RE: Unlawful Confinement (Full Version)

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LadyEllen -> RE: Unlawful Confinement (8/6/2007 12:57:54 AM)

I believe that as far as English law goes anyway - and US law derives a great deal from ours, that Rover is right, simply because there are two principles at work here;

1) it is not possible in law to agree to an offence being committed against one's self
2) it is not possible in law to form any valid contract the consideration for which requires an illegal act

Mind you the purely apocryphal doctrine known as Sods' Law (also known as Murphy's Law) would also premeditate against leaving someone secured helpless in any way, the basis of this law being that if something can go wrong it will go wrong.

E



cadenas -> RE: Unlawful Confinement (8/6/2007 1:35:05 AM)

quote:

ORIGINAL: LuckyAlbatross

Yes

Doms take on an extreme amount of risk in playing- if a sub decides later, even after everything is done and they've gone on their way happy and fine, that it was wrong and abusive- it's REALLY hard for the dom to have any defense.


In the end, it depends on all kinds of things. First of all, it depends on whether somebody complains. It depends on the laws in your specific jurisdiction; they can vary from country to country, and in the US from state to state or even from city to city. It also heavily depends on the current political situation. For instance, such prosecutions are far more likely when the prosecutor stands for reelection, or wants to get elected to some other office.

Then it depends on whether the police wants to bring a case. The police would usually be the first to be called in such a situation, and they can very well decide that, yes, it may be a violation of the letter of the law, but no actual harm was done, and they don't want to get involved. They'll look at the overall situation to determine that (and of course it depends on the individual officer's views of BDSM, too). And most officers genuinely want to do a good job and be fair, and many are aware of BDSM.

Then it depends on whether prosecutor is willing to prosecute the case. There are many cases that are technically illegal, but where the prosecutor decides that nothing would be gained by actually pursuing the case. If the prosecutor goes ahead with the case, it would depend on the judge, who may also decide that this case is a waste of his time. And eventually it would depend on the jury.

These last items are why it really can be extremely beneficial to have a written and signed contract as evidence. It may not be legally enforceable, but it proves that both parties knew what there were getting into. If you add printouts of such things as both of your original collarme profiles that state desires to be put in a cage, or to put somebody else in a cage, then it becomes quite difficult to argue that it was just blackmail.

There actually were various cases thrown out this way. One, with a somewhat different but related situation, was the 1999 San Diego Six case. In that case, it did go all the way to the prosecutor, who was politically ambitious and brought a case. The judge and jury threw out the first of the six cases so fast that the prosecutor didn't dare bring any of the other cases.

I'm not a lawyer. But I'm not terrified of the law, either.




MissOchistic -> RE: Unlawful Confinement (8/6/2007 2:51:52 AM)

quote:

ORIGINAL: awmslave

If a slave is reasonably healthy (and obviously not claustrophobic in this case) emergency is very unlikely. So, I am OK with safety aspect of the situation and I do not agree with above safety nazis. However,  this problem would not arise with an experienced  master because he/she would not lock up any slave for long term  who can not take it. The described situation  has unlawful aspect if  a sub specifically  negotiated very short confinement and with good layer perhaps his/her hourly lost wages will be compensated.


Even in the most physically fit, perfectly healthy sub, there is a distinct lack of magic to put out fires from inside the cage.

Leaving anyone locked with no way out while you are away is terminally stupid.



bandit25 -> RE: Unlawful Confinement (8/6/2007 3:23:22 AM)

I was thinking the exact same thing...a fire.  What about home invasion?  Leaving someone locked in a cage or tied to a tree (I've heard this done also) and then leaving is just plain dangerous.  But so is tying someone with scissors (I forget the name of them) or a knife in case you have to get the person out immediately.



MamaDomme -> RE: Unlawful Confinement (8/6/2007 3:53:45 AM)

quote:



These last items are why it really can be extremely beneficial to have a written and signed contract as evidence. It may not be legally enforceable, but it proves that both parties knew what there were getting into. If you add printouts of such things as both of your original collarme profiles that state desires to be put in a cage, or to put somebody else in a cage, then it becomes quite difficult to argue that it was just blackmail.




