photo credit: ilovememphis/
As a com­munity of smart indi­vidu­als we would be fool­ish to believe that there is no abuse in the BDSM life­style. Due to the nature of our inter­ac­tions and the many indi­vidu­als I have met who par­ti­cip­ate in this life­style I believe that we are even more prone to abuse than most other rela­tion­ship and life­style choices out there. While phys­ical abuse is prob­ably the most vis­ible form, I would stip­u­late that emo­tional abuse is far more com­mon within our life­style. Any form of abuse is unac­cept­able and I wanted to speak out on the topic as it is dear to my heart.

I am no law­yer and I gain­ing my insight from care­fully study­ing some of the more rel­ev­ant doc­u­ments on this topic which you can find all over the place online. My inter­pret­a­tions might be wrong, they are def­in­itely my own, so please take that into con­sid­er­a­tion when read­ing this.

What is most import­ant to our life­style is the concept of con­sent and the con­text that con­sent is given in. The topic of con­sent it a very com­plic­ated one and law­yers all over the world have devoted full books to the topic. I doubt that I can clear up things, what I am talk­ing about is an attempt to sort some of my own ideas while try­ing to give you an idea of what you might wish to invest­ig­at­ing fur­ther and focus on under­stand­ing for your­self.  The concept of con­sent is almost equally applied to all law across the world. The actual applic­a­tion and the con­text that con­sent is being per­ceived in is very spe­cific to the jur­is­dic­tion you are in. The actual concept itself is simple.

I would like to start by repeat­ing a defin­i­tion found at Legal-Dictionary to bet­ter define what we are talk­ing about:

Vol­un­tary Acqui­es­cence to the pro­posal of another; the act or res­ult of reach­ing an accord; a con­cur­rence of minds; actual will­ing­ness that an act or an infringe­ment of an interest shall occur.
Con­sent is an act of reason and delib­er­a­tion. A per­son who pos­sesses and exer­cises suf­fi­cient men­tal capa­city to make an intel­li­gent decision demon­strates con­sent by per­form­ing an act recom­men­ded by another. Con­sent assumes a phys­ical power to act and a reflect­ive, determ­ined, and unen­cumbered exer­tion of these powers. It is an act unaf­fected by Fraud, duress, or some­times even mis­take when these factors are not the reason for the con­sent. Con­sent is implied in every agreement.

So we are told that con­sent is a form of Acqui­es­cence and that is an act­ive act of reason and delib­er­a­tion. It gets con­fus­ing when we try to under­stand how con­sent can­not be influ­enced by Fraud, duress or mis­takes. The defin­i­tion above clearly only con­cerns itself with the actual defin­i­tion of what con­sent is and not how we arrive at such a con­sent. This is import­ant to any­one in the BDSM com­munity as it quite blatantly makes obvi­ous that hav­ing con­sent or think­ing that you do, does not neces­sar­ily mean the law under­stands it the same way. How did you arrive at that con­sent? Read­ing on we can see:

In the con­text of rape, sub­mis­sion due to appre­hen­sion or ter­ror is not real con­sent. There must be a choice between res­ist­ance and acqui­es­cence. If a woman res­ists to the point where addi­tional res­ist­ance would be futile or until her res­ist­ance is for­cibly over­come, sub­mis­sion there­after is not consent.

This state­ment, as simple and logical as it might seem triggered a slew of ques­tions within me. What does duress mean? What is con­sidered sub­mis­sion due to appre­hen­sion and when does it become res­ist­ance instead of acqui­es­cence? Just like the defin­i­tion of con­sent is not clear cut the defin­i­tion of duress is not either. These two defin­i­tions seem to encom­pass best what I would like to express in the con­text of our lifestyle:

Unlaw­ful pres­sure exer­ted upon a per­son to coerce that per­son to per­form an act that he or she ordin­ar­ily would not perform.

[…] Duress also exists where a per­son is coerced by the wrong­ful con­duct or threat of another to enter into a con­tract under cir­cum­stances that deprive the indi­vidual of his or her volition.

as well as

DURESS. An actual or a threatened viol­ence or restraint of a man’s per­son, con­trary to law, to com­pel him to enter into a con­tract, or to dis­charge one. 1 Fairf. 325.

To me this would indic­ate that whenever I am enga­ging in a play situ­ation I best have made sure that any­thing the per­son would like to con­sent to has been agreed upon before­hand. Which brings us to another inter­est­ing fact. The law recog­nises dif­fer­ent forms of consent.

Con­sent is either express or implied. Express, when it is given viva voce, or in writ­ing; implied, when it is mani­fes­ted by signs, actions, or facts, or by inac­tion or silence, which raise a pre­sump­tion that the con­sent has been given.

