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This page is complementary to my page on equality in BDSM. There can be no consent without equality.
This page is about discouraging abuse and enabling victims of abusive behaviour to recognise their situation. It explores a stricter concept of consent than is usually adopted by courts in western jurisdictions. That a prosecution might fail does not make the behaviour defined in the circumstances of that defence acceptable to this author. Our behaviour should be determined by mutual care and respect, not by what is legally defensible.
Acceptable – not abusive – behaviour demands consent.
This page seeks to address some issues of consent in the context of BDSM play. It does not include complicating issues such as intoxication (by alcohol or any other drugs) or mental impairment, fraud or deception, or children, nor does it attempt to span issues which do not normally arise in the context of play between consenting adults in private. It is thus a very limited discussion - if you have the need of legal advice seek that from a suitably qualified practitioner in your local jurisdiction.
Consent:
permission (noun)
Proponents of BDSM commonly assert that such play is required to be ‘safe sane and consensual’ (SSC) or that it should be ‘risk aware consensual kink’ (RACK). In both cases there is a requirement for consent. Fewer of those proponents have thought much about when consent is, or more importantly is not, given.
Of more concern are the frequent posts by women who wonder if their relationship is abusive. This page argues that it is abuse, in every case where she wonders. In every such case the dominant risks doing time; the sex may be hot but the cooler is not. It would be much better that such dominants learn than to fill our jails with such waste.
Understanding whether consent is given requires knowledge of some basic legal principles.
Many popular BDSM activities are difficult to discriminate (or cannot be discriminated) from incidents which our society expects the police to prosecute as assault. It is likely that most police will not prosecute people where both parties say they are playing, however if one is not, the other is in trouble. Such a difference may see the dominant go to jail.
In the Spanner case some men who all asserted they were engaged in consensual BDSM were sent to jail in the UK for activities which the courts considered were socially unacceptable. The case is important because it was extensively appealed and reaffirmed the principle that it is appropriate for laws restricting such behaviour to be passed. This is not some ancient statute – this was the 1990s.
Specific offences (in terms as sweeping as ‘sadomasochism’ which encompasses much of BDSM) may be prohibited by the law in a state and that law may explicitly disallow the defence of consent. If you are charged, and your activity fits the description, expect to be found guilty.
This then establishes the first limit on consent: We cannot consent to activities which are forbidden by law. If your activity is illegal and you are caught at it then it is likely that any prosecution by the authorities will succeed.
Some of those laws are very old and may not be appropriate to contemporary society, but others are very contemporary. Unfortunately obsolescence does not change the law. If you intend to flout it then be aware of the consequences. Consent in this context is very doubtful and is useless as a defence.
Rule for survival: Don't get caught. Don't have witnesses, don't make videos, don't leave evidence. Feel free to lobby to have the law changed.
Consent requires an agreement – but there is no point in putting it in writing. Courts in western jurisdictions (US, Australia, South Africa, UK and most of Europe) will generally not allow a defence of consent that is not active. Consent given yesterday, or even a few minutes ago, is irrelevant to our choice of action right now.
Consent is required to be consent now, and consent withdrawn is no-consent to any action which has the appearance of assault (that includes most BDSM). Most importantly there can be no ‘slave’ contracts or ‘consensual non-consent’. People who play with consent in this way have no consent at all from the moment the submissive wants to stop. This is neither SSC nor RACK.
It is recognised that some women seek relationships in which their will is subordinated to a strong man – as though the strength of the man were proved by the depth of her subordination. I have written other pages (Power and Control, Why Dominate and Equality) about why this is unhealthy and the need for equality in BDSM relationships – those arguments are not repeated here.
While a woman may consent to, or actively seek such a relationship, that consent is an ephemeral thing. As soon as Cinderella realises that this guy is not Prince Charming she is free to withdraw her consent and whatever he does in the way of BDSM beyond that point is a criminal assault. That she sought him out and agreed in writing to what he may do is of no consequence when her consent is withdrawn. There are hosts of guys in jail for rape in similar circumstances.
A correspondent (Ms Steel) raises the related issue of what she calls "provisional consent": consent which is fully intended in-the-moment but which is reframed (differently understood) some weeks or years after the events are over and withdrawn retrospectively. Such reconsideration might flow from a changed point of view or some unexpected consequences.
Dominants are not seers, and ought not be expected to foresee such changes any better than other members of the society. However unreasonable it may be, our courts and the wider community are likely to regard such a defence with deep suspicion. Nobody said RACK was risk free.
Consent is in-the-moment. If you are playing at BDSM you need consent, it is required in every moment.
Rule for survival: Be careful about free consent and remain attentive to any changes in mood or disposition. Don't take it for granted.
