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RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:19:48 AM

laurell3

Posts: 6577
Joined: 5/5/2005
Status: offline

If there is a law prohibiting your behavior, it is unlawful and illegal, notwithstanding all the other factors that may occur such as law enforcement discretion, prosecutor discretion and successful defense.

It is very true that there are not alot of black and white answers when it comes to the actual trial process and criminal law. That's why attorneys have jobs in droves. Ironically, many of these cases are overturned on technical issues. You see that often in controversial cases, the court will pass on deciding the issue at hand if they can. It doesn't give you much direction on what the law is though as decided by the appellate courts, which is really the bottom line.

QSM,

I agree with your post. However, I think this is where state laws vary quite a bit. It does not have to be a witnessed assault here. In fact, many states operate on a "victimless prosecution" theory post OJ. If someone calls the police and you have bruises all over, you better bet there's a substantial chance of arrest where I am regardless of what the victim says as well as a full-on attempt to prosecute it. That's how they have chosen to define "mandatory domestic violence prosecution." We may not see this as domestic violence. I'm not sure the law agrees with that.

Additionally I'm not sure how a power of attorney would be helpful. Establishing diminished capacity for someone you are having sex with might walk you into a sexual assault charge for lack of consent for the intercourse. (unless I'm totally missing what you are saying in this regard - help me out here, just out of curiousity).

I absolutely agree with the contract issue and find it humorous when people say it's a defense. It's evidence, against you.

< Message edited by laurell3 -- 6/6/2010 7:27:15 AM >

_____________________________

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.

(in reply to AQuietSimpleMan)

Post #: 41

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:27:31 AM

LadyCimarron

Posts: 625
Joined: 12/29/2009
Status: offline

I have agreed that a few things we do may be construed as illegal. But I would think it is a stretch to even say MUCH of what we do is can be prosecuted. I am admitted sadist. But I may have 4 or 5 contact activities that I engage in. I have 40 or 50 non contact activities. I know mainstream media only show people being tied up and beaten as the fullness of this lifestyle but actuality it is a small part of it and usually outnumbered by the other activities we engage in. Even in Attleboro it is kind of funny that they went into a S&M party and 1 person got arrested for engaging in contact play.......only 1. So what were the others doing....my guess is nothing illegal.
Admittedly I LOVE contact play, but most of the men that contact me want a "sensual Domme" meaning little or no contact play.

All that being said. My point in making this thread was to open minds. I am not saying there are NO risks, of course there are. But we have to quit being so afraid that EVERYTHING or even MOST of what we do is going to land us in jail. And the only way we are going to stop the fear is to learn. Learn our laws, find out what is on the books and what the courts have ruled. When you have opportunity to engage cops in your community ask them how they handle it when they run into kinksters. As well as local attorneys. The question will not surprise them, and trust me, they DO see kinky situations all the time.

And by all means everyone play safe and do whatever you feel you need to do to protect yourself.

Thank you very much for your contributions to this thread.

(in reply to AQuietSimpleMan)

Post #: 42

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:28:27 AM

thishereboi

Posts: 14463
Joined: 6/19/2008
Status: offline

quote:

Nope. I wouldn't want to be arrested for assault either. But funny many people don't mind getting arrested for punching a jerk in the nose but they wouldn't want to be arrested for THIS TYPE of assualt.
Which people don't mind being arrested for punching a jerk and what does that have to do with WIITWD being illegal.

Until a case of this type actually makes it before a judge and the law is interpreted regarding kinksters, we cannot really say it IS a crime. We can say they were "charged with" a crime but the court would have to determine whether or not a crime has actually been committed.
Now you are just nitpicking. You asked if it was illegal anywhere and I showed you a link where it would be considered assault. Now you say that doesn't count because they were not convicted?

_____________________________

"Sweetie, you're wasting your gum" .. Albert

This here is the boi formerly known as orfunboi

(in reply to LadyCimarron)

Post #: 43

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:30:12 AM

AQuietSimpleMan

Posts: 1410
Joined: 11/15/2009
Status: offline

quote:

Additionally I'm not sure how a power of attorney would be helpful. Establishing diminished capacity for someone you are having sex with might walk you into a sexual assault charge for lack of consent for the intercourse. (unless I'm totally missing what you are saying in this regard - help me out here, just out of curiousity).

It's Okay I was typing so fast I missed a few words.

If one gets a Power of Attorney that can be acted upon BEFORE one is determined Deminished Capasity, one basically now has legal control over just about any legal document or estate type property you have. They also have access to Bank Accounts and just about any financial aspect of your life.

The Difficult part is when you have a Power of Attorney that does not require Diminished Capasity before it can be acted upon they are easily contested and can easily be reversed, especially if the reason one got it done was to be a better submissive.

