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Aswad -> Norwegian laws regarding BDSM (9/5/2007 3:21:36 PM)
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It depends on circumstances, Bobkgin. Here is an outline of Norwegian law as it pertains to SM activities, at least. It is loosely translated from what a Norwegian lawyer wrote for our branch of the ReviseF65 organization (names cut, since it's not an official translation).
Note that, in practice, legal precedent indicates that one can go quite a bit further than this text outlines (it isn't quite up to date in all respects), but that will depend on the nature of the agreement, the grounds for informed consent, and so forth. However, this text does cover what is definitely legal.
Unfortunately, this does not cover all the options that are available, and focuses more on SM than D/s, which is because the former is more prevalent than the latter around these parts for some reason or other. Nor does it cover the precedent for mitigating circumstances in a well-planned, documented relationship with prior consent.
It is possible to submit attested prior consent as proof of the initially consensual nature of a relationship, as well as a mitigating circumstance for activities undertaken in the course of such a relationship. §235 gains applicability in terms of mitigating circumstance when informed prior consent can be demonstrated. In the ideal case, there has been a trial period, psychiatric evaluation, and attested consent in a circumstance where the consenting party confirms the informed consent in the presence of authorative witnesses (i.e. lawyers, paralegals, health care personell, etc.) while not accompanied by the other party.
Additionally, this does not cover such things as voluntary legal guardianship, etc.
"Penalties according to §228 and §229 are not applicable,
provided the action is undertaken with consent." Norwegian penal code §235, synopsis. Exercising bondage and sadomasochistic activities between consenting partners is legal in Norway, provided it does not cause substantial injury and one does not abandon the partner in a helpless state.
"SM is fully legal under extant consent, provided one does not cause substantial or lasting injury." These are the words of attourney at law, [Lawyer], in this article for [LGBT SM organization] and ReviseF65. Verbal consent is adequate for SM. Consent may also be given indirectly, by way of acts that demonstrate consent. [Lawyer] recommends recommends that everyone set safewords and abide by them, as the law does not have provisions for irrevocable consent. If the bottom considers the activity to have gone too far, having a previously agreed-upon signal is important. Otherwise, the top may not realize that consent has been withdrawn, which may cause the activity to be prosecutable. One should not leave the room when a person is in bondage. Doing so may be covered by section §242 of the penal code (there is no provision for consent to activities covered by section §242).
"Bear in mind that the bottom must be competent to consent," says [Lawyer]. "One should be of legal age, not in a psychotic state of mind, not excessively influenced by drugs or alcohol, etc."
Many activities engaged in during the course of an SM session are covered by sections §228, §229 et al, of the Norwegian penal code. This does not, however, mean that these activities are criminal, as consent obviates criminal liability by way of section §235.
Does this mean anything is legal? No. Consent does not obviate criminal liability for acts that are covered by §231. The line is, then, drawn between "bodily harm" (§229) and "grievous bodily harm". In aid of our understanding, we have §9 to define what may be considered "grievous bodily harm": " [translated from Dano-Norwegian, not my strong suit] significant impairment of vision, hearing, ability to speak, or ability to reproduce; crippling injuries; inability to be gainfully employed; gross disfiguration; life threatening or chronic illness or equivalent psychological trauma." In practice and theory, an additional liability is associated with " illness or inability to work lasting more than 2 weeks", though this has been debated. "Abandoning someone in bondage is dangerous, and will constitute negligence." Legal precedent is mostly concerned with fighting, and there is little precedent tied to the practice of SM. Minors can also legally consent, although such consent will be held to a high standard, particularly if the top is older, or has some other [advantage/hold] outside the context of the SM session. The wide applicability of consent as obviating criminal liability has been criticized on theoretical grounds, but ongoing work in revising the penal code maintains the current position. "Consent can be