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.

Yes of course.

there are loads of things where one sides view is forced on everyone e.g. having/not having gay marriage.

Thats how it works- thinking that a law is stoopid doesn’t exempt you from it.

The law is there to protect society. Heroin use is harmful to the user and to others, so we make it illegal even if the heroin user wants to do it. Everyone knows women submit to sexual violence to keep men happy. If you make that violence illegal anyway it will put a brake on how far men will go. That’s a good thing as far as I’m
concerned.

Yes that's how democracy works in a way, correct.

But some people would also think that not everything immoral should be illegal, or that you should be cautious about intervening in the bedroom with consenting adults.

A conservative Christian majority in a country could ban gay sex for everyone because they think it's immoral, but they could also just express the opinion that it's sinful and not pass any laws about it.

If that was a response to my recent post, it's off topic as you are getting into pragmatic considerations.

I think it's quite different to be moralizing over which consenting adults can have sex with one another and creating legislation to limit the nature of that sex to common principles about not harming one another to get your rocks off

Well it's a very controversial ethical principle that you would find it difficult to prove.

Why is it so different?

it wasn’t really, more an attempt to tether the conversation to practical considerations of why the law applies/should apply in this way. Why what you might want (or more likely just agree to endure) is not the be all and end all. Here, one answer is to prevent VAWG for the good of society’s members. If teenage boys were afraid of legal consequences, teenage girls may have to submit to less strangling, sphincter damage, submission to degrading behaviour etc. better for both the boys and girls in the long run IMO.

It's not complicated at all. It's incredibly simple. A principle of not harming someone for the sheer sport and thrill of it is a basic tenant of a civilized society. There isn't a bedroom caveat that creates a pass for sexual sadists.

Hear hear.

i meant would you even bother and how do you even monitor this?

@Desecratedcoconut but you're also policing people who enjoy that "harm" and again, how do you define what harm is?

keep in mind that the idea that the law should define what kind of sex people should have is what made male homosexuality illegal for so long - and a lot of people for a very long time genuinely believed that "sodomite" sex is harmful both to the individuals involved and a wider society.

If you're concerned with coercion being used to push someone's boundaries that happens regardless of how the act was actually carried out - most rapists claim consent was given and it still does not change anything.

as for protecting teenagers - there are places where sex is illegal for teenagers to have and yet it does little to stop teenage pregnancies...so I don't think that group would particularly care for anyone making anything illegal

so what exactly would you like to achieve by making it illegal for an adult to consent to BDSM?

The law already defines harm. This isn’t a matter of the law deciding what sort of sex people should have, it’s a matter of asking why there should be an exception to the law for sex.

Firstly, I haven't raised any issues about coercion or teenagers, I've approached it simply from the societal perspective that acts of criminality cannot and shouldn't be disregarded when that criminal act occurs with consent and within the dynamic of a sexual relationship.

but there are already exceptions which were discussed

harm is permitted in sports, you can also have hot stones placed on your skin as a form of massage or be punctured by needles to relax or relieve pain (acupuncture). So if someone was to report you and your partner for bdsm, why should you not be able to say it was ok because the purpose was to "relax"?

Has anyone ever reported someone for bdsm outside the kind of harm that requires medical assistance?

I'm saying that when somebody is harmed as a result of bdsm then the sexual fetish isn't and shouldn't be a mitigating legal factor.

i know of one situation where someone threatened to report their friend's partner even though the friend insisted it was consensual and it would make for an awkward conversation if the report did happen

also...accident. accidents do happen

then there are marks on the body which may be visible during unrelated medical examinations that could alarm the medical staff (that one is, not surprisingly, common)

Harm can occur during sport but we have agreed policies that create a threshold for tolerated risk and when that isn't met then we can agree that it didn't meet the legal requirement. So, you can legally have a boxing match but two people can't kick the shit out of each other on the street, and you can tackle people in rugby but if you use rugby to inflict an assault on someone, that's illegal.

You see, accidents do happen is the exact bloody reason that you shouldn't hurt someone to get your thrill. If you accidentally hurt someone more than you meant to - that's on you.

Put it another way, what other criminal activities do you think society should tolerate because it gives the perpetrator a sexual thrill to do it?

There are exceptions which have reasons, some of which people agree with and some of which they don’t.

We’re discussing this exception and whether it’s a good thing to have an exception or not.

Reasons to get rid of the exception include:
It wouldn’t be possible for people to get away with non-consensual assaulting of others under the guise of consensual BDSM.
It would probably stop some practices like breath play being propagated as “normal” in (some) media and sexual education classes.
It might also put a damper on consensual BDSM that causes harm, especially the more risky practices.
It might change the tone of discourse about BDSM to include more discussion of the risks.

@NumberTheory - i think the problem is not bdsm but that some people use coercion at all and claim their victim consented while committing rape

in this case it does not matter what they coerced their victim to - whether it was bondage or vanilla intercourse, it is still rape and i think the discussion should be around less around what is generally normal or common, and more around "no means no, whatever that no applies to"

No means no is entirely irrelevant when yes means yes remains an illegal act. Of course rape and coercion should be legislated for, but that doesn't mean your can crowbar consensual bdsm - where it leads to harm - within the bandwidth of legal behaviour - because harming people is illegal.

Trying to reframe this as a Mary Whitehouse reaction to that which is uncommon and abnormal is disingenuous.

again, harm is subjective to an extent - as is whether something needs medical attention. so is need for medical attention the only criteria?

I agree that is one of the issues and can see, quite clearly, how an exception for consensual BDSM creates a mechanism for an assailant to claim there is consent even for the assaults used when raping someone. Something they would not be able to do if that exception was not in place. It means that as well as all the times someone is raped and is unable to gain justice because the possibility of consent means juries wont convict despite what a victim tells them about what they agreed to, we also have all the physical harm that happens in BDSM situations that victims do not agree to being pretty much unprosecutable because consent might have been given, despite what the victim says about what they actually consented to.

With other exceptions to assault laws it is more difficult to fudge consent because things don’t generally happen behind close doors with no witnesses and there are rules and regulations that put limits on what actions are excepted and, to some extent, protect participants. The lack of this regulated environment, by itself, makes BDSM generally unsuitable to have an exception in place.

The other issue, though, is that legal BDSM helps create the cultural space for more and more extreme acts to become normalized. And some of those acts are not safe.

Well said ^