What I was trying to say is that people who want to make their surrender more Legal only have so many options the above being one and although it is expensive to do, it is almost as worthless as a box of dustbunnies.

QSM

_____________________________

Guy Stud =Vs= Girl Slut ~~ Debate ENDED!

"If a Key opens many locks, then it is a Master Key, If a Lock is opened by lots of keys, then it is a Shitty Lock"

(in reply to laurell3)

Post #: 44

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:31:49 AM

RCdc

Posts: 8674
Status: offline

I understand that you are in the states, but for those in the UK, the biggest would be the Spanner case.
I don't usually like using wiki, but it is as good a place as any to look. plus the spanner trust itself.
Press Release
http://en.wikipedia.org/wiki/Operation_Spanner
http://www.spannertrust.org/

the.dark.

_____________________________

RC&dc

love isnt gazing into each others eyes - it's looking forward in the same direction

(in reply to LadyCimarron)

Post #: 45

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:34:18 AM

LadyCimarron

Posts: 625
Joined: 12/29/2009
Status: offline

quote:

ORIGINAL: thishereboi

quote:

Nope. I wouldn't want to be arrested for assault either. But funny many people don't mind getting arrested for punching a jerk in the nose but they wouldn't want to be arrested for THIS TYPE of assualt.
Which people don't mind being arrested for punching a jerk and what does that have to do with WIITWD being illegal.

Until a case of this type actually makes it before a judge and the law is interpreted regarding kinksters, we cannot really say it IS a crime. We can say they were "charged with" a crime but the court would have to determine whether or not a crime has actually been committed.
Now you are just nitpicking. You asked if it was illegal anywhere and I showed you a link where it would be considered assault. Now you say that doesn't count because they were not convicted?

Calm down, honey. There is no reason to get upset about this, its merely a discussion.
I stated the punching thing only to say that many are not as afraid of being arrested for assault as they are of being OUTED as a kinkster. Its the stigma that is attached to the kinky lifestyle that fuels the fear, not the actual assualt in and of itself. That was my only point.

I am not nitpicking I am discussing. I did not say it did not count. I said the court has to determine that a CRIME has been committed not that it didn't count as an arrest.

And if it helps, I never said you were wrong. In fact YOU ARE RIGHT. Now chill out and lets not commit any verbal assaults online

(in reply to thishereboi)

Post #: 46

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:36:40 AM

LittleBroken

Posts: 207
Status: offline

I admit I have engaged in risky play and stepped into scenes with Doms who didn't have references and didn't engage an observer.

I've paid for my stupidity with being left hanging like a side of beef from a tripod with weeping welts on my back from a single tail.
I have paid for my mistakes with extensive cosmetic and dermatological procedures to help remove the lasting physical reminders.

Do I blame others for my poor choices...NO, I don't.
Some of us have to learn everything the hard way.

(in reply to laurell3)

Post #: 47

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:42:15 AM

LadyCimarron

Posts: 625
Joined: 12/29/2009
Status: offline

(((((((HUGS)))))))

Hang in there honey and many blessings to you........ I think all of us are a little broken.

(in reply to LittleBroken)

Post #: 48

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:44:02 AM

LadyCimarron

Posts: 625
Joined: 12/29/2009
Status: offline

Thanks for the links. I will check them out. Wiki is ok sometimes if they have links and sources cited. But sometimes people go there and type in inaccurate stuff without citing sources.

(in reply to RCdc)

Post #: 49

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:45:54 AM

laurell3

Posts: 6577
Joined: 5/5/2005
Status: offline

I'm very sorry that happened to you LB. Many of use take risks. It's never good when those risks are realized and become reality.

_____________________________

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.

(in reply to LittleBroken)

Post #: 50

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:55:00 AM

LittleBroken

Posts: 207
Status: offline

quote:

ORIGINAL: LadyCimarron

(((((((HUGS)))))))

Hang in there honey and many blessings to you........ I think all of us are a little broken.

Thank you LadyC.

Fools (and the young and naive) will rush in where Angels fear to tread.

Thank you for your kind words.

~LB

(in reply to LadyCimarron)

Post #: 51

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 7:56:09 AM

RCdc

Posts: 8674
Status: offline

quote:

ORIGINAL: LadyCimarron

Thanks for the links. I will check them out. Wiki is ok sometimes if they have links and sources cited. But sometimes people go there and type in inaccurate stuff without citing sources.

I totally agree. I dislike using wiki usually, but that particular one and it's citings isn't too bad. The spanner case was pretty big when it went through and was taken and upheld at the european court of human rights.

Here is the Spanner trusts link about the case. http://www.spannertrust.org/documents/spannerhistory.asp

the.dark.

