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Karmastic -> RE: slave contract (4/19/2012 11:42:36 AM)
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ORIGINAL: Bhruic
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ORIGINAL: LafayetteLady
It isn't "changing their story." It is revoking consent.
Just speaking about consent... you can't revoke consent AFTER the consensual activities have happened, presuming those activities proceeded as agreed. If you do, that is changing your story vis a vis whether consent was given.
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Any contract that is based on something illegal (as in you can't consent to assault) or is completely unreasonable (as in must be naked on your knees at all times) can not be held as valid.
I presume you are talking specifically about BDSM... as many types of consensual assault are perfectly legal, such as sports, or open heart surgery. I agree with you that pretty much any slave contract, involving sexual activities such as you note, would not be considered reasonably binding under the law. Primarily because contracts require mutual consideration to be legally enforceable, and courts only recognize tangible things such as money or property as consideration. And secondly because sex is so fraught with abuse that the courts choose to err on the side of caution.
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The only possible thing any D/s contract could establish is that at one time the two were involved in activities both consented to, but anything after consent is "removed" becomes assault or abuse. Then of course there is the concept that the s-type was coerced or pressured or forced to sign any "contract," so all activities were abusive.
That is true, I suppose, in any case where a contract is signed under duress... But I believe the onus is on the person contesting the contract to prove duress... However I agree that in the case of some kind of sexual contract, the courts will err on the side of the perceived victim.
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Quite frankly, anyone who wants to actually bring any type of "BDSM" contract into court is hanging themselves out to dry. In an assault case, it isn't going to help, and in any type of case involving the dissolution of a relationship, it is going to destroy both parties.
I agree, except in the case where a third party has brought forth charges against a D/s couple for whatever reason, whether it be a disgruntled third person wishing to cause them mischief, or a policeman who has come across the scene. In that case, acting together, a written agreement may well establish the consensual nature of their activity. Although I am coming to agree that in some conservative jurisdictions, even that may not help.
It doesn't seem to be a black or white matter though, as far as I can tell from legal sources.
Please don't back off on ANYTHING you've said. Your legal analysis has been 100% correct (except where you backed off). The points raised (that you tried to address) are a mish-mash of totally incorrect and misguided lack of understanding of the law.
In summary, as you stated or alluded to:
• A breach of BDSM contract could be actionable for damages as a remedy, but service contracts are not usually enforceable as the remedy.
• Courts are VERY lax on what constitutes consideration; the seminal (not to be confused with seaminal [:@] US Sp Ct case allowed a peppercorn as consideration. Emotional support is certainly the basis of marriage, and is considered consideration.
• A contract that involves physical violence is perfectly legal, and there's obvious practical limits to that, but still well within BDSM.
• It's absurd to suggest that consent can be withdrawn or "removed" for past actions. A claim might arise that consent was exceeded, and that would be decided as a fact, unless the violence exceeded norms so much that the judge could hold it unreasonable as a matter of law.
• Contracts made under duress are never enforceable, but this is irrelevant and wasn’t part of the discussion.
• It's ludicrous to suggest that bringing in a BDSM contract into court to defend a battery charge or claim is "hanging themselves out to dry" or "won't do any good". I can't think of a better defense to battery than having a signed contract where the victim agreed to the violence. That someone would say this just blows my mind.
This person you replied to seems to make a habit of acting like she understand the law, but each word she utters shows the opposite. I only say this because she went off on a really angry and uncalled for fantasy legal rant trying to bash me for a bunch of things I never posted. And when I corrected her that I never said any of those things, rather than being an honorable adult and admitting she made a mistake, she simply ramped up the vitriol, that time slamming the legal disclaimer in my profile (at least she finally read what she was ignorantly bashing).
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