given indirectly, by acts that demonstrate it." Bondage will fall under either §228 (bodily insult), §229 ([placing someone in a situation where they are helpless]), or §223 ([depriving someone of their freedom]). The latter is only applicable in cases of long-term bondage or captivity. The practice of short-term bondage falls under the two former sections, and consent is here considered to obviate criminal liability. Section §223 has a clause requiring the captivity to be intrinsically illegal. One must assume consensual bondage to be legal in this regard. Section §242 is worded such as to be applicable to bondage. The relevant wording deals with placing someone in a situation where they are helpless, such that the situation poses a risk of injury or death. It is most frequently applied in cases where people have been abandoned in a helpless state, for instance when unconscious due to alcohol or drugs, or left in the cold without adequate clothing [(exposure)]. It will also be applicable in cases where someone has been tied- or otherwise incapacitated- and subsequently for some amount of time has been abandoned such that there is risk of injury or death. What period of time this applies to will depend on the presence of danger, and will be considered individually. As long as one is present, only §228, §229, and §223 are applicable. There is no provision for consent from §242. Abandoning someone in unattended bondage can be dangerous, and will incur liability. The sections I have mentioned here deal primarily with violence, whereas SM is primarily a sexual activity. Does not then the sections in the criminal code that deal with sexual activities gain applicability? Only to a limited extent, as sexual activity is legal as long as the parties are over 16 years of age [(or are of comparable mental and/or physical development)] who consent to the activity, and are not conducted in a public space. All sexual activities (whether SM or not) are, however, criminal if engaged in with someone who does not consent to such activity. "Lack of objection may not be adequate" It follows from the aforementioned sections that consent is the central element in determining the liability, if any, of an SM-activity. What is relevant for such consent? It is clear that verbal consent is adequate. Consent may also be given through acts that demonstrate such consent. Absence of protest, however, is probably not adequate. It is equally clear that consent may verbally be withdrawn, whether given in writing or in verbal form. There is no provision for irrevocable consent [(somewhat debatable, as some cases have shown)]. In the course of an SM-activity wherein safewords are not used, the top may not realize that consent has been revoked, and the activity may thus become criminally liable if the bottom experiences the activity as going too far. For this reason, safewords should preferably be used. It is illegal under section §204 to depict offensive [genital contact/sexual activity; doesn't translate fully]. The supreme court ruled, in the Mattson case of November 2005, that photographic depictions of regular sexual activity (i.e. vaginal and anal intercourse; licking or sucking of genitalia) is not "offensive" according to the law, and therefore legal to sell. This ruling represents a relaxation of earlier legal precedent, but it is still unclear where the line between legal and illegal depictions is drawn. The supreme court pointed out that the photographic material submitted did not depict group sex or ejaculation, and that film is a stronger medium than photographic depiction, without ruling on whether such pornographic material is legal or illegal. It is clear that SM and bondage are elements that increase the likelyhood of such depictions being found "offensive", cf. the wording "depictions of violence or forced contact."
One can thus summarize by stating that SM is clearly legal, insofar as there has been given consent that has not been revoked, and the bottom does not sustain substantial or lasting injuries. If a bottom should become, even in the short term, unsuited to gainful employment, I would think a judge will rule that this is illegal, if the case is tried before a court [(which requires that someone press charges, although a third party may do so, as demonstrated in a recent case dealing with an amputated finger; I'd point out that, while a ruling was made in favour of the prosecution, sufficient mitigating circumstance was admitted that the end result was a slap on the wrist, said case occuring after this text was written)]. It is unclear whether pornographic depictions of consensual SM and bondage are illegal at this time, but I would assume that depictions that do not clearly demonstrate the voluntary nature of the activity will be illegal.
