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somethndif -> RE: Wife As Sex Slave Contract (8/9/2006 6:25:12 PM)
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quote:
ORIGINAL: Alumbrado
Under both English and American law, consenting to contact generally negates criminal charges...that is how boxers, martial arts teachers, football players, and actors are able to do what they do without being charged with anything.
In some select cases, judges have placed their personal/moral feelings above the law, and falsely claimed that one cannot give consent to a battery, merely because they disapproved of the lifestyle of the defendant....which is quite clearly wrong.
So that isn't, 'the law', it is corrupt judges.
As far as the sexual aspect, I cannot speak to the English code, but in the US, the courts have ruled all the way to the very top, that the government has no business in people's bedrooms.
So the statement that 'BDSM is illegal' is at best a stretch, at worst, just plain wrong.
Sorry, but you are just plain wrong. I suggest you read the 2004 case from the Nebraska Supreme Court, State v. Van, 268 Neb. 814 (NE 11/12/2004), 268 Neb. 814 (NE, 2004). That case was decided after the case of Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003) in which the U.S. Supreme Court held that consensual homosexual activity was protected by the Constitution's right to privacy. Here is an except from Van which explains that non-consensual activity, and any activity, whether consensual or not, that results in "bodily injury" can still be criminally prosecuted and is not protected by the Constitution. Simply put, you can be criminally prosecuted for BDSM activity, even consensual BDSM activity, if it results in "bodily injury."
"Van rests his legal argument on Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), which was decided after Van's trial but prior to his sentencing. In Lawrence, the U.S. Supreme Court considered the validity of a Texas criminal statute prohibiting two persons of the same sex from engaging in certain intimate sexual conduct. The two adult men convicted under the statute had engaged in consensual sexual activity in a private residence. Overruling Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the Court recognized that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" and held that the Texas statute furthered "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Lawrence v. Texas, 539 U.S. at 572, 578. The Court noted that as a "general rule," government should not attempt to define the meaning or set the boundaries of a personal relationship "absent injury to a person or abuse of an institution the law protects." 539 U.S. at 567.
In Lawrence, the consensual nature of the sexual activity was undisputed. In the instant case, consent was very much at issue. The offenses with which Van was charged were alleged to have been committed from December 8 to 17, 2001, after J.G.C. claimed to have withdrawn his initial consent to the relationship with Van and expressed his desire to return to Texas. In order to obtain a conviction on the charge of sexual assault in the first degree, the State was required to prove beyond a reasonable doubt that sexual penetration occurred without J.G.C.'s consent. See § 28-319(1)(a). We find nothing in Lawrence to even remotely suggest that nonconsensual sexual conduct is constitutionally protected under any circumstances or that consent, once given, can never be withdrawn.
Our statutes defining first and second degree assault include no reference to consent. Van was charged with assault in the first degree, defined by § 28-308(1), which provides: "A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person." He was also charged with violating § 28-309, which defines assault in the second degree as "ntentionally or knowingly" causing "bodily injury to another person with a dangerous instrument." This court has held that "all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault." State v. Hatfield, 218 Neb. 470, 474, 356 N.W.2d 872, 876 (1984). Although we have not previously had occasion to determine the applicability of this principle to a BDSM relationship, other courts have done so. For example, People v. Jovanovic, 263 A.D.2d 182, 198 n.5, 700 N.Y.S.2d 156, 168 n.5 (1999), a case involving alleged conduct which occurred after e-mail correspondence in which the complainant had indicated an interest in participating in sadomasochism, the court noted that under New York law, consent was not a defense to the crime of assault because "as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act."
State v. Collier, 372 N.W.2d 303, 305 (Iowa App. 1985), the Iowa Court of Appeals held that BDSM activity did not fall within an exception to the Iowa assault statute as conduct by voluntary participants in a "sport, social or other activity" which did not create an "unreasonable risk of serious injury or breach of the peace." (Emphasis omitted.) The court in Collier held:
'Whatever rights the defendant may enjoy regarding private sexual activity, when such activity results in the whipping or beating of another resulting in bodily injury, such rights are outweighed by the State's interest in protecting its citizens' health, safety, and moral welfare. . . . A state unquestionably has the power to protect its vital interest in the preservation of public peace and tranquility, and may prohibit such conduct when it poses a threat thereto.'
(Citations omitted.) 372 N.W.2d at 307.
The Supreme Judicial Court of Massachusetts used similar reasoning in rejecting the defendant's argument that he was not guilty of assault and battery because he and the victim were engaged in a sadomasochistic relationship in which beatings administered with a riding crop were for sexual gratification. Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051 (1980). The court held that any right to sexual privacy held by a citizen "would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations." Id. at 310, 402 N.E.2d at 1060. See, also, People v. Samuels, 250 Cal. App. 2d 501, 58 Cal. Rptr. 439 (1967) (holding consent not defense to aggravated assault charge arising from filmed sadomasochistic beating).
Although Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), was decided subsequent to these cases, it does not undermine their reasoning. The Lawrence Court did not extend constitutional protection to any conduct which occurs in the context of a consensual sexual relationship. Rather, the Court indicated that State regulation of such conduct was inappropriate "absent injury to a person or abuse of an institution the law protects." 539 U.S. at 567. In addition, it specifically noted that the case it was deciding did not involve "persons who might be injured." 539 U.S. at 578. We therefore conclude that §§ 28-308 and 28-309 are not unconstitutional as applied to Van."
Dan
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