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.

Signalbox · Today 11:50

^You only have to look at sports like BJJ, where they intentionally attempt to choke their opponents...

The sex murderers use their hands, or a ligature.

Yeah but MPs aren't experts on the ethics here, and they may be out of step with the general public.

My view is that it definitely should be illegal to hurt someone with their 'consent'. People who enjoy self harm by proxy will not report it but for anyone who does report it, the law should be behind them, no 'but they consented' defence possible. This will mean that sadists are taking a legal risk and I believe that's exactly the way it should be.

It's not morally neutral to hurt someone just because they asked you to. I also don't believe that self harm is ever healthy behaviour to be encouraged.

I agree, @Esgaroth .

@110APiccadilly

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.

Not sure, but it may be OK if it was done in sparring, even in a completely private situation.

There are issues with sparring where people will misrepresent their level of experience, and of course people can go harder than is expected. So consent issues here.

If you are a sexual sadist then yes, it's absolutely right that the legal burden is placed on you if you harm someone in that pursuit, regardless of consent.

It is the law in Britain that no one can consent to physical harm. If you invite someone to hurt you and they do, you can then call the police or sue them and it’s irrelevant that you requested to be hurt. This has been the case for many many years.

And yes people in bdsm clubs have been prosecuted in the past for bdsm consensual injuries.

The so called ‘rough sex defence’ has never been a valid legal defence, it merely tried to make juries think that the abuser didn’t realise he was causing harm. It has never been the case that someone could say ‘yes I injured her on purpose but she wanted me to.’ That has never been a legal position in Britain, no matter what some tabloids and men seem to think. It doesn’t help that most police know very little about the law.

But nobody turns up to a sparring match with the expectation that one fighter will just stand there and be battered for the sport of it, and were that to happen, the fight would be brought to a halt.

The concept of consensual is problematic. Owing to the nature of my work, I know a lot of people who use it as a form of self harm. How do you legislate around inviting others to knowingly or unknowingly participate in self harm? How do you seperate the self harmers from whatever the others get from it?

When is seeking pain and abuse not a form of self harm?

Self harm isn't illegal but I can never work out why people seem to be proud of this one outside groups of other people who do it. You don't see people coming on other threads to talk about how they cut themselves or make themselves throw up after meals and it's all fine, you just don't understand.

Although I know there are communities of people who will encourage all these behaviours in each other, they tend to be closed communities. Some part of them knows that society views these behaviours as unhealthy and signalling a need for help.

But masochists can apparently never resist talking about how great it is for them outside the group. Funnily enough you don't encounter the sadists so often.

@FriendsReunited

If you invite someone to hurt you and they do, you can then call the police or sue them and it’s irrelevant that you requested to be hurt.

Although if you call the police I'm guessing that you could both be charged.

I'm doubting that you could sue in the same way (or with the same results), as you wouldn't be an innocent party, but maybe someone has a source on this.

It's funny that you have described the masochist as not being innocent - as though their compliance nullifies the crime, but the crime of harming someone is a crime against society.

I could walk around all day with a billboard that said "punch me". It would still be a crime if someone took me up on the offer.

I don't believe in the concept of consent, in the sense of merely as a two way dynamic between two people/parties. It is far far too subjective and leaves the barn door open for coercion, exploitation, duress, harassment, intimidation, bribery, blackmail, "negotiation" etc (that stops short of frank force), as human relationships are beset by asymmetric power imbalances.

The concept of consent needs to be double-walled (or a kind of relational two-factor authentication process, if you like) in addition. That additional layering needs to be care and commitment about one another... and BDSM/sadism etc is completely antithetical to those concepts. Mutual care and charitable/unconditional love about one another's wellbeing should be at the heart of healthy human relationality. There needs to be an absolute deontology... around not hurting each another, physically or mentally, and protecting the vulnerable from malevolent influences being acted out by those with a sadist streak. Human desires, outside of that care & commitment framework are generally not rosey and good, and should be constrained by duty-based rules and laws.

i dont think we can classify bdsm as self-harm by proxy, or we would need to include plastic surgery and hard massage in that category too

Yes, indeed. Consent is complex. Although legislating for 'non harm' could get rather murky rather quickly.

In addition to what I wrote above... as much as I dislike boxing personally, it is a valid human endeavour in accordance with my argument ^

Two people of weight-class parity consent to fight with one another AND align with a rule-based framework (Queensbury Rules and refereeing of the match).

Leave two parties to their own devices, with the only rule being "consent", and power imbalance deviations quickly form, as the more powerful party pressures the less powerful party to play the game (whether that's sex, sport, business, money transactions, whatever) according to their own rules, and a will-to-power dynamic forms in the human experience. Then it becomes about how one ego can outrun another's ego. The vulnerable get squashed, exploited and dehumanised, and potentially traumatised/heartbroken by that semi-consensual/semi-unwanted experience that many of us have had.

I think you misunderstood my point.

If you walk around making that invitation, yes it's still a crime if someone punched you.

However, you could be refused criminal injury compensation by the government because you provoked it.

I'm guessing, but I don't know for sure, that you may have a similar problem in a civil case.

I agree.

Also the scope for coercion and gaslighting is massive.

It’s far too easy to persuade someone to accept getting hurt if they lack confidence, or desperately want to fit in, or need to please the abuser in order to avoid worse harm.

And as PPs pointed out, a lot of BDSM involves people reliving the abuse they suffered in childhood. The others who get off on that must be deepening the victims’ trauma.

Incidentally, having been sexually active since the 1970s, I’d never heard of strangulation as a sex game until very recently. If a man had put his hands round my throat, I would have tried to kick him off me and run away.

I’d read of men accidentally killing themselves through weird sex practices like choking themselves. But I couldn’t imagine a woman (unless forced by fear or poverty) allowing this to be done to her.

Just as the basic premise of our criminal law is that it is better to let the guilty go free than to convict the innocent, surely it is better to prevent relatively few people from indulging in violent shit, and risk making them unhappy as a result of this “deprivation”, than it is to allow all and sundry to do whatever the heck they like to each other and then claim that they killed their partner by mistake when they only asked for a slap on the cheek… The rights of the many outweigh the desires of the few!

If you’re not familiar with the R v Brown case referred to in the OP, I don’t advise reading it or googling it. I had to study it at uni, it’s full of real depravity.

This, 100%

i think strangulation is somewhat of a clear-cut case - but what about other types of harm people enjoy?

This is my view too. Consent from the injured party should never be part of a Defence in law.

I would add that there are circumstances where consent from the victim should be seen as an aggravating factor at sentencing.

Tough shit?

Some people may be arguing that BDSM is too risky to allow in practice, but not necessarily immoral in principle?

However some people seem to think that it's immoral in principle.

And I imagine that's going to be controversial where: (a) the "sadist" involved is getting off on giving pleasure to someone, and any pain is only a means to that end, and this is not actually a real desire to hurt someone in the ordinary way, and (b) the types of harm involved are of a mild to moderate degree, and not risking life in the process.

You can argue that it's immoral maybe because it's a "simulation of evil" which you shouldn't take pleasure in, or perhaps a conservative view that corporal punishment isn't bad, but it's inappropriate and a perversion to take sexual pleasure in simulating it.

Or maybe it's an unhealthy form of self-harm as someone mentioned.

But people are going to disagree over this stuff.

You can think things are immoral and self-harm, like heavy drinking perhaps, without thinking that they should be banned.

On the moral question alone, that BDSM is always morally wrong in principle, is that enough for one side's position to be forced on the whole of society?