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Consent Counts Resources

Download a PDF of this Statement Dealing with Assault The Consent Counts program was created to ensure that kinky people understand their rights and options when it comes to consent violations, and to decriminalize consensual BDSM in the U.S. courts. NCSF has a list of kink aware victim services that you can contact for help on our website: www.ncsfreedom.org You can also find out more details about how to deal with assault and get the help you need from counselors, social services and law enforcement in NCSF’s booklet “In the Aftermath.” If you believe you have been unjustly accused of assault, you can consult “When the Levee Breaks.” 1. How do I decide if I should report what happened to the police? Everyone’s view of justice does not look the same. Some victims want to hold their assailant accountable and the criminal justice system was created to do that. The justice system was also created to prevent an assailant from doing such things to other victims. Some victims don’t feel the consent violation is serious enough to be reported as a crime. Some victims don’t want to cause harm to their assailant which would come with filing a police report against them. Some victims are afraid of being outed. Some victims need counseling first to deal with the assault. Some victims who don’t report an assault later regret not doing so just as some who do file regret doing so. It’s an intensely personal decision that an alleged victim has to make with legal and/or therapeutic assistance. 2. Who can help me decide if I should report what happened to the police? Consult with sexual assault centers and domestic violence centers that can help to guide you through the process of making a decision. There is a list of kink aware victim services under the Consent Counts Project on the NCSF website who are ready to help kinky victims. There are also many anonymous rape crisis centers and call lines, and these victim advocates will not reveal your information and you can speak freely with them. However victim advocates in police departments and State Attorney’s offices may reveal the details of your accusation to law enforcement and prosecutors. 3. Are kinky people discriminated against when they report an assault to the police? BDSM is often misunderstood, so you may find that law enforcement officers, prosecutors and social service workers don’t understand BDSM or consent in a BDSM context. They may blame the victim for agreeing to do BDSM.…
Download a PDF of this Statement Is this Assault? 1. It is assault if… Your safeword, safe sign, or your withdrawal of consent is ignored. Your partner goes beyond the limits of what you agreed to do before you started your BDSM play or before starting a power exchange relationship. Your partner pressured, tricked or threatened you into doing BDSM or agreeing to a power exchange relationship, or forced you into activities or a relationship you don’t really want. 2. Can I say no to something if I consented to a power exchange contract? Power exchange contracts are not legal contracts. A power exchange contract is like a commitment vow, it’s an agreement that lasts as long as everyone involved is okay with it. You always have the right to leave a relationship. If you are doing BDSM or engaged in a power exchange relationship and want to stop, you have the legal right to insist that your partner(s) stop. A pattern of consent violations, including emotional abuse, stealing, and threatening behavior, may be considered domestic violence and also can be reported to the police. 3. Is it rape or criminal assault if I’ve done BDSM before with the person who violated my consent? Yes, ethically and legally it is wrong. Even if you have done certain things with someone before, you have the right not to do those activities again. If you have done BDSM with someone before, you may both agree that tacit or ongoing consent to those particular activities exists until you withdraw consent. But legally you can always withdraw your consent, and if you withdraw consent to any activities or to a power exchange relationship then your partner has to stop. If you go to the police in this situation, whether there will be an arrest or criminal charges will not be entirely up to you. Police and prosecutors will make those decisions based on the specifics of the laws where you live, but also based on their judgment about how a jury would react to the facts and whether or not they think they can win the case. They may decide that they cannot prosecute if you have a history of playing with the person who violated you, but that is not the same thing as deciding that it didn't happen, or that it was okay.  4. My limits were violated, but everything else we’ve done was consensual – is it still criminal assault? It may be assault if…