I cannot give my consent to BDSM play if I do not know what that proposal is. Of course I can say “I consent” but that is not consent if I do not know what I am agreeing to.
In this regard consent to BDSM play is quite different from an ordinary contract such the sale of a car where a contract once made may remain binding. A better parallel for BDSM play is the requirement being imposed on medical practitioners to obtain a patient's consent to a proposed treatment. The doctor must adequately inform the client of the risks and side-effects, leaving it to the client to make the choice about whether to proceed or not. If the patient is adequately informed this decision can be made. Without adequate information there is no consent, and the doctor may face charges of assault as well as negligence.
Similarly for sexual relationships, there is a requirement that the other party (usually the female) understood what was intended. Informed (and continuing) consent is usually an adequate defence against a charge of sexual assault or rape, but without understanding there is no consent.
Does this mean that a dominant has to spell out every stroke and then not deviate from the plan? Of course not. What it does mean however is that if she expects only to be gently flogged that she does not find herself confronted with scat or needles. Agree limits to your play and generally observe those limits. If you are into edge-play then ensure your submissive is too, and be sensibly gentle on those boundaries.
There is plenty of scope for people with imagination to build sensation and tension in play without disregarding limits. Dominants who cannot find scope for play while respecting their submissive's limits are dangerous and should not be played with.
Rule for survival: Agree clear limits for all the kinds of play that you might wish to introduce in this session.
If I hold a gun to your head to encourage your ‘agreement’ to my play proposals – which may include clear limits – clearly that is coercion and the consent obtained is void. That is not consent, even though all the conditions above may have been met.
A gun to the head is very blatant coercion. It is still coercion when it is subtle. If the submissive is afraid that by not cooperating she may suffer some adverse conseqence she is still coerced. Thus if he provides some income for her family a woman may consent to the man's proposal for BDSM play, but does she agree because she desires this experience or because she was afraid that if she did not he would withdraw his economic support leaving her children and herself destitute?
Even more subtle but no less coercive is the situation where she is desperately in love with him (or his money, or whatever) and she wishes to prove the totality of that love by her consent to whatever he proposes. This is the position of Cinderella who has waited for years for this man to appear and to rescue her from the drudgery that is her life. Cinderella is pressured by her own false beliefs, but is no less pressured for that. He did not force her, but she was still forced and did not choose freely.
The same occurs where she believes he applies coercive force even though he does not. So imagine a man who is a model SNAG (sensitive new-age guy) full of respect for his woman and her desires. He is, however, a man who just loves to spank her and he gets off on that. If she were to say “I don't like it” he might be shocked and say “I'm terribly sorry” and be filled with remorse and revulsion at his own behaviour and never do it again. Imagine her now as a rather compliant and unobservant woman who consents to being spanked by the same man because she fears that he will leave her if she does not. She is forced. It is immaterial that what she believed was wrong and that she was forced by her own false belief and in spite of his desires, she was still coerced.
This is also essentially the situation where there are alternatives which might be chosen but the submissive is unaware of them. If she believes she has no choice but to comply then she is forced. It is immaterial that there are several alternatives she might have chosen; if she did not see that they were available to her then she was coerced, however mistakenly.
In this context what matters is not what the dominant does, but what the submissive believes. It is the responsibility of the dominant to ensure that the submissive does have a free choice and that she is aware of the alternatives open to her and the costs of choosing each of them. What is required in this regard is an honest endeavour to ensure that she does have free choice.
There is no scope for any fear in the making of this choice. Consent must be an act reflecting a positive state of mind.
Rule for survival: Show love, respect and consideration in all your dealings with your submissive, and allow her to make her own choices free of your incentives.
The idea of consensual non-consent – that the submissive may consent to anything, including activities to which she would not voluntarily consent, is a contradiction in terms. There is no consent without adequate knowledge. The legal concept of informed consent is valuable in this context – the party consenting must have enough knowledge to be able to choose.
No court in western civilisation will recognise a contract which would deny the freedom to seek redress from an oppressive clause as that would deny the very purpose of the court. In a legal sense then a contract of sexual slavery will be unenforceable and the parties remain in such an arrangement only as long as they both wish to do so.
Consent in this context is still required to meet all the same conditions as consent for any other play. The absence of such consent will make the play abuse and the dominant liable to charges of assault and/or unlawful imprisonment.
Of course while the submissive does not regard it as an assault (or continues to be intimidated or is too ashamed of being so used) she may not press charges and the crime will most likely remain unexposed. However she may change her mind in that regard at any time – including retrospectively, sometimes decades later.
Rule for survival: Don't do it.
