When is a spanking illegal in your state as it is in California?

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When is a spanking illegal in your state as it is in Ca... - 4/25/2012 12:02:17 AM

Pyramus

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I remember when going through orientation at Edges a long time ago a specific 'protection' procedure for police raids.

Fundamentally, we needed to know ahead of time that a police raid might entail quick customer actions because some typical D/s play activities are, we were told, illegal in California, even when consensual.

For example, it wouldn't otherwise have been obvious that any spanking that a grand jury would deem 'harmful' is actually illegal in California - but the definition of harmful could simply be leaving marks or a slight bruise.

Does anyone have more information about which consensual D/s activities are illegal?

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 12:07:06 AM

CastleRock32

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My guess is that this varies so widely from state to state that we won't be able to get a very clear answer on it, but I'm hoping some legal minded types can offer some answer on this!

(in reply to Pyramus)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 3:35:29 AM

Caius

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Well, you pretty much the nail on the head, Castle; each state varies considerable in this regard. Actually, few laws are likely to explicitly read as allowing for prosecution in such scenarios, but a majority of states have laws which could probably be stretched, under some context or another, to allow charges to be pressed even in the case of consensual activities, especially considering that few assault laws are written in such a manner where consent is even mentioned under the criteria for bringing charges. However, the thing you have to bear in mind is that it's one thing to indict, quite another to get an actual conviction. It's going to be hard to find a jury who will universally elect to punish someone for private consensual activities, and the political push-back most D.A.'s would face mean it's not likely to ever happen outside of cases with particularly zealous officials in very conservative areas. Even then, we're usually talking about heavily extenuating circumstances. The thing you must be mindful of (in the legal sense and the moral, really) is situations where the bottom could be perceived as unable to legally form consent; even if they say they did and oppose the charges, a person being heavily intoxicated, for example, would give any prosecutor a good shot if he wanted to go after you. Also bear in mind that the type of activity has significant impact on how vulnerable you'd be. That is, bullwhip =/ spanking, of course.

< Message edited by Caius -- 4/25/2012 4:03:55 AM >

(in reply to CastleRock32)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 3:54:33 AM

LaTigresse

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quote:

ORIGINAL: Pyramus

I remember when going through orientation at Edges a long time ago a specific 'protection' procedure for police raids.

Fundamentally, we needed to know ahead of time that a police raid might entail quick customer actions because some typical D/s play activities are, we were told, illegal in California, even when consensual.

For example, it wouldn't otherwise have been obvious that any spanking that a grand jury would deem 'harmful' is actually illegal in California - but the definition of harmful could simply be leaving marks or a slight bruise.

Does anyone have more information about which consensual D/s activities are illegal?

I would suggest you contact an attorney in the state you are concerned about.

I've no idea what is legal and what isn't, in the state I reside in. It's not a concern of mine.

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 3:55:29 AM

angelikaJ

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quote:

ORIGINAL: Pyramus

I remember when going through orientation at Edges a long time ago a specific 'protection' procedure for police raids.

Fundamentally, we needed to know ahead of time that a police raid might entail quick customer actions because some typical D/s play activities are, we were told, illegal in California, even when consensual.

For example, it wouldn't otherwise have been obvious that any spanking that a grand jury would deem 'harmful' is actually illegal in California - but the definition of harmful could simply be leaving marks or a slight bruise.

Does anyone have more information about which consensual D/s activities are illegal?

The issue isn't one of harm.
It is that both assault and battery are illegal even if the other party has given consent.

Assault is when you perform an act that is likely to result in the application of force to another person. There is no requirement that an assault must actually result in a violent or forceful act upon another, only that you:

1)attempted to commit such an act

2) had the ability to do so.

Battery is when you actually use force or violence against another person.

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 3:59:09 AM

LadyPact

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The last time I was at Edges was somewhere around two years ago when they were shutting down in hope for a new location. I think I mentioned that visit the last time you swung around the forums, OP.

