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legal question - 4/23/2004 4:32:58 AM

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I have read many threads on contracts, the good and the bad. I have learned here that they are not legally binding, which boggles the mind, I have always thought an agreement between two people, especially signed would be legally binding.

But my question is not about contracts. I would like input from those of you who seem to know the law pretty well.

Daddy has mentioned the need to draw up some form of recognition of our relationship. Not for the two of us, but for others who may judge us. Something that says that all we do together is consenual.

Our fear is that someone may notice something, get vindictive, and report us, or rather him. Lets say for example, we recently had an intense scene. Bruises were left, marks were made. Then someone notices a bruise or a mark, as much as I try to hide these things from the general public, you never know. Or maybe a session went bad and I actually got injured to the point of needing medical attention. I can't foresee this happening, as he is very well versed in all he does, but you never know.

Would some document stating that all we do is consensual keep charges from being pressed?

RE: legal question - 4/23/2004 5:33:10 AM

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quote:

ORIGINAL: Gabrielle
Would some document stating that all we do is consensual keep charges from being pressed?

This is a very good question Gabrielle. Since you are a living breathing consenting adult, and not a minor, homicide victim, or permanently incapacitated, etc (where the district attorney's office decides whether to press charges), I think filing of any charges would rest solely on your decision. I do not think they could even hope to gain a conviction with an unwilling victim who states there was no crime commited.

Any document can be sworn and docketed into civil court records of any town or county in the US. These documents are usually required to be signed/notarized, and become a matter of public record once docketed. Are they legal and binding, no. They are simply sworn statements, as of the date signed and docketed.

You and Daddy can draw up a contract, written agreement, disclaimer, or whatever and have it notarized/docketed, but remember that for 25¢ per page, anybody can have a copy of the document (not private by any means).

I don't think a slavery contract is binding anywhere in the world, as slavery is illegal... therefore a slave's contract cannot be legally binding. In the real world illegal slave markets, the slaves have no choice or hope of contracts... simply owned, period until sold, traded, etc. (at the owner's discretion).

So, this brings us back to the fundamental desire to be covert and private. The more you attempt to formalize/certify your relationship (to CYA), the more probable damage you will likely do to your desire and ability for privacy. Catch-22.

Many insurance carriers refuse to pay for treatment of injuries sustained in "high risk endeavors" (extreme sports, etc), and would likely refuse to pay for treatment of injuries received in activities they didn't condone. You can bet on an expensive claim the insurance carrier would be checking court and police records for any documents regarding you.

Finally, even if you did not wish to file charges... a preliminary investigation, or any law enforcement probing into your life and lifestyle can be uncomfortable at best, if not outright embarassing professionally, personally, and socially.

There really is no security blanket available, and being involved in any SSC or RISK play has it's built-in hazards, and of course worst case scenario's. If you were hospitalized and the staff saw beating and whipping marks on your buttocks... they could report the perceived abuse. Whether it was abuse would fall to you (victim), but even saying no I was not abused to vanilla officials does not prevent potential undesired exposure.

Paper and documents won't cover your ass "carte blanche", it's not as easy as that when vanilla officials operate on the assumption they are in fact protecting you.

Inyouagain

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(in reply to Gabrielle)

RE: legal question - 4/23/2004 5:59:00 AM

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Gabrielle,

Find out how your local laws read. Many places do not allow adults to consent to what is essentially, in their state, battery. It's certainly a grey area at best.

While I agree that often a prosecutor won't press charges if the victim is unwilling to state they are a victim, it is still possible to be called as a "hostile witness" and unless you are married your relationship would not be protected by privilege. You wouldn't be able to refuse to testify without potentially suffering some consequence.

My suggestion would be to consider drafting a statement or affidavit, as opposed to a 'contract,' that discribes the nature of your relationship and your understandings and commitments to each other. Make it known within the document that you are making such a statement for the very reasons you have described, in the hopes that those who might not understand will realize that the both of you believe you understand what you are doing and consent to it. I would stear clear of bdsm verbage and nomenclature for this document.

It's never a bad idea to have an attorney research the laws and rules that govern in your area and assist in the drafting of such a document/affidavit. Depending on where you live it's quite possible there is already case law that addresses the situation. If so, the attorney will take from said case law and work that precedent into your affidavit in the hopes of making it more durable legally.

Of course your mileage may vary.

