To what extent should you be able to consent to harm in sex?

[PorcelinaV]

There is a recent thread here on the "rough sex defence", and obviously you don't want people getting away with murder.

But to what extent, if any, should you be able to consent to harm in sex?

The UK standard appears to be that you can't consent to "actual bodily harm" which looks like theoretically a lot of BDSM could be illegal in the UK.

You probably wouldn't get charged in practice unless injury was getting more serious, but the actual standard (as far as I can tell) could theoretically mean that pretty mild BDSM without any risk to life would be illegal.

And the case law justification is along the lines that BDSM is sexually depraved and a perversion.

Compare with combat sports where you may potentially beat someone to death, and it's allowed because of consent.

https://en.wikipedia.org/wiki/R_v_Brown

"Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised."

The case law involved someone nailing their scrotum to a board, which is getting more serious and you might end up needing medical treatment for.

https://www.sentencingcouncil.org.uk/outlines/assault/

Actual bodily harm (ABH) means the assault has caused some hurt or injury to the victim. Physical injury does not need to be serious or permanent but must be more than “trifling” or “transient”, which means it must at least cause minor injuries or pain or discomfort. Psychological harm can also be covered by this offence, but this must be more than just fear or anxiety.

What's your problem?

You think the law is wrong and women can be chucked down the stairs because "BDSM...." ?

the purpose of sport, even boxing, is to win the game, according to the rules.
the purpose is not to derive pleasure from inflicting, nor from suffering, deliberately inflicted pain or injury.
i think the law is fine.
as far as i understand it.

Surely in BDSM if injuries are fully consensual then none of the parties involved would contact the police?

I guess it’s interesting- I thought I’d question anything that left a mark, then realised that love bites would fall into that category.
Then wondered about scratches.

I have to say anything beyond a love bite, anything that hurt next day, I wouldn’t consent to.

Does that mean no one else can?

And would I rather draw the boundary too tight rather than risk a victim’s injuries being dismissed as consensual? Yes. I think I would.

There are people in the life who've 'broken the code' to say that what happens isn't always consensual and that people who have been harmed are coerced into not complaining or going public about it. Aside from personal coercion there is the social death of being cast out from people's 'found family' or tribe.

As much as I believe in the right of autonomous adults to behave as they wish with other consenting adults I can't help observings that the deaths and severe harms are largely following a predictable sex skew in numbers that is not deviating from misogyny as usual.

Given the high association of cocaine or cocaine + alcohol with domestic violence, I'd like to know how many of these "sex gone wrong" tragedies involved cocaine or similar.

It's an interesting one. I went to law college though about 25 years ago. I don't practice criminal law so what we were taught may be out of date. But we were told it wasn't possible to consent to ABH. ABH was considered to be anything that breaks the skin or "other serious harm" like a broken bone. I recall the tutor saying "so one can consent to be spanked but not to be whipped". (Though the whipping would have to be hard enough to break the skin I suppose.)

We discussed the oddities that arise such as ear piercing and tattooing where the skin is broken but are considered legal/permissable. Ear piercing of non consenting babies complicates the issue further. Vaccinations/surgery are exempt though because of medical necessity.

I'm interested to see what another poster said about boxing etc being exempt because the purpose of the sport is to win a game not cause or suffer harm. I suppose that would also deal with piercing and tattooing as the purpose would be adornment. I wonder where that leaves R v Brown though as surely the purpose of the s&m activities was sexual pleasure rather than ABH.

The law is fine, and in practice men still do get away with rough sex defences which is sickeningly indefensible. If, for your BDSM to be legal, a loophole for sadistic men to get away with serious harm and murder must exist, then that's tough shit and you can get your kicks some other way. Is my view.

You are not legally able to consent to yourself being harmed. For example, when choking results in the death of the woman it is no defence to say that she wanted this or consented to it.

Should put an end to some of the gaslighting too- you know you wanted it, you asked for it, you enjoyed it…

and to the guilt trip foisted on women who say no.

Reminds me of Operation Spanner

https://en.wikipedia.org/wiki/Operation_Spanner

There is often a power imbalance in relationships. It can be hard for some people to say “no”, so the law should protect them. That should be the case whether it is BDSM or an abuser coercing his victim into agreeing they wanted it, after the event.

The rough sex defence is a bit misleading as a term because, on the whole, the accused men do not claim that they were engaged in consensual harm for mutual sexual pleasure.

The defence is usually actually either:
a) the death was unrelated to sex, but prior rough sex could explain other injuries on the body (e.g. if there are bruises that appear to be of different ages); or
b) we were having sex and I did something consensually that caused death unexpectedly - this one is common with strangulation because it is true (even though I don't believe 99% of the men who use this defence) that even light strangulation that is genuinely consensual can sometimes cause death through carotid body or vagal nerve stimulation.

The 'nullo' and 'eunuch' issues are also related, as is BIID.

