Voluntary BDSM or Aggravated Assault?

[Arcade22]

We have an interesting law case here in Sweden. A 16 year old had sex with a 30 year old. Now this in by itself is 100% legal since the age of consent is 15, except in special circumstances. The problem was that the sex was violent. He apparently "locked the girl in a dog crate, how he put crocodile clips on her breasts and fastened them to the wall so she had to stand on her toes and that he repeatedly struck the girl's naked body with a cane". The girls mother apparently saw the bruising and contacted the authorities.

He was cleared in the Tingsrätt but the prosecutor decided to appeal to the Hovrätt. I heard someone said that they would hear the case in may but i haven't heard anything new about the case.

This obviously begs the question on what kind of things one should be allowed to do to another person. Personally i feel that as long as the risk of long term injury, death or etc is minimal then it should be legal.

Here's the story btw (yeah it's goggle translate but you get the gist of it, våldssex = violent sex): http://translate.google.com/transla...n-kan-inte-samtycka-till-grov-misshandel.html

 

[JJM 777]

many painful things are legal for minors, such as boxing and martial arts

 

[Cleon]

many painful things are legal for minors, such as boxing and martial arts

High school...

 

[Cavemonster]

many painful things are legal for minors, such as boxing and martial arts

I'll give you that.
Now I don't know about Sweden, but in the US, places where adults train children under 18 in those disciplines are subject to liscensing, need liability insurance, and are subject to whatever laws their state has for safety equipment and practices. So I wouldn't say that's comparable.

That said, although I have nothing against rough sex, I think BDSM often blurs the lines of real informed consent, and although it isn't impossible for a 16yo to be absolutely ready and truly willing, on average, the brain chemistry of a 16yo is radically different from an adult in ways that make risk judgement exceedingly difficult. Their culture, going to school every day, living under their parent's roof, makes their relationship to adults inherently inequal.

I think it would do more good than harm if play of the kind listed in the OP had to wait a few more years.

 

[Professor Yaffle]

In England (possibly UK?) consent is not a valid defence to actual bodily harm. See this controversial case:

http://en.wikipedia.org/wiki/Spanner_case

ETA: The reasoning for the House of Lords decision:

"In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous. I am not prepared to invent a defence of consent for sadomasochistic encounters which breed and glorify cruelty [...]. Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilized."

 

[AgeGap]

I think it is ridiculous for this to become a legal matter. It is more to do with individual "morals". We have had similar cases in the UK.
If I knew what my friends, family and neighbours got up to in private I would probably want them locking up as well.

I think it would do more good than harm if play of the kind listed in the OP had to wait a few more years.

If the lawmakers wanted to do that they should pass specific laws or increase the age of consent. From the, perhaps not impartial, article it looks as though the girl consented. I don't think, legally, age comes into it.

 

[AgeGap]

Sorry, double post.

 

[Arcade22]

many painful things are legal for minors, such as boxing and martial arts

Whether she was 16 or 25 is legally unimportant here because the same rules apply to 15-17 year olds and those who are 18 or above, expect in special circumstances where the older partner is in a position of power over the minor. I don't really see how one can seriously argue how one kind of sex should be legal with a minor and not another, though i note that the age of consent is 16 in Canada but having anal sex with anyone under 18 is a crime making me wonder what their reasoning is.

I think it would do more good than harm if play of the kind listed in the OP had to wait a few more years.

So he should be fined or thrown in jail?

 

[Cavemonster]

If the lawmakers wanted to do that they should pass specific laws or increase the age of consent. From the, perhaps not impartial, article it looks as though the girl consented. I don't think, legally, age comes into it.

I agree that in this specific case, without specific laws that address it, the state has no place having a say. That said, I don't know the Swedish legal system, so I don't know whether say, child endangerment laws might apply. Just because she is legally able to consent to sex, does not mean she is legally able to consent to all risk and pain.

As*the most extreme example I can think of, there was a case of a german cannibal a few years back who killed and ate a "consenting" victim. If that victim had been 15 years old, I think the law in most places would have something to say about it.

