legal trends in
the "common law" world - Canada, Australia, New Zealand, Britain, and the
United States - are remarkably similar. So, is the Spanner case typical of
how the law regards erotic BDSM? No, not really, because the activity in
the Spanner case was not typical. Most erotic BDSM is far more moderate you
know, Mr. and Mrs. Bumstead, who take turns tying up and paddling one another
as a prelude to sex, all in the privacy of their bedroom. Have Mr. and Mrs.
Bumstead broken the law? If Mr. and Mrs. Bumstead organize a private kinky,
leather-bound weekend together, do they become criminals? After all, communities
have always had laws against hitting someone, confining a person, or forcing
sex on another.
Well, as in most legal matters, the answer is rarely simple, but in the 1980's
the National Leather Association adopted the motto: safe, sane and consensual.
Coincidentally, this is also pretty good legal advice.
First, unless either Mr. or Mrs. Bumstead complained, its improbable that
police would ever intervene. Generally, a consenting, contented submissive
has no reason to complain. Nonetheless, police and prosecutors in every jurisdiction
differ in their approach, and people have been arrested for far less. Still,
if the evidence showed the Bumsteads were adults who had agreed to having
sex with BDSM, who knew what they were agreeing to, and were left unharmed,
any charges would most likely be dropped. What distinguished the Bumstead's
kinky play from assault, battery, false imprisonment, unlawful confinement,
rape, and sexual assault? The distinction is "consent."
It
all begins with consent One day in 1937, a Londoner named Donovan hired a
17-year old London prostitute specifically to cane her. She well knew what
he wanted, and her caning (which caused bruising that lasted several days)
was delivered in private. Nonetheless, Donovan was arrested and convicted
of both common assault and indecent assault. Happily for Donovan though,
both verdicts were overturned by the English Court of Appeal, establishing
a legal principle relied on by judges on both sides of the Atlantic. The
consent of the "victim" is a defence to any assault (including a sexual assault)
that does not cause bodily harm.
In fact, consent renders lawful many activities that would otherwise be a
crime. Without consent, sexual intercourse is a crime. Before operating, a
doctor requires a patient's written consent. The blows inherent to contact
sports would all be illegal without a participant's consent. Every day, people
consent to things that would otherwise be a criminal assault: physiotherapy,
getting a haircut, being tattooed or having their nipples pierced. Of course,
because of consent no one notices. So it goes with erotic BDSM.
In fact the law is open-minded where consent is mutual. For example, once
upon a time there was an Illinois farm couple, Mr. and Mrs.Cohoon. In 1942
Mr. Cohoon was 62 years old, though his wife was a mere child of 21, and
in apparent good health, as she had recently admitted to a number of sexual
indiscretions with other men. One day, Mrs.Cohoon strongly suggested
that it would be a good time for Mr.Cohoon to go to town for supplies. Suspicious,
he speculated that this was a trick to get him to leave, just so she could
visit another man. Mrs.Cohoon then protested her innocence, saying that if
he really didn't trust her, then all he had to do was to lock a chain around
her neck to prevent her from leaving. This he did and at her further request,
he locked a second chain around her ankle. Only then did he go to town for
supplies. Alas, events conspired to delay his return to the farm and to his
21 year old chained-up wife. The law intervened. Suffice to say the Illinois
Appeal Court reversed Mr. Cohoon's conviction for falsely imprisoning
Mrs. Cohoon, on the grounds of her enthusiastic and undoubted consent. Legal
history does not record whether Mrs.Cohoon was a closet submissive.
People can sometimes engage in very raw, kinky BDSM play indeed and law enforcers,
even if made aware of it, could scarcely care less. However, change the circumstances
ever so slightly and the same acts will become a criminal offence to be prosecuted
and punished to the full extent of the law. It all revolves around consent.