Download a PDF of this Statement Sanctions Groups and events educate members about safety and consent, so the first level of dealing with someone involved in a consent incident is education. This is particularly true for newbies. When a rule is broken during an event, it’s best to provide education or enforce consequences immediately, depending on the seriousness of the infraction. Staff and volunteers should be treated the same way you treat members who are involved in consent incidents. WARNINGS You can give a public or private warning to a member who is involved in a consent incident. Public warnings help inform the membership that violating another person’s limits is not allowed. Depending on the severity of the consent incident, here are some additional options: 1. A strike system can be used for minor consent incidents during the education process. 2. You can request that someone take consent and negotiation workshops before they can return. 3. You can put someone on a watch list and let them know that DMs will be watching their public play and listening in on their negotiations. 4. You can ask someone to leave the event or party. 5. You can keep someone from presenting, and thereby remove your group’s tacit endorsement of them as a player. 6. You can remove a volunteer from a staff position or position of authority. 7. You can suspend someone’s membership for 3-6 months to a year if you believe a time-out will help get the message across. BANNING A group or private event can refuse attendance or membership to anyone for any reason or no reason, and ban anyone for any behavior that violates the group’s consent policy whether or not the incident took place at your event.  1. State on your membership application or entry form that your group/event reserves the right to refuse membership for any reason. 2. For liability reasons, we suggest that you don’t give a reason why you are refusing membership because then the group might be brought into court to prove it. The best thing to say is, “We’re sorry, but you can’t belong to our group,” or “We’re sorry but we no longer feel you’re a good fit for our group.” 3. For cases where you feel you have to give a reason, don’t bring in another person’s name or state any allegations of criminal acts as factual events. You can say: “It’s been reported to us that you’ve committed a consent violation that goes against our Consent Policy.” 4. If you run…
Download a PDF of this Statement Dealing with Consent Incidents Deal with any consent incidents on a case-by-case basis. Keep in mind that limits can be violated deliberately, or through poor communication, misunderstandings, technical accidents, lack of knowledge, and/or lack of experience. Here are some things to do if there is a consent incident: 1. If there is an injury that requires medical care, offer to have a staff member take them to the hospital or call 911 if it’s an emergency. 2. If someone wants to report the incident to the police, have them call 911 or offer to take them along with a friend to the police station. The staff member should not express their views on what has occurred nor discuss the incident except to (a) respond to medical questions about the person’s injury and (b) to answer —factually and truthfully— police questions. 3. If no emergency care is requested, have two staff members speak individually to the person reporting the consent incident, as well as to anyone directly involved and any witnesses to what happened. 4. Record the names and contact information for everyone involved in the consent incident. 5. When you talk to each person individually, ask them what happened and what they would like to have happen now. 6. Consider the following issues to where there are consistencies and to determine where the accounts differ: What did they negotiate?What were their limits?Did the bottom safeword or withdraw consent?Is there anything that might negate consent such as impaired thinking or amental health issue?What is the history of interaction between the participants?How much experience do those involved have with the BDSM activities that were done?Was there an injury done that exceeded the negotiated limits? 7. Whether a consent incident happens at your event or when you receive a report about a member from another community organizer, the following are some things you can consider when trying to determine if a member should be disciplined or banned from your group: Seriousness - If the act involved physically injury, especially if they had to get medical care, then there is a higher liability risk and your members are at a higher risk. Intent - Was the act done deliberately or was it an accident, misunderstanding, miscommunication, a lack of skills or knowledge? If accusations of manipulation, coercion or maliciousness are made, there is a higher risk of it happening again. Multiple Accusations - When someone is involved in multiple consent incidents, they are a higher risk to your…
