That, of course, depends. In certain cases it may be. I would say, certain submissives are not in control of their facilities and are not properly able to say no. I'm not sure, though, what the norm is. In many cases it's just two people enjoying each other. I don't know if I'd necessarily condone it and I'd certainly wouldn't want my yung uns exposed to it.

I could, without much stretch, see why a state would outlaw such practices, simply because the possibilities for abuse are legion. On the other hand, just like any other case, if the reciever is assumed to be in control of his facilities then he should have the right to press charges or not.

As I ramble on and do this in a train of thought way...

Which leads us to battered wife syndrome. Is it assault? If she doesn't want to press charges and doesn't want to hold him responsable for his actions, is it still assault? That's the thin line being tread here. Helping those who can't help themselves and letting consenting adults consent.

On the otherhand...there are cases where we, as society, agree that consent isn't sufficent. That's the whole Kevorkian thing, which is just following this to it's logical extreme. Legally speaking, suicide seems to be frowned upon. As a matter of fact, Montesquieu brings down that as far back as Greek and Roman law, suicide was illegal. See Plato's Laws ix.

As someone who leans heavily in the small-government conservative bordering on libertarian...I'm of a mind to say let people consensually beat the hell out of each other. Heck, people pay lots of money to watch boxing, though there are two major differences there. One, being the beatee doesn't want to be beaten and he has the option to beat back.

On the other hand, being a religious fellow, I don't think it's a morally sound practice. We were given our bodies in sacred trust. We should at least try to keep them in good shape.

end ramble here

Posted by: Kin at February 24, 2004 11:04 AM

Personally, if it's between two (or more) consenting and mentally competent adults then there's no problem at all. That's universal, by the way. If somebody wants to answer an advertisement by a German cannibal and have his penis flambed that's perfectly fine with me.

Posted by: Jim at February 24, 2004 01:02 PM

Ick.

Posted by: Pixy Misa at February 24, 2004 09:32 PM

Grey area. The problem is trying to precisely define what assault is. You can't ignore consent, but then, defining 'consent' gets tricky, kinda like 'mentally competent'. This is the sort of thing lawyers love.

Posted by: Ted at February 25, 2004 07:08 AM

Hi.

Legally, S&M may be assault. Then again, smoking might be assault. The law is whatever judges decide it is.

Morally, in my opinion, S&M is not assault. Depending on consent, good faith sanity (which comes into consent), and common sense.

By default, S&M is fine, in the same way that any sort of good sex is fine, or in the same way that special codes and rituals have are fine. I mean pet names, known gestures that have important meanings and so on.

Special cases include:
* Bad faith. In an obvious, extreme case a (straight) guy sought gay partners looking for hot S&M sex. They were looking for sex, he was looking for four victims in a helpless condition so he could rack up enough victims to be a proper serial killer. Of course this also goes to sanity. Or, blackmail comes up from time to time, and not only is that bad faith, to an extreme, but violence may be part of intimidating the blackmail victim. Though a defense layer will always try to blur the distinction between sexual violence and that kind of instrumental, exploitative violence, the distinction is pretty clear emotionally.
* Stupidity, ignorance and reckless negligence. This also goes to bad faith of course. ("Sure I know what I'm doing.") At some point, impossible to define legally but all-important morally, a lack of thought and a failure to educate yourself becomes culpable, it even becomes assault, in my opinion, because you are exposing someone to excessive danger.

Nothing like that applied in the linked case, so S&M was not assault.

Posted by: David Blue at February 25, 2004 08:10 AM

Kin,

I'm not trying to buy a fight here, as you seem a reasonable guy, but in a polite way I'd like to challenge some of your ramble. Quite a lot of it, actually. :)

"I could, without much stretch, see why a state would outlaw such practices, simply because the possibilities for abuse are legion."

How would you feel about outlawing sex in general, because the possibilities for abuse are legion? Or does the good life involve acceptance of risk?

"On the other hand, just like any other case, if the reciever is assumed to be in control of his facilities then he should have the right to press charges or not."

