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.

surely the issue would be whether jury believes there was a consent not to what the consent was given? giving a blanket ban on sexual practice because juries don't believe victim may as well extend to sex all together if that was the argument

as for safety - there are a lot of things that are risky and yet adults are permitted to do them, including something so common and normalised like drinking alcohol or mountain biking

and the only reason why a lot of these things are legal is, effectively, that you cannot stop people from doing them

so saying consent to some level of "harm" should be ignored will likely anger people who enjoy that "harm"

"No one would ever use this law to harm another nefariously" is always going to be bad lawmaking.

That doesn't follow at all. You are twisting the default position.

Sex is not generally criminal.

Deliberately or recklessly harming someone is - whether or not they consent.

Obviously, people who want to engage in something are not going to be happy that there's a law against it. But that doesn't mean the law shouldn't exist or that it will be ineffective if enforced.

@NumberTheory to me its only harm when person feels harmed and there is something very disturbing in the idea that human autonomy should be policed to this degree

smells very much like handmaiden's tales..."big man knows what is best for you"

We already have exceptions for consent.

The reason we don't have an exception for sex, in case law, is because it was thought to be a perversion, and that was controversial at the time both with the judges deciding the case and in the wider society.

It's the fact that one person is hurting another person. A person is often perfectly within their rights to hurt themselves or take risks with their own health and safety. Even if it that behaviour might tip into something that others would consider worrying or unhealthy, you can still do it generally without breaking any laws (except where society has determined that the behaviour is sufficiently detrimental to society as a whole, like taking certain drugs - it's a different debate as to where that line lies in different cases).

I can hit myself if I want to, although others might rightly think that it wasn't healthy behaviour. I can't hit someone else, whether they asked me to or not, except in self defence. Nobody is thinking that it should be illegal for me to ask someone to hit me, but another person would be breaking the law if they take me up on that request. It's completely irrelevant if one or both parties are getting sexual jollies from the situation.

"But it gives me a sexual thrill" is never any kind of excuse for violence or abuse. In my opinion, it makes it worse, but in any case it certainly doesn't make it better. Sadists are often breaking the law and if anyone reports them they have only themselves to blame. Nobody cares about masochists apart from feeling sorry for them, which I'm sure they wouldn't give a shit about.

It wasn't thought to be a perversion, it is a perversion. It perverts a societal code that it is wrong to hurt someone for the pleasure of harming them.

Thing is, because of the asymmetry between the sexes, physical upper body strength, sociosexuality (openess to promiscuity), libidinousness etc, women are in a vulnerable position, caught between two “big men [who] know what is best for you”.
-The sexual libertarians, who espouse complete sexual freedom, but wilfully ignore/are blind to the fact about how sexual consequences play out differently for women and hit us much harder, as female bodies are the ground zero for both intercourse and new life formation. This ends up being a men’s sexual rights movement… freedom for boners basically. Summed up thus, “It’s a small price to pay for personal freedom”, Hugh Hefner on the consequences of his legacy.
-The sexual traditionalists/conservatives, who see this, but often blame and shame the wrong target, the victim rather than the perpetrator/power-holder in the dynamic.

We need laws, protections and duties that are held to an external standard. Two people can’t just make up their own rules, eg “consent” in sex, as it quickly becomes a “moveable feast” with the power-holding party moving the barometer & setting the standard for the proceedings, diminishing the will of the other person. Consent, as we currently understand it, is an absolutely necessary floor, but a woefully insufficient ceiling. A sexual dynamic without a ceiling lets through an array of evil consequences… rape, abuse, heartbreak, PTSD, the dilemma of what to do about unwanted pregnancy, STDs and all the anguish and knock on social effects of those phenomena. Ceilings as well as floors help protect humans from those tragedies.

If that's your objection to BDSM, then it would also apply to something like martial arts sparring. (Which could also be unregulated and private.) People are going to get accidentally hurt doing that also.

In that situation of a sparring accident, I wouldn't automatically put the blame on the person that did the damage. It might be their fault of course, if they weren't sufficiently careful. But it could just be an unusual accident that everyone should know can occasionally happen in sparring.

And I wouldn't say, generally, that we shouldn't allow people to take risks where occasionally people will get hurt. I think you would at least need to consider the level of risk in play.

