Friday, January 17, 2014

Discussion: Consent and Its Limits

I mentioned in late October that, to try out something new and encourage more reader involvement, I would like to start a series of discussions about topics surrounding spanking and BDSM. Now in the new year, I'm finally getting around to it. Rohrstock-Palast has always been one of the spanking blogs that feature not just pretty pictures and sexy anecdotes, but a fair share of intellectual wankery as well. It seems like a perfect place to engage in conversation about some of the "deeper" questions of BDSM.

This is an experiment of sorts. Hopefully, we will get some comments and an interesting discussion. If there is interest in this kind of thing, I will do it more often in the future.

The first topic I would like you to discuss is consent and its limits. The phrase "safe, sane and consensual" is often used in our community to sum up the principles guiding responsible BDSM play. Obviously, for any sexual activity to be morally acceptable, it must be consensual. Consent is what separates sex from rape and BDSM from violent assault.

So my first question to you is, what are the necessary conditions that must be fulfilled for us to be able to say that an action was consensual? Is it simply a matter of two people saying "Yes, sure, let's do this!", or do other requirements have to be met as well? Is anyone able to give consent to engage in BDSM activities, or are there groups of people who cannot give consent in the way that is necessary?

My second questions regards the limits of consent (if any exist, in your opinion). There are some extreme actions where it seems highly problematic to say that they were morally acceptable simply because they were consensual. Take, for instance, the case of Armin Meiwes, whom the tabloids called the "cannibal of Rothenburg". The case was so bizarre that it made international headlines at the time, so some of you might remember it. Armin Meiwes is a man from the German town of Rothenburg who had had fantasies about slaughtering and eating someone since his teenage years. In 2001, he posted an ad on the internet and found a willing victim named Bernd Jürgen Brandes. With Brandes' consent, Meiwes cut off Brandes' penis and they tried (unsuccessfully, it seems) to cook and eat it. Meiwes later killed Brandes by cutting his throat and proceeded to store Brandes' flesh in a freezer and eat large parts of it in the coming months. He was eventually arrested when he put out another contact ad and someone reported it to the police, who searched his house and found the gruesome evidence of what had happened.

In court, Meiwes' lawyer argued that it was a case of "assisted suicide". In a first trial, Meiwes was sentenced to eight years in prison for manslaughter. In a retrial, he got a life sentence for murder. Indeed, the case is difficult to judge. While the actions perpetrated by Meiwes are horrific, there is no doubt that Brandes willingly and knowingly participated. Online communications between the two and a four-and-a-half hour video which they recorded of the act show that Brandes genuinely wanted to have his penis cut off and that he genuinely wanted to be killed and eaten.

Should we say that Meiwes' and Brands' actions are morally acceptable because they were consensual? I know some people who hold that position, but I myself do not and I suspect that most of you don't, either. It seems intuitively very clear that such actions are immoral and that the mere fact that they were consensual does not justify them. Apparently, then, there is a limit to consent - some actions are immoral despite the fact that they are consensual.

My question is: where do you draw the line? Most of us regard consensual spanking, caning, whipping and the like as morally okay and the consensual killing and cannibalism of the case I mentioned above as immoral. Somewhere between the two, there is a line beyond which actions become immoral even when they are consensual. Where, exactly, do you think that line is? Which types of consensual actions are morally okay and which ones are not?

I have thought about these questions long and hard and I have a clear position on them. I will not tell you about it today, though, because I do not want to prejudice you for the discussion. Please write down your own views if you like, discuss them with others, and I will write a summary of the discussion in another post where I will also give you the details of my own position.


Sparky said...

I think there is a lot of complexity around consent particularly since we do often tend to simplify things to safety words and fail to recognise limits in that system. For me, in particular, I think it’s especially desirable, where possible, to know enough about your partner to recognise what I consider “consent without regret” and also “honest consent”, which can be summed up as “compromised consent” both of which have been issues with me and, to a degree, apply to the cannibal here.