In 1980, a Massachusetts court tried a man named Appleby on three counts
of serious assault. For two years he and the man he lived with had a consensual
and ongoing Master-Slave relationship, frequently engaging in heavy SM,
including
daily whippings. The three assault charges stemmed from the three times
that Appleby had inflicted injury serious enough that his submissive partner
left him. The submissive returned to Appleby on the first two times, even
though in one case Appleby had struck him with a bat so hard that the submissive's
kneecap was fractured, requiring two weeks in hospital. Eventually the submissive
left Appleby, who was arrested. On the first two assault charges, where
the submissive had returned to Appleby afterward (including the assault
that had sent him to hospital), the jury found Appleby not guilty. However,
they convicted him on the last charge, where the submissive had fled.
If the submissive has not consented, or revokes their consent, or is seriously
injured, the law steps in. Bondage becomes "unlawful confinement." Spanking
becomes "assault" and if the Dominant used a crop, cane or paddle, it is
"assault with a weapon." The underlying sexuality turns the whole episode
into "sexual assault."
No
Consent? You'll need a Lawyer.
Where consent
is mutual, the law is generally uninterested in erotic BDSM. However, "consent"
can be a tricky thing. Consent can be withdrawn, and can be limited by time,
place, person, and by activity. Consent obtained by fraud or use of authority,
or given under duress, is not "consent" as far as a judge is concerned.
Consent is not the same thing as mere "acquiescence". Some people cannot
legally give consent: minors, and people under some types of disability.
And finally, there are some acts like death,
maiming or bodily harm, that no one can legally consent to. Yes, "consent"
is a tricky thing.
Defective
Consent - Case 1: "That's not what I agreed to!"
Suppose
you consent to a surgeon removing your appendix. This is not a licence for
the surgeon to transplant your kidney! We enjoy the right - not only to
consent, but - to limit our consent. For example, imagine you are a novice
submissive who has always fantasized about being bound and gagged, and spanked.
Your Dominant partner agrees, and you are soon nude, bound to a bed, a ball
gag fills your mouth, and you await the attentions of your Mistress. But,
instead of wielding her paddle or riding crop, she lights a candle
and despite your muffled protests, she slowly drips candle wax on your flesh.
You try to protest, but the gag prevents you. After you are released, she
proudly asks how you liked this "little surprise."
Pop
Quiz: precisely what has happened? Answer: a criminal assault. Won't she be
surprised to learn that you could easily press charges. You consented to
a spanking, not molten wax.
How about this: a submissive agrees with the Dominant that, at precisely
8:00 PM on Friday night, at her apartment, they will together act out a "rape
fantasy" according to a pre-arranged script. The Dominant however, decides
on his own to embellish the fantasy. He arrives at her apartment at 8:00
PM, not on Friday, but on Thursday, when he dominates her exactly as
they have agreed, ignoring her valiant struggles.
Pop
Quiz: precisely what has happened? Answer: a criminal assault. Her consent
was for Friday night, not Thursday.
In 1953, a court dealt with this issue in the British dominion of Southern
Rhodesia (today, Zimbabwe). An airline hostess had broken a safety regulation
and though the company suffered no loss, the breach was still serious enough
that she could easily be fired. Also, she was also an immigrant so this would
have brought financial ruin and perhaps deportation. The manager, named McCoy,
knew this and quietly suggested that she could keep her job provided
she consented to corporal punishment, to be delivered later. She agreed,
expecting discipline to be applied over her clothing. She arrived later to
learn her punishment would be a caning while bent over a chair, bare-bottom.
She protested, he insisted, she ultimately acquiesced. The bruises lasted
for some time and she complained to police, who arrested him. At his trial
the manager argued that he should be acquitted because she had consented
to corporal punishment. The magistrate disagreed and he
was convicted of assault. The punishment she received was not the punishment
she had consented to. (Records do not show whether the airline hostess
kept her job, but the manager certainly lost his.)
Reckless or inept Dominants are on a collision course with the Criminal Code
if they assume that a submissive's consent automatically extends to anything
the Dominant wants. This is also true for a Dominant who ignores safewords,
who exceeds limits, who forces sex, or who imposes discipline that the submissive
has not agreed to.
Defective
Consent - Case 2: "But she looked old enough to me!"
