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The Lawyers Are Coming and It’s a Good Thing

on Friday, 01 September 2017. Posted in Front Page Headline, NCSF News

By Dick Cunningham

 

In its major project on revising the criminal laws on sexual assault, the prestigious American Law Institute is taking a hard look at consent as a defense in BDSM-related prosecutions. And NCSF is providing important input to that project.

 

As many of you are painfully aware, courts throughout the United States have consistently refused to recognize consent as a defense in criminal assault cases that arise from BDSM incidents. Even though the ALI’s  Model Penal Code—which has been adopted by most states—says consent is a defense to assault unless “serious bodily injury” has occurred, courts regularly ignore that rule. They regard BDSM as violent assault and issue rulings that use of nipple clamps for dripping hot wax constitutes "serious bodily injury”.

 

NCSF brought this issue to the attention of the Sexual Assault Project, which has taken the issue very seriously.  This is important, because the ALI is one of the most prestigious legal organizations, and their Model Penal Code—of which the new sexual assault rules will be a part—is adopted by most states.  If they reclassify BDSM prosecutions as sexual contact instead of violent assault and if they clarify the importance of consent in the practice of BDSM, the criminal treatment of our communities will change dramatically for the better.

 

NCSF has been active in the Project’s deliberations, communicating with the Project Chair, submitting quite detailed legal analyses, providing education to dispel misconceptions about BDSM, and—beginning with the ALI’s annual meeting—attending and participating in the discussions of sexual assault issues. We have been making the following principal points:

 

• BDSM is intimate and erotic behavior and thus should not be prosecuted as a violent assault by one person against another.

• Specifically, BDSM belongs in the category of “sexual contact” crimes, where prosecution depends on the determination that consent was not given for the erotic contact. BDSM does not belong in the same category as rape, because penetration—if it occurs at all is not truly part of the BDSM activity.

• The project needs to be aware of the importance placed upon consent in the BDSM communities to understand that BDSM scenes may involve (as part of the fantasy) understandings that the usual expressions of unwillingness “no”, “stop”, etc. can be disregarded and instead prearranged “safe words” (“red”, “yellow”, etc.) may be used.

• The project also needs to understand that consent needs to be “informed consent”, not only in BDSM, but also in all sexual assault contexts.  By “informed consent”, we mean the participants need to agree (a) who will be involved, (b) what is agreed to be done and not done, (c) the potential risks, (d) where and how the bottom will be touched, (e) the location or venue where the acts will be conducted and (f) the procedure for stopping or moderating the acts.  

 

Our issues will be front and center at the mid-October meeting of the ALI Sexual Assault Project and NCSF has, at the ALI’s request, submitted detailed comments. And I, as NCSFs Consent Counts counsel have joined the ALI and will be an active participant in the October session.

 

Keep your fingers crossed. This could produce something very important. 

 

For more information about this important project, please consider attending the NCSF and TES Consent Summit in New York City on September 16 - https://www.ncsfreedom.org/press/blog/item/consent-summit-in-new-york-city

 

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