_____________________________

“The more you love, the more you can love—and the more intensely you love. Nor is there any limit on how many you can love. If a person had time enough, he could love all of that majority who are decent and just.”
- Robert Heinlein

(in reply to Gabrielle)

RE: legal question - 4/23/2004 6:45:07 AM

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From: Washington
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quote:

Not for the two of us, but for others who may judge us. Something that says that all we do together is consenual.

That is a very good question. I used to frequent a cam site and there was a couple there that played on cam with pretty severe floggings. Someone said in the chat that they reported them as being in an abusive relationship. I have no idea how it turned out or to whom they reported them, but your comments reminded me of this situation.

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proudsub

"Without goals you become what you were. With goals you become what you wish." .

"You are entitled to your own opinions but not your own facts"--Alan Greenspan

(in reply to Gabrielle)

RE: legal question - 4/23/2004 4:44:53 PM

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Good answers here. I would suggest writing up a statement as MizSuz suggested and having it notarized. You don't have to file it in any court. Just put it in a safety deposit box. Then if needed, it's there.

If you do have marks and evidence of your relationship on your person, and you do see a healthcare provider...it's not that they MIGHT report you...they are bound by law to report you as a possible victim of abuse. Even if you say it's consensual, they still must report it by law. Of course, there will be an investigation and you can then use the document you created (obviously notarized prior to the incident, correct?) and go from there. It's true that there are some states that don't allow this activity even if it is consensual.

Something else to remember...if you are reported, that information stays in a file forever and ever and ever. It may say that the case was "dismissed"; however, let's say you have kids and your ex-husband gets wind of this. This evidence could be used in custody cases.

So...be careful. It is great to find a kink-friendly physician who understands. There used to be referral websites around that told where these providers were, but I was looking for one recently and couldn't find the information.

Best wishes.

Attachment (1)

_____________________________

"I assure you, Your Honor, I don't have to practice...I'm very good at them..."
(The Marquis de Sade at one of his trials for the sexual perversities he practiced)

(in reply to MizSuz)

RE: legal question - 4/23/2004 5:32:45 PM

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quote:

ORIGINAL: MistressKiss

Good answers here. I would suggest writing up a statement as MizSuz suggested and having it notarized. You don't have to file it in any court. Just put it in a safety deposit box. Then if needed, it's there.

That's a viable alternative, too. Certainly worth considering.

quote:

If you do have marks and evidence of your relationship on your person, and you do see a healthcare provider...it's not that they MIGHT report you...they are bound by law to report you as a possible victim of abuse. Even if you say it's consensual, they still must report it by law.

This has not been my experience at all. This may be a quirk of where I've lived, but I've always found that being forthright about it in the first meeting usually clears most questions up subsequently. Conversations usually go something along the lines of "Dr.X, you should know that I am an avid participant in both extreme sports and S&M activities. Some would call them hard core S&M activities. Being my healthcare professional means living with the possibility of broken bones and sprains due to the sports and any assortment of marks from my S&M and sexual activities. I am looking for a medical consultant who can respect those choices, are you that person?" If it upsets them I find another professional. Sometimes they may seem a bit uncomfortable but will usually go out of their way to stress that they don't care as long as it's ok with me. After that it's never an issue again.

That's my usual, but it doesn't take into account emergency room visits and consultations with specialists and any assortment of other ways you could end up 'examined.'

My point, though, is that I've always been very forthright about it and never had problems such as those you speak of. I also know that there are a number of states in which it is not "required" by law to report, but is considered ethical practice; and would encourage people to investigate their state and local laws and case law if they are concerned.

quote:

So...be careful. It is great to find a kink-friendly physician who understands. There used to be referral websites around that told where these providers were, but I was looking for one recently and couldn't find the information.

Sage advice indeed.

Google search "Kink Aware Professionals" and you'll get all the links you might want to investigate.

< Message edited by MizSuz -- 4/23/2004 8:58:28 PM >

_____________________________

“The more you love, the more you can love—and the more intensely you love. Nor is there any limit on how many you can love. If a person had time enough, he could love all of that majority who are decent and just.”
- Robert Heinlein

(in reply to MistressKiss)

RE: legal question - 4/23/2004 5:54:43 PM

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A Kink Aware Professional Site I've seen (but not used):

http://www.bannon.com/kap/index.htm

January

(in reply to MistressKiss)

RE: legal question - 4/23/2004 10:37:07 PM

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Joined: 1/1/2004
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quote:

ORIGINAL: January

A Kink Aware Professional Site I've seen (but not used):

http://www.bannon.com/kap/index.htm

Just a note about the KAP list. It's a useful resource, but please remember that the individuals on it are self-referred. No one has checked into their "kink awareness" nor has their professional competence been checked (via references, etc). There is also no method for reporting bad experiences with professionals who choose to list themselves here (or anywhere that I'm aware of).