Consent
has legal meaning only if a person has all the facts, is not under duress,
and can reasonably evaluate their options and their effect. Because a certain
level of maturity is needed, the right to consent comes with adulthood.
Laws specify a minimum age of legal consent, all on the assumption that
young people are not yet mature enough to choose and need protection from
themselves. (True, not all adults are mature either, but the law also takes
the view that some people simply can't be protected forever!) So an adult
who engages in sexual activity with someone younger than the age of consent
(with or without BDSM and even if the young person has consented) is simply
risking the wrath of the law.
Similarly, the law won't recognize the consent of someone whose ability to
reason is impaired by some disability, whether mental or physical, temporary
or permanent. If you have sex (especially if it includes BDSM) with someone
who is mentally retarded, or whose reason is dulled by drugs or alcohol,
or who by their nature can't reason well, you tread on thin ice. Some people
simply cannot give legal consent.
Defective
Consent Case 3: "My boss said I had to do it!"
A Dominant
cannot rely on a submissive's consent if it is obtained by the exercise
of authority, or by the abuse of some trust. For example, Dr. James Tyhurst,
a distinguished Vancouver psychiatrist was convicted of sexual assault in
1991. Several female patients complained that he had involved them
in an ongoing, sexually intimate master-slave relationship in which they
played out elaborate fantasies, all set in ancient times. The patients were
all adult women who had consented. However, the Crown Attorney argued that
the physician had used his authority and his medical knowledge to take unfair
advantage of the women. After all, he was their psychiatrist and they
were his psychiatric patients. The jury agreed and he was convicted.
What is the moral? If you have actual authority or influence over your sexual
partner, whether for BDSM or for "vanilla" sex, beware. Employers
and supervisors should avoid engaging in BDSM play with employees or subordinates.
A professional who plays BDSM games with a client or patient is courting
personal and professional disaster. So too does a professor who plays with
a student, a policeman who plays with a citizen (especially if involved in
an investigation), a military officer who plays with a com- missioned man
or woman, and so on. If the play goes "bad", if consensual limits are exceeded
or if someone is injured, get ready to convince a courtroom full of sceptics
that you didn't intimidate your partner into giving consent. Bear in mind
that a submissive's consent has legal meaning only if it is honestly and freely
given, not if it is coerced. Freely given consent is not the same thing as
mere acquiescence to authority, and more than one boss, professional,
and official has learned the hard way that their partner interpreted their
"invitation" as an order. The British Columbia Court of Appeal overturned
the conviction of Dr. Tyhurst, but by then it was too late. His credibility
as a physician has evaporated, whatever the truth really was.
Defective
Consent Case 4: "But I thought she wanted it!"
What if
a Dominant honestly but incorrectly believes a submissive had consented?
Well, this problem came up in the English courts in 1976. A fellow named
Morgan told three younger acquaintances at a pub that his wife at home enjoyed
rough sex, and invited them to come over to his house to join in. He explained
that she would probably act like she was protesting and would fight back.
But he reassured them that in fact she really enjoyed it, protests were part
of her fantasy, and that they should just ignore them and enjoy themselves.
At first the men were incredulous, but then followed Morgan home where his
wife was in bed asleep. Morgan and the others woke her up and carried her,
struggling and protesting, to another room where they held her down and
took turns having intercourse with her.
The wife of course had not consented, the husband's three acquaintances couldn't
come up with a good reason for ignoring her protests and they were each sentenced
to 4 years in prison. Morgan, who was in fact separated from his wife, was
sentenced to 10 years.
It is unknown whether the acquaintances acted because of alcohol or curiosity
about a rough sex fantasy. Whatever the reason, in no way was this
"erotic BDSM." Unfortunately, it is sometimes in a criminal court that a careless
or reckless Dominant first comprehends that a partner's protests were real,
and not just part of the fantasy. By then it is too late for all concerned.
Defective
Consent Case 5: "Master, please whip me until I pass out. . ."
Most sadomasochistic
fantasies are just that, fantasy. Nonetheless some are very extreme, and
a small but conspicuous minority actually lives out heavily sadoma- sochistic
(but consensual) fantasies in sex play. The legal system has serious difficulty
coping with members of this minority, whenever their mutually consensual
play attracts the attention of the law.
