Saturday, 16 May 2009

The limits of consent

A Christchurch sadomasochist has this week had two convictions quashed: one of injuring with intent to injure, and another of wounding with intent to injure. The charges had followed a sadomasochistic session in the man's dungeon, during which he had cut two young women with a scalpel, leaving permanent scarring. His convictions were quashed because the court of appeal found that the women he cut had consented to the activity.

OK, I'm trying not to judge this incident on the basis that this sort of activity has no appeal for me. What alarms me, though, is that the young women involved were 17 and 15 years old respectively. My first thought was that one of these young women was below the age of consent - and then I realised that, although the participants may have considered this activity sexual, it doesn't fulfill any legal definition of sexual contact. Therefore, the age of consent doesn't apply.

More alarming still, both girls are distressed by the event, with one suffering serious mental health issues subsequently. That doesn't suggest consent to me - or, if there was consent, it was the kind the satisfies the law only. Anyone who's been a scared teenage girl out of her depth knows that 'consent' can be given in fear, or to meet social expectations.

A can of worms is opening here (or perhaps it was always open). How much autonomy should an underage person have to do with his or her body as s/he pleases? At what age can a person give meaningful consent to different sorts of physical activity?

Most of us bring up our kids on a sort of 'sliding scale' of autonomy, letting them call more of the shots about what they do with their bodies as they get older. My daughter is allowed to decide what length she gets her hair cut to. She gets to decide what she'll wear, unless she picks a flouncy summer dress in mid-winter (which she's done more than once). We're negotiating when she can get her ears pierced, but I reserve the right to make her have a bath from time to time.

Kids' bodily autonomy is a giant grey area - we parents bumble about trying to balance our children's rights with our responsibility to protect them. I can live with the idea of fully consenting adults engaging in sadomasochistic activities. I have real doubts whether the law ought to give its blessing to minors making those sorts of decisions about their bodies.


Anonymous said...

More alarming still, both girls are distressed by the event, with one suffering serious mental health issues subsequently. That doesn't suggest consent to me - or, if there was consent, it was the kind the satisfies the law onlySo if one truly gives consent, it's impossible to come to regret the event afterward? I feel depressed and unhappy about a lot of things my ex and I did together, but that doesn't mean I didn't give consent.

Andrei said...

Isn't it a little alarming that deviant sexuality is so off the wall that we struggle to penalize it appropriately when a fifty-two year old pervert inflicts his deviancy on minors

Anita said...

I have mixed thoughts about the issue. On the one hand the threshold for consent shouldn't be higher just because nice girls don't. On the other SM is rooted in playing with power imbalance, so consent is more complex than with other kinds of body altering activities.

One of the issues, I reckon, is that because we don't talk about SM people don't have such a chance to see the consequences and issues played out around them. Young people making choices about consenting to sex have seen and heard many of the issues played out around them and in the media. Someone entering into SM activity for the first time is really unlikely to have had equivalent exposure.

Finally, I just want to pick up the idea that resulting trauma/mental illness is an indicator of lack of consent. Firstly people genuinely consent to things which cause trauma or mental illness all the time (I've consented to medical procedures that have left me claustrophobic and I've consented to taking medication which gave me major depression). Secondly it can be an indicator of lack of consent either because of the lack of consent resulted in the trauma, or because it indicates that the consent was not fully informed.

In this case part of my concern about whether the girls gave consent was whether it was fully informed consent – did they really understand the activities they were engaging in and their potential consequences? Given it was an SM scene with its power dynamics, and the variation in age between the players, for the cutter to have consent he needed to not only be absolutely sure that they said "Yes", but also that they truly understood what they were saying "yes" to, and what the potential consequences were.

Alison said...

I'm also confused by how consent from a person of any age can really count as such when there were weapons present. Even if there was no threat verbalised aren't weapons a threat in and of themselves? That's something I never understood about Louise Nicholas' case either - they admitted to the presence and use of a police baton, which undermined consent.

Anna said...

Anon, it's certainly possible to consent to something then regret it afterwards, but I'd question whether young people of these girls' ages could meaningfully give consent in the first place.

A young person can say 'yes' to something, but that doesn't necessarily mean they understand exactly what they're getting into or what the repercussions will be. That's why sexual consent of a minor isn't consent under the law - a minor by definition cannot give consent, because we don't believe they have the maturity to give meaningful consent (a whole other can of worms - I'm not suggesting this issue is clear-cut).

I think that if a person isn't mature enough to give proper consent, regrets are far more likely - hence the fact we place limits on who can give consent, and to what, to protect the people involved.

I think that if an adult gives free consent to whatever sort of sexual activity, fine. Not so comfortable with those not yet mature doing it, though.

Anita said...


To start with an obvious case... I have had consensual sex in a room which had a knife in it. In fact I've probably had sex with someone who was wearing a knife on their belt at the time (as an ex partner usually did wear a knife and not all clothes are always removed :)

I could also, in theory, consent to having sex which included penetration by a police baton (tho I haven't and I wouldn't). If I did truly say "yes" to that (or even "would you please?") then my "yes" deserves to be respected as much as my "no".