In some states, a person technically can't consent to anything that would be considered assault if you walked up and committed the same act on the street. Be especially careful in those states that have tougher laws against domestic violence. A lot of people don't know it, but you don't have to live with your play partner to rack up those charges which do carry stiffer penalties.

It's really important that you don't just take somebody's word over the internet about what your legal concerns will be regarding BDSM. (In fact, the site recommends that you don't.) A number of munch groups, clubs, and major events will often have a presentation regarding BDSM and the law.

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(in reply to Caius)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 4:29:19 AM

Caius

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quote:

ORIGINAL: LadyPact

It's really important that you don't just take somebody's word over the internet about what your legal concerns will be regarding BDSM.

Hey, why did you respond to my post when you said that? But all joking aside, yeah this is a good point for the OP or anyone else reading to remember. Edited to add: On the other hand, I don't think I'd recommend munches and such as ideal authorities in these matters either, though they may have a greater chance in general of being acquainted with the relevant state law and local authorities.

< Message edited by Caius -- 4/25/2012 4:36:54 AM >

(in reply to LadyPact)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 4:50:30 AM

FirmlyTied

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In my very rural county things are tougher than the state as a whole. Concern not only for the actual statutes; but the local prosecutor’s interest in applying them also has to be considered. If the prosecutors have the time or need for publicity enters into how zealously those statutes will be applied. Generally the local cops do not want to get involved unless someone goes to the hospital or marks are found on anyone appearing to be underage. If pushed they will charge Domestic Abuse against everyone and let the prosecutor / judge take a crack at the case. In a non sexual context spanking a child here is allowed, marks visible from that spanking will get Child Protective Services involved in everyone’s lives for at least three to six months while everyone’s background and lives are shuffled through. That is just from the anonymous complaint filed by anyone who may see the marks or for whatever reason express legitimate concern for the child. With substantial trouble if those charges become “founded”. Though I have never seen it here, just over the state line in Maryland from me I did have friends charged because they were aware of the consensual light spanking / flogging play of their then seventeen year old daughter (not living with them) and the daughter’s friend. Cost them thousands and thousands and about two years of trouble to avoid lifetime placement on the sex offender registry. Again, more than the statutes the local situation came into play when some unknown person filed a complaint and allowed the state into their lives.

(in reply to LadyPact)

Post #: 8

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 5:03:27 AM

Madame4a

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Really... what's below is what you need to worry about... nationwide, its not about specific activities.. NO ONE can consent to assault... and most SM amounts to assault...

quote:

ORIGINAL: angelikaJ

quote:

ORIGINAL: Pyramus

I remember when going through orientation at Edges a long time ago a specific 'protection' procedure for police raids.

Fundamentally, we needed to know ahead of time that a police raid might entail quick customer actions because some typical D/s play activities are, we were told, illegal in California, even when consensual.

For example, it wouldn't otherwise have been obvious that any spanking that a grand jury would deem 'harmful' is actually illegal in California - but the definition of harmful could simply be leaving marks or a slight bruise.

Does anyone have more information about which consensual D/s activities are illegal?

The issue isn't one of harm.
It is that both assault and battery are illegal even if the other party has given consent.

Assault is when you perform an act that is likely to result in the application of force to another person. There is no requirement that an assault must actually result in a violent or forceful act upon another, only that you:

1)attempted to commit such an act

2) had the ability to do so.

Battery is when you actually use force or violence against another person.

_____________________________

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Scratches all down my back to keep me right on

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 5:09:27 AM

ResidentSadist

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As mentioned, it varies from state to state.

In Florida, as a legal guardian, you are allowed to spank those in your custody. The case law examples I studied were in reference to parents and children. I was in an M/s poly and studied this because corporal punishment was a form of discipline in my house. I also wanted to know what my rights were if I took legal guardianship of my slaves, giving the girls my last name and legal dominion over them.

ETA: I don't know what the laws say about consensual "assault" (spanking) on someone that isn't legally related to you.

