OK, I will confess, I really wanted to write something else. I really wanted to write about the interesting obscenity case going on in the United Kingdom, or about whether prostitution laws apply to pro-dommes. I really wasn’t planning on writing another “you can’t consent to assault in the context of a BDSM relationship” article. I’ve flogged that topic well beyond its (and my) limit. I figured I ended my last column with the best summary I could come up with – that the law itself won’t change, and probably shouldn’t in order that we can prosecute real domestic violence. But that as BDSM becomes a more recognized…orientation (for lack of a better word), consent would be acceptable as a defense in BDSM just as it is in, say, Boxing or Wrestling. I figured that I could move on to other things, ‘cause there was no court on in the country on the cusp of dredging up & repeating that soiled mantra, “you can’t consent to assault committed as part of sexual activity.”
I was wrong.
On September 7, 2012, by a score of 7 – 0, the Supreme Judicial Court of this great Commonwealth of Massachusetts, in the case of Commowealth vs. Carey, without so much as a judicially raised eyebrow, carved this tired phrase into granite, standing on the shoulders of the oft’ decried decision Commonwealth v .Appleby. Or more simply, the court held that “consent is not a defense to a charge of assault and battery by means of a dangerous weapon committed as or as part of sexual activity.” Predictably, it is in another horrible case, with horrible facts, where the justices blithely issue this proclamation, ignorant of the fact that whey they carve these things into law, they do an injustice to a community of law-abiding, loving, industrious, creatively kinky people.
The way it happened – with as little trigger as possible – is this (the actual facts are detailed in the SJC and earlier appeals court decision): asshole comes over to the victim’s house. The victim knows asshole, but asshole is drunk and she asks him to leave. Instead asshole attacks her brutally. Eventually she fights him off and flees to a nearby house. At the trial, overwhelming evidence points to asshole as the perpetrator, and he is correctly found guilty.
Up to this point it seems cut and dried: asshole should go away for a long long time. However, asshole appeals – and as part of his appeal, he claims that he is in a consensual BDSM relationship with the victim, and this was all part of a scene. Now if you’ve read the facts of the case you know how ludicrous this claim is – nevertheless, he makes it. So the appeals court has to address it. Unfortunately, the way this works is that the appeals court looks only at the trial court record; they do not look for more evidence as to whether a BDSM relationship existed between the two, or whether they had ever done anything like this before consensually (asshole says they had, victim says that no relationship existed and that they had never done anything like this). In looking at the record & the appeal, the court also looks to precedent – earlier cases that address the same issue. In Massachusetts, we have precedent, Appleby, which says you cannot consent to assault in a sexual relationship – precedent which the court has to follow unless there is a good reason to overrule it. This case does not present a good reason to overrule it and so the court follows it. Or, to put it differently, there is not enough evidence in the record for the court to say “Consent?! Bullshit! This was assault and you’re going to die in prison.” And there is no compelling reason to change the law to let asshole go free. So the appeals court affirms the trial court, and the Supreme Judicial Court, the highest court in Massachusetts, essentially rubber-stamps the appeals court’s reading of Appleby, once again reinforcing the idea that, in the eyes of the law anyhow, you cannot consent to assault.
Once again: so where does this leave us? Well, I don’t see a judge overturning this ruling any time soon. But on the other hand, I don’t believe any of us are in imminent danger of judicial reprisal for what we do in negotiated, consensual relationships where there are no complaining witnesses. In fact, of all of the cases in the United States that hold that you cannot consent to assault in a sexual or BDSM relationship – and there are many – there is only one, People v. Samuels in California, where there is no complaining witness (that case was based on a film). What infuriates me about the recent SJC decision most is that it’s nonsensical and somewhat lazy. As the world is painted in “shades of grey,” there is a growing recognition, if not acceptance of BDSM. Most people you ask outside of the legal circles believe that you can consent. Why, then, this giant judicial backslide? Couldn’t the court have found some way to put asshole away without casually denouncing a community? With the growing inconsistency between cultural reality and judicial non-fiction, who should we believe?