Relevant sections of the Norwegian penal code:
[Note that this is mostly Dano-Norwegian, which is like you'd find Middle English, so the translation may not be entirely accurate, but I've tried to convey the spirit of the law.] quote:
§9. "Grievous bodily harm" is understood in the context of this law as injury wherein someone is partially or fully deprived of their vision, hearing, ability to speak, or ability to reproduce; sustains crippling injuries; becomes unsuited to be gainfully employed; gross disfiguration; life threatening or chronic illness or equivalent psychological trauma. The definition of grievous bodily harm also includes violence against a pregnant woman such that a miscarriage occurs, or the foetus sustains injury.
quote:
§204. For the following, fines or imprisonment up to 3 years can be used:
- Publishing, sale or other distribution of illegal pornography, or
- Importing illegal pornography with intent to distribute, or
- Bringing pornographic materials into the possession of individuals under 18 years of age, or
- Public display of illegal pornography.
By illegal pornography, in the context of this law, is meant depictions of genital contact or sexual activity that is offensive in nature, or in some other way apt to be degrading to humans, or constitutes a betrayal of human dignity, herein depictions involving corpses, animals, violence or force. Not covered are depictions that are considered reasonable from an artistic, scientific, informative or similar purpose.
When such activity is undertaken in a negligent manner, fines or imprisonment up to 6 months may be used. This further applies to proprietors or superiors that intentionally or by gross neglect do not prevent such activities in a corporate setting.
This law is not applicable to film or videograms that have been approved by the media board.
quote:
§223. Illegal deprivation of freedom, or conspiracy to same, is cause for imprisonment up to 5 years.
If the captivity has been of a duration in excess of one month, or has caused an unusual extent of suffering or grievous bodily harm or death, the duration of imprisonment shall not be less than 1 year.
One who conspires with others to commit a crime under this law may be imprisoned up to 10 years.
quote:
§228. One who exerts violence against another person, or renders bodily insult unto another person, or aids in such, is subject to fines or imprisonment up to 6 months in duration.
If the insult has caused physical or mental injury, or substantial pain, imprisonment up to 3 years may be used, although in cases of substantial injury or where the injury results in fatality, imprisonment up to 5 years may be used.
If the insult is reciprocated, or constitutes reciprocation for a previous insult, it need not entail criminal liability.
State prosecution shall not occur unless entreated by the insulted party unless:
- The insult has resulted in fatality, or
- The insult has been directed at a spouse or former spouse, or
- The insult has been directed at offspring of either the perpetrator or the spouse, or
- The insult has been directed at the perpetrator's progenitors, or
- [Public/social] concerns demand prosecution [i.e. preventing or combatting a significant trend of bodily insult].
quote:
§229. One who renders bodily harm unto another person, or renders them helpless, unconscious, or in a similar state, or aids in such, is subject to imprisonment for up to 3 years. In cases of injury or infirmity of a duration exceeding 2 weeks, or where untreatable injury has been rendered, imprisonment up to 6 years may be used. In cases of fatal outcome or substantial injury, imprisonment up to 8 years may be used.
quote:
§231. One who renders, or aids in rendering, grievous bodily harm unto another person, is subject to imprisonment of a minimum duration of 2 years. In premeditated cases, imprisonment up to 21 years may be used, provided the outcome was fatal.
quote:
§235. Criminal liability according to sections §228 and §229 is not incurred when the act is committed with the consent of all parties.
When someone is, in the course of activity under consent, killed or seriously injured, or killed in an act of mercy in the course of [hopeless/terminal illness] or aid is rendered to that effect, the liability may be reduced below the lower bound of applicable law, including the use of a less serious response. [(Applied in the amputation case.)]
quote:
§242. One who renders another helpless, or aids in same, is subject to imprisonment up to 3 years.
This further applies to one who unjustly abandons in a helpless state someone who is in their care, or for whom they are responsible, or who they have a duty to accompany or in some other manner care for, or when leaving such a person in a helpless state, as well as for one who incites or coerces such.
If the crime has resulted in death or grievous bodily harm, imprisonment up to 6 years may be used.
State prosecution shall not occur unless entreated by the offended party, except where the outcome has been fatal, or where [public/social] concerns demand prosecution [i.e. preventative measures].
I hope this adequately addresses your question. Health, al-Aswad.
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