Download a PDF of this Statement Liability Issues for Groups and Events Because of the lessening of stigma as well as the number of new people who are attending groups and events, NCSF has seen a dramatic rise in kinky people reporting assault and sexual assault to the police as well as suing for medical expenses and libel in civil court. NCSF encourages you to take action to protect your leadership and members by establishing a consent policy and dealing actively with consent incidents.  Here are some of the ways NCSF has seen a criminal investigation or civil lawsuit impact groups: CRIMINAL COMPLAINTS Witnesses are subpoenaed in criminal trials. That means anyone who saw what happened during the consent incident can be called into court and is therefore outed because they don’t have anonymity. The Board of Directors, Dungeon Monitors and any other staff member may be interviewed by a detective as part of the investigation. You can also be called into court as a witness to the activity, or to testify as to your group’s consent policy and rules, or to discuss how you dealt with the incident when it was reported to you.  You could lose your venue for a variety of reasons including liability and insurance issues due to criminal complaints made about activities that take place on their premises. CIVIL LAWSUITS As an organizer of an event, if you are aware that someone has committed a consent violation that resulted in physical injury, then your group can be sued by someone who is injured by them or if their property is damaged. General Liability (CGL) policies and D&O insurance may not cover a civil lawsuit if the Board was made aware that the member had committed a consent violation that resulted in injury, yet they are allowed that person to remain a member.  The Volunteer Protection Act does not protect a volunteer from liability for harm "caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer." The act does not prohibit lawsuits against volunteers nor does it provide any protection for nonprofits.  If your group is aware that one of your Board Members, Dungeon Monitors or staff members has violated someone’s consent, and they are allowed to remain in a position of authority, then the group and the Board may be held civilly liable if that person injures someone whom they meet through the group. NCSF materials are provided for…
Download a PDF of this Statement SAMPLE Consent Policy Groups and events involved in BDSM-Leather-Fetish, swinging, and polyamory lifestyles are ethically responsible for creating a group culture that values consent. Part of that responsibility is to regularly provide education about consent to help prevent consent incidents from happening at your events. You also need to have clearly marked delegates who are available to assist the attendees in case there is a consent incident. Establish a consent policy for events and parties that includes the following rules: No touching people or personal property without permission. Treat everyone as an equal, and only engage in verbal role-play if you have permission. For example, don’t call someone as “Mistress” or “slave” or any other role-play word unless you’ve asked for permission. Negotiate the scope of your scene prior to the activities, including whether there will be any contact with the breasts and genitals. The bottom must give verbal consent to the proposed acts before the scene begins. Each participant is responsible to make sure everyone involved has the mental and emotional ability to give informed and voluntary consent for the scene. Depending on all participants’ state of mind, we recommend that you don’t renegotiate in the middle of your scene. When a person is in subspace or otherwise not in a clear state of mind, you may not have informed consent even though they agree in the heat of the moment.  Anyone can withdraw consent, make a nonverbal safesign or use the universal safeword “Red” at any time. Once consent is withdrawn, the activity must stop immediately. Partners need to share the safewords or safesigns that are being used. The top is legally responsible for stopping the activities at any suggestion that the bottom has withdrawn consent. The bottom is ethically responsible for being clear and unequivocal when withdrawing consent.  If you experience or witness a consent incident, tell a play monitor or clearly marked delegate of the event organizer immediately. Violation of this consent policy may result in expulsion from the event or group. No one is exempt from the rules.  Disclaimer: Every reasonable effort will be made to enforce this policy, but this organization makes no representations or guarantees about its ability to do so, and all participants/attendees retain full, sole responsibility for their safety and the safety of others with whom they interact.   NCSF materials are provided for informational purposes only and do not constitute legal advice.