I'm not sure what you mean by the right to press charges. If all you mean is that anyone can complain, anyone can sue and so on, sure. That's a reality. But if you mean that the bottom should be able to have the top slung in jail on his or her say-so, why?

Also, suppose Adam and Betty take turns to be boss, a not uncommon situation. Is the innocent party the one who first denounces the other to the police? Or what?

And why do you (seem to?) assume that tops and bottoms are always different people, and that the sanity of bottoms is always in question (but tops seem to get a free pass)?

"As someone who leans heavily in the small-government conservative bordering on libertarian...I'm of a mind to say let people consensually beat the hell out of each other. Heck, people pay lots of money to watch boxing, though there are two major differences there. One, being the beatee doesn't want to be beaten and he has the option to beat back.

On the other hand, being a religious fellow, I don't think it's a morally sound practice. We were given our bodies in sacred trust. We should at least try to keep them in good shape."

Well, that might apply to boxing, because of brain damage. Though personally I'm all for the right of boxers to box. But if you're going to make staying in shape mandatory, compulsory gym memberships would be more to the point than banning leather and hot spankings, surely?

Posted by: David Blue at February 25, 2004 09:01 AM

David,

Well reasoned arguments all. I shall attempt to rebut them as I can.

"How would you feel about outlawing sex in general, because the possibilities for abuse are legion? Or does the good life involve acceptance of risk?"

Because sex is a) necessary b) is not based on causing harm to another, which is the raison d'etre of S&M. Abuse is several steps away from vanilla sex. It is a matter of perception in S&M.

"But if you mean that the bottom should be able to have the top slung in jail on his or her say-so, why?"

Certainly not. Just as a woman shouldn't be able to have a man thrown into the clink if she changes her mind mid-coitus. The whole point of my argument was that I was, in certain cases, questioning the sub's judgement (that is not to say I question the judgement of all people who choose to be dominated, either physically or mentally. Rather in such cases that it is an issue, a valid case for abuse can be made.)

"And why do you (seem to?) assume that tops and bottoms are always different people, and that the sanity of bottoms is always in question (but tops seem to get a free pass)?"

I didn't question the sanity of either top or bottom. I just stated that in the case of the bottom not being in adequate control of her facilities, then the tops actions would be considered abusive. As to why I only mentioned the bottom in this case, it would be illogical to mention the top in context, since she's not being abused. Assuming the sub is a willing participant the top's state of mind isn't quite relevant.

"Well, that might apply to boxing, because of brain damage. Though personally I'm all for the right of boxers to box. But if you're going to make staying in shape mandatory, compulsory gym memberships would be more to the point than banning leather and hot spankings, surely?"

I'm certainly not saying that staying in shape is mandatory. Neither, from a legal point of view, am I saying that leather and spankings should be illegal. Of course, we really aren't talking about that anyway, we are more discussing hardcore S&M, without any need to get overly graphic. Do not, though, confuse my legal arguments with my moral arguments. I'd go as far as to sum them up by saying...

Just because you can, doesn't mean you should.

Posted by: Kin at February 25, 2004 01:02 PM

Yup, it's assault. That's why the afficianados of such practices should be discrete.
I'm driving my county cruiser down the boulavard, thinking about how, if I hadn't taught my wife how to shoot I could make a play for that little honey in the radio room, wondering if I can work in an extra coffee break into this shift and out of the corner of my eye I spot somebody just awhalin' and awhackin' on somebody else. Guess what? I'm gonna hook 'im up. I don't care if they're both wearin' leather underwear or about consent, you don't get to whack on people on my beat. Don't expect that guy (and now gal) in blue or kakhi to make distinctions. We don't have the time to consider all the ramifications. If we hook up the folks doing the hitting, if it's real we've saved somebody serious damage. If it's a sex game, we've embarrassed somebody.
Close your door, pull your curtains.
By the way, if I'm driving my cruiser down the boulavard and see two people engaging in plain vanilla sex out there in the front yard, they're goin' downtown, too, even if it's the missionary position. Close your door, pull the curtain.
Thems the rules. They're pretty simple.

