On another board, someone has been saying that the cops could bust in on a BDSM session and arrest (whoever's Dominating) for assault. This person's argument goes like so:
(Northern, CA city) Police raid in a provider's location and find a D/s session in progress with a submissive handcuffed to a chair, covered with welts and a Dominant standing next to a table with a cane on it.
1) Because the submissive was restrained, the law would deem them unable to consent to the battery. So it would not matter if the submissive stated he/she had asked to be treated this way.
2) The bruises would be all the evidence necessary. The police would not be able to produce any witnesses, or witness this themselves. N.B. Both the provider and customer refused to make any statement until they speak to their lawyer.
The Police charge the dominant one with Felony Assault.
BTW: We will assume they can't make a prostitution charge stick and are pissed about this because the raid was expensive and time consuming to set up.
If this is true, can any brilliant legal minds tell me why?
I don't need a full blown memo, just a little insight into the logic (or illogic) would be helpful.
-- Modified on 10/24/2002 2:32:33 PM
-- Modified on 10/25/2002 11:47:08 AM
-- Modified on 10/25/2002 12:10:39 PM
There are different types of battery, which probably make it okay for BDSM.
Assault is an unlawful attempt, coupled with a present liability, to commit a violent injury on the person of another. Since I don't do much criminal law I don't know what the "mens Rea" is(also known as the required mind set of the criminal) for the charge to stick in a BDSM situation.
On the other hand, battery in California has an interesting definition. There is a separate battery charge called "sexual battery". That is defined as: a) any person who tuches an intimate part of another person while that person is unlawfully retrained by the accused or an accomplice, and if the touching is against the will of the person being touched and is for the purpose of sexual arousal...
One of the specified areas considered sexual touching is the buttocks.
Basically the mens rea for sexual battery requires the person getting beaten to be unconsenting. Of course in BDSM the person usually consents to being tied and beaten, so this charge would unlikely hold in CA for sexual battery in an BDSM case. The charge could apply in a BDSM situation where the slave asks the person doing the beating to stop and the person continues beating the the slave.
I would have to check into assault and regualr battery more, but I don't have time and you said you just wanted input so I am just giving a quickie opinion that is not to be relied upon as legal advice.
I would initally, without further research, predict that in California they would leave regular paid BDSM people alone as long as there is no sex and the beating is requested and is consenting.
Another interesting note, I have heard that you cannot tie people up and have sex with or beat them in videos. You can retrain them, taunted them with feathers or caress them, then untie and beat them and have sex (for videos). I don't know how that would apply in real life BDSM for fun or pay, except that the sex part is definitely not ever allowed if money is being exchanged.
-- Modified on 10/26/2002 3:33:52 AM
Asault is: An intentional threat, show of force, or movement that could reasonable make a person feel in danger or physical attack or harmful physical contact. It can be a crime or a tort.
Battery: An intentional, unconsented to, physical contact by one person (or an object controlled by that person) with another person. It can be a crime or a tort.
Mens Rea: A state of mind which produces a crime: No Mens Rea, No Crime. Guilty mind! This is an element of a crime that has to be proven beyond reasonable doubt.
(All this information is based in California Law. It may vary from state to state)