Download a PDF of this Statement Trauma Trauma is an injury caused by an outside, usually violent event or experience. This can be experienced mentally, emotionally, psychologically, and/or spiritually. Traumas disrupt one’s sense of safety, security, and wellbeing. Some traumas distort one’s belief and reality. Such distortions can lead to dysfunctional behaviors, which may produce unwanted consequences. It’s also important to remember that everyone perceives an experience differently, for example one person might experience an event and perceive it as traumatizing, but another may experience something similar, but they don’t perceive it to be traumatizing. Help is available for people who have been injured and their loved ones. This includes free mental health counseling, emergency medical care, possible recouping of lost wages, and a safe and confidential shelter that removes you from imminent harm or danger if you need to get out of your house. You don’t have to go it alone. NCSF trains local victim services on BDSM vs. abuse. Call your local rape crisis hotline or contact NCSF’s Incident Reporting & Response for help for you or a friend at This email address is being protected from spambots. You need JavaScript enabled to view it. or 917-848-6544. Short-term Reactions and Ongoing Challenges It’s important to not judge someone’s response when they have been violated or assaulted. One person may appear to be emotional while another may seem unaffected or calm. Others can have abrupt mood changes. No matter how someone reacts, their emotions are appropriate and valid. The following are some of the frequently experienced immediate reactions to being violated: ShockDenial such as “It never happened.” “I am overreacting.”Self-blame or guilt such as “If I had not____, they Would not have___”Fear of judgment or retaliation or reoccurrenceAvoidanceLaughingNumbnessFreezingDoubtMemory lossShakingAngerFearRevengeShame or embarrassment or humiliationCrying or yelling or screamingFeelings of unreality or detachment from your feelings These immediate reactions may fade, but other mental, emotional, and physical difficulties can happen over time, such as: Not feeling safe, even when with friends or at homeIsolation or withdrawal from friends, families, work, publicDecreased concentrationIncreased or decreased sleepNightmares or terrors (not always about the incident)Anxiety or panic attacks (increased startled response)Feelings of helplessnessEngaging in self harmIrritabilityFeelings of detachment or isolationPhysiological stress responses when confronted with reminders of the traumaLoss of appetite or over/binge eatingExhaustion or sicknessFear of the darkFear of being aloneChanges in sexual behaviorsDifficulty with trust or uncharacteristically over trustful with othersFlashbacks of the traumatic eventEngaging in high risk behaviorsIncreased desire for alcohol or drugs or other escapes and distractionsSuicidal thoughts or self-harm behaviorsIncreased volatile and aggressive verbal or physical behaviorDecreased confidence with…
Download a PDF of this Statement NCSF Statement on Power Exchange Relationships The National Coalition for Sexual Freedom supports the rights of adults to enter into power exchange relationships including: Master/slave, Total Power Exchange (TPE), 24/7 and Owner/property. NCSF provides education about both the ethical and legal concepts of consent in regards to power exchange relationships. Ethical Consent NCSF believes that ethical power exchange relationships are based on the principle of informed consent, so there is a responsibility to reach agreement based on an understanding of the desires and limits of those involved.  Consent is usually given at the beginning of a power exchange relationship for the types of behavior, responsibilities and BDSM practices (if any) that will take place during the relationship. There may be significant responsibilities according to the obligations agreed on at the beginning of and throughout the relationship. NCSF believes a power exchange relationship is intended to nurture the physical and emotional needs of everyone involved. There is a difference between hurt and harm: harm causes lasting damage (whether physical, mental or spiritual) that impairs the ability to function and enjoy life, while any hurt that is inflicted should ultimately bring fulfillment to those involved. Legal Consent According to the decisions made by U.S. courts: consent must be given at the time an act is done, and consent can be withdrawn at any time. A written power exchange contract is not legally binding, yet it may be useful in a legal setting to show the state of mind of the participants and the types of behaviors, responsibilities and BDSM practices that were agreed on. However any contract that denies the right to withdraw consent may be problematic for the top in a legal setting because people can’t legally surrender their right to withdraw consent. NCSF encourages people in power exchange relationships