The first one – consent without regret – comes from really getting caught in the moment. Get me in the right head space (which my husband can do very skilfully) and my limits go out the window; hormones, endorphins, who-knows-what start churning and I will never use a safety word – I’ll not want to EVEN WHEN I SHOULD. With past partners this has had me calling time on play early simply because I know I couldn’t judge my own limits – and then feeling disappointed. But it has also meant going far beyond what I would normally agree to – and having huge regrets the next morning (or 4 weeks later when I’m still healing and a little worried). I need my partner to recognise when the heat of the moment has compromised my ability to consent RATIONALLY. So, too, I think does this apply to the cannibal case – we need to recognise when our partners have allowed the rush of hormones to overcome sensible limits

The second is a little more sinister – I grew up with a huge amount of self-loathing and consequent eagerness to please. If a partner wanted something I didn’t like or even feared I still agreed because I didn’t want to disappoint/drive them off/wasn’t worthy of them anyway. Again, I think it’s ideal to know something about your partner and recognise when their consent is not authentic – when they feel pressured (even if you do not feel like you’re pressuring them) and what vulnerabilities or underlying issues they may be living with that will make them say “yes” when their mind is screaming “no.” Again, returning to the cannibal, it’s time to step back and ask what underlying issues you have stumbled into when your partner literally wants you to kill him.

It’s, obviously, not always possible to know these things about a partner – even long term partners can keep a lot of vulnerabilities hidden – but they are ideals and certainly something to be aware of that should definitely make us think twice – or more – when it comes to the extremes.


The question concerns the consensual nature of the acts described in the post. I do feel, however, that this may be a question of the sanity of the act. It must be explored that one or both parties, who consented to this, were not fully "compos mentis" and therefore in no state to give informed consent, therefore making this act non consensual. It would be good to hear the thoughts of a professional in the field of mental health on this matter.


Anonymous said...

If we are willing to open up the terms of the discussion to include consent given in pre-birth agreements, then things become even more interesting.

Even just looking at the parent child thing for a moment. One author I read on re-incarnation suggested that a pattern that's been noted is that people who are friends in one life will come back as parent and child in another life, so that they whereas before they experienced what it was like to be in a free relationship with each other, in the subsequent parent child relationship they can then experience what it's like to be in an unfree relationship with the same person.

Of course that is premised on a lot, such as that re-incarnate and that, as incarnating children, we choose our parents, and that we even have pre-birth agreements about some of the -- what you might call, educational or therapeutic games -- we're going to play together for our mutual edification.

If one can entertain the picture described above, one can see that what we're doing in bdsm play agreements is like a mirror or a microcosm of this same type of thing. We're agreeing, outside the game to go into a sort of temporary non-autonomous zone, for the purpose of exploring certain kinds of experiences together.

There's more one could say. But I'll stop here for now. And thank you Ludwig for re-engaging on this level with the community. It could be an interesting series of discussions.

- Karl Friedrich Gauss

Fenris said...

You are touching a very interesting subject. While the infamous cannibal case is indeed very extreme, it serves as a good example to discuss the possible limits of consent.

Answering your first question, I think that severe mental disorders (e.g. clinical depression), that might influence directly the actions one wishes to participate in, can lead to a situation which more or less excludes consent. The German wikipedia article says that Bernd Brandes wished to disappear completely without leaving any memories which might indicate that he suffered from low self-esteem and possibly depression. In addition to that, Brandes was under the influence of a high dose of sleeping pills and alcohol when his slaughter finally started. An article in German I have read about the case points out that Meiwes met several other men who wanted to act out their cannibal fantasies without the intention to get slaughtered for real. Under different circumstances and maybe adequate treatment for a possible mental disorder, Brandes might have been satisfied with some role play.
In addition to that, I would draw a line in case death or permanent physical or psychological harm is likely to occur. Sometimes, even consent does not remove the responsibility from another person to not engage in some activities. For example, a surgeon would act in an immoral way, in my opinion, to remove a healthy limb from a person with an amputation fetish (apotemnophilia). Of course, it is difficult to judge when it comes to extreme body modifications and at a certain point, it becomes a matter of personal ethics.
Now, leaving behind slaughtering and amputation and talking about "normal" BDSM, I think that one should always keep a watchful eye for the possibility of personal problems getting involved in BDSM play. For example, I consider it dangerous when a person with a negative self-image continually strives for humiliation and punishment in the context of BDSM.

Kaelah said...