_____________________________

RC&dc

love isnt gazing into each others eyes - it's looking forward in the same direction

(in reply to LadyCimarron)

Post #: 52

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:04:51 AM

LittleBroken

Posts: 207
Status: offline

quote:

ORIGINAL: laurell3

I'm very sorry that happened to you LB. Many of use take risks. It's never good when those risks are realized and become reality.

To tell you the truth tonight has been a real bastard for me in revealing what has been eating me up.
It's bloody hard to be this revealing, but in this case I want to put myself out there as an example of what happens when you aren't smart.
Of what happens when you aren't assertive.

You see, we discussed safe words....signals....all were ignored from the so called Dom.
This would not have happened if I had asked for the services of a unbiased observer to be in the room.

There are risks and traps for the new and the naive and the uninformed.
I hope a newbie can learn from what I've shared.

(in reply to laurell3)

Post #: 53

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:07:22 AM

laurell3

Posts: 6577
Joined: 5/5/2005
Status: offline

quote:

ORIGINAL: LadyCimarron

I have agreed that a few things we do may be construed as illegal. But I would think it is a stretch to even say MUCH of what we do is can be prosecuted. I am admitted sadist. But I may have 4 or 5 contact activities that I engage in. I have 40 or 50 non contact activities. I know mainstream media only show people being tied up and beaten as the fullness of this lifestyle but actuality it is a small part of it and usually outnumbered by the other activities we engage in. Even in Attleboro it is kind of funny that they went into a S&M party and 1 person got arrested for engaging in contact play.......only 1. So what were the others doing....my guess is nothing illegal.
Admittedly I LOVE contact play, but most of the men that contact me want a "sensual Domme" meaning little or no contact play.

All that being said. My point in making this thread was to open minds. I am not saying there are NO risks, of course there are. But we have to quit being so afraid that EVERYTHING or even MOST of what we do is going to land us in jail. And the only way we are going to stop the fear is to learn. Learn our laws, find out what is on the books and what the courts have ruled. When you have opportunity to engage cops in your community ask them how they handle it when they run into kinksters. As well as local attorneys. The question will not surprise them, and trust me, they DO see kinky situations all the time.

And by all means everyone play safe and do whatever you feel you need to do to protect yourself.

Thank you very much for your contributions to this thread.

Ok so the basis of your statement is NOT that contact play is lawful (and a variety of other things that are encompassed and commonly practiced by many in wiitwd), but that what YOU individually do is mostly not illegal? Your position seems to be changing as the thread progresses as pointed out. I'm not sure how safe it is to presume either way that MOST don't engage in contact play or MOST do.

I do agree that people that do not engage in bdsm and have a strict d/s dynamic are most likely not violating the law, as long as they aren't engaging in any other illegal activities.

I think it's also possible that we tend to view things from our side of the fence. While you may live in an area that is more progressive and understanding of these things, it doesn't stand to reason that is true for everyone else. As you point out, discretion in the area of law enforcement and prosecution makes a big difference. I agree. It is not safe to assume that discretion exists everwhere else, nor does it mean that the activity is still not proscribed by law. It is still a risk and discretion can change with the changing of the guard at a moment's whim.

< Message edited by laurell3 -- 6/6/2010 8:10:50 AM >

_____________________________

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.

(in reply to LadyCimarron)

Post #: 54

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:08:20 AM

MarcEsadrian

Posts: 852
Joined: 8/24/2008
Status: offline

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.

Especially in terms of the Violence Against Women Act, police must justify why an arrest was not made in light of a much more aggressive policy on probable cause. It's easy to see why those who practice BDSM, especially hetero couples with a M/f arrangement, are leery of having the boys in blue on their doorstep. Probable cause includes simply evidence of injury; the police do not need to witness assault to suspect it. Some states have gone further with adopting mandatory arrest policies in cases where any suspicion of domestic abuse is occurring.

Beside this sits Assault and Battery, Trafficking Victims Protection, and False Imprisonment laws which can and have been used (sometimes in tandem) to rain on a parade or two. That said, you're right; there are no specific laws or acts that unequivocally state BDSM is illegal, but there are several that can justify one being arrested for it. The public exposure, time wasted in litigation and worry over resulting criminal penalties is what makes the idea of possibly being arrested not so fun, regardless if the BDSM nature of the relationship itself is easy to defend once it lands in a court room.

_____________________________

Omnes una manet nox

Founder, Humbled Females

(in reply to LadyCimarron)

Post #: 55

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:17:58 AM

laurell3

Posts: 6577
Joined: 5/5/2005
Status: offline

quote:

ORIGINAL: LittleBroken

quote:

ORIGINAL: laurell3

I'm very sorry that happened to you LB. Many of use take risks. It's never good when those risks are realized and become reality.