to talk about consent in case their relationship is ever called into question in a legal setting. For example, withdrawal of consent may bring about an end to the relationship, or it may result in a request for release, or it may result in retraining, or a time-out for reaffirmation of the power dynamic, or it may require renegotiation of the terms by removing or modifying the objectionable activity or behavior. Some power exchange relationships are based on the concept of personal responsibility, which supersedes the agreement of a relationship whenever a question of danger, harm or non-negotiated activity enters the picture. The belief that everyone involved must be protected supports the concept of personal responsibility while maintaining…
Download a PDF of this Statement Consent Counts Project - Consent Statement Summary NCSF seeks to decriminalize consensual BDSM that does not result in the infliction of serious bodily injury. This statement reflects both the recent extensive study by NCSF of the state of the law in the U.S. and the 5000+ results of NCSF’s Consent Counts Survey. Its objective is twofold: increase the understanding of BDSM as well as the importance of informed consent in BDSM practices and relationships. Consent is an informed, voluntary agreement by two or more people to engage in a particular BDSM activity. An agreement to enter into a BDSM, D/s or M/s relationship may also constitute consent to specified BDSM activities unless that consent is withdrawn at the time of engaging in such activity. Consent as an ethical principle: BDSM activities are based on the ethical principle that what we do is done by informed agreement amongst all of the participants, which means all the participants communicate what they agree to do and not to do, as well as the nature of the relationship that they agree to enter. Consent is agreement in advance to something that hasn’t happened yet. It is impossible to eliminate the risk that the activity or relationship may turn out differently than everyone involved anticipated. Though it may not be possible to entirely avoid the risks of BDSM, that doesn’t alter either the ethical or legal responsibility to ensure that BDSM activities and relationships are consensual. Consent as a legal principle: The legal issue arises when someone is harmed or injured by a BDSM act, and the person who committed that act denies criminal liability on the ground that the other person gave prior consent to the act in question. The extent to which such consent—even if clearly given—is a defense to criminal prosecution, has been greatly limited by U.S. courts. The courts have found that minor harm, such as redness from dripping hot wax or the pain of nipple clamps, is enough to be “serious bodily injury.” However, the Model Penal Code, which has been adopted in some form by many states, defines serious bodily injury as harm “which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Consent is: 1. Consent is choice. The people giving consent to engage in a BDSM scene or enter into a power exchange relationship must do so voluntarily, without being subjected…
Download a PDF of this Statement Statement on Consent This Statement is being issued through NCSF’s “Consent Counts” project which seeks to decriminalize consensual BDSM which does not result in the infliction of serious bodily injury. This Statement is presented as a discussion of the ethical and legal concepts of consent that need to be considered in the practice of BDSM activities and in relationships based on BDSM activities. It reflects both the recent extensive study by NCSF of the state of the law in the U.S. and the results of NCSF’s Consent Counts Survey which received over 5,500 responses. This Statement is intended for two audiences: BDSM practitioners and the general public. For the general public, the objective is to increase the understanding of BDSM andthe importance of informed consent in BDSM practices and relationships1.For BDSM practitioners, who agree that consent is ethically and legally important2,this Statement will clarify some of the legal issues and create a better understandingof the ethical responsibilities. Consent is… an informed, voluntary agreement by two or more people to engage in a particular BDSM activity or to enter into a BDSM, D/s or M/s relationship. Consent is an essential element in BDSM, both as an ethical concept and as a legal concept, and it is important to distinguish between the ethical principles and the legal rules governing consent. Consent in the context of BDSM relationships There are two BDSM relationship contexts in which the issue of consent arises, and the legal and ethical analyses differ somewhat between these two contexts. On the one hand, there is consent to BDSM practices that will be engaged in by the participants in a specific “scene.” The term “scene” is used by BDSM practitioners to refer to a session of BDSM activities, typically defined within a period of time. Consent is also an important issue in establishing and maintaining a BDSM-based relationship. BDSM relationships can be informal in the context of friendships or romances, and are based either on shared enjoyment of BDSM or on mutual understanding that one person will be receptive (the “bottom”) to the desires of the “top”. This is often referred to as Dominance/submission or D/s. A relationship can also be more formal, with specific—often written—agreement in which one person consents to obey the other person. This is often referred to as a Master/slave or M/s relationship. These relationships usually involve agreement at the beginning of the relationship as to the types of BDSM practices that the Master/Mistress can do…