That's a very intriguing topic indeed. Sparky's and Fenris' comments resonated very much with me. The questions whether any permanent damage is done and whether the people involved suffer from mental illness are important aspects for my personal distinction between morally acceptable and not morally acceptable forms of consent. I started writing a longer comment, but it became so long that I decided not to post it here. First of all, I know that Ludwig and I have very similar opinions when it comes to the basic question of this post. So, I am quite sure that my basic arguments will all be in your follow-up post, Ludwig. Secondly, I realised that I focussed on a slightly different aspect in my comment which is: What influence does the motivation of the person inflicting pain or, in case of the cannibal of Rothenburg, amputating limbs and taking a person's life have on my judgement about whether I find the action morally acceptable or not. And so I decided to write a separate post about this subject instead of publishing an overly long comment here. I hope that there will be some more comments, though, it would be interesting to hear what others think about the subject.

Ramon Herzog said...

As they say in German, you are opening quite a barrel!

So far, the cannibalism case has found consent among us. There was no real consent but rather a mental case which should be judged by psychologists, not by spankos.

But I remember a pornographic magazine, at least 30 years ago, in which a case of self mutilation was described to have a sexual basis. In that case somebody sacrificed a foot by engineering a bike accident deliberately. I do not remember at what stage of this deliberate act the victim experienced sexual gratification, but it was described as extreme sexual deviation.

Another example of extreme self mutilation can be found in Eragon, a fantasy fiction book. The author describes a religious sect which thrives on the sacrifice of limbs. The leader has -of course – no limb left over and is transported by his followers on a roller coaster. I doubt that the author hit upon this monstrous religious aberration all by himself. This kind of self abuse might very well have a sexual basis.

From there, we can logically digress to less serious injuries until we reach cutting, either again as an act of self mutilation or as a consensual act between adults. At this stage of severity, the mutual consent might no longer be considered the result of a mental disorder. We have to bear in mind that the progression to finer and thinner implements in spanking or BDSM will lead to – as the extreme finale – the cut with something very sharp.

It seems that the severities of injuries may influence our judgement concerning debatable consent between the participants. They might be carried away as has been described here already, and a clear cut misjudgement might end in a bad case of regrets.

Are we entitled to judge extreme play that way?

Can it be that these “poor people” are in no way “mislead” to a bad judgement of the risks involved of what they a doing? In reality, they do know exactly which risks are involved. They simply want to cross borders, even the later regrets are calculated including the visit to a physician. By them, we are considered as wimps who do not really want to even take small risks.

In reality, we are the cowards, establishing rules and safety precautions with the main logic behind it that we do not want to apologize for any number of things that just might go wrong during a session. In fact, we are driving a sports car with one foot on the brakes.

I know exactly what I am writing about: some decades ago, my wife and I were playing quite hard. One day, she wanted to proceed beyond MY limits as a top. She had clear masochistic moments where no caution was stopping her from the need to feel extreme pain including split skin. I was the one to stop and refuse further whipping – and she was disappointed. Yet, when her brain cleared and she saw the damage on the following day, she was glad about my decision to call it off.

I have often thought about the role of a top as somebody who simply follows the dreams of a sub with no gratification of his own. That is the widely accepted “normal” image, particularly amongst players who do not know each other very well.

But the top is in fact also the one to keep a clear head on his shoulders if subbie is flying and the endorphins are blanketing the pain.

As I wrote above: we run of the mill spankers are driving with the brakes on.

So, should we define consent as a much wider concept with boundaries which are implemented by the top, never mind her pleas to stop, tears and cries and later complaints?

What about the legal aspects of inflicting bodily harm on a consensual basis if sub has second thoughts and calls off consent following a hard session?

Ursus Lewis said...

I understand the concept of "informed consent" as a detailed discussion between the two player about what is going to happen and what not. Certain BDSM groups might even already have "base lines" which make this conversation a bit easier (or shorter) but it still has to happen before first play and it should continue if the playing relationship continues.

For me it's also important that my play partner or I can at any given point revoke this consent by using a safe word. Without this possibility I do not know where the line between consenting play and abuse is.

Of course both partner have to be adult to even be in the position to give consent to any sexual activity.

In my opinion the question where the line between moral and unmoral is whether permanent physical or psychic harm is done or not.

If the result of consensual actions can't be undone (for example cutting off limbs) those actions are unmoral.

harang said...

A good and thoughtful discussion, and one that makes me wonder why I don't visit this excellent site more often.

In case anyone is interested: from a legal point of view, there are two aspects of the consent question:
1. was the consent valid, and
2. was the activity of the sort to which consent provides a defence.