And this is exactly why I always print out the profile and photo of any that I am meeting.  As well as any negotiations that were exchanged in email or chat.  Just something to CMA.



agirl -> RE: Unlawful Confinement (8/6/2007 4:32:19 AM)

Very likely, it does.

Most of what is done to me is *unlawful*. Every time M hits me, there are MOMENTS when I really, really want it to stop.......but he is *abusing* me, in the eyes of the law, with EVERY blow.

The OP didn't actually say that the dom had left the vicinity, just *wasn't around* to unlock them. That could mean being in a different part of the house, or in the garden, at the time he decided he *wanted out*. The OP didn't say *unsafe*, the OP was referring to a *change of mind/feeling*, from what I read.

agirl





Stephann -> RE: Unlawful Confinement (8/6/2007 4:58:18 AM)

This sounds like a Bar exam question.

Often times, we do things, or are in a state that is illegal.  In part, it is not the act itself, but being found guilty of that act that is important.  There is no inherent danger in having expired registration tags, if you have new tags coming in the mail; yet technically you are in violation of the law.  Does it matter?  Yes; only because if every individual did this, the system would collapse.  (ahem.)

In the US, in most states, consent is not a valid defense for assault.  There are many reasons for this; a person cannot consent to a bare knuckle fist fight in a bar, for example.  We can not face off with pistols to ten paces and shoot each other.  A wife cannot 'consent' to her husband beating her with a belt because he's angry and drunk.  It isn't simply because of the individuals involved, but also because of collateral damage; the fistfight could easily damage property and incite other fighting, the individual in the duel could miss and shoot a bystander, and children who are forced to watch their mother beaten can quite possibly become targets (nevermind the emotional damage.)

This means, for us, our activites will often be construed to be illegal.  How that plays out, though, will depend on the community; ranging from prison time, to mandatory counseling or time in a mental hospital, to a slap on the wrist, to having the case thrown out.  It all depends on the individuals who's lap it actually falls in.  In no small part, will be 'how' the crime was brought to the attention of the community.  If the submissive dies, or must be broken free from the cage by firefighters, there's a pretty good bet the Dom/me in question is looking at jail time.  If the submissive, after the fact, runs to the police station and cries foul, than emails, chat logs, photographs, mutual lifestyle friends, etc etc will all play a major role in resulting to, essentially, an unwinnable case by the prosecution.  The prosecution could certainly have the man or woman arrested anyway, and attempt to strong arm a confession or guilty plea, but it's highly unlikely such a case would fly in a trial.  After all, every single time the submissive has said "I want this" will be shown to the jury, and the 'victim' will end up being put on trial.  It's not unlike rape cases of yesteryear.

Which brings us back to LA's comments; dominants, make sure you absolutely trust who you play with, and especially in the context of the laws where you are from. 

Stephan



leakylee -> RE: Unlawful Confinement (8/6/2007 5:15:54 AM)

ok, now i know that this maybe a bit of a, duh type statement, but as a consenting adult that is undergoing longterm confinement. wouldnt it be just the slightest bit of a bright moment to discuss emergency situations? i mean at the least handy dandy bolt cutters, these are your friends.

lee



Alumbrado -> RE: Unlawful Confinement (8/6/2007 6:39:06 AM)

quote:

In the US, in most states, consent is not a valid defense for assault.


Actually, consent can be a perfectly valid defense... which is why the jails are not full of football players, boxers, SCA fighters and so forth.
But courts and prosecutors have been willing to overlook that minor detail and overrule the consenting party in some cases.

So it may be more useful to say that consent is not always a valid defense.

And as already mentioned, trust is a crucial factor in power exchange.



