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.

This sounds like the case of R v Wilson in 1996 (and so after the Brown case). In which case, the wife wasn't badly injured (one of the marks wasn't healing and she went to her GP) and the reason for the 'branding' was not for sexual reasons. As the branding did amount to ABH the Judge at the Crown Court directed the Jury to convict on the basis that Wilson (in light of Brown) therefore did not have any defence. The Court of Appeal was of the opinion that this wasn't in the same league as Brown and therefore the wife's consent was allowed - in fact it was her idea.

There's an interesting essay here for those interested. https://eprints.bournemouth.ac.uk/31872/3/Case%20Commentary%20R%20v%20BM%20Submission%20DRAFT.pdf

Sex doesn't just involve consent; it also involves the risk of coercion, and the boiling frog scenario of gradual escalation. I don't think contact sports have that risk. But BDSM does. It never used to be a mainstream or public activity. I guess 'between consenting adults in private' became too vanilla.

@sawdustformypony

Agreed - sorry, I misremembered hospital vs GP.l and extent of injury. But the point is that if she had been badly injured in the "branding", I think it might be hard not to convict - it's at the husband's risk in these types of situations.

I know a few people deeply involved in the BDSM scene. All had suffered trauma (in at least one case childhood sexual abuse). All were making money from BDSM in one way or another.

They were basically playing out their trauma in these relationships and attempting to overwrite them. I used to think cool, whatever works, all consenting adults.

Now I think: I wish people had better access to trauma therapy because then these relationships would be more truly consensual and less about playing out old trauma.

I think the law should protect from all harm, a person should reasonably expect that they may need to defend themselves in court when crossing that threshold. Lawful excuse, I think is the proper legal term for exemptions, to balance things a bit

Perhaps it should be admissible as a "lawful excuse" only with some evidence?

The inability to consent to risk extends to all walks of life be it BDSM, fighting, horse riding or minor health and safety issues such as fireworks being cancelled as it too muddy.

The inability to consent is a massive problem we should address we all have different levels of risk and should be allowed to choose our own acceptable levels.

Consent can be a lot more complex than saying 'yes'.

Meaningful consent is always arguable. Here we get into the territory of euthanasia.

I’ve never understood the thinking behind 'risky, dangerous thing is bad unless done in pursuit of orgasms and then it’s fine'.

So for me, I don’t want a partner who would be okay with, or would suggest, hurting me or shaming me for sexual gratification (or in any way at all frankly). In my opinion, if a partner wanted to, or could do, anything like that to me then there’s a part of them that’s worrying and might be harmful to me in non-sexual situations. Call me old-fashioned but I want to be loved and cherished by a partner not called names, spat on, hit, spanked, strangled, whipped or otherwise degraded. I don’t feel that consent for sexual reasons excuses assault.

Conservative view: spanking good, but not for orgasms.

Liberal view: spanking bad, but fine for orgasms.

The law is a balancing act @UtopiaPlanitia it will never make everyone happy. That's partly why lawful excuses exist. In the case of criminal damage, for example, you can't go breaking windows normally but you can break it to free a dog from a car on a hot day to prevent a greater harm. Likewise when defending against a burglar you can do a certain amount of things that are normally illegal. A similar defence for sexual encounters amounts to the same, normally it's not okay but you can argue consent.

In court a person's defence isn't solely their own choice, prior to trial it's required to secure the judge's agreement. You get more leyway if you defend yourself rather than use a professional, but doing that is taking quite a big risk. Some judges are more agreeable than others when it comes to deciding if the defence is allowed. This is UK laws, anyway. So some level of protection exists, in fact in some cases judges are actually very unfair and deny lawful excuse arguments when it's the defendants sincerely held belief, forcing them to make up a reason instead 🤷‍♂️

Yes, there are no doubt real potential downsides with euthanasia, where people may feel pressured and the system becomes too happy to kill.

So do you ban it for everyone?