Should consenting adults be allowed to have body parts removed?

If something has the ability to kill you or cause permanent damage to part of your body then honestly if you want to do it to yourself then fine, knock yourself out, probably quite literally, but to put the power into someone else's hands seems bloody insane! And for me it doesn't matter whether it is sex or boxing! I wouldn't want to give someone the power over me like that.

God knows how you find the right balance within legislation though!

I think with boxing that there are set rules and those are policed. There is a risk of criminal action if you, for example, use rugby as an excuse to hurt someone and break the rules of the game. But obvs accidents happen.

Brown is an odd case - the BDSM there was quite seriously planned and there is certainly an element of homophobia there in the judgement. I don't think any of the "victims" complained from memory, but the police found out about it somehow - they are circumstances which probably would not be prosecuted now.

But I think that the general approach that if someone complains that they couldn't consent to ABH, they probably didn't is likely right. In the sex game gone wrong situation, I think it's better to err on side of caution to protect the victim.

There's also a case where a husband used a kitchen knife to brand his wife in the buttocks and caused her to be so injured such that she went to hospital - I'm afraid I think this is one of those risk on husband things. Likely to be coercive as few would consent to an injury so bad they'd be hospitalised and, frankly, you shouldn't experiment on your partner with a kitchen knife and limited skills even if they say it is ok.

Yes you would think so.

But in the case mentioned they got caught in a different way I think. Maybe video evidence and an unrelated investigation.

@ChatBFP

There's also a case where a husband used a kitchen knife to brand his wife in the buttocks and caused her to be so injured such that she went to hospital - I'm afraid I think this is one of those risk on husband things.

I think he got off on appeal.

@honeylulu

I'm interested to see what another poster said about boxing etc being exempt because the purpose of the sport is to win a game not cause or suffer harm.

Well win a game, but the intention is clearly there in many cases to batter someone into being unconscious or semi conscious. So it would be ABH if not for consent.

I think the limits of consent are often very very tricky to define.

What seems right in one area, like sex, if you apply the same principle in another, like sport, seems totally wrong.

I would say that we seem to believe, and the law seems to agree, that we can consent to things that are really quite risky. There are sports where there are significant numbers of pretty serious injuries, like rugby. There are sports where the whole game is to beat the other person more effectively than he beats you, and there are even things like dangerous types of skiing where there can be completely catastrophic results.

I don't think that I agree with the idea about intent someone mentioned up-thread, in BDSM the intent seems to be to get off, so still indirect.

I think myself, I would draw a line between most "rough sex" defenses, and harm from BDSM. IN a lot of the rough sex incidents I think it is really unclear that what was going on was a consensual encounter where the other person agreed to the whole thing.

On the other hand, I think if individuals decide to be involved in BDSM, they are taking action that they know can end badly.

So to me, I think if we are really talking about consent, people can consent to risky actions, even very risky ones.

That being said, it might still be desirable to ban most BDSM activities, if the state thought it was detrimental to society or citizens to allow it, and on balance it was better not to allow it at all. But that is not the same as saying people can't consent in some intrinsic sense. I don't accept that anything that we can consent to should be legal, so that is no problem for me in that sense.

When I was in the police several decades ago we were told the exemption for boxing and other sports was not simply to do with it being a game, but about it being a regulated sport with clear boundaries that you were consenting to and oversight that can make judgements about reasonable risk and enforce the rules to ensure boundaries are stuck to and risk is minimised.

If you take part in an underground no-rules cage fight league then you aren't exempt from prosecution. Participant's consent would be irrelevant as the boundaries of someone's consent are not necessarily understood by their opponent and there is no oversight to ensure rules are kept to and risks are reasonable.

I think you could have something similar with BDSM when participated in in some form of sex club, but in private the oversight issue would be insurmountable.

There's quite a difference between sexual psychopaths and boxing.

Boxing has a referee, a doctor and corner men, who can and do intervene, if one participant is getting beaten badly.

I would think that anything done in the open, with spectators etc, is safer as there's witnesses and rules (and possibly legal regulation - wasn't bare knuckle boxing banned in law back in the Victorian era or maybe even before? I vaguely remember this being a plot point in a book I read once.); also no inbuilt power inbalance.

I assume that if you thumped someone privately, inflicting some damage, and then claimed you were just having a private boxing match, that wouldn't stand up in court.

I'll add something I've said before, which is that with all the fuss about better/ more comprehensive sex education, I'm always surprised that people don't seem to know something I knew as a teen (and my sex education was, by modern standards, not comprehensive enough - though somehow I've done fine on it) which is that you can't consent to harm.

I think an important point is that there isn't this opportunity to discuss this level of nuance for couples meeting for the first time, which is often the case for the women strangled.

Boxing has rules that everyone understands and has signed up to.

People can "consent" to be harmed if they wish. You just have to understand that that consent doesn't extend to killing them, even accidentally in the heat of the moment she wanted me to do it your honour.