After read­ing the above I star­ted think­ing and the scen­ario I am pon­der­ing is a quite com­mon one. Let us assume a girl agreed for me to tie her up in a bond­age pos­i­tion we agreed on. This con­sent has been expressly given, viva voce. By put­ting her into a restraint pos­i­tion I am put­ting her under duress. So as the play pro­gresses and I pull out my flog­ger to work over her ass she does not say any­thing. That to me means that con­sent is implied as she is not act­ing in a way that would indic­ate oth­er­wise. No safe word, no extreme expres­sions of dis­com­fort and so on. How­ever if that girl took me before a court I would not be so sure that I was safe, this might be con­sidered sub­mis­sion due to appre­hen­sion. After all her implied con­sent was given under duress and that might null and void the implied con­sent. I might have been allowed to tie her up, yet tak­ing the flog­ger to her ass could eas­ily get me pro­sec­uted for assault and/or bat­tery. Other than the situ­ations above when it comes to crim­inal law and assault, as well as bat­tery the law is very clear and states:

ASSAULT, crim. law. An assault is any unlaw­ful attempt or offer with force or viol­ence to do a cor­poral hurt to another, whether from malice or wan­ton­ness; for example, by strik­ing at him or even hold­ing up the fist at him in a threat­en­ing or insult­ing man­ner, or with other cir­cum­stances as denote at the time. an inten­tion, coupled with a present abil­ity, of actual viol­ence against his per­son, as by point­ing a weapon at him when he is within reach of it. 6 Rogers Rec: 9. When the injury is actu­ally inflic­ted, it amounts to a bat­tery. (q.v.)

Get­ting down to the abuse issue it becomes blurred, since abuse is defined as:

ABUSE. Every thing which is con­trary to good order estab­lished by usage. Merl. Rep. h.t. Among the civil­ians, abuse has another sig­ni­fic­a­tion; which is the destruc­tion of the sub­stance of a thing in using it. For example, the bor­rower of wine or grain, abuses the art­icle lent by using it, because he can­not enjoy it without con­sum­ing it. Leg ; El. Dr. Rom. Sec. 414. 416.

Look­ing at it through the eyes of the law there is prob­ably an end­less slew of abuse and non-consent any­where in the world, how­ever it seems that our com­munity is much more prone to it due to the phys­ical inter­ac­tions and the type of inter­ac­tions indi­vidu­als choose to inter­act with. While this might not be so pre­val­ent in long term rela­tion­ships where beha­viour can be ana­lysed over months and years and thus some form of implied con­sent can be con­struc­ted, I would sug­gest we pay very close atten­tion to the sort of bound­ar­ies we set each other when we are in a play envir­on­ment with a part­ner we might not know very well.

In this par­tic­u­lar case the law clearly is biased towards those wish­ing to high­light an issue of abuse or non-consent and I believe it is good that way. This does not only apply to phys­ical abuse, yet emo­tional abuse as well. This is called psy­cho­lo­gical abuse and also defined:

Psy­cho­lo­gical abuse or emo­tional abuse is a form of abuse char­ac­ter­ised by a per­son sub­ject­ing or expos­ing another to beha­viour that is psy­cho­lo­gic­ally harm­ful.
Psy­cho­lo­gical abuse is the will­ful inflic­tion of men­tal or emo­tional anguish by threat, humi­li­ation, or other verbal or non­verbal con­duct. It is often asso­ci­ated with situ­ations of power imbal­ance, such per­haps as the situ­ations of abus­ive rela­tion­ships and child abuse; how­ever, it can also take place on lar­ger scales, such as Group psy­cho­lo­gical abuse, racial oppres­sion and bigotry.

While this is a broad defin­i­tion and the Dia­gnostic and Stat­ist­ical Manual of Men­tal Dis­orders sees almost all of us as sexu­ally devi­ant (see DSM-IV-TR) there is simply no reason for any­one in the life­style not to report either form of abuse to the author­it­ies when it is being wit­nessed. I think we all have been guilty of mis­in­ter­pret­ing what is accept­able in the vanilla world versus what is accept­able in the BDSM world. We might have our own under­stand­ing of where we want to set the bar in terms of phys­ical abuse and the use of beha­viour and voice in terms of physiolo­gical abuse, yet abuse, is still abuse. It is our duty to report these incid­ents to the police regard­less of whether every­one else feels that it was an issue of abuse or not. If you feel that this is an issue that needs to be brought up with the author­it­ies then it is your duty as a cit­izen to do so. In the end this kind of beha­viour will not only strengthen the cred­ib­il­ity of the BDSM com­munity with the rest of the world, it will also estab­lish an under­stand­ing in the Police and Law com­munit­ies that we do not tol­er­ate unac­cept­able and harm­ful beha­viour. First and fore­most we need to estab­lish a beha­viour and con­duct of what is accept­able within our com­munity before me can expect any­one else to accept that standard.

The ques­tion of what is nor­mal, what defines the norm is a very old one and it is rather depend­ant on the cir­cum­stances. I do believe that there needs to be some com­mon ground regard­less. Often we excuse beha­viour which makes us uncom­fort­able as some­thing they are entitled to because that is simply “their dynamic”, this kind of think­ing simply per­petu­ates the prob­lem.  It will take time to cal­ib­rate our responses to be sens­ible and geared towards an applic­a­tion in BDSM, how­ever that cal­ib­ra­tion will never hap­pen unless we start doing do those reports.

Whether they are unspoken or spoken, rules in the com­munity are well estab­lished and not know­ing does not pro­tect you from con­sequences. A friend of ours just chron­icled that on her blog. While the whole incid­ent might be dis­missed by some in the com­munity as a “slap on her ass”, this is a par­tic­u­lar form of abuse. If I was her or the per­son con­trolling her, I would have called the police right there and then and found out who the cul­prit was. not only to jerk the per­son back into real­ity but to estab­lish that there are con­sequences when you do not fol­low the well estab­lished expect­a­tions and rules of the com­munity. There is abuse and non-consent in BDSM and we are fools to believe that it is just in a very select few cases. I urge every­one to open their eyes and start doing some­thing about it!