Posted by: Peter at February 25, 2004 04:50 PM

Fudge, fudge, fudge! I wrote a long, thoughtful reply, which a crash ate. Being to lazy and cross to repeat the whole thing, I'll just hit some high points.

"The whole point of my argument was that I was, in certain cases, questioning the sub's judgement (that is not to say I question the judgement of all people who choose to be dominated, either physically or mentally. Rather in such cases that it is an issue, a valid case for abuse can be made.)"

"I just stated that in the case of the bottom not being in adequate control of her facilities, then the tops actions would be considered abusive. As to why I only mentioned the bottom in this case, it would be illogical to mention the top in context, since she's not being abused."

The topic seems to have shifted from "assault" to "abuse".

""How would you feel about outlawing sex in general, because the possibilities for abuse are legion? Or does the good life involve acceptance of risk?"

Because sex is a) necessary b) is not based on causing harm to another, which is the raison d'etre of S&M. Abuse is several steps away from vanilla sex. It is a matter of perception in S&M."

"Of course, we really aren't talking about that anyway, we are more discussing hardcore S&M, without any need to get overly graphic."

You seem to want to define S&M such that "abuse" is a synonym for it.

Posted by: David Blue at February 25, 2004 10:14 PM

Hi, Peter.

I don't think the difference, if any, between what you're saying and my initial statement that the law is anything judges say it is is worth arguing about. In practice it's all, well, practical.

Posted by: David Blue at February 25, 2004 10:57 PM

David, you're missing my point. I don't equate S&M with abuse. I'm saying, though, in certain cases it is. And yes, I'm using abuse and assault interchangably. That's a logical issue. If it is abuse, then by definition it is assault.

Posted by: Kin at February 26, 2004 01:31 AM

Hi again, Kin.

Just to be clear, we're discussing moral pipedreams here: how people should act, and what should be regulated or not regulated. In reality, nobody has a right to a picnic with a cougar in the neighborhood, as the cougar may refute that claim of right practically, and so also with S&M. If we're talking about "rights" in this context, we're not talking about the real world.

"And yes, I'm using abuse and assault interchangably. That's a logical issue. If it is abuse, then by definition it is assault."

OK, I now know that when reading your argument, I can cut out all uses of "abuse" and insert "assault" instead, and read you fairly.

Now, here's what I take to contain the nub of our disagreement:

"Because sex is a) necessary b) is not based on causing harm to another, which is the raison d'etre of S&M. Abuse is several steps away from vanilla sex. It is a matter of perception in S&M."

"Of course, we really aren't talking about that [leather and spankings] anyway, we are more discussing hardcore S&M, without any need to get overly graphic."

I flat don't agree that causing harm to another is the raison d'etre of S&M.

I have no idea what you mean by saying: "It is a matter of perception in S&M."

I have no idea where you got your idea on what we're "really" talking about, since we started with a linked case of a single flogging. I suspect you and I have entirely different model cases in mind when we discuss S&M and what it is about.

"... without any need to get overly graphic" leads me straight to what I would call a Ken Starr problem. The case seems to hinge on a subtle or unlikely definition, related to specific acts which decency forbids one spell out in gross detail. At that point, either you decide that you have a duty to press on regardless (which Ken Starr did, it came with his job), or you drop the matter. Which I'm getting ready to do.

If you have some remembered cases or pictures in your mind that cause you to believe that causing harm to another is the raison d'etre of S&M, then either you can spell it out (which believe me I'm not asking you to), and we can discuss disagreements on specifics, or we can agree to disagree on this one.

Posted by: David Blue at February 26, 2004 04:53 AM

You guys are making this too complicated. S&M involves certain acts which are, de facto and de jure, illegal, the restraining or hitting of another human being. To complete the element of the crime there must be a complaintant. That complaintant can be one of the participants (unlikely if voluntary) or someone just minding their own business and has it put in front of them.

Posted by: Peter at February 26, 2004 12:10 PM