PodcastShow Notes

BDSM and the Law-S01E37

Recorded January 14th, 2018 / Published March 27th, 2018
  1. Call in to get your questions answered at 865-268-4005 or visit at kudrinskrypt.com
  2. On this episode of the Krypt we are going to dive into BDSM and the law but first, I have to welcome my amazing co-host, Funsize.
  3. Rules to Love by:
      1. Safe, sane, consensual, and informed
      2. KNKI: Knowledge, No Intolerance, Kindness, Integrity
      3. “Submission is not about authority and it’s not about obedience; it is all about relationships of love and respect.” -Wm. Paul Young
  4. So as we all know the law can be a sticky subject there to help protect us or if we get caught up in it, well it’s not so pleasant.  In today’s conversation we have a few things to look at:
    1. What are the laws we directly face as part of the lifestyle?
      1. In the majority of the U.S at present, there is a common law that states that a person cannot consent to being harmed.  In theory, this would negate all consent of BDSM practices, and generally make everything we do illegal.
        1. I would like to break down this common law because I very much like to dig deep into these subjects, and frankly, this is one of the stickiest and murkiest bits of law I know.  It states that one cannot consent to be HARMED. There is a huge difference in hurt and harm, to begin with, we’re actually planning a whole future episode to discuss this topic.  What it really comes down to is that we each as consenting adults have to define the line between hurt and harm. So in that, we can consent to something.  
        2. My second huge point on the wording of this is that it seems to be aimed at those who engage in impact play.  As we all know impact play is NOT a must for BDSM. I’m not a fan of these murky generalizations.
        3. However, even with all this confusing and ill-worded generalization, there is one good point to be made, and that is that this law also helps to protect those who have been abused.  This common law is actually what allows victims of abuse to move into criminal charges against their abusers for assault or aggravated assault.
      2. There are also laws which ban many BDSM activities as morally reprehensible.  Especially if you live in the Bible-belt.
        1. These laws can also affect how many adult toys you may own and in some cases that is zero, what types of implements you can have, and even the kinds of sex you can be having.  Sodomy, for example, is illegal in Montana and most states. In most southern states the missionary position is the only legal way to have sex and some states go as far to say “only with the purpose and/or intent of and for procreation”.  
        2. I don’t like these laws simply because they are mostly either too generalized or too specific.  And the idea of something being morally reprehensible doesn’t sit well with me in terms of legality because too often laws are created and are often, in fact, immoral or based on religious practices when the Constitution of the United States is supposed to protect us from these types of biases.  
      3. Legal definitions of some of what we do, that are often considered illegal…because these do vary state to state:  
        1. Assault and aggravated assault are defined as acts of non-consensual touching of a person by another person or implement.  Aggravated assault applies to the same with the use of a deadly weapon ie knife play.
        2. Carrying a weapon knife play again for instance.  Some states have very specific laws as to the size of the knife you may have on your person, (in most states the blade cannot be longer than 3 inches) and if you’re into scalpel play these definitions may determine whether your scalpel is deemed a knife or not, and therefore a weapon.  
        3. False imprisonment and kidnapping are crimes of restraining another person without their consent.  Obviously, we’re all about consent but if you are engaged in a scene and police enter your home and find your partner tied up or in a cage, they may choose to view this as your partner being harmed, and therefore incapable of offering consent.  And I know Kuldrin has a story involving a consensual kidnapping…which is now funny but at the time a very tense and scary story involving a consensual kidnapping.
        4. Indecent exposure is an act of showing genitals or in some cases even breasts and buttocks.  If done in your own home and someone can see in through an open window or if you are an exhibitionist going about things in a public setting, you may be charged with this crime.  I have to say I really hate this one, because if I’m in my own home and someone is being a peeping tom, to me it is them that is the guilty party and not myself, however I know there are some out there who do put on shows, so I suppose I can understand.
        5. Impersonating an officer occurs if you engage in role play using costumes of police or firefighters, but in order for this to actually be a crime, you must be wearing a costume that is a replica or closely resembles the uniforms used in your region.  I, funnily enough, had a friend who was charged with this for using a policeman’s costume in a church Christmas play a couple of years ago.
        6. Prostitution is, unfortunately, a misdemeanor charge that professional dominants may at some point face.  It seems the best way to minimize your risks with this one is simply to offer only non-sexual services but depending on which state you are in the definitions of this could be horrifically tight to extremely loose.   With this one there has been a major change in the past year or two. Where they use to let the Jon’s and Jane’s go or charge them with a misdemeanor they can now be charged with felony aiding and abetting to sex trafficking.
        7. Rape and molestation are two huge ones for all of us.  They are defined as forced and/or non-consensual sexual intercourse or contact which includes any penetration, however slight, of the vagina or anus, with any object; touching of one person genitals to the anus or mouth of another; any touching of the sexual/intimate parts of another for sexual gratification.
        8. Reckless endangerment “is a crime consisting of acts that create a substantial risk of serious physical injury to another person. The accused person isn’t required to intend the resulting or potential harm, but must have acted in a way that showed a disregard for the foreseeable consequences of the actions.” Essentially any act of edge play including rope bondage and suspension can easily fall into these terms. (https://definitions.uslegal.com/r/reckless-endangerment/)
        9. Sodomy is sex that involves either anal-genital contact or oral-genital or oral-anal contact.  Most places still consider this as simply anal sex.
      4. Legal forms that can help you with your alternative lifestyle
        1. First I want to throw in the disclaimer that BDSM contracts are not legal forms.  50 shades brought a whole lot of nonsense and confusion for many newbies thinking contracts were legally binding.  They are not, they are a tool to outline and help a relationship, nothing more. The ONLY part of the contract that was legally binding in 50 Shades was the non-disclosure agreement and that isn’t even legal when it comes to protecting someone from illegal acts.