 

[Cavemonster]

So he should be fined or thrown in jail?

Him specifically? Only if there are already laws in place that address this. People in the future who engage very young teens in power and pain play at extreme levels? Might be a good idea.

 

[23_Tauri]

That said, although I have nothing against rough sex, I think BDSM often blurs the lines of real informed consent,

Why?

and although it isn't impossible for a 16yo to be absolutely ready and truly willing, on average, the brain chemistry of a 16yo is radically different from an adult in ways that make risk judgement exceedingly difficult. Their culture, going to school every day, living under their parent's roof, makes their relationship to adults inherently inequal.

The law in Sweden says that at 16 she can have sex. Therefore is it not implied in that law that she is old enough to agree with her partner what kind of sex they'll have?

What is important is the 16 year old herself. She's not a child in the eyes of the law. Does she want to press charges? Does she consider that this man assaulted her? I don't think this is an issue for the law, but between the teenage girl and her parents. We all want to know that our loved ones are happy in what they do, and this situation is no different in that respect.

I think it would do more good than harm if play of the kind listed in the OP had to wait a few more years.

How would you enshrine that in Statute and enforce it? Mild spanking ok, a bit of rough and tickle, maybe tying up but we're not quite sure about that yet.... ?

ETA: thank you Prof Yaffle for mentioning the Spanner case. Such a controversial ruling, to this day.

 

[jiggeryqua]

though i note that the age of consent is 16 in Canada but having anal sex with anyone under 18 is a crime making me wonder what their reasoning is.

Because anal sex is the sort of thing those homosexualists do. If 'progress' means we can no longer protect "very young teens" (whatever that means) from sex, we can at least protect them from the homosexualists version. A teenager of legal age for deciding whether to be normal evidently needs a couple more years before they can acknowledge their homosexuality - at that age their brains are soft and pliable and they are easy prey for the gay. Similarly, the person of legal age in the OP is a submissive - a category of person who has to have a bit more time to decide whether she really wants to be who she is or would rather live a life of supressed, secretive desires and a public denial of herself. Consenting to be frowned upon, and worse, by society requires more maturity than a soggy-brained teenage girl can manage. If she really wants to be who she is, she won't mind waiting a couple more years than normal people. [/mockery]

 

[Cavemonster]

Why?

Because the premise is very often one party having power over the other. One party decides what will happen, even to the extent that it is humiliating, painful, or at least seemingly dangerous to the other. Among consenting adults, this loss of power is a role play, and in most cases, behind the surface the sub has as much or even more real power in the situation as the Dom. This is kind of a complex concept and even most adults who have never been involved find it hard to understand, so it is reasonable to think that young teens who's brains are dramatically physiologically different may not be able to process the necessary two-level reality behind this kind of play, and seeing that they have spent the entirety of their life following directions from most adults they associate with, it may be exceedingly difficult for them to take real agency in such a situation.

This is not to say that no 15 year old would ever be in full comprehension and control, but there's enough reason to believe that consent in a case like this is not what we'd call informed consent.

The law in Sweden says that at 16 she is an adult and can have sex. Therefore it is implied in that law that she is old enough tco agree with her partner what kind of sex they'll have.

No, that's not true. For instance, he couldn't rip a hole in her side and have sex with that. Just because something is a part of sex does not make it immune from other laws.

What is important is the woman herself. She's not a child in the eyes of the law. Does she want to press charges? Does she consider that this man assaulted her? This is nothing to do with her parents because she is old enough to have sex.

Again, old enough to legally have sex does not mean a legal adult for all situations. Again, I don't know about Sweden, but in the US, 16 is the age of consent in more states than not, but you must be over 18 to sign a legally binding contract. I would be very surprised if in Sweden the age of sexual consent marks legal adulthood in all things.

What?
How would you enshrine that in Statute and enforce it? Mild spanking ok, a bit of rough and tickle, maybe tying up but we're not quite sure about that yet.... ?