To tell you the truth tonight has been a real bastard for me in revealing what has been eating me up.
It's bloody hard to be this revealing, but in this case I want to put myself out there as an example of what happens when you aren't smart.
Of what happens when you aren't assertive.

You see, we discussed safe words....signals....all were ignored from the so called Dom.
This would not have happened if I had asked for the services of a unbiased observer to be in the room.

There are risks and traps for the new and the naive and the uninformed.
I hope a newbie can learn from what I've shared.

Thank you for sharing. I know it's difficult and again, I'm sorry that happened. We all make mistakes.

And if you dont' mind, this brings up a good point. I think THIS is why you don't see many consentual assault cases publicized. If everything goes well, why would we know? It's only usually where that line is crossed that it becomes an issue and in that case it's unlikely to be highly publicized. I haven't done thorough research on it, nor will I, wikipedia and general net searches aren't exactly the most legitimate legal source to find actual caselaw on non-publicised cases however.

_____________________________

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.

(in reply to LittleBroken)

Post #: 56

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:27:43 AM

LadyCimarron

Posts: 625
Joined: 12/29/2009
Status: offline

No this is not about me. I only used myself as an example about bdsm activities. I was only pointing out that contact play is a small part of the overall bdsm experience. I am not presuming either that most do not engage in contact play; only that most BDSM activites in general do not involve contact play. Yes some people do engage in contact play and some don't but it is still far reaching to believe that most of WIITWD is illegal. SOME yes. MOST no.

And on the contrary. I probably live in one of the most restricted areas in the country. Small town Mississippi. No groups or clubs within a hundred miles. I haven't even met any other kinksters in my own city (last week, I met two that lived just a few miles away). One thing I do know for a fact is that cops in this area do run across lifestylers in some of the calls they answer to residences and no lifestyle related arrests have ever been made in this area. So maybe we are a bit more legally progressive than we are socially. And I do understand not everyone lives in progressive areas. That is why I keep emphasizing get to know your laws.

< Message edited by LadyCimarron -- 6/6/2010 8:36:53 AM >

(in reply to laurell3)

Post #: 57

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:30:15 AM

LittleBroken

Posts: 207
Status: offline

quote:

ORIGINAL: laurell3

quote:

ORIGINAL: LittleBroken

quote:

ORIGINAL: laurell3

I'm very sorry that happened to you LB. Many of use take risks. It's never good when those risks are realized and become reality.

To tell you the truth tonight has been a real bastard for me in revealing what has been eating me up.
It's bloody hard to be this revealing, but in this case I want to put myself out there as an example of what happens when you aren't smart.
Of what happens when you aren't assertive.

You see, we discussed safe words....signals....all were ignored from the so called Dom.
This would not have happened if I had asked for the services of a unbiased observer to be in the room.

There are risks and traps for the new and the naive and the uninformed.
I hope a newbie can learn from what I've shared.

Thank you for sharing. I know it's difficult and again, I'm sorry that happened. We all make mistakes.

And if you dont' mind, this brings up a good point. I think THIS is why you don't see many consentual assault cases publicized. If everything goes well, why would we know? It's only usually where that line is crossed that it becomes an issue and in that case it's unlikely to be highly publicized. I haven't done thorough research on it, nor will I, wikipedia and general net searches aren't exactly the most legitimate legal source to find actual caselaw on non-publicised cases however.

The staff of the dungeon found me and cut me down and took photos of my back, buttocks and thighs.

But really how could I seek legal recourse?
I was WILLINGLY in a place of torture/S&M.
I WILLINGLY agreed to allow myself to be tied to a tripod with a ball gag in my mouth.
There was no written agreement as to safe words or signals, no observers.
His word against mine as to the agreed limits of the scene.

No lawyer would touch me.

(in reply to laurell3)

Post #: 58

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:34:08 AM

AQuietSimpleMan

Posts: 1410
Joined: 11/15/2009
Status: offline

LB also part of your problem is being in Austrailia where the courts as lax on Violence toward women in the first place.

I only wish to say that I am amazed by your strength and by your ability to be as open as you are.

You are something special, I believe that.

QSM

_____________________________

Guy Stud =Vs= Girl Slut ~~ Debate ENDED!

"If a Key opens many locks, then it is a Master Key, If a Lock is opened by lots of keys, then it is a Shitty Lock"

(in reply to LittleBroken)

Post #: 59

RE: BDSM LEGAL OR ILLEGAL... - 6/6/2010 8:41:13 AM

DommeKeliDallas

Posts: 311
Joined: 1/27/2008
Status: offline

quote:

ORIGINAL: LadyCimarron

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.

I live in Dallas and REALLY appreciate this information.

AWESOME!

(in reply to LadyCimarron)

Post #: 60

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