        2. POA forms (Power of Attorney) is a form which allows the person acting as guardian to assume control and responsibility for someone else.  These responsibilities range from private affairs, business, and medical depending on terms specified in these forms.
        3. Wills exist so that we have protection when the unexpected happens, this as true in the vanilla world as it is in our alternative lifestyle.  This is especially important if you have a long-term relationship, or live with your M/s or D/s partner. On this topic, it’s also recommended that you have a reading of the will BEFORE anything happens to you. It will save your loved ones a lot of hassle…especially if there’s a chance things aren’t considered “fair”.
        4. Protective orders are to keep a person away from you if you feel there is a reason to fear for immediate harm or danger.  These are typically only obtainable in the case of actual physical harm or sexual assault.
        5. Restraining orders are legal orders which require the person it has been filed against to stay a set distance away from you and can ban all forms of contact, especially important if you are ever confronted with a stalker.  Unfortunately, it can often be difficult to get a restraining approved for threats or stalking.
        6. As with the forming of any legally binding document seek help from an attorney to write these forms and make sure you find out if they need to be notarized, filed with the court, sent to or formally served to another person.
      5. Facing the law.
        1. What do you do when faced with the police?
          1. No matter the situation stay calm but appropriate.
          2. Call an attorney immediately to assist you.  
          3. Be careful to not self-incriminate. Lawyer up immediately! Unfortunately, some detectives just want to get the case closed and have a conviction on their record. They don’t care if you actually guilty. Always use your right to remain silent even if you haven’t been charged and they are “just talking to you” or “just asking you a few questions”. Don’t answer anything without an attorney present.
        2. If a consent violation has occurred and you need to seek legal assistance call the police and follow the first three steps above.  
          1. Do not wash or remove any evidence on your person or clothing. Tampering with evidence in itself is a crime not to mention the fact that it immediately makes you look guilty of something that may not be a chargeable offense but now they’ll make it one.
          2. Seek medical attention if needed.  Most hospitals will call the police and a social worker when there are signs of abuse. In this case, it does help to be completely honest…unless you want you partner to go to jail.
        3. Whether you are seeking to press charges or file a civil suit, or both you will need to know a few things.  
          1. Criminal charges
            1. The first thing you need to know is that prosecutors press criminal charges, not individuals.  After the police have been notified of a possible crime they will often ask the victim if they would like to press charges and this may influence the proceedings.  Prosecutors may press charges if an arrest has been made regardless of whether the victim has said yes or no because prosecutors act on the behalf of society and not a singular individual.  They look at the evidence given, including victim statements and may choose to proceed with a criminal case or not. Meantime the person who has had charges pressed against them may be held at a length determined by the crime, risks involved, and many other factors.
          2. Civil suits
            1. These are lawsuits filed by an individual or group against another individual or group.  Usually, in the case of BDSM, these will be for damages to one’s person, property, etc and should be handled with the assistance of an attorney.  Medical bills incurred and therapy, for example, can be covered in these suits.
      6. Consent is a defense: the ALI (American Law Institute) Project with NCSF (National Coalition for Sexual Freedom)
        1. They are a group of lawyers working to change the Model Penal Code, the structure from which most states build their legal systems, to decriminalize consensual BDSM.
        2. The primary focus of their work at present is working to currently change non-consensual BDSM from being a matter of criminal assault to one of sexual assault because “BDSM is not an attack by one person against another (which is the premise of a criminal assault law). Rather, BDSM is intended to be a mutually pleasurable interaction between two people, in which any pain or stimulation that is consented to is welcomed by that person and is experienced as a form of pleasure.” (https://www.ncsfreedom.org/images/stories/ALI/ALI_article.pdf)
          1. With the laws as they stand, if you are the victim of a crime in a BDSM scene, you will be faced with a few questions, and choices as to how best to pursue justice.  If any sexual act was involved the crime will be labeled as sexual assault. Victims of sexual assault fall under what is commonly known as the “rape shield” which will protect their identity from the press, along with any previous acts they have engaged in.  In the case of BDSM, this means they would be protected from being outed to the public themselves. The changing of these laws would assist in this.
            1. However, if no sexual act was involved, the crime would be labeled as assault, which has several different degrees, with punishments that vary based on these.  This also means that the crime, including the victim’s name, becomes part of a public record.
            2. These are very sticky choices that have to be made carefully, and with the help of an attorney.
      7. Conclusion
        1.  When dealing with the law there are pros and cons, things which offer protection, but also a mess we can find ourselves in all too easily.  So the best things we can do are to properly vet, negotiate, ensure consent, and communicate. And if we do come face to face with the police it’s best to stay calm and seek assistance.  
  5. A final note or two.
    1. I’d like to thank our Executive Producer Jeremiah, Our Senior Producer Matt, and our Jr. Producers K-2SO, Irish Mt. Dragon, and The Accidental Trucker. If you would like to become one of our show producers go to our website, https://kuldrinskrypt.com/supportme to get that information.
    2. Second, I’d like to talk BDSM contracts for their donation of their beautiful 25 page soft and hardbound M/s and D/s contracts.. http://bdsmcontracts.org coupon code: kuldrin20 for a 20% discount on all purchases.
    3. And finally, I’d like to thank http://whippingstripes.com my personal maker of leather and paracord impact toys.
Other Citations:  
NEXT WEEK’S AGENDA
  1. Next time on The Krypt we are going to talk about dungeon paperwork. In the meantime go to kuldrinskrypt.com for show notes, how to subscribe information, and the link to Fetlife group so you can take part in the conversation and be eligible for giveaways. While you’re there click on support us to become a Patreon supporter.
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This has been Master Kuldrin and Funsize for kuldrinskrypt.com: Unearth the Truth

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