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Old 05-11-2010, 06:02 PM   #1
Precious
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Default BDSM illegal?

So, here is something I always wondered. In the united states (I dunno about other countries since I don't live there) it's illegal to like hit your spouse or anyone really. That being said, would some aspects of BDSM actually be illegal? There is no law against calling people names or telling them to do stuff, but spanking and (tying up?), and that such, would that be considered illegal by the country if like, a police officer walked in to find a wife spanking her husband (weird scenario I know just go with it)
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Old 05-11-2010, 06:09 PM   #2
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I'm not actually certain, but I recall I was recently looking at the Wikipedia page on BDSM, and it's got a section on it's legality in a few areas.
I remember it because I remember it pretty much saying that here in the UK it's definitely illegal.
I couldn't care less about that, and I admit to having broken one or two laws in the past because I didn't really care about them, and if they try to haul me off on it, then I'll give them a an argument to think over. Who are they to tell me I can't submit myself willingly to Master? What right to they have to mess with other people's relationships, and how they choose to live them?
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Old 05-11-2010, 06:21 PM   #3
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Yes some aspects are technically illegal

(but we do them anyways ;D)
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Old 05-11-2010, 06:40 PM   #4
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American law is based on the principle that when a crime has been committed against a victim, an offense has happened against the State, and therefore it is the State's obligation to investigate, apprehend, and punish the criminal. In contrast, early medieval law (from which American law indirectly grew), the State had no obligation and left it to the victim to punish the criminal through retribution. This is why the State maintains a police system, judicial system, and penal system, things entirely lacking in early medieval society. Seen in this light, our system is pretty damn good.

What does this mean for BDSM? when I hit you, I haven't offended you, I've offend the State. Crime is really committed against the State, not the victim. Your consent to being hit is irrelevant; essentially the State has to consent to me hitting you, which it doesn't. So most d/s activities that would be illegal if you didn't consent to it is still illegal for the Dom to do even if you do consent.

That said, if the sub won't press charges, it is hard for the police to press charges unless there are clear reasons to do so otherwise. The presence of uninvolved witnesses increases the chance to draw prosecution, so playing in public becomes more risky. If the sub dies or is injured seriously enough, expect prosecution.

Large city Police departments might prove a little more tolerant, but don't count on it.
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Old 05-11-2010, 06:44 PM   #5
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Quote:
(but we do them anyways ;D)
agreed
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Old 05-11-2010, 07:19 PM   #6
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Sebastian you're always so informative!! I had a feeling it was something like that, it did just make me wonder, for long distance relationships its probably a bit easier since they are do it to themselves over webcam- though it is illegal to commit suicide i wonder if it illegal to hit yourself
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Old 05-11-2010, 07:25 PM   #7
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sabastian is 100% correct. there are some aspects of bdsm that would be considered crimes, if they were not consentual. you may consent to being slapped and whipped, but witnesses may not consent to viewing it. best advice, keep it indoors and limit the chance of offending someone.
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Old 05-11-2010, 10:07 PM   #8
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Sparrow, I'm not sure that you can legally consent to being slapped (cropped, whipped, flogged, etc.) because if you could, abusers would legalize their crimes by intimidating their victims into consenting to the violence. The major area of d/s play where consent _is_ legally significant is sex itself. While we may play out a rape scene, it is not legally rape. In contrast, a torture scene is, essentially, legally a form of assault. In England, whence our legal system substantially arose, there was a case in which 16 men were arrested for engaging in sm activities. The 15 tops were charged with assault, the 1 bottom (what a ratio!) was charged with aiding and abetting his own assault. They pleaded consent, but the court rejected this, saying that one cannot give consent to one's own assault.

A useful parallel to illuminate things: If I hand you a gun and ask, tell, dare you to shoot me, if you actually shoot me, you are still committing murder or a related crime, despite my invitation.

One complication to all this: almost all violent crime is handled under state law rather than federal law, and states have, over the years, made different rulings about the exact nature of consent and how it operates in the question of consent to assault. In California, the law stipulates that the only legal situation in which one may consent to assault is in sports, whereas in Iowa, the exceptions include 'sports, social, and other activity'. Despite this, in 1985, an Iowa appeals court specifically ruled that this definition did not include sm, which are a form of assault. In Mass, the courts ruled that consensual sm was not a defense if the tool used was an actual weapon (presumably the dom used a knife for cutting); such a situation was automatically battery. Some states do seem to accept consent as a general defense but have historically been erratic in who can apply it or in what situations (for example, gays seem to have less success with it than straights do).

The infamous Oliver Jovanovic case of 1996 is perhaps the best illustration of the problems that doms face. Jovanovic, a doctoral student at Columbia, negotiated a weekend-long scene with a female student from Bernard, during which he tied her up, tortured her, and had sex with her. She subsequently claimed that she had not understood what he intended to do and that therefore she hadn't really consented to what happened. He was found guilty and sentenced to 16 years to life for kidnapping, assault, and sexual abuse. Eventually, after spending an enormous amount of money and 20 months in prison (during which he was seriously injured by an inmate), an appeals court ruled that the court had inappropriately disallowed evidence that the woman enjoyed sm. In 2001, just as the retrial was set to begin, the women decided not to testify and it was dismissed with prejudice. In 2004, he filed a civil suit against NYC and the prosecutor over the incident. IIRC, it also later came to light that she had done something similar to a previous dom, but charges had not resulted. Part of the reason that the Jovanovic lost the original case was NY's Rape Shield law was invoked. Rape Shield laws forbid the discussion of a rape victim's previous sexual history, and in this case (and in some others) the judge ruled that no discussion of pre-sex negotiations could be admitted into the courtroom. This meant that the defense could not actually present a claim of consent.
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Old 05-11-2010, 11:25 PM   #9
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Sebastian, do you just KNOW this stuff like off the top of your head or did you look it up?
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Old 05-11-2010, 11:32 PM   #10
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Shh - he's keeping it quiet that someone crammed the only copy of the Self Updating Encyclopedia of BDSM into his head to keep it safe.
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Old 05-12-2010, 12:03 AM   #11
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Easy does it guys. We wouldn't want Sebastian to get too big for his britches
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Old 05-12-2010, 12:13 AM   #12
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Hahah did you imply a different meaning by 'too big'? I saw the wink lol
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Old 05-12-2010, 12:20 AM   #13
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dunno it IS Sebastian lol
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Old 05-12-2010, 12:26 AM   #14
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It would be funny if it worked like that
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Old 05-12-2010, 01:16 AM   #15
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Precious, I'm actually a really well-written conversation program.

Honestly, though, it's a bit of both. I actually learned about the Jovanovic case years ago for reasons that had nothing to do with BDSM. He was working on a project I was interested in that collapsed because of the trial. Most historians have pretty good memories for random facts, so they run across interesting facts and then just sort of file them away for use years later. I used to have a friend who delighted in yelling in frustration "how do you KNOW that?" when I would mention some odd fact like armadillos always reproduce in litters of identical quadruplets.

But when I post online I sometimes look for additional info, sometimes out of personal curiosity and sometimes because I think I need more info to improve my point. Amazing what you can find with Google once you've learned how to sort through bad info. And medievalists are by nature extremely thorough types.

And to answer the question that's hanging in the air, It's above average, but not amazingly so (6.5"), and it's nicely curved and has a large head. Evidently it's very well-shaped for anal sex. It gets a pretty good amount of compliments.
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Last edited by sebastian : 05-12-2010 at 01:35 AM.
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