Also remember that many kink-aware and/or kink-accepting professionals do NOT list themselves in such places for a variety of reasons.

Personally, when I need to hire a professional, I want to get the best *professional* for the job. The kinks issues are secondary. Like Suz, I bring it up at the initial consultation, and I've never had anyone refuse me services because of my preferred activities. Where my health is concerned, I want the best doctor around, and if i have to educate him about kink, I will. I'd rather that than a 2nd rate physician that happens to have some rudimentary knowledge of SM.

Inclusion in the KAP list should *not* be the deciding factor in choosing a professional, imnsho.

< Message edited by SherriA -- 4/24/2004 1:37:54 AM >

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(in reply to January)

RE: legal question - 4/23/2004 11:17:44 PM

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Thanks, MizSuz...and my comments were mostly directed toward an emergency room situation or a healthcare provider that was not aware of the kink practiced.

It is however, required by the Department of Health and Human Services to report suspected abuse. If the physician or provider does not suspect abuse, he or she is not bound by law to report it. The problem is that so many physicians are so afraid of litigation that they don't take chances on being sued "just in case something happens". Additionally, the physicians must be concerned with medical societies that they belong to, including those within the hospitals where they practice. Not reporting can also be considered an ethical breach of conduct, which can get them suspended from the society and therefore ineligible to practice at a healthcare facility.

Unless the physician/provider knows you well, my advice is still to be careful. Remember, it doesn't have to be the physician who reports. It can be a nurse, or a nursing assistant - any health professional that suspects a problem with abuse is required to report. And you also have to remember that when someone disagrees with the lifestyle, they may consider that reason enough to report and try to save the poor submissive who just MUST be doing all of these things against her will.

I think the key word is "suspect" - that's why the document dated prior to is a good defense, especially if it is kept in the submissive's safety deposit box, not the dominant's - that seems less "forced", if that makes sense. Laws may differ slightly from place to place, but I am almost sure that the mandate is from DHHS toward providers and it is related to those that accept federal reimbursements (such as Medicare and Medicaid).

Hope that helps. MizSuz is a long time expert in these things as well.

< Message edited by MistressKiss -- 4/23/2004 11:18:21 PM >

_____________________________

"I assure you, Your Honor, I don't have to practice...I'm very good at them..."
(The Marquis de Sade at one of his trials for the sexual perversities he practiced)

(in reply to MizSuz)

RE: legal question - 4/24/2004 6:37:42 AM

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quote:

ORIGINAL: MistressKiss

I think the key word is "suspect" - that's why the document dated prior to is a good defense, especially if it is kept in the submissive's safety deposit box, not the dominant's - that seems less "forced", if that makes sense. Laws may differ slightly from place to place, but I am almost sure that the mandate is from DHHS toward providers and it is related to those that accept federal reimbursements (such as Medicare and Medicaid).

Hope that helps. MizSuz is a long time expert in these things as well.

Kiss,

I quite agree with you. As you said previously "Be careful" and that was the bottom line for me. Hell, even my discussing it with a health care provider on the first visit is my version of being careful. As for the ER visits and such, in the past when I've seen someone like this and there was already marks on myself I usually stopped the process before disrobing and said something along the lines of "before we go any further you should know..." I've had people say to me "Damn, you sure you ENJOYED that?!? It looks like something that should be triaged to me!" Laughingly saying "Oh yeah, I'm QUITE sure I enjoyed that" always seemed to keep it in its perspective.

Please don't think that I've never taken any hits for being "out" with my kink (or anything else that society doesn't deems as 'normal') because I certainly have.

I still think your ideas about notarized statements are good ones (this is what we call an affidavit) and you are correct that filing with a court or legal entity is not required. It's a fairly decent 'cover your ass' sort of thing that can establish consent and intent was in place before the 'offending marks' were ever acquired.

It's very easy to assume what it is that we do (wiitwd) is illegal or not illegal. The best bet is to research your local laws and to investigate if there is any case law that's been handed down from your district/circuit/etc. If you dont know how to do the research then, again, ask an attorney to research it for you (a competent paralegal could probably do the same thing, although they are not permitted to advise).

_____________________________

“The more you love, the more you can love—and the more intensely you love. Nor is there any limit on how many you can love. If a person had time enough, he could love all of that majority who are decent and just.”
- Robert Heinlein

(in reply to MistressKiss)

RE: legal question - 4/24/2004 7:08:26 AM

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I think MizSuz and I were separated at birth.

