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This article was written by Brian Flaherty and was originally published on Fearless Press
I presented a class on BDSM, Sex, and the Law: Consent and Beyond at the New England Dungeon Society last Friday, subtitle: “when things go horribly wrong.” Because the truth is, “The Law” doesn’t get involved unless things do go horribly wrong. In fact, some might say that getting “The Law” involved is the very definition of things going horribly wrong. Nevertheless, I had the pleasure of doing this presentation, and it gave me a chance to think a lot about where the criminal law and BDSM intersect, how that intersection has changed over the years, and where we’re headed. Note: I am not covering every relevant case here – for those interested in a comprehensive listing of state appellate decisions, check out the consent counts resources site at NCSF.
Looking at the cases and the law, it appears that over time, courts have become more willing to accept consent as a defense to assault in the context of a BDSM relationship. The first important case here is from 1967, People v. Samuels. This case is notable because it is the only case with no complaining witness – no “victim.” Every other case here is based on a relationship gone horribly wrong; the prosecution was based entirely on a film. In that case, the court wrote that it was a matter of “common knowledge” that nobody in “full possession of his mental faculties” would consent to such assault. Nevertheless, the court continued, even if there was consent, Samuels would still be guilty of aggravated assault. Again in 1980, the Massachusetts case of Commonwealth v. Appleby, the court wrote “Private consensual sadomasochistic behavior was not a defense to the charge of assault and battery.”
Fastforward to 1985, the Iowa cases of State v. Collier – another case where the court considers consent as a possible defense to BDSM. This case is interesting because Iowa actually has a law that provides for consent as a defense to assault, so long as the assault is in the context of a “sport, social or other activity not in itself criminal,” for example.. boxing, or football. Alas, the court didn’t see BDSM as a sport, a social, or even an other activity. The court wrote: “it is simply preposterous to advocate…that the Iowa legislature even remotely intended that the sadomasochistic activity evidenced in this case was a “social or other activity” within the meaning of the statute. Not good for our side – but I would call attention to “social or other activity” language. I believe that as BDSM becomes a recognized “social or other activity,” the courts will be more likely to find consent as a defense. Moving on…
In 1999, the case of New York case of People v. Jovanovic is interesting with regard to consent to assault. There was extensive email negotiation between Oliver Jovanovic and Jamie Rzucek. They met, had a rather intense scene, & afterwards she went to the police claiming that it was assault (remember the part about relationships gone horribly wrong?). At trial, the court excluded the email negotiation from evidence, saying that it should be kept out by New York’s rape shield law. Oliver Jovanovic was convicted of sexual assault, assault, and kidnapping, and given a 15 year sentence. The appeals court, however, said that the Emails should be allowed as a defense to sexual assault (where consent IS a defense) and Kidnapping (where consent is ALSO a defense), and so threw out those convictions. The court also threw out the conviction for assault suggesting that consent might have been a defense for that as well. They wrote in a footnote that consent was still not a viable defense – despite the fact that they just allowed it. Weird, huh?
One more state case – the 2009 Rhode Island case of State v. Gaspar: It begins the way many of these cases begin: Boy meets girl on internet, boy and girl connect & have intense scene, relationship goes wrong, boy is charged with assault. But in this case, in instructing the jury, the judge writes that the case “ultimately presented only one question… did the events of the night in question constitute a mutually consensual sexual encounter between two adults, or a brutal sexual assault?” While the judge writes about consent to sexual assault, he’s clearly talking about the BDSM scene as a whole. And so in this case, the way I read it, consent could have been allowed as a defense to BDSM. Alas, the case was decided on technical points, and so the court never really held that consent was or was not a defense.
As I was looking at these cases & preparing a presentation, there seemed to be a trajectory – that through the years, the courts have grown more willing to accept consent as a defense to assault in the context of BDSM. In 1967, consent to assault was evidence of someone “not in full possession of his mental faculties.” In 1985, it was “preposterous; in 2009 it seems as though the court was ready to accept this. At the same time, BDSM itself seems to have gained a certain amount of public acceptability (evidence of this is easy to find, from the exponential growth of fairs and fleas, to the local bestseller lists). I would argue that as the things we do become more culturally acknowledged, as we are considered in full possession of our mental faculties, as we are removed from the DSM-V, BDSM begins to be seen as a “social or other activity,” consent becomes more available as a defense.
This, for me, is something of an evolution. At one point, I might have advocated for a specific defense for consensual assault in the context of BDSM. However, in relationships and scenes that do not go horribly wrong, it is exceedingly rare that someone is charged with assault. On the other hand, assault is all-too-common in relationships gone wrong: Domestic Violence. In situations of domestic violence, it is also common for the complaining witness, the victim, to recant their story out of fear of future abuse. If there was an explicit defense to assault between consenting adults in a relationship, it would be too easy for an abuser to claim that the assault, the violence, was consensual – especially where a victim recants their testimony. As I said, I believe the answer is in a cultural recognition of BDSM relationships as a perfectly healthy relationships, and “assault” within such relationships as “sport, social, or other activity.”