I guess what I'm saying is that we need to make sure that our approach to making sure people's "no"es are respected doesn't take away from the respect we should give their "yes"es.

In the case of Louise Nicholas' rape I agree that the use of a police baton, within the full context of the activity and the relationships between the people involved, speaks strongly against consent.

Make Tea Not War said...

I don't think the presence of weapons necessarily makes much difference to the issue of consent. If someone is injured during a fencing match their consent isn't negated by the fact there were swords in the room at the time.

I wonder about the causation of the serious mental health issues afterwards. I feel there might be some tragic back-story here. I don't know what sort of life path would lead a fifteen or seventeen year old into a dungeon with a 52 year old man for games with scalpels but somehow I doubt it was all hugs and puppies.

That said, I think I agree with Anita. Once someone is no longer a minor and is not otherwise legally incapacitated- we have to respect that their yea means yea. Maybe for S&M, which I'd imagine could be quite damaging both physically and mentally to someone unprepared, the age of consent should be higher.

portia said...

This decision seems strange on several levels.

First, if a girl of 15 or 17 is too young to consent to sex, why is she considered old enough to consent to what is clearly sexual activity i.e. a sado-masochistic encounter? Does the law not consider an activity sexual unless it involves penetration? That would be absurd.

Second, If 15 or 17 is too young to consent to sex, how can it be old enough to consent to an assault that leaves permanent scarring?

Leaving aside the age issue, is the argument that a masochist, by engaging in sado-masochistic sex, has consented to any and all acts and cannot complain if things are done to them that they did not agree to? That makes about as much sense as saying a prostitute cannot be raped. That is, no sense.

If I remember from Dan Savage's column, don't responsible sado-masochists designate a safe word, the uttering of which revokes consent? Has that ever been tested in a court of law? Did these people have one, and was it uttered?

Lots of questions, anybody know the answers?

Anita said...

portia writes,

Second, If 15 or 17 is too young to consent to sex, how can it be old enough to consent to an assault that leaves permanent scarring?To echo a previous thread, is it ok for children under 16 to choose to get their ears pierced.

Anonymous said...

A 17 year old girl is not considered too young to have sex. Not legally, anyway. I wouldn't be surprised if some people felt that the age should be higher.

Anonymous said...

Portia, it seems that the girls did specifically say that they were OK with being cut.

Anna said...

Anon of 7.30, I think the issue is not so much whether they said 'yes', but whether that can be considered consent when it comes from a minor. When it comes to sex (however defined), an underage person can't legally give consent whether they say yes or not.

I think the point Portia raises is quite important. I don't know much about it, but I thought there were ethics around S&M stuff, about making sure people were consenting and comfortable at all times, and making sure participants can stop if they want to. Given the power differential between the people involved in this incident (including the age gap and the use of drugs), it makes me wonder whether the girls felt they actually did have the ability to stop what was happening?

portia said...

Anita, I would argue that ear piercing is different from this situation because there is no sexual connotation. If a 15 year old cannot consent to vaginal sex, she should not be able to consent to kinky flesh-carving. Ear piercing does result in a permanent change (unless you don't where earrings for a while - ouch! BTDT) but looking at the holes in her ears will not provoke the same kinds of memories at looking at someone's mark carved on her body.

Ms. Monster Hunter said...

I would not classify Sadomasochistic activities as 'deviant'. I think that's just old fashioned prudery coming out. But practising on minors? That's disgusting. No way these girls had the maturity level needed to understand what they were doing.

These two links should be interesting, as this is BDSM as it should be practiced. And is, in a lot of cases. But not this one.

Idiot/Savant said...

Wouldn't the age limit on tattoos also appl to scarification?

katy said...

This older article from after the first trial includes an interview with Barker:

"For Barker, what sounds like a bizarre and unusual practice is closely related to tattooing and body piercing and should be treated in the same league...

The judge said the scarifications had "sexual overtones" by being set within a BDSM environment and young persons needed to be protected.

Barker says the judge found him guilty because "he doesn't have enough experience to know what was normal or what was not normal in scarification"."

katy said...

fwiw I find the original judge's comments about the sexual nature of the context interesting. It seemed to imply that while a 17 year old woman might be able to give consent to 'scarification' in a different kind of context (ie, a commercial one), that it is more problematic to determine consent to this kind of activity in the personal, sexual context.

Anna said...

I had wondered about that, Katie. To me, the actual activity probably matters less than the context - hence the comparison between ear piercing and 'scarification' raised earlier. The context determines things like how safe you feel, how freely you consent and whether you feel you are in control of what's happening to you. Those would surely be the things that make the activity potentially traumatising.

Anonymous said...
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stargazer said...

anon, i had a good, long think before deleting this one. but no, i've decided that we're not here for your entertainment.