Click to Download the PowerPoint!    Consent and its Discontents: AASECT 2016
Legal cases dealing with the consent counts project. To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct.  The following overview, from Consent to Harm by Vera Bergelson, is a good summary of the case law: Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm.  A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.”  Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.”  Courts tend to inflate the risk and harmfulness of an activity they want to denounce.  For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious. 28 Pace Law Review 683, 691   Case index, click to view the individual case summary and a PDF of the case.  California v Samuels , 4/28/1967 Massachusetts v Appleby , 4/1/1980 Iowa v Collier, 5/25/1985 Helton v Indiana , 12/1/1993 New York v Jovanovic , 12/21/1999 Lawrence v Texas, 6/26/2003 Nebraska v Van , 11/12/2004 California v Febrissy, 7/1/2006 Govan v Indiana, 9/9/2009 Rhode Island v Gasper, 10/30/2009 United States, Appellee v Miles  3/24/2014 COMMONWEALTH vs. JOHN CAREY 7/23/2007 Law Review Articles, click to open the individual PDF of this article. Sex Is Not A Sport: Consent And Violence In Criminal Law , 2001-2002 Beyond The Pleasure Principle: The Criminalization Of Consensual Sadomasochistic Sex , 2001-2002 Morality-Based Legislation Is Alive And Well: Why The Law Permits Consent To Body Modification But Not Sadomasochistic Sex , 2006-2007 The Right to Be Hurt: Testing the Boundaries of Consent , Febuary 2007  Pain, Pleasure, And Consenting Women: Exploring Feminist Responses To S/M and Its Legal Regulation in Canada Through Jelinek's The Piano Teacher , 2007  Consent to Harm , 2007-2008 Autonomy, Dignity, and Consent to Harm , 1/29/2008 The Moral Limits Of Consent As A Defense In The Criminal Law ,…
Law citations dealing with consent, compiled by the NCSF Consent Counts Project  Alabama  Alaska  Arizona  Arkansas  California Colorado  Connecticut  Delaware  D.C. Florida Georgia Hawaii Idaho  Illinois  Iowa  Kansas  Kentucky Louisiana  Maine  Maryland  Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming     Click to download a PDF of this document State Assault Consent Definitions Cases AL 13A-6-20 (1st degree) 13A-2-7  13A-1-2    13A-6-21 (2nd degree) (physical injury, serious physical injury) 13A-6-22 (3rd degree)   AK 11.41.200 (1st degree)   11.81.900 (serious physical injury, reckless)   11.41.210 (2nd degree) 11.41.220 (3rd degree) 11.41.250 (reckless endangerment) AZ 13-1203 Simple Assault       13-12-4 Aggravated Assault   AR 5-13-201 1st degree battery   5-1-102 definitions   5-13-202 2nd degree battery 5-13-203 3rd degree battery 5-13-204 Aggravated assault 5-13-205 1st degree assault 5-13-206 2nd degree assault 5-13-207 3rd degree assault   CA Penal Code 241 Assault, Punishment   Penal Code 7 Words and Phrases defined   Penal Code 243 Battery, Punishment Penal Code 240 Assault Defined Penal Code 245 Assault with deadly weapon or force likely to produce great bodily injury Penal Code 242 Battery Defined     CO 18-3-202 (1st degree)       18-3-203 (2nd degree) 18-3-204 (3rd degree) 18-3-208 (reckless endangerment) CT 53a-59 (1st degree)   53a-3 (serious physical injury, recklessly)   53a-60 (2nd degree) 53a-61 (3rd degree) 53a-63 (reckless endangerment 1st degree) 53a-64 (reckless endangerment 2nd degree) DE 11 Del Code 611 (3rd degree) 11 Del. Code 452 Consent of victim to inflictions of physical injury as defense 11 Del Code 222   11 Del Code 612 (2nd degree) 11 Del Code 613 (1st degree) 11 Del Code 603 (reckless endangering 2nd degree) 11 Del Code 604 (reckless endangering 1st degree) DC 22-404 (Assault)   No definitions section in this particular subchapter – “Serious bodily injury” defined elsewhere   22-404.01 (Aggravated Assault) 22-407 (threats of bodily harm)   FL 784.011 Assault       784.021 Aggravated Assault 784.03 Battery, Felony battery 784.045 Aggravated Battery   GA 16-5-20 Simple Assault   Definitions contained within the statutes   16-5-23 Simple Battery 16-5-23.1 Battery HI 707-710 Assault 1st degree 702-734 Consent to Bodily Injury 707-700 definitions related to offenses against the person   707-711 Assault 2nd degree 707-712 Assault 3rd…

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