You're invoking Loki's wager here. Since there is a possible gradation, a line can't be drawn? Poppycock! You can say the same thing about child abuse. Tim Minchin makes a joke in a song about being frustrated with his baby. What is the line between patting and hitting? What is the line between bouncing and shaking?

Just because a continuum exists, doesn't mean a useful distinction can't be drawn.

 

[JJM 777]

I think BDSM often blurs the lines of real informed consent

It would be clever to mutually sign a written consent before engaging in it. If engaging in the said activity is clever in the first place.

 

[JWideman]

There is a HUGE difference between physical assault and BDSM, and that difference is consent. If the person is old enough to legally consent, then I don't see how it's a legal issue.

 

[jiggeryqua]

Because the premise is very often one party having power over the other. One party decides what will happen, even to the extent that it is humiliating, painful, or at least seemingly dangerous to the other.

Some people like humiliation, mild pain and the appearance of danger, not to mention the act of submission to anther party. Sexually, too - some people like it sexually. Some people like sex with their own sex. I'm sure you could define that in the same way, you're intelligent and articulate. But that's all you've done - you've defined her sexuality. Do you object to it? In what way do you differentiate between straight sex, gay sex & BDSM? What kinds of sex can a limp-minded dinky wee girlie consent to without outraging you?

Among consenting adults, this loss of power is a role play, and in most cases, behind the surface the sub has as much or even more real power in the situation as the Dom. This is kind of a complex concept

I think we'll manage the complexity. She was a consenting adult, that's not so complex. All relationships involve 'power play', again straightforward stuff. Perhaps we shouldn't let people learn about things until they've learnt about them? The sub has the power, the safe word, the consent - would you rather she was in an abusive relationship to get what she wanted, or in a loving relationship with someone she trusted to deliver what she wanted in a safe, sane, consensual way?

Where's the complexity we were promised?

seeing that they have spent the entirety of their life following directions from most adults they associate with, it may be exceedingly difficult for them to take real agency in such a situation.

Of course. All children always do as they're told, and that goes double for adolescents. By the time they're of an age to give legal consent, they're not actually capable - they're just mindless drones who obey anyone.

At least she chose a mature man with relevant experience with whom to indulge her desires. Who knows what tragedy might have occured if she'd picked a male of her own (legal) age, whose brain is as useless as her own.

This is not to say that no 15 year old would ever be in full comprehension and control, but there's enough reason to believe that consent in a case like this is not what we'd call informed consent.

The law says she can give informed consent. It appears she gave informed consent. What are your reasons for thinking otherwise?

 

[NewtonTrino]

First off if she's within the age of consent and consented then I don't see the problem.

It's not like the guy actually harmed her. A bit of caning of this type isn't typically dangerous and isn't going to do any real damage. It's not like a singaporean prison cane type thing.

If this guy had ripped a hole in her side or done something truly damaging that took her past the level of reasonable consent then you might have a case. But a little bondage and caning? Happens every day to millions of people behind closed doors, and the squeals of delight would shock the average person. Actually electrical shocking is common too

 

[Cavemonster]

Some people like humiliation, mild pain and the appearance of danger, not to mention the act of submission to anther party. Sexually, too - some people like it sexually.

Absolutely. The problem is that they can correspond to extreme pain, scarring humiliation and real danger.

I for one think that the ability to understand and intelligently consent to these risks requires more than the ability to consent to the risk of sexual intercourse by itself.

I don't think that's unreasonable. Biological and behavioral study confirms the inability of young teens to process risk at the same level as most adults. We already enshrine that in our society in a million places, from car insurance to contract law.

Just because some risks may be part of someone's sexual enjoyment does not give them special status.

Some people have a sexual fetish for contracting HIV and purposefully spreading it to knowing or unknowing partners. Just because this behavior is part of sex, does not make it free from evaluation in all other terms.

I think we'll manage the complexity. She was a consenting adult, that's not so complex. All relationships involve 'power play', again straightforward stuff. Perhaps we shouldn't let people learn about things until they've learnt about them? The sub has the power, the safe word, the consent - would you rather she was in an abusive relationship to get what she wanted, or in a loving relationship with someone she trusted to deliver what she wanted in a safe, sane, consensual way?

