Wednesday, June 11, 2014

My Views on Consent and Its Limits

In January, I encouraged a discussion about consent and its limits. Six months later, it is high time for me to give a summary of the contributions and my own views on the matter. I had not planned on the interval being that long. If we have another such discussion, hopefully I will have the time and inspiration for a follow-up post sooner.

To quickly recap the topic of discussion: 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 question was, 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? Furthermore, I raised the example of the infamous "cannibal of Rothenburg" case to illustrate that some extreme actions, like mutilation or killing, should probably be deemed immoral even though they were consensual. So where should we draw the line?

At the time, I did not elaborate on my on views on these questions because I did not want to prejudice you ahead of the discussion. I will talk about them now.

First off, can anyone give consent to engage in BDSM activities? Quite clearly, the answer is no. Children, for instance, are one obvious and important example of a group of people who can not. Children do not have the physical maturity, the emotional maturity or the life experience to consent to a sexual action the way adults can, which is why we have the age of consent. Any sexual action, including BDSM, between an adult and a minor who is below the age of consent is considered immoral for good reason, and is indeed one of the strongest taboos in our culture. Other groups of people who can not give consent to BDSM activities the way an average adult can include those who are mentally handicapped in such a way that their consent can not be taken at face value. Potential causes and examples are too numerous to discuss here, and some individual ones might be incredibly complex in a legal and philosophical sense. But to cut a long story short: if you are an adult who is, for whatever reason, not considered capable of entering legally binding contracts, then you (very probably) don't meet the prerequisites for consenting to BDSM activities, either.

So if you are an adult capable of entering legally binding contracts, and you say "Yes, sure, let's do this!", is that in itself valid consent to a BDSM activity? Again, the answer is obviously no. In order for the consent to be valid, it has to be informed. The question of what, exactly, constitutes "informed" consent is a matter of some complexity. In a BDSM context, I have often seen it raised on forums in regards to severe caning videos like the ones made by producers like Lupus Pictures. Do these models really know what they are getting themselves into? Can anyone ever really consent to such a hard beating, given that they don't know exactly how it is going to be?

The answer is yes and yes. Obviously, you do not need to know in advance exactly how an action is going to feel to you. Otherwise, barring clairvoyance, no one could ever consent to doing anything for the first time. You simply have to have a reasonably clear and accurate idea of what is going to happen and what the risks are. For instance, if I were to consent to a Lupus-style caning in the belief that it really doesn't hurt much at all and that the marks go away within two days, that would not be informed consent because my belief is obviously wrong. If, on the other hand, I would consent to such a caning believing that it hurts a lot and that the marks it produces can take months to disappear, then that is an accurate belief. Having seen a video of such a scene, the velocity of the cane, the reactions of the spankee and so on, might also help me to give consent which we would deem informed.

Finally, there are some actions so extreme that it is intuitively very clear that we should consider them immoral even when they are consensual. The mutilation or killing of a person, as in the "cannibal of Rothenburg" case, is such an example. I do not believe that the consensual killing of a person is always wrong - I believe that euthanasia to shorten the suffering of a terminally ill person is moral, under very specific and strict circumstances, and this in itself is a highly complex issue. But in a BDSM context, we will all agree that the killing of a person is always immoral. What about other, non-fatal injuries, then? Where should we draw the line between what is acceptable and what is not in BDSM?

Some people in the spanking community set the moral limit at drawing blood with a caning or whipping. I myself do not. While I do not play at such a high level of severity very often or suggest that people do it regularly, I do not think we should consider it immoral. As long as people act responsibly (paying attention to hygiene, bandaging the welts etc.), such scenes are less injurious and risky than any number of "rough sports" like boxing or rugby. If we do not consider boxing or rugby immoral, then we should accept canings and whippings even when they draw some blood.

I have said many times on this blog and elsewhere that I draw the line at activities that cause permanent damage. That is still true for most such activities. However, after thinking about it in more depth, I do not believe that we should regard all BDSM activities that cause permanent damage as immoral. Take, for instance, the case of a bottom in a BDSM relationship who wants a branding scar from his (or her) top. While this holds no appeal for me whatsoever, there are some kinksters who find it incredibly hot and for whom it is the ultimate fantasy of showing one's love and affection. I believe that if people genuinely want to do this, have thought about it long and hard and act responsibly to minimize the health risks, then giving someone a scar should be considered morally acceptable. In a way, it is not very different from getting a tattoo, which is also a permanent alteration of the skin (usually bigger in size than a BDSM branding scar would be).