As surely as any conversation about prostitution will be diverted to the behaviour and choices of prostituted women rather than the behaviour and choices of the johns, any conversation about BDSM will always focus on the masochists.

In both cases, people know full well that one side of the equation looks very bad and is hard to justify, so they always shift it to the people being hurt and their right to choose to be hurt and how being hurt benefits them. The focus should be on the sadists. The ones who enjoy doing the hurting or enjoy pretending to rape. Who, yes, are perverted and deserve to be shamed.

Can you explain what a sparring event would look like in which only one person makes any attempt to fight the other? In which one person arrives with the intention to be harmed and in which harm is the expected and pleasurable outcome? And in which that scenario wouldn't be considered illegal?

But you're just repeating your opinion on a controversial question. You can insist that you're correct, but that doesn't stop something from being highly controversial.

Hurting people is wrong

If people want to be hurt then there is something wrong with them and the solution isn't to hurt them but to fix them

Rather simple really

It's not an opinion that a cornerstone of civility is a principle of not harming people for the pleasure of it.

Or, put another way, can you name one society with codified laws which doesn't operate on a general principle of not hurting people for the sheer sport of it?

We wouldn't expect a sparring session to be exactly the same as sex, or to be done for the same reasons!

Does that really make a difference to the issue of consenting to the risk of accidents?

Anyway, and of course this wouldn't be done for pleasure, but you could ask someone to deliberately hurt you to your body without defending against the attack. This could be done in preparation for an upcoming fight to build resilience.

Well, you'll have to decide. This is an analogy which you keep employing, apparently it both is the same and isn't the same, depending on when it suits you.

In a rush so don't have much time for a long post, but are people aware of the decision in R v Wilson (1996) - and therefore after R v Brown - the hot knife on the buttock case. There Mr. Wilson initially convicted but it quashed on Appeal. A google search will show some of the facts and reasond for the decision. Odd too, it was referred to in the case of R v BM (the body modification case) as a sexual act, but I don't think it was reported as such in 1996.

And, I'll point out that you seem to view this only through the lens of the person who asks to be harmed.

On the other end of this equation is the sadist. Somebody who uniquely achieves pleasure from harming another person. This is the person who risks prosecution by harming another person - not to achieve an end - but for the pleasure of harm itself.

Well it's obviously not being done for sexual pleasure!

If you're saying "that analogy isn't relevant because it's not done for pleasure", then you should explain what that has to do with the issue of consenting to the risk of accidents.

I doubt it. I think most likely they are getting off on giving someone else pleasure, or being in a dominant role.

I think in many cases they would not be that focused on actually doing harm to the other person, and it would only be a means to something else.

But I'm no expert on this stuff, so if someone has evidence of the motivations in play...

Oh, please. What do you think the s is in bdsm, sensitive?

If the act in R v Wilson was for 'sexual gratification', that it would now be an offence due to s71 of Domestic Abuse Act 2021. For the avoidence of doubt.

what is the point of removing masochists from the conversation if its their right to consent that is being discussed? there are people who specifically seek out partners who would be willing to "harm" then, no need to be coerced into it

and i don't buy the excuse of protecting women. someone who wants to genuinely strangle you won't need or ask for your permission and as we've already discussed - its pretty much impossible to do it by accident.

it's always for "our own good" that women are being told what is best for us - even when it literally is about whether or not we should like to have our backsides spanked 🙄

and it applies to every aspect of our lives too - childbirth, work, marriage, right to have an abortion, the very clothes we wear, I have even seen discussions about lip fillers in this context. It seems like there is no creature more lost and more at danger from executing her own autonomy than an adult woman.

i'd say leave people to their kinks - yes, there are some weird ones out there but let people be weird and enjoy themselves without trying to literally drag law into it

But that's the point, they don't have the right to consent. You cannot consent to an illegal act.

I could ask a surgeon to amputate both my arms because I don't like the look of them, but my consent is irrelevant because the act is illegal.

This isn't about telling women what is best for them and all the other pseudo-emancipation, libertarian rhetoric you can throw at the issue. Although the effect may be to reduce harm caused to women given they are disproportionately vulnerable to both authentic and inauthentic sex-gone-wrong harms.

This is about living in a society with foundational principles about decency that necessarily outlaw gratuitous harm/injury/violence.