An important part of bondage for many players is the paradoxical sense of freedom the submissive enjoys. This is perhaps principally a relief of responsibility for herself, her experiences and her responses, but there may also be other factors at work. A part of that is the freedom to struggle and resist without upsetting the progress or outcome of the scene.
Some of that struggle may be expressed in words and many submissives value the freedom to act fear and dread with appropriate expressions of resistance or even abuse. In this context “No” certainly doesn't mean stop the scene.
Many players will agree a “safeword”, a simple expression which means stop the scene, and in many other cases there is sufficient mutual understanding that the voice timbre or other body language is quite sufficient indication that the submissive does not wish to continue. The use of a gag requires special care in this regard.
Rule for survival: Agree an appropriate (short, easily understood) safeword and have the submissive demonstrate its use. If there is any question or doubt briefly step out of the scene and check that all is OK. Such a slight interruption is a small cost to pay against the risks of real hurt.
It is appropriate to consider why consent is important in a relationship. After all when two parties are committed to each other consent may easily be considered to be redundant – being implied in the initial commitment. Well, the courts do not agree and neither do I, though our reasons may differ.
Our courts do not recognise the degrees of the commitments we make together. While it was once the case that the court would not interfere in an abusive relationship between a husband and his wife, marriage is now no protection at all for an abuser. The Australian judge Justice Bollen who found it acceptable for a man to persuade his wife with “rougher than usual handling” has been declared wrong, and binding precedents now prevent any similar decision for the time being. Never-the-less our courts still use less strict criteria of consent than I am advocating on this page.
My reason lies at the heart of the nature of the relationship. Most of us seek many things from a sexual relationship, including companionship and many flavours of mutual security, as well as sex. That companionship and mutual security enables us to relate closely to another person without having to maintain appearances. It is summed in the single word “trust”.
A relationship of trust is not created by an agreement, it is created only as we demonstrate trustworthiness on our own part. It is created only when our partner trusts us in small things and we consistently demonstrate that trust to be well placed. We do so by demonstrating that we hold our partner's welfare as a high priority and will place it ahead of our own satisfaction.
Our partner's welfare is best assessed by our partner. If they freely agree to something the way is clear, but if they do not and their welfare is compromised then we have demonstrated ourselves as untrustworthy. This may amount to much less than a criminal neglect but by our choice to place the other's welfare below our own desires we destroy or diminish what trust we had, and so reduce the sense of mutual security that may have been present in the relationship.
In a casual relationship where the partners seek only a passing thrill that may be little loss. For those of us who desire much more from a relationship, for those who value trust and mutual support and security, a much higher standard of consent is necessary.
Laura Antoniou's most interesting article argues that focus on SSC makes for tame play and robs BDSM of much of its power(http://www.sexuality.org/latrans.html). I don't think I agree. I have argued elsewhere that healthy BDSM play depends on a relationship of equality (Equality and Why Dominate) and that there is plenty of scope for the growth of trust and the exploration of our boundaries without the risks of non-consent (Power and Control).
Is BDSM illegal? Some people would say so:
One legal point needs to be made here. In the American legal system S&M activity is illegal regardless of consent. You´ll hear many self appointed on-line experts claim otherwise, but the fact remains that even though S&M activity is consensual, it´s nonetheless assault, and under presently existing laws no person may consent to being assaulted. Appellate courts have ruled that, “Under existing precedents a consent defense, while applicable to a kidnapping charge, is generally not applicable to an assault charge.” Virtually all American courts that have considered the issue have ruled out a consent defense in cases involving sadomasochistic activities in which the victim complains to the police. This is something that everyone involved in this Lifestyle must be aware of. (underline mine)
(http://www.geocities.com/srdrgnass/BDSM_FOR_BEGINNERS.htm)
Similar opinions may be found in most Western (European derived) jurisdictions. While we play in a regulated community we ignore the impact of those regulations at our peril. That won't stop me playing, but I will always be careful about consent.
The criminal law exists to protect us from those who are stronger and who might otherwise be tempted to coerce our compliance. A BDSM relationship is very likely to be a criminal assault and thus abusive if it is not based on respect, which requires a valid consent. The ephemeral nature of consent means that if the victim complains then consent was probably not obtained, and courts reflect this assessment with guilty verdicts.
Parties seeking a relationship of trust will find they need a much higher standard of consent if that trust is to be developed.
If there is *any doubt at all* in the mind of either party, then there was no consent.
Play without consent is abuse.
Abuse is a crime. Don't do it, and don't put up with it.
Peter Hoban
Original: December ‘03
Revised: January 2004
This page is part of “Living in the Light”
found at: http://www.tassie.net.au/~phoban/
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