Wrt the first, that's where questions of coercion and competence are valid. If someone is heavily intoxicated, for instance, it may be that they cannot give valid consent. Likewise, if they are misinformed about what they are consenting to. The presence of mental illness doesn't always invalidate capacity, but it often will.

And then there's coercion. Questions of coercion can be tricky. In one South African case - that reads like a pretty cliched spanking porn fantasy! - an employer offered an air stewardess the choice between being suspended from work or accepting a caning. She accepted the latter, but when she subsequently complained, her 'agreement' was deemed to have been coerced rather than freely given.

Now this is an interesting case, philosophically. Assuming that the employer had valid grounds for imposing the suspension, was the offer of caning a truly 'coercive' offer? Coercion is usually seen by legal philosophers in terms of threatening to make things worse for someone if they don't comply. The employer here was offering the stewardess an alternative that she wouldn't otherwise have had. If she declined that alternative, she'd be no worse off than she would otherwise have been. Her range of choices had, in fact, been expanded rather than restricted.

That isn't to suggest that the employer acted at all well - certainly not! But it does show that a classical 'consent/coercion' narrative can be trickier than it looks.

The second question is whether the activity is of the sort to which consent can provide a defence. Even in relatively liberal jurisdictions like the UK, the law sets limits here. You cannot, for instance, consent to being killed - even voluntary euthanasia for the terminally ill is against the law. Equally, you cannot consent to actual bodily harm.

Donovan is an old English case (from the 1930s) in which a man caned a 17-year-old girl with her agreement. As with the South African case, this was not accepted as a defence. Unlike the S. African case, though, this wasn't because her consent was deficient or coerced, but rather, because the infliction of bodily harm is not rendered legal by consent.

At the time, any injury 'more than merely transient and trifling' was regarded as out of bounds. The notorious Brown case some 60 years later upheld the same approach, in the context of a British S&M group - who were, admittedly, involved in matters more serious and painful than caning!

But precisely where the limits lie is still uncertain. More recent years have seen consent accepted as a defence for branding initials onto buttocks (!) This kind of suggests that judicial attitudes may be subject to change in this regard, but the rationale for distinguishing this case from Brown was not exactly convincing.

In 2014, I'd say there's little doubt that mild-to-moderate spanking would pass muster as a consent-able activity. Beyond that, you'd be entering a realm of judicial discretion and unpredictability.

Sorry if this falls into the 'too much information' category - I'm a geek for this sort of thing. :-) I should also say that answering legal questions about the limits of consent don't necessarily answer the ethical and emotional questions that should also concern us.


Ludwig said...

Thank you all for your contributions. I have written a follow-up post on My Views on Consent and Its Limits, giving you my own thoughts on the questions I asked you to discuss. In addition, I would like to answer some of the interesting points you raised here:

@ Sparky: You make an important point regarding "consent without regret" and "honest consent".

I think the top should use empathy and common sense to make sure that a bottom does not over-step his / her limits in the euphoria of a session in a way that he / she might regret later. And when it comes to activities that are edgy and getting close to comfort limits, I think it is highly advisable, anyway, to get to know each in some depth beforehand and get a clear understanding of how the other person communicates.

One danger I see with the point you raise, however, is that the sole responsibility might all too easily be shifted to the top. Indeed, I have seen some bottoms say that basically: "When I'm in a session I am no longer accountable, so the top has to watch out for everything and take care of everything!" I realise that you did not intend to advocate something so extreme, but I have seen some people do it, for whom it seems to be part of their ultimate age-play fantasy. "Hey, I am no longer responsible for anything!" And obviously, I disagree with that. A top should use empathy and common sense to try and determine when a bottom might be over-stepping limits in the euphoria of a session. But a top can not be expected to have clairvoyant abilities! Ultimately, it falls to the bottom to express himself / herself and give an honest account of how he / she feels, and the top has to be able to rely on that. In other words, they both have to communicate openly and use common sense and share the responsiblity for their safety and well-being.

As for consenting to something to please the partner or for fear of disappointment, that is a little more tricky. In and of itself, I see nothing wrong with consenting to something to please one's partner. Kaelah has done this for me sometimes and I have done it for her, i.e. we have both done things in our kinky play where our primary motivation was that it was the other's fantasy and that we knew it would make the other happy. But while that is great and arguably part of any normal sexual relationship, I agree that it is unhealthy when one person is constantly and one-sidedly doing things just to please the partner. When "I aim to please you!" is a regular rather than an occasional thing and when only one person is doing it instead of both doing it for each other, then self-loathing and insecurity might very well be at the root of it and it is obviously not a balanced and healthy relationship.