She makes excellent, valid points here.

I also would suggest talking with your local dungeon masters/mistresses. They usually are very well versed as to the laws in the city and state with regard to BDSM activities - they have to be. They can usually provide excellent advice as well.

Attachment (1)

_____________________________

"I assure you, Your Honor, I don't have to practice...I'm very good at them..."
(The Marquis de Sade at one of his trials for the sexual perversities he practiced)

(in reply to MizSuz)

RE: legal question - 4/24/2004 8:55:39 AM

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Joined: 1/1/2004
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quote:

ORIGINAL: MistressKiss

I also would suggest talking with your local dungeon masters/mistresses. They usually are very well versed as to the laws in the city and state with regard to BDSM activities - they have to be. They can usually provide excellent advice as well.

In general that is often true, but I'd go for the people who have been in business a while. The Attleboro fiasco is a case in point.

As for us being separated at birth, perhaps sometime when the opportunity arises we should make a point of reuniting! Ya know...just for old 'womb' sake.

_____________________________

“The more you love, the more you can love—and the more intensely you love. Nor is there any limit on how many you can love. If a person had time enough, he could love all of that majority who are decent and just.”
- Robert Heinlein

(in reply to MistressKiss)

RE: legal question - 4/24/2004 10:51:08 AM

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laughs - my email is [email protected] - say hi when you have time.

_____________________________

"I assure you, Your Honor, I don't have to practice...I'm very good at them..."
(The Marquis de Sade at one of his trials for the sexual perversities he practiced)

(in reply to MizSuz)

RE: legal question - 4/25/2004 6:03:17 AM

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From: Sacramento, California
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Just remember, no matter WHAT contract you forge, and no matter WHO you get to sign it, any decent lawyer will be able to render that contract as proof that you weren't *in your right mind* and thus were unable to actually consent.

Sadly that is pretty much how such things turn out, they figure if you would sign such a statement you couldn't possibly be thinking straight enough to be able to give your consent, so the contract is obviously then rendered null and void on that count alone.

At least that is exactly how the prosecuting attorney will go after it.

All you could possibly hope for is a judge that was wearing garters under his robe. (lol)

No slave contracts will be upheld in court in the US - just consider it a nice symbolic document of your commitment and take it to heart in your lives. But don't expect it to cover your ass, cuz it would most likely be used to help bury it instead.

JMO.

~ShadeDiva

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~ShadeDiva
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(in reply to MistressKiss)

RE: legal question - 4/25/2004 2:39:07 PM

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Now, I agree with Shade Diva about a CONTRACT, but what I am suggesting is not a contract for slavery. I am suggesting a statement that you participate in BDSM activities of your own free will. That is very different from a contract. And a statement is not something someone can "prove" invalid easily. You are simply saying that you participate in an alternative lifestyle.

You may can argue a contract and find various loopholes in it, but not to the extent, I think that you are stating - unless it is a contract that you personally draw up without any legal knowledge. Most are pretty damn binding (ask my publisher).

Attachment (1)

_____________________________

"I assure you, Your Honor, I don't have to practice...I'm very good at them..."
(The Marquis de Sade at one of his trials for the sexual perversities he practiced)

(in reply to ShadeDiva)

RE: legal question - 4/26/2004 4:41:14 AM

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actually slavery is not illegal around the world
its only illegal in sum industrialized countrys and
even in these industrialized countries rampant
nonconcensual slavery persists.
inyouagain

it is in My opinion vitally important to contract and
make contracts/affirmations/wills for every situation
in your life and not just your Alternate ways. There was a time not
so long ago that just the handshake of a person was
enough to hold a person honor to bare for life but
in these days and tiimes contracts and records are
important in any realationship and especially a Alternat
one because basically you have lived sumthin that is
not of the norm there for every detail and actioln
needs to be documented for one of any reasons.

processcution comes when one takes out a complaint.
a state attorney may seem fit to persue a case and can
with out any charges make a case with the state but if
they are real would not take the time to persue such unless
there were complaints to back up their action. Be careful of
political years as you could become the next action to change
a vote LOL oooooh yea one more note: in the consensual
contracts state that all marking gained on ones body were self
inflicted hence you would only be dealing with one persons proclaim
instead of two and it would get thrown out way quicker, they allready
know by your statements on paper your kinks and no matter whom
lays claim to their addition are concidered insane any how.

(in reply to MistressKiss)

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