< Message edited by ResidentSadist -- 4/25/2012 5:12:51 AM >

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 5:37:47 AM

LadyPact

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quote:

ORIGINAL: Caius
Hey, why did you respond to my post when you said that? But all joking aside, yeah this is a good point for the OP or anyone else reading to remember. Edited to add: On the other hand, I don't think I'd recommend munches and such as ideal authorities in these matters either, though they may have a greater chance in general of being acquainted with the relevant state law and local authorities.

I think you misunderstood Me. The presenter that I was thinking of who specifically does have a class called "BDSM and the law" is Jay Wiseman. He has done that particular presentation at munch groups in some instances. In a major city, it might be possible to see that particular class at a group, rather than a club or an event.

Here's the link info: Jay Wiseman

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(in reply to Caius)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 5:50:35 AM

Caius

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Well, without having looked at that link and thus not speaking as to that fellow in particular, the info you get at munches, clubs, or associations of that sort in general is going to vary considerably in it's veracity. Of course, really, as LaTiggrese mentioned earlier, there's no substitute for an actual legal authority. I'm just saying that I don't know that "average face-to-face bdsmer" > "average internet bdsm forum user" by a wide margin in this scenario. Of course if we're talking about this forum in particular....ehhhhhhhh... ;)

(in reply to LadyPact)

Post #: 12

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 6:22:09 AM

Madame4a

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From: Washington, DC area
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Actually... I think you can find a great deal of knowledge in local communities.. particularly folks whohave connections to NCSF -- they are versed on the law... and local reps have a lot of local/state knowledge. I actually think that munches and clubs are a good source. As you state, however, there is no substitute for real legal advice.. and I suppose I shouldn't assume that most people realize that.

quote:

ORIGINAL: Caius

Well, without having looked at that link and thus not speaking as to that fellow in particular, the info you get at munches, clubs, or associations of that sort in general is going to vary considerably in it's veracity. Of course, really, as LaTiggrese mentioned earlier, there's no substitute for an actual legal authority. I'm just saying that I don't know that "average face-to-face bdsmer" > "average internet bdsm forum user" by a wide margin in this scenario. Of course if we're talking about this forum in particular....ehhhhhhhh... ;)

_____________________________

You're crazy bitch
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Scratches all down my back to keep me right on

(in reply to Caius)

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 6:25:38 AM

pompeii

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From: Silicon Valley, San Jose, California
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quote:

ORIGINAL: Pyramus
typical D/s play activities are, we were told, illegal in California, even when consensual

Assault is saying you're going to hit someone; battery is hitting them.

Both are illegal.

Even with consent!

(in reply to Pyramus)

Post #: 14

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 6:33:38 AM

sunshinemiss

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I don't know.

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 6:59:27 AM

DommesLesEnigma

Posts: 108
Joined: 2/12/2012
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quote:

ORIGINAL: pompeii

quote:

ORIGINAL: Pyramus
typical D/s play activities are, we were told, illegal in California, even when consensual

Assault is saying you're going to hit someone; battery is hitting them.

Both are illegal.

Even with consent!

You just have to be careful and cover your ass as much a possible about who you play with. There are many drama seekers out there. There is also much abuse.

But if the above quote was really enforced to the letter. I think 99.9% of America would have had time in prison.

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RE: When is a spanking illegal in your state as it is i... - 4/25/2012 7:02:55 AM

Exidor

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Joined: 12/31/2011
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quote:

ORIGINAL: Madame4a
Really... what's below is what you need to worry about... nationwide, its not about specific activities.. NO ONE can consent to assault... and most SM amounts to assault...

A strict interpretation of that might put surgeons and dentists in an interesting legal position...

What's the difference between paying a domme for some edge play and paying a surgeon to lop out a section of ulcerous intestine? Does the written law slice that fine?

