consent

In the BDSM 101 examination paper I mentioned in my last post I wrote a question about consent. It proposed an imaginary scenario in which consent was given but later withdrawn. The submissive in the example suffered from bi-polar disorder, though I could have equally have used other depressive mental conditions.

I will copy the question here:

Sarah and James were in a close BDSM relationship for 5 years. Sarah suffered from bipolar disorder which was mostly controlled through medication. Before meeting James, Sarah used to self-harm, often through cutting herself. Whilst in the BDSM relationship with James she no longer felt a need to do this. Their BDSM play was somewhat extreme. It involved needle play, stress bondage positions and heavy beatings including use of a whip. Eventually the relationship broke down. Some months later Sarah went to a police station with her lawyer. She claimed she had been restrained, whipped and beaten by James and although she acquiesced at the time, that because of her mental condition she was unable to give informed consent. She showed photographs of scars on her back and breasts. How should the police respond?

I suppose the question was ultimately about the ability to give consent in such cases and the responsibilities of a Dom in understanding the needs of a sub and not taking advantage.

Lea wrote,
The police should look for evidence of consent and her mental state at the time. With any case kink-related or not, it should be determined if the person truly was in a sane state of mind. I don't think James should arrested immediately, but that a discreet investigation should take place. It would be my hope that if Sarah was receiving medication, she also had a psychiatrist that she spoke of her issues openly to - this professional could be consulted as to her state of mind and her ability to consent to James.

Sofia Hisservant wrote,
Fascinating question! Legally, I have no idea what they “should” do, but I don’t think they should arrest and charge him. If she’s admitting, at the time she goes to them, that she consented at the time, but that the consent is not valid because of her mental illness, I don’t think she has a case. In order for her to not be able to consent, she would have to have already been found incompetent and be under the care of a guardian. Even if she’s on disability and has a payee, that’s not the same as being found incompetent in a court of law to make personal decisions. If she were stating that he had coerced her into consenting, that might be reason to charge him, but even then it’s going to be a super weak case. As much as I like the idea of RACK, I don’t think there’s a legal obligation for informed consent for beatings. I think the police might have to arrest him or notify him that charges have been filed, but I don’t think she has a leg to stand on.

There were a few comments in response to sofia's answer.
mckitten pointed out that the law in the UK and the US states that you cannot consent to abuse so any BDSM contract would not be enforceable.
Soume Stalked (Fury) noted that this was also the case in Canada.

little monkey wrote,
I am bipolar. This is deep water here. There have been times in my life when I probably shouldn't have had the keys to my own life. The compulsions to behave in certain ways can be impossible to resist, literally impossible, without medication, support, and training. But while I was unable to stop myself sometimes, I always knew when behavior was a bad idea, I just didn't care. So, consent, hmm, that's a tough one. I think in today's world , if she admits to consent, then he shouldn't be prosecuted. Ultimately it comes down to the character of the person you interact with. A person can have a mental illness and still take responsibility for their actions. If you were not coerced or manipulated into consent, then it is less than honorable to accuse someone else of wrongdoing because you regret something you did.

Thank you again to each of them for their thoughts on this tricky issue. I think the legal position is clear that in many countries consent might not be a defense to an accusation of assault following bdsm activities. Whether it should be is another question and the answer to it perhaps partly depends on answers to my main theme. That is all about the complex issues of consent in relation to BDSM activities, the responsibilities of a Dom - and in particular where a sub may be seen to be vulnerable, perhaps especially if she is having psychological problems at the time.

Many of us have suffered from periods of depression and have not always been fully stable. We have perhaps all made decisions we later regretted. What has to be the criteria for someone NOT to be held responsible for their decisions? Are there perhaps occasions where a sub may consent to certain extreme activities - in fact may invite them - but where the Dom should take responsibility for refusing to undertake the activity or perhaps tone it down? How is a Dom expected to be fully aware of all necessary issues?

In the example I concocted, I deliberately chose an example where the BDSM activities might be argued to have been beneficial for the sub - where self harm activities had been diverted into controlled and comparatively safe BDSM activities where another person was taking responsibility for safety issues.

Although it is a "made up" story - a fiction, I believe it highlights some very real issues for submissives and for dominants.

I would be pleased to hear further views about this.