This section deals with the tension between law agencies and consensual BDSM. It covers four equally important parts. ALL this information can be very important to YOU, agent of the law, and can help you to act/be even more professional in your job. All is also helpful to people from within the BDSM-community. First of all from the perspective to gain better mutual understanding. We will take you through the information in four steps:
* General overview
* First contact and response
* Managerial and prosecution information
* Information for EPE people, confronted with law officials
These articles are based on material, used during workshops at various Dutch police academies, material used to educate police organizations around the world on the subject of emancipation and also contains information from actual cases, from different parts of the world.
If you are a law agency professional, defense lawyer, district attorney or juror and have more in depth or case specific questions feel free to e-mail us.
General Overview
Erotic power exchange (BDSM) is any situation where adult partners, of their own free will and choice, actively and willfully incorporate the power element in their lovemaking (and usually for a great deal in their relationship). Erotic power exchange is best known as either BDSM, SM, D/s or sadomasochism, but these terms are all too limited, incorrect and too often confused with stereotypes and mental illnesses.
BDSM can take any shape or form within a relationship. From little things like blindfolding a partner when making love to anything like 24 hours a day, 7 days a week dedication.
The shape and form it takes totally depends upon the fantasies, situation and boundaries of the partners involved. As long as it is informed consensual, safe, sane and voluntary it is called erotic power exchange. If any or all of these four elements are missing, it is called abuse.
The following statement may sound tough: “hardly anywhere in the world legislation specifically prohibits erotic power exchange activities between consenting adults”. Tough, yes, but true too. Check your instruction manuals and your law books. You will soon find it is almost impossible to find any real, explicit and clear reference.
The first problem is this: there is no legal definition of consensual erotic power exchange. There are only descriptions of the mental illnesses sadism and masochism or relevant – yet medically related – descriptions. Because most of this material is either outdated and to a large extent of no or very little legal relevance, such sources are next to useless for law purposes. Besides, because it is largely outdated scientific material that, for various reasons in many cases is also of questionable nature from both a scientific and/or a legal point of view, such descriptions and the needs of law agencies do not match.
The second problem with sexual legislation (in the area of sexual acts between consenting adults, nonconsensual and criminal acts such as rape, sexual activities with minors and child-abuse/child-pornography are excluded here) in almost all countries is threefold: it is often vague and limited to more or less specifically mentioned and described activities, in general outdated and usually based on a morality and circumstances, that no longer fit in this day and age. And it lacks solid and workable definitions (often deliberate or the result of the fact that the activity as such is impossible to describe in clear legal terms).
As a result, in almost all countries the first determination between consensual acts and criminal activities is left to the individual police(wo)man and/or aid worker. Neither has been trained or sufficiently informed on the subject and has little else to go by but his/her own perception and information. That is a serious problem and a substantial lack in legislation as well as in training and support. Next – depending on the legal system in the area – the evaluation of any activity – brought forward as offensive, illegal or damaging – is left open for personal interpretation by prosecutors, judges and/or juries, who again have hardly any solid information to go by.
Strong statement #2: A law officer – regardless rank, position or job-description – has only TWO professional goals, derived from “upholding the law”: to serve and protect. Interpreting, judging or even laying out social morality does not fit either of these goals, neither should this be left to law agency professionals. That is the specific task of legislators.
Next to that, in almost all cases where BDSM and the law meet, there are either ulterior motives – such as in the case of divorce and custody, political motives or job-related conflicts – or various different levels of legislation are involved. Frequently criminal and civil law are mixed up in court cases, involving erotic power exchange activities, as well as confusion between protection of the weak (such as minors or women) and the interests of society. And then there are conflicts between local (city or county), regional (state) and national (federal) legislation in many countries – most significantly in the USA.
The bottom line of all this is that de facto very few criminal cases ever make it to court and when they do, even fewer will result in a conviction of any kind. We will not enter into the debate about the functionality of sexual legislation and normative regulation as such, but will try and stick to the practicalities here.
To Be Continued…
The above article is a reprint from our information/educational site Kink Culture.
A joint project between Wastealnd.Com and Power Erotics