PainCompliant -> RE: Unlawful Confinement (8/6/2007 6:47:59 AM)

It is fair for the confinee to ask the dom 1. How often does your house burn down and 2. How many home invansions have you endured.  Assuming the answer to both is "less than one," safety is not a rationale concern.  The odds against a house catching on fire or an unwelcome home avasion are probably less than a dom dying of a heart attack while you are restrained in the basement.

Speaking as someone who is very into confinement because it builds into total control and reality very quickly, I don't care if a guy goes to work or out to dinner or whatever as long as he leaves me in a position where my struggles will not strangle myself or cut off my circulation.  And if he leaves me a key in an envelope or a cell phone, it spoils much of the effect, because the confinement is not totally real - I have a choice and can end it at any time. 

That said, I realize that if a captor's house burns down and my remains are found locked in a cage or cell, the captor is likely heading to jail and will be riding the front pages of the tabloids no matter how many letters of consent he can produce..  He also runs the risk that I could change my mind and call the police in the height of my indignation with similar bad results for the captor.

There has to be mutual trust.  It is best if both are experienced.  And it is one of the few ways a dom and achieve total control and the captive will come to understand the total loss of control.  Which is what I look for and why I am willing to risk someone's house burning down around me.

There is a risk for both captor or captive. 



Rover -> RE: Unlawful Confinement (8/6/2007 7:00:12 AM)

quote:

ORIGINAL: Alumbrado

quote:

In the US, in most states, consent is not a valid defense for assault.


Actually, consent can be a perfectly valid defense... which is why the jails are not full of football players, boxers, SCA fighters and so forth.
But courts and prosecutors have been willing to overlook that minor detail and overrule the consenting party in some cases.

So it may be more useful to say that consent is not always a valid defense.

And as already mentioned, trust is a crucial factor in power exchange.


And while you're absolutely correct, I thought it might be interesting to note that state and federal laws, along with school and university policies, have specific exemptions for sporting events.  No such exemptions exist for BDSM.
 
John



Alumbrado -> RE: Unlawful Confinement (8/6/2007 7:16:28 AM)

Usually phrased in ambigious enough terms to allow zealous prosecution... or a reasonable doubt[8D]

http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/7/sections/section_113.html

http://michie.lexisnexis.com/tennessee/lpext.dll?f=templates&fn=main-h.htm&cp=




MistressSassy66 -> RE: Unlawful Confinement (8/6/2007 9:18:44 AM)

*fast reply*

I have left a submissive in the jail and gone outside... I left
the keys to the locks hanging within reach in case he
needed to get out. he was still in there when I came back and he was fine.
I dont see it as a big deal as long as safety measures have been assured.
An envelope with the key works too to make sure it was used
for an emergency only.

For the part about the law...I always have submissives sign and date a
consent form before a session. I have them check off everything that is okay
and W/we both sign it.
Its not a legal document but shows intent on the part of the submissive.

Sometimes not meeting a submissive can bring trouble.
I had a submissive try to "report me" because I wouldnt meet him and I quickly reminded him
of all the chats I saved of him asking Me to do all sorts of things.
After asking him if where I should send the printout of the conversations...
his house or maybe to his work...he left Me alone.

Archived messages is another way to help protect yourself to show intent
on the part of the other person.




MisPandora -> RE: Unlawful Confinement (8/6/2007 9:54:59 AM)

quote:

ORIGINAL: MissOchistic

quote:

ORIGINAL: awmslave

If a slave is reasonably healthy (and obviously not claustrophobic in this case) emergency is very unlikely. So, I am OK with safety aspect of the situation and I do not agree with above safety nazis. However,  this problem would not arise with an experienced  master because he/she would not lock up any slave for long term  who can not take it. The described situation  has unlawful aspect if  a sub specifically  negotiated very short confinement and with good layer perhaps his/her hourly lost wages will be compensated.


Even in the most physically fit, perfectly healthy sub, there is a distinct lack of magic to put out fires from inside the cage.

Leaving anyone locked with no way out while you are away is terminally stupid.


Not even the slave with the biggest bladder would win that battle....