Really, what was her safe word? Do you know she had one? How do you know her lover was safe and sane? Does being into BDSM guarantee those things? I assure you, it does not.

At least she chose a mature man with relevant experience with whom to indulge her desires. Who knows what tragedy might have occured if she'd picked a male of her own (legal) age, whose brain is as useless as her own.

How do you know they're her desires? Has a young woman never done things she didn't enjoy to please an older man?

The law says she can give informed consent. It appears she gave informed consent. What are your reasons for thinking otherwise?

The law says that she can give informed consent to sex. That does not mean that she can give consent to all behaviors that can somehow become a part of sex. Look at the examples I've given before, contract law etc. You're making an incorrect extrapolation.

 

[23_Tauri]

Because the premise is very often one party having power over the other. One party decides what will happen, even to the extent that it is humiliating, painful, or at least seemingly dangerous to the other. Among consenting adults, this loss of power is a role play, and in most cases, behind the surface the sub has as much or even more real power in the situation as the Dom.

But you just contradicted yourself. First you say that BDSM is about one party having power over the other, then you make the - correct- observation that subs are equal to Doms in terms of the relationship.

This is kind of a complex concept and even most adults who have never been involved find it hard to understand, so it is reasonable to think that young teens who's brains are dramatically physiologically different may not be able to process the necessary two-level reality behind this kind of play, and seeing that they have spent the entirety of their life following directions from most adults they associate with, it may be exceedingly difficult for them to take real agency in such a situation.

You're making an assumption about teenagers that I don't accept. A 16 year old is quite capable of knowing the difference between fantasy role play and reality. If not, we'd have a real problem on our hands with video games, right?

This is not to say that no 15 year old would ever be in full comprehension and control, but there's enough reason to believe that consent in a case like this is not what we'd call informed consent.

How do you know? Sexual proclivities such as submissiveness develop at a very early age. This 16 year old might have just struck lucky and found her ideal partner at an age when most of us are still having to put up with adolescent fumblers.

No, that's not true. For instance, he couldn't rip a hole in her side and have sex with that. Just because something is a part of sex does not make it immune from other laws.

When was ripping a hole in the side of someone and poking your penis in it "part of sex"? Hell, I've been into BDSM for a while and I've never heard of anyone doing that. But then I don't know any necrophiliacs.

Again, old enough to legally have sex does not mean a legal adult for all situations. Again, I don't know about Sweden, but in the US, 16 is the age of consent in more states than not, but you must be over 18 to sign a legally binding contract. I would be very surprised if in Sweden the age of sexual consent marks legal adulthood in all things.

What if a teenager had got similar bruising from playing football in the park with a 30 year old? Would that have been assault? Or is the problem because there was sexual pleasure involved? Or do we have to have legally binding contracts if we want a kick-about in the park with someone under 18 now, just in case they get a bruise?

You're invoking Loki's wager here. Since there is a possible gradation, a line can't be drawn? Poppycock! You can say the same thing about child abuse. Tim Minchin makes a joke in a song about being frustrated with his baby. What is the line between patting and hitting? What is the line between bouncing and shaking?
Just because a continuum exists, doesn't mean a useful distinction can't be drawn.

Lemme think about this for a bit....

 

[23_Tauri]

You're invoking Loki's wager here. Since there is a possible gradation, a line can't be drawn? Poppycock! You can say the same thing about child abuse. Tim Minchin makes a joke in a song about being frustrated with his baby. What is the line between patting and hitting? What is the line between bouncing and shaking?

Just because a continuum exists, doesn't mean a useful distinction can't be drawn.

Ok, I've thunked about this now. It's an appeal to emotion because you're using the term 'child abuse'. This is not child abuse. One, she's not a child in the eyes of the law, and two, she was consenting.

Also, reference to shaking a baby is a strawman because she's far from being a baby.

Now, what's your problem again?