@ Prefectdt: I have touched on the question of "compos mentis" and informed consent in my follow-up post.

@ Karl Friedrich Gauss: "Pre-birth agreements"... Wow, that gives the discussion a spin which I would certainly not have anticipated or thought of myself. Since I do not believe in re-incarnation, however, I'm afraid that I can't add anything to it!

@ Fenris: I touch on the question of mental disorders and which people can give informed consent in my follow-up post. The influence of alcohol and sleeping pills, which seems to have been a factor in the cannibal case, is also important. When a person is falling-down drunk, we obviously cannot take their consent to be rational and informed!

As for the question of which actions are acceptable, I draw the line at death and permanent injury just like you, but I make an exemption with inury that is permanent but not disabling, like a scar. I go into more detail in the follow-up post.

Ludwig said...

@ Ramon Herzog: The cutting off of limbs is permanent as well as disabling (unlike a scar, it means that you can no longer do certain things), so I consider it unacceptable. Of course, there will always be cases that are not clear, that straddle the boundary between disabling damage and non-disabling damage and between what we might consider psychologically healthy and insane. So the boundary is always going to be arbitrary to a degree. But I believe that, as a general rule, the rule to not inflict any permanent disabling damage is a very clear and morally plausible one.

The other point you raise is similar to Sparky's, regarding a bottom who might over-step limits in the euphoria of a session and give consent to something he / she might regret later. My answer to you is the same: both the top and the bottom have to share the responsibility of defining and enforcing boundaries. We can't shift the responsibility to the top alone. The bottom has to share in it, as he / she is responsible for his / her own decisions and well-being as well.

In any case, I would not say that we are "driving a sports car with the brakes on". I think we are merely trying to drive safely and responsibly, as we should.

Legally, it is my understanding that consent can only be withdrawn during a session. If you withdraw it afterwards, it is obviously too late and thus has no legal implications. Of course, a bottom might wrongfully claim after a session that consent was not given, and accuse the top of abuse. Sadly, this happens sometimes in BDSN, and it's one more reason to only play with people whom one knows and trusts.

@ Ursus Lewis: You raise good points about "informed consent" after a detailed discussion, the possibility of using a safeword, the fact that people who engage in BDSM obviously have to be adults, and drawing the limit of what is an acceptable action at not inflicting permanent damage. I touch on all this in my follow-up post.

@ harang: You too mention points that I elaborate on in my follow-up post.

The South African case of an employer offering a stewardess the choice of taking a caning or being suspended from work is interesting. I would say that it can be regarded as coercion because, while he technically gave her a choice, the option of being suspended from work is so obviously undesirable that the criteria for coercion apply. Furthermore, his motive was probably of a sexual nature (why else would he want to cane a presumably young and sexy stewardess? does he genuinely believe that this is the best way to improve her behaviour at work?). Very hot as an erotic spanking roleplay between consenting adults, but obviously immoral and reprehensible when done for real.

The other important point you raise is the limit set by the law on consensual injury. In the UK, the situation is that everything "more than merely transient and trifling" might be illegal, which obviously makes BDSM tricky (and theoretically, boxing and rugby as well...). In Germany, an injury is not against the law as long as it is consensual and does not violate the so-called "good mores", which in practice allows for all the usual BDSM activities including hard canings and whippings. You would have to do something drastic like cut sometone's finger off to run afoul of the "good mores".

Anonymous said...

I concur with most that harm rather than hurt should be the defining factor as to what you can consent to. I also believe that consent can be withdrawn at any time/for any reason. Additionally the consent must be informed.

But this does allow such a large gray area. If the sub consents thinking she has an understanding of what is going to happen (but doesn't) is that informed consent.

As for harm, either physical or mental, consent is not enough. If you leave some physically damaged, or emotionally crippled (by intent); consent has no bearing.

I agree with what Ludwig said about the South African caning - that is reprehensible.

With all this discussion, where does it leave us. To people that actually care about their partners, informed consent matters a great deal and will be respected. On the dark side, all the consent is meaningless if you have a partner that really has no concern for the subs welfare.

Personally, I would rather error on the side of safety, and "ruin" a scene, then push far beyond her limits, even if there is consent.