Heavy SM generally revolves around a sexually-charged "tormenter-captive"
role-playing scene where pain has not just a symbolic purpose, but is inflicted
while the submissive is sexually aroused to heighten endorphin flow. The
body releases endorphins, its own natural pain-killer, to create an intense
sensory cocktail for the masochist while he or she is sexually aroused.
Practitioners seek this through severe whipping, branding, electrical shock
and catheterization, and bruising and bleeding is common. These extremes
exceed the limits of the majority of those who enjoy erotic BDSM. Nonetheless
those who enjoy heavy SM comprise a small but stable and cohesive community,
a community that also generates the biggest legal dilemma for erotic BDSM.
Ordinarily if a person consents to some bodily interference, as in contact
sports or in erotic BDSM, they cannot then complain to the legal system.
However, courts and legislators can be very paternalistic, protecting us
from ourselves, even adults of sound mind who have complete information. Thus
for serious bodily interference, even if consent
is freely
given, the courts will simply not recognize its legality.
For example, can you legally consent to your own death? No. Duelling to the
death was once lawful and, until the law changed to equate duelling with
murder, an unsuccessful duellist had died by his own consent. The winner
could not be charged or even sued. Similarly it remains a criminal offence
to assist in a suicide, even in cases of terminally ill adults who simply
want to end their pain. Can you legally consent to being maimed? No. Prize-fighting
only became legal in the 1800's when boxing federations brought order. Until
then it was a vicious, bloody brawl, an underworld spectacle
that fostered
near-riots and existed to sustain an illicit gambling industry. A few champions
earned big prizes, but most went away beaten to a pulp. Disfigurement, maiming,
and even death were common, so prize fighters were routinely charged with
assault causing bodily harm, and their promoters (sometimes even spectators,
too) were hunted down as accomplices. The prize-fighter's consent was no
defence to the charge.
To protect people from themselves and to maintain public order, it has long
been the law that one cannot consent to an aggravated assault, nor to an
assault that has caused bodily harm. But then precisely what constitutes
"aggravation" or "bodily harm"? Appleby was acquitted after breaking a man's
kneecap, while the Rhodesian airline manager was
convicted
after causing minor bruises. The "black-letter law" is of little assistance,
because "aggravation" or "bodily harm" can only be assessed afterward, on
a case by case basis. They are "questions of fact" for a judge, or for judge
and jury.
Another problem arises. If this rule was strictly enforced, many beneficial
and necessary activities would be curtailed. Therefore the higher courts
have carved out a further exception to this rule, so that a person can legally
consent to an aggravated assault or to bodily harm, provided the activity
has some greater public benefit. This is why the bodily interference inherent
to surgery, or to unarmed combat training, or to contact sport, rarely bothers
the courts.
Back
to Spanner. Fundamentally, the five men in the Spanner case were convicted
because three High Court Justices declined to create a new exception, on
the grounds of a greater "public good", that legalized consent to bodily
injury during consensual SM.The judges observed that the Spanner SM included branding
of flesh and burning with a match, use of stinging nettles and thorns on the
genitals, nailing of a penis to a board, piercing of the penis and scrotum
with a pin, insertion of a wire, a finger, and hot wax into the urethra, holding
the scrotum with a spiked glove, and prolonged whipping and paddling. Even
if consensual and no permanent injury resulted, this was all deemed too extreme
to be legalized in the name of the public good.
Canadian courts have applied similar reasoning (in 1995, in the Ontario trial
of a man named Welch) as have American courts (in the 1976 New Jersey
prosecution of a defendant named Brown, and in the 1985 Iowa trial of a man
named Collier), though in less severe SM play. So far though, Spanner is
the only consensual SM-related case to go up to the highest appeal court
in a common-law country.
And remember that in Spanner, despite the extremes of the SM activity, two
Justices in the House of Lords would have created a legal exception to legalize
someone's consent to modest, temporary injury suffered in consensual sadomasochism.