(in reply to Madame4a)

Post #: 17

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 7:22:18 AM

Caius

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Joined: 2/2/2005
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quote:

ORIGINAL: Exidor

quote:

ORIGINAL: Madame4a
Really... what's below is what you need to worry about... nationwide, its not about specific activities.. NO ONE can consent to assault... and most SM amounts to assault...

A strict interpretation of that might put surgeons and dentists in an interesting legal position...

What's the difference between paying a domme for some edge play and paying a surgeon to lop out a section of ulcerous intestine? Does the written law slice that fine?

There's no shortage of legal precedents where supposedly medical procedures were found to be criminal assaults. Performing a surgery under the influence, or when they knew the procedure was medically unwarranted and hazardous, as just two examples. Anyway, if you really wanted to play devil's advocate with that questioned, you'd be better advised to use the example of a plastic surgeon, whose practices are often of more questionable medical value than the average surgeon.

< Message edited by Caius -- 4/25/2012 7:23:01 AM >

(in reply to Exidor)

Post #: 18

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 7:22:19 AM

Madame4a

Posts: 2045
Joined: 2/4/2008
From: Washington, DC area
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health... and life saving safety...

big difference...

quote:

ORIGINAL: Exidor

quote:

ORIGINAL: Madame4a
Really... what's below is what you need to worry about... nationwide, its not about specific activities.. NO ONE can consent to assault... and most SM amounts to assault...

A strict interpretation of that might put surgeons and dentists in an interesting legal position...

What's the difference between paying a domme for some edge play and paying a surgeon to lop out a section of ulcerous intestine? Does the written law slice that fine?

_____________________________

You're crazy bitch
But you f*ck so good, I'm on top of it
When I dream, I'm doing you all night
Scratches all down my back to keep me right on

(in reply to Exidor)

Post #: 19

RE: When is a spanking illegal in your state as it is i... - 4/25/2012 7:42:17 AM

AthenaSurrenders

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Joined: 3/15/2012
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-fast reply-

I know this thread is dealing with the US and I'm in the UK so I can't give any firm answers, but just thought this might be interesting to share.

I have worked with the police and in criminal courts in the UK. Here any type of deliberate physical contact, if non-consensual can be considered assault by the legal definition. If we're co-workers and you give me a friendly pat on the back, that could technically be construed as an assault. Granted the chances of it ever coming to court are minuscule (and without injury this would be the lowest level of assault charge), but the law is that wide in it's definition, so black and white answers don't really exist. In this case, by definition, if I have consented, it ceases to be an assault. Likewise a spanking would come under this.

Now what I don't know is how this works on a higher level assault charge - can I consent to being caned until the skin breaks? Can I consent to something which will leave me with scars? I am inclined to say that I can consent in the eyes of the law - I can consent to body modification leaving permanent scars for example. I'd be interested if anyone more knowledgeable than me knows how this would play out in court.

If the police were to become involved, the victim could chose to deny an assault had taken place or refuse any details. The police however may chose to arrest the alleged perpetrator any way (as long as there are injuries or other evidence to suggest an assault has taken place, such as a witness, or a 999 call). In a private bedroom situation the chances of a conviction without the victim's cooperation are very slim. In a public play situation there would presumably be witnesses to testify that the acts were consensual.

There are laws compelling the police to take reports of assault seriously. Procedures are in place particularly to protect victims of domestic violence who will often defend the perpetrator out of fear of the consequences. That said the police don't go out of their way looking to criminalise people - there are enough real bad guys out there that take up their time without having to search for excuses to arrest people for getting their kink on. As long as no one ends up dead, and the neighbours aren't calling the emergency number every weekend because they're frightened by the sounds of screams, you will be happily left alone to get your kink on.

(As a side note, consent is difficult to prove or disprove if both parties tell a different story. That said I was once involved with a sexual assault allegation in which dirty text messages, videos of the couple engaged in specific sexual acts and the couple's collection of sex toys were used as evidence to show likely consent. Wash your toys people - you never know if they're going to end up passed around a courtroom in an evidence bag)

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