![]() ![]() ![]() Were we to follow defendant’s broad interpretation of “social activity,” street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society. In fact, the statutory provision in question specifically excludes activities which would “create an unreasonable risk of serious injury.” There can be little doubt that the sadomasochistic activities involved in this case expose persons to the very type of injury deemed unacceptable by the legislature. However, it is obvious to this court that the legislature did not intend the term to include an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society. ![]() We are hesitant to give a precise definition of this term and believe it is more appropriate that its meaning be interpreted on a case by case basis. The foregoing discussion compels us to conclude that, in the present case, the legislature did not intend sadomasochistic activity to be a “sport, social or other activity” under section 708.1. The court’s moralistic tone in rejecting the consent defense is a good illustration of the type of thinking that seems to underly most judges’ handling of BDSM assault cases: Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such act is a reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace, the act shall not be an assault. Significantly, the Iowa law on assault was in most ways similar to the Model Penal Code. The Appellate Court upheld the conviction and ruled that consent was not a defense. ![]() Collier, there were wildly differing accounts given of a BDSM incident, but the judge refused to let the jury consider the question of consent. The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”:Įven if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant’s conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another. (The Samuels decision was cited as recently as 2006, in People v Febrissy.) Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene. The Moral Limits Of Consent As A Defense In The Criminal Law 2009Īn early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision.Autonomy, Dignity, and Consent to Harm.Pain, Pleasure, And Consenting Women: Exploring Feminist Responses To S/M and Its Legal Regulation in Canada Through Jelinek’s The Piano Teacher 2007.The Right to Be Hurt: Testing the Boundaries of Consent February 2007.Morality-Based Legislation Is Alive And Well: Why The Law Permits Consent To Body Modification But Not Sadomasochistic Sex 2006-2007.Beyond The Pleasure Principle: The Criminalization Of Consensual Sadomasochistic Sex 2001-2002.Sex Is Not A Sport: Consent And Violence In Criminal Law 2001-2002.For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.” Courts tend to inflate the risk and harmfulness of an activity they want to denounce. Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm. The following overview, from Consent to Harm by Vera Bergelson, is a good summary of the case law: To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct. Download Consent Signs and Social Media Graphics. ![]()
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