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BDSM LEGAL OR ILLEGAL... - 6/6/2010 3:56:03 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		I often see threads where a poster will state that most of WIITWD is illegal. I am not sure if that is true. I don't know of any laws that directly prohibit lifestyle activities. Furthermore there are a large number of states with BDSM dungeons or clubs. The police know they are there and they know what goes on in them (some have cops as members). Cops are alot more "kink aware" than we give them credit for. Now we only think of illegal in terms of the liablitiy of "hitting someone" but maybe WIITWD could also legally be considered "intimate contact."

Just the mere act of hitting someone iin and of itself is not assault. Especially if it is consensual. After all, we see friends horseplay and wrestle all the time. Guys get hit playing football and other rough sports. I know its a game but arguably WIITWD is also a game. We have mind freaks and other entertainers who allow themselves to be harmed and charge money for others to watch. So David Blaine gets consensually locked in a box for days and its entertainment, but if you do it at home its a crime?

How many arrests have been actually made solely for bdsm activities? I don't mean arrests for charging money or nonconsensual activities or actions involving minors or someone just flaking out after a scene and lying to the authorities.  How many arrests have been made of just two consentual adults who both agree to engage in this activity? Has anyone done any research on this?
 
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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:03:04 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		It would seem that the Supreme Court gives WIITWD some protections.
 
Lawrence v. Texas, 539 U.S. 558 (2003),[1] was a landmark United States Supreme Court case. In the 6-3 ruling, the justices struck down the sodomy law in Texas. The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexual sex.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:12:08 AM   
sweetsub1957


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quote:

ORIGINAL: LadyCimarron

I often see threads where a poster will state that most of WIITWD is illegal. I am not sure if that is true. I don't know of any laws that directly prohibit lifestyle activities.

i don't know, but i'm sure not going to put a face picture on my profile. my profession has rules against moral turpitude and i don't want to push my luck. The licensing board might not look too kindly on it.

~sweetsub~

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In lowering yourself to talking behind my back, you're perfectly positioned to kiss my ass.

An it harm none, do what ye wilt.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:24:35 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		I agree you should not. There are a lot of professions that frown upon lifestyle activities.

But, there is a difference a professional policy for which one could be legally terminated from a poisition and a criminal law for which one can be arrested.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:26:49 AM   
LillyoftheVally


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Status: offline 		It depends where you are, we have the violent porn law and you can't hit people etc

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:31:28 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		Thank you, and I apologize for my American closed mindedness. I wrote this strictly from a US perspective and forgot that there are users from other countries here where laws are vastly different than they are in the US.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:34:38 AM   
laurell3


Posts: 6577
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Status: offline 		Sodomy is not the same as assault. Outside of jury nullification, you're not likely to win a trial by saying it was consentual in the vast majority of states, although there are a few that do have a limited exception for constentual misdemeanor assault, including Texas.

The Lawerence decision applies to a situation where law enforcement was using an old law against sodomy to prosecute homosexuals for same-sex acts. It struck state laws prohibiting private consentual homosexual sodomy. "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." It does not apply in this situation.

The fact that something is rarely prosecuted doesn't make it legal. Domestic violence victims march into prosecutors offices every day demanding that charges be dropped against their abusers citing consent, it isn't compelling, and I'm afraid to tell you that to many people that is how they would see someone striking another to the point of injury. People in bar fights attempt to invoke the sports example all the time as well. The fact that law enforcement may be kinky or aware of it and not arresting also doesn't make it lawful.

< Message edited by laurell3 -- 6/6/2010 4:35:48 AM >

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:35:47 AM   
DomImus


Posts: 2004
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Status: offline 		A wise man once said that the most important thing a submissive brings into a relationship is a willingness not to prosecute.




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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:36:46 AM   
sweetsub1957


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quote:

ORIGINAL: LadyCimarron
But, there is a difference a professional policy for which one could be legally terminated from a poisition and a criminal law for which one can be arrested.