Or allow it but try to regulate properly?

Or my view: spanking bad at all times.

I mean, there are accidents in sports where there is no fault.

I'm not sure that's the legal line.

I'm pretty sure that in the UK we ban it for everyone. Precisely because if the risks you mentioned.

It's not practical to protect from all harm. You can be having completely consensual, vanilla, loving sex, and accidentally harm the other person by moving awkwardly etc. That's why intent and recklessness as to risk of harm are so important in criminal assault.

DH recently bruised my leg really badly while handing me a watering can (not a euphemism 😉). He slipped, lost his balance, and clouted me with it as he fell. I don't think anyone would argue that he should face criminal charges, as it was a total accident. But, if he had been swinging it wildly, without caring whether or not he injured me, then we get into a grey area.

@MissLucyEyelesbarrow you could, very reasonably take that to the police. It's their job, not yours or DH to do evidence collecting and decide things such as intent, recklessness and other things and then decide whether or not there is a reasonable chance of prosecution. Harm isn't measured by the extent of injuries from a single incident, perhaps there is more to it? There probably is in some cases.

Protection doesn't mean prosecution, anyway, protection means taking seriously, and investigating any harm. Laws tend to be longer and more detailed, so obviously if I was writing a proper law there would be more detail to avoid overloading the police ;-) You could do that without invalidating the overall aim I was suggesting

I'm in a D/s relationship where very occasionally my partner will get rough. I've given blanket consent to this. My partner knows me completely and if I was unwell, not feeling great for whatever reason, he would never go outside of our day to day dynamic. When he does get rough, the aftercare is unbelievable.

Everything has to be against a backdrop of consent.

Blanket consent? I take it you have safewords/similar in place?

To push the envelope a bit, this discussion reminds me of the German man who succesfully advertised for somebody willing to let themselves be dismembered and eaten by him. The court wasn't too impressed.

It’s the CPS, not the police, who decide those points. And it is not a criminal offence to injure someone in an accident anyway - there is no crime without criminal intent (which can include recklessness). Even if DH had killed me in his ludicrous watering can pratfall, he would still not have committed a crime, as it was an unforeseeable accident.

And you are missing the more important point that it is impossible to criminalise all harm. You have to have thresholds for level of harm, intent, recklessness etc. And the criminal justice system cannot adjudicate every accident resulting in harm - of which there are tens of thousands every day.

Absolutely. I've never needed to use my safe word as my partner is extremely intuitive but it's there in case.

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.

If this is true then why isn’t there an equal number of women going “oh whoops he just died”. Have any women “accidentally” strangled their partner and used this defence?

I've said it on another thread - i don't believe you can accidentally strangle someone...if anything, the issues people run into when they TRY to do that are enough to prove how hard it is to choke someone to death. There are people who survived being choked with an intent to kill because the attacker simply could not do it (luckily!). So I will never believe any man (because it's always men) who claims he "accidentally" choked his partner too hard.

on topic of consent, I'll throw another viewpoint here for discussion - what if the person who consented to be "harmed" says there was no harm done? Ie they don't feel harmed (eg in a scenario where someone else reported it). Where do you draw a line there?

I've said it on another thread - i don't believe you can accidentally strangle someone...if anything, the issues people run into when they TRY to do that are enough to prove how hard it is to choke someone to death.

You only have to look at sports like BJJ, where they intentionally attempt to choke their opponents and it isn't unusual for people to go unconscious whilst practicing or competing (even at local club level), to know that unless you intend to harm someone you are unlikely to choke them to death.

https://evolve-university.com/blog/here-are-7-essential-chokes-for-your-bjj-game/

@PaintedEgg

on topic of consent, I'll throw another viewpoint here for discussion - what if the person who consented to be "harmed" says there was no harm done? Ie they don't feel harmed (eg in a scenario where someone else reported it). Where do you draw a line there?

That's what the OP is about, because that would be normal for BDSM that the participants aren't making a complaint.