If causing permanent damage is not a clear-cut line between what is acceptable and what is not in BDSM, where else could we draw this line? My view is that we should draw it at permanent disabling damage. That is, permanent damage that hinders you in some significant way. A scar is permanent, but does not really prevent you from doing anything. By contrast, cutting off a person's little finger will make various activities impossible for that person, like playing the piano in a way a person with ten fingers could. Hence, cutting off a person's finger should be considered immoral even when it is consensual. Of course, the question of what, exactly, constitutes "disabling" damage and where we draw the line between it and "non-disabling" damage will not always be easy to answer. There will be cases that straddle the line. But as a general rule, the rule to not cause permanent disabling damage is, I believe, a very clear and morally plausible one.

That, in a nutshell, is my personal view on consent and its limits in BDSM. Interestingly, even though I arrived at it independently, it turns out to be very similar to what German law has to say about consensual injury. In German law, causing an injury is legal when it is consensal and does not violate the so-called "good mores". What, exactly, constitutes "good mores" is a matter of interpretation, but past rulings from German courts have made it clear that you would have to do something pretty drastic, like cutting off a finger or injuring a person in a life-threatening manner, in order for the action to become illegal. The usual BDSM activities, including hard canings and whippings, do not violate the "good mores".

Your comments to the discussion post raised other issues, some of them very interesting. I originally wanted to cover them here as well, but do not want to make the post even longer than it already is. Instead, I put my answers to the points you raised in a comment under the original post. And I would like to give a thank you to all of you who contributed. It was an interesting discussion, and hopefully, we will do it again sometime.


Simon said...

An interesting and thought provoking piece, by coincidence I read it shortly after seeing the obituary of Lord Templeman in the paper. In the 1990's he was one of the law lords who turned down the appeal of the sadomasochist group who had been found guilty of assault following a group session which had involved some serious and unusual practices. In British law it is therefore impossible to give consent to extreme SM practices whether or not any permanent damage is caused. By this measure I am probably a criminal because I have allowed myself to be branded. It wasn't a step I took lightly and it only happened after I had known my Mistress for a considerable length of time.In fact although I had given it a lot of thought I chickened out the first time she approached me with her hot iron but on the second occasion I allowed her to put her mark on my buttock. I have therefore consented to something immensely painful, both at the time and for several weeks afterwards, and permanent, although in reality the marks disappear after about 5 years giving her an excuse for a re-application. It hasn't changed my life but I do have to careful about getting changed in public areas like gyms and swimming pools and it has led to some embarrassment at the hospital. For this reason I agree with your summation about what you can or can't give consent to.

Kaelah said...

@ Simon:
Thank you for sharing your experiences! I guess a hot iron would make me run as fast as I can. It is very interesting to hear that the marks disappear after a few years. That makes a branding less permanent than a tattoo.

Simon said...

Kaelah, I can't imagine anyone wanting to mark your lovely bottom (permanently). You're right of course a tattoo would be more permanent but requires special equipment and training. How long the marks last really depends on how hard it is pressed onto the skin and for how long the iron is applied. I'm too much of a softy to bear it for the length of time required for a truly permanent mark.

Bob S said...

Well as you say it is complex. There is a subset of people who willing do very dangerous things up to obvious death who we call heroes. Now in the case of would be heroes actions that are generally viewed as unnecessary or disproportionately risky are not criminalized. The reason of course that heroic actions and euthanasia since does not involves creating pleasure but have, or at lease are perceived to have a more autistic motivation. Yet ultimately creating pleasure for another is an honorable motivation. Putting aside the legalities I come down that if there is truly informed consent among all involved little is morally wrong.

gustofur said...

Interesting philosophical essay.
Let me try to expand on the discussion. I am, for sure, in the minority of "BSDMers". I cringe at high levels of pain, but thoroughly enjoy physical contact with the buttocks, especially when bare. Limits are irrelevant, but consent is a little harder to define. Is consent implied if a bottom is provocatively presented and a spank applied? Or could this spank be considered assault?

Peter8862 said...

I really think this blog is one of the most important that you have written, setting out the complexities of the subject with great clarity and insight. As you probably know, the UK Law Reform Commission published a recommendation for the clarification of the law on the subject (at a guess) some eight to ten years ago but no MP has had the courage to pursue the subject in parliament. Perhaps one of our readers who is a legal boffin can comment on the latest position. It is most interesting to have your account of the German position. The UK legal precedent was, to my mind, based more on an assumed public distaste associated with BDSM than on the logic that you have so helpfully set out. It needs a well planned public campaign to encourage someone influential to take the Law Commission paper to its rightful conclusion. Wishful thinking ???

... hearty congratulations Doctor.

Kaelah said...

@ Peter6682:
Thank you very much, Peter!