Oh i totally agree. There's a definite difference. Actually the police around here freak out too. If there's any hitting involved, in this area it's a case of someone has to be arrested for it and jailed. It sucks. That means the Dom/mes around here take big chances even with consensual flogging, etc.

~sweetsub~

_____________________________

Member: Lance's Fag Hags.

"That's not just a chip on her shoulder, that's the whole potato!" ~Lady Angelika~

In lowering yourself to talking behind my back, you're perfectly positioned to kiss my ass.

An it harm none, do what ye wilt.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:38:51 AM   
laurell3


Posts: 6577
Joined: 5/5/2005
Status: offline 		Yep, under most states law it is domestic violence with a mandatory arrest policy. It is a risk that we take. As Domimus points out, it's another reason to choose your partners carefully.

_____________________________

I cannot be defined by moments in my life, but must be considered for by the entirety of my existence.

When you fail to consider that I am the best judge for what is right for me, all of your opinions become suspect to me.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:40:49 AM   
sweetsub1957


Posts: 2201
Joined: 4/28/2009
Status: offline 		Yup.

_____________________________

Member: Lance's Fag Hags.

"That's not just a chip on her shoulder, that's the whole potato!" ~Lady Angelika~

In lowering yourself to talking behind my back, you're perfectly positioned to kiss my ass.

An it harm none, do what ye wilt.

(in reply to laurell3)
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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:42:45 AM   
lally2


Posts: 2621
Joined: 4/16/2009
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quote:

ORIGINAL: LillyoftheVally

It depends where you are, we have the violent porn law and you can't hit people etc


i used to live in a small cul-de-sac and there was a couple there who were forever falling out - one day it got out of control and he took her two front teeth out, and basically beat the crap out of her.  she called the police, infact she frequently called the police and they'd swarm round of course, but nothing ever changed or happened.  the guy was never taken to court by the police because the wife never pressed charges.  and there was a minor in the house

unless its causing a breach of the peace i dont think they can do a whole lot about it if the people involved are consenting.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:43:46 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		ILLEGAL means that there is a law on the books against it. There is actually no law on the books against bdsm. Assault is based on the elements of the crime. By definition everytime I hit my best friend on the arm and say "you gotta be kiddding" I am committing an assault by the books. But of course, everytime my lover "hits it" in bed, so is he. So if sexual intercourse is protected by consent and understood to not be assault. Why not our activities. Basicall, its a judgement call on law enforcement's part. They don't arrest because they usually know the difference between assualt and kinky sex. If they know its kinky sex they cannot get in court and testify that it was assault and the Supreme Court ruling clearly states "intimate consensual sexual conduct was part of the liberty protected by substantive due process"  And WIITWD IS intimate consensual sexual conduct. It may not be mainstream but few would argue that it is not sexual. 

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:47:04 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		The Mandatory arrest policy is that if the police have evidence that domestic violence has taken place they must make an arrest. IF the evidence (the word of both parties, the general appearance of the parties and the house, prior instances of DV calls) is more conducive to sexual conduct than domestic violence then no mandatory arrest has to happen.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 4:55:35 AM   
laurell3


Posts: 6577
Joined: 5/5/2005
Status: offline 		You could definitely try arguing that. Your presumption that there aren't any arrests for it, is incorrect. Nor do I think the argument that striking another with an implement is the same as intercourse is remotely close to compelling, in fact, it's a felony in many states.

There was a high publicized decision a few years ago in one of the bigger states though where the jury nullifed and returned a not guilty verdict on consentual bdsm activities. The activity in question was pretty light though. I can't recall what state it was, someone else may come along and remember it. There are kink friendly national groups working on this very issue and have been for a long time, I suggest finding their literature might be illustrative.

ALL criminal prosecutions are based on the elements of the crime and the facts fitting those elements, I'm not sure what you are getting at there.

_____________________________

I cannot be defined by moments in my life, but must be considered for by the entirety of my existence.