Spanner is being appealed to the European Human Rights Tribunal, and Law
Reform Commissions in both Britain and Canada have recommended that the law
allow for a limited exception to the rule, specifically for consensual erotic
BDSM.
Conclusion.
What effect
will all this have on Mr. and Mrs. Bumstead? Not much, probably, because
the extremes in the Spanner case are certainly not typical. How do you and
the Bumstead's have fun, and stay out of jail? Remember the rule: safe,
sane, and consensual. Intentionally dominate an unwilling partner - one
who has not consented - and you commit a crime. This is not erotic BDSM,
and you deserve what you get. The sentence is generally measured not in months,
but years. Sadly though, people can also be harmed by those who do not intend
it.
In fact the biggest danger faced by most true devotees of erotic BDSM is
of being injured through recklessness, carelessness, bungling, or poor communications
between partners. People risk being hurt by those who cannot tell where
fantasy ends and reality begins, or if they grasp the boundaries, ignore
them. Remember, whenever BDSM "goes wrong," law courts pay more attention
to injuries suffered, than to the party's intentions.
So, know and trust your partner, and before play, "negotiate" - that is,
frankly discuss with your prospective partner your BDSM needs, wants, expectations,
and most importantly, limits. Don't play BDSM games when angry or under the
influence of drugs, or alcohol. They all dull your senses and impair
judgment. If you're in a position of real world authority or guardianship
over your partner, be very, very careful and if in doubt, don't play. Never
assume anything. Use and respect "safe words", and if you play with gags,
derive a "safe signal" that doesn't rely on speech. Become competent
and strive to increase expertise and judgment, whether you are submissive
or Dominant. Remember, in expert hands, a whip, cane, or crop can be a delightfully
spicy "toy." Otherwise they are weapons.
Don't let the role-playing inherent to erotic BDSM blind you to the fact
that, even though the partnership is one of erotic Dominance and submission,
it works best when there is emotional parity. Though it is a physical and
sexual act, there is just as much emotional and psychological interplay in
erotic BDSM and careless words or gestures can injure, too. Emotional hurt
worsens any real physical hurt, prejudices one's view of BDSM, of their partner,
and of their partner's motives. The experience must be satisfactory for
both the submissive and the Dominant. Otherwise, where is the incentive
to continue?
Erotic BDSM is by definition, emotional and sexual escapism, and exploring
it ought to be a voyage of self-discovery. It carries risks, but it is inherently
no more hazardous than driving, or shooting, or skiing. Before participating
in those activities though, people are usually advised to take lessons and
learn. Can you do this with erotic BDSM? Yes.
Many groups
and clubs now exist and many good books have been written. They all define
consent as its critical prerequisite. Even though erotic BDSM by its very
nature involves fantasies about lack of consent, its recommended practices
aim to ensure that nothing happens without true consent.
Consensual BDSM play is rarely as extreme as Spanner, and rarely finds its
way into the courts, but when it does, its more often because someone became
too cavalier about the principles of safe, sane, and consensual. Thankfully
this doesn't trouble Mr. and Mrs. Bumstead, last seen together shopping
for chain and ping-pong paddles at the local mall,
nor will
it trouble the vast majority of men and women who actively play consensual
erotic BDSM games.
Cases:
R..
v. Donovan [1934] 2 K.B. 498
State v.
Cohoon, 315 Ill.App.259; 42 N.E. (2d) 969 (1942)
R. v. McCoy,
[1953] 2 S.A. 4
State v.
Brown, 364 A.2d. 27 (N.J.S.C., 1976)
D.P.P. v.
Morgan, [1976] A.C. 182
Commonwealth
v. Appleby, 402 N.E.2d 1051 (1980)
State v.
Collier, 372 N.W.2d 303 (Iowa App., 1985)
R. v. Brown,
et al, [1993] 2 All ER 75 (HL)
R. v. Welch,
(1995) 101 CCC (3d) 216 (Ont. C.A.)
R. v. Tyhurst
(1996) 71 BCAC 28 (BCCA)
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