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LadyEllen -> RE: Why would Dommes be interested in getting legal advice on their trade? (5/11/2010 4:33:36 AM)
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As Andalusite and VC have pointed out Kevin, one cannot consent to an offence and its not a great deal different with "offences against the person" ("OAPA" - a British Act that is likely inherited in Irish law).
One can consent to assault - which doesnt involve any actual contact but the "immediate apprehension of violence", that is that one believes that violence will be inflicted because of the conduct of another.
One can consent to battery - which doesnt involve anything more than actual contact. Battery is often charged alongside assault - leading to the "hilarious" chip shop name "A Salt & B Attery". It has to be possible to consent to assault and to battery since otherwise these offences would occur so often, (jostling in a crowded street for instance), that it would be unworkable - on a crowded street the consent is implied since any reasonable person can acknowledge the risk and choose whether or not to enter the crowd.
One cannot consent to any offence against the person that exceeds these levels - the next one, (again probably inherited in Irish law) is assault occasioning actual bodily harm, "ABH", which concerns superficial injuries such as cuts, bruises, abrasions - the sort of thing that doesnt need treatment and which is the bread and butter of bdsm. Given implied consent for being jostled in a crowded street, it may seem strange that no implied consent is taken to be in place when one enters into bdsm.
The guide by which things are excepted from criminality, as for instance sport, battle reenactment, medical and surgical treatment and tattooing have been excepted, is the public interest and morality. So in the Spanner case (see VC's post) and in the appeal the judgment was that the law should not protect sado-masochistic activities since these are not in the public interest and go against the prevailing moral consensus.
The same kind of thinking went into the criminalisation of homosexuality and the repeal by judges (not Parliament) quite recently that a husband could not rape his wife since she is his property. The law slowly but eventually changes as the prevailing moral consensus and public interest changes - which isnt to say that anyone ought to put it to the test any time soon if at all, but is to say that as bdsm goes more mainstream we might eventually expect change.
Even so I would expect that the vast majority of instances where police get involved are handled with discretion, that is to say that no charges are brought or even arrests made, but a quiet word is had. Of those instances where there are arrests I would expect few are ever charged, and of those charged I would expect few to proceed to anything more than a caution.
Only those instances where the injuries are substantial - well past the point of ABH, as in the Spanner case, are likely to ever see trial. And when it comes to pro-dommes I would expect prosecution to be far more likely for the commercial aspects of the service than the nature of the service itself.
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