Then again, I tend to think that folks who don't take into account the potential for accidents and mitigate appropriately are terminally stupid, but that's just me.



LATEXBABY64 -> RE: Unlawful Confinement (8/6/2007 10:22:07 AM)

you know i have to agree the law is pretty black n w hite on that. if someone wants out you better let them out yep yep

Don't give cherries to a pig; don't give advice to a fool.
- Irish Proverb



lonlyrossInNeed -> RE: Unlawful Confinement (8/6/2007 11:00:04 AM)

i have personaly seen one couple get prosecuted for kidnapping becouse they drove across state lines with there slave in the trunk of ther car it was not taken much further in court after the dudge who i guess was in the lifestyle also dismissed it when he heard the intire story this was in texas in 1996 i dont remmber the case or month but you could look it up im sure



thetammyjo -> RE: Unlawful Confinement (8/6/2007 11:02:04 AM)


quote:

ORIGINAL: Myshkin

A Domme forces a sub in a cage and leaves him their. At first the prospect of being forced to be caged like an animal arouses him, but later in the scene decides he doesn't want to be in the cage. If the Domme is not around to unlock him at that time, doesn't that become unlawful confinement.




Hopefully someone with trained legal knowledge will reply.

It feels to me that anytime consent is withdrawn it can be seen as illegal and for some of us immoral and unethical. Whether or not someone else is there to hear you call a safeword or withdraw consent would not hold up in any court of law I can imagine.

I would add that many of us are probably just one phone call to the police away from being arrested. I'm fully aware that some of the things I do like SM and bondage could easily be viewed as illegal and thus it is the mutual trust and honor between Fox (or any other sub/bottom/slave) and I that keeps authorities away and out of our business.

You know, I don't think I'd want it any differently either. Oh, I can write fiction about institutional and historical slavery but at my core the idea that someone would be in that situation makes me cold. I survived situations where I was forced and denied any power to protect myself, thank the Divine that it made me a better and stronger person but many are not that lucky. I wouldn't wish that on my worst enemy.



MisPandora -> RE: Unlawful Confinement (8/6/2007 11:05:06 AM)

quote:

ORIGINAL: LadyEllen

I believe that as far as English law goes anyway - and US law derives a great deal from ours, that Rover is right, simply because there are two principles at work here;

1) it is not possible in law to agree to an offence being committed against one's self
2) it is not possible in law to form any valid contract the consideration for which requires an illegal act

Mind you the purely apocryphal doctrine known as Sods' Law (also known as Murphy's Law) would also premeditate against leaving someone secured helpless in any way, the basis of this law being that if something can go wrong it will go wrong.

E

For those folks over there in the UK, this link on the Spanner case might help: http://www.unclekellan.com/whatever/spanner/spanner.html
http://www.spannertrust.org/



MrDiscipline44 -> RE: Unlawful Confinement (8/6/2007 11:53:50 AM)

I'm wondering where this stupid notion came about that every dominant lives in a fire trap? Or that because the sub/slave is being caged, the dom/master isn't being responsible for them. What a load of bullshit. "What happens in the unlikely event of a fire?" I get them out. Duh. I would make sure that everyone in my family is out before I leave. The dominant that is only concerned with getting their fat asses out of the house if something happens is a piss-poor person in the first place.

Besides, just because the person in the cage got themselves out doesn't mean there won't be questions by authorities. They're going to want to know where everybody was when the fire started. There are going to be questions if they see a cage.

"What if someone breaks into your home?" I think I'll be reasonably safe from the intruder calling the cops and the sub/slave in the cage is most likely safer because she's in the cage then I, who is outside of the cage.



ForgeDesire -> RE: Unlawful Confinement (8/6/2007 12:15:33 PM)

Damn I guess I have been pretty lucky then. I have been left, not caged, maybe worse tho, tied to a bed for hours with no one home. There were times when I was afraid of fire or an emergency, but there was nothing I could do. Was not left with a key, and I dont think I could have gotten out even with a key, was handcuffed pretty tight with legs immobilized as well.



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