When you fail to consider that I am the best judge for what is right for me, all of your opinions become suspect to me.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 5:01:51 AM   
subsfaith


Posts: 297
Joined: 11/21/2006
Status: offline 		I found this on wikipedia:
It is entirely dependent on the legal situation in individual countries whether the practice of BDSM has any criminal relevance or legal consequences. Criminalization of consensually implemented BDSM practices is usually not with explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights, which in principle constitutes a criminal offense. In Germany, Netherlands, Japan and Scandinavia, such behavior is legal in principle. In Austria the legal status is not clear, while in Switzerland some BDSM practices can be considered criminal. Spectacular incidents like the US-American scandal of People v. Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved.
ref: http://en.wikipedia.org/wiki/BDSM#Legal_status

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 5:07:22 AM   
DomImus


Posts: 2004
Joined: 3/17/2009
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quote:

ORIGINAL: laurell3
Yep, under most states law it is domestic violence with a mandatory arrest policy. It is a risk that we take. As DomImus points out, it's another reason to choose your partners carefully.


And this is really the bottom line. Before this thread gets too knee deep into what is and is not illegal it's important to remember that getting busted for anything requires two events to take place - you must violate a law and a law enforcement must know about it. You can do whatever you wish in the privacy of your home so long as what happens at home stays at home. BDSM clubs and dungeons are a somewhat different story since they are public or semi-public venues but they usually have measures and rules in place to protect themselves that essentially protect the members to the same degree.

There are so many gray areas of consent and non-consent and what you can and cannot consent to particularly in regard to the whole assault angle. I was trying to sit here and think of things that would be illegal every time all the time no matter what the situation and level of consent. The only thing I could come up with is gun play. Pointing a firearm (loaded or not) at someone else is pretty universally illegal in just about every jurisdiction unless it is in self defense. I think we still have anti-sodomy laws here in Georgia but again... the likelihood of something like that being prosecuted in the case of a couple in their own home (even if the law found out about it) is pretty slim.






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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 5:12:23 AM   
laurell3


Posts: 6577
Joined: 5/5/2005
Status: offline 		Georgia does still have a sodomy law, however, it applies to both heterosexual and homosexual activity and was upheld on that basis.

But I agree with your point. Choose your partners carefully and keep it private and it's not an issue.

I did look for that case because there was alot of publicity on it, but I couldn't find it. I however did see that Boy George was arrested in London for bdsm which I wasn't aware of (just a funny aside).

http://www.associatedcontent.com/article/229705/boy_george_arrested_for_bdsm_assault.html

_____________________________

I cannot be defined by moments in my life, but must be considered for by the entirety of my existence.

When you fail to consider that I am the best judge for what is right for me, all of your opinions become suspect to me.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 5:12:33 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		False arrests happen sometimes. Routinely arrests are made for next to nothing. The fact is the cops don't have to prove a thing in order to make an arrest. Arrests of this type would have to be made on a cop's word. Which is why without evidence those arrests mean nothing. Which is why they almost never make it to court and when they do, I don't know of any where anyone was actually convicted and sentenced to jail for consensual play. (though there may well be a case).  People have rough sex all the time. I have had sex and when it was over had bruises all over my body. If a cop showed up right after he could well say that I had been assaulted but the evidence would show that we had engaged in consentual sex. Even in DV mandatory arrests most still get kicked out if the victim does not cooperate. The officer can only testify to the "appearance" of things when he arrived. Only the two parties involved can say what happened before he got there. If they both agree it was not DV the court has a difficult time convicting.

My point in mentioning the elements of a crime is that by legal definition almost any contact we make with another person COULD be loosely construed as an assault. I grab you by the hair and I'm your friend its an intimate touch. Your enemy does it and its an assault.

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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 5:18:47 AM   
LadyCimarron


Posts: 625
Joined: 12/29/2009
Status: offline 		In Boy George's case the victim claimed it was non-consensual.
the same for People v. Jovanovic

So its true that we should pick our partners carefully, because if they withdraw consent or just flat out lie, we could be screwed. Of course a public allegation of that matter would have you screwed whether you were guilty or innocent. 

I too cannot find a case of two consenting adults practicing BDSM being arrested and prosecuted. That seems odd even to me. Seems like it would have happened at least once.

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