It states that a slight duration or injury might be considered lasting at law, which is why I said there was ambiguity. I don’t think enough cases have been to court to resolve this ambiguity yet, but I’m willing to be corrected.
Right - so the legal standard is “no assault occasioning actual or grievous bodily harm.”
If you want to maintain that this standard is differently interpreted in sexual matters than in non-sexual matters, then it is incumbent on you to demonstrate that this shift has happened. Until court decisions show it being interpreted in a fashion that differs, then the presumption is that it is the same.
Looking again at Wiki, the standard for actual bodily harm appears to be hurt or injury that interferes with the health or comfort of an individual. If it’s accepted that doing something that causes the recipient sexual pleasure is not an interference with comfort, most BDSM practices would not fall foul of this. The “if” may be the crux of this though.
For it to be illegal, it would also have to count as an assault - this is why sports which lead to bodily harm don’t lead to prosecutions. It’s not immediately obvious why consensual sexual practices would count as assault, or as actual bodily harm, and as I said before I’ve not seen it unambiguosly stated by a court that it is.
Here’s the wiki page. If I’ve misunderstood anything, or simply missed something, I’d welcome clarifications.
Because sports are specific exceptions to elements of assault law, while sex isn’t specifically exempted.
That’s going to make it hard for surgeons though, isn’t it?
Case of get the law out of the bedroom. What they have done in the past, the degree of opening themselves up to each other including acting out fantasies is between them, if the limits were exceeded or the degree of sexual openness withdrawn then there may be a issue.
Yes the law may disagree but the law is frequently in the wrong.
When i sign my medical consent form for major surgery, I am consenting to assault that will occur while I am unconscious.
The problem is that murder is that consent does not make willfully killing someone legal, consent makes having sex with someone entirely legal.
Ah if only this were sufficient. Not all sexual acts can be consented to, and consent given in advance doesn’t legally count.
I am not an attorney, and definitely not yours. I’ve been thinking about consent to sex and how I was always taught as a young-un that consent to sex can ALWAYS be revoked at ANY TIME, regardless of how far you have already gone with someone. That is, agreeing to go on a date with someone, or letting them touch you in certain ways, does NOT, IN ANY WAY, oblige you to go all the way. I was thinking about why this might be in terms of law. Certainly, bare promises do not generally bind a person under the common law. But what if you signed a CONTRACT with CONSIDERATION, saying that you were giving up X in exchange for consent to sex, making the consent contractual and irrevocable (like you can’t withdraw your consent to pay a bill and the creditor can take you to court and make you pay). Well, that basically is the definition of prostitution, right? And contracts to perform illegal acts are not enforceable, so the consent can still be revoked!
I also remember reading somewhere that when a couple have settled on sexual practices, each partner is entitled to assume that consent has remained the same. So if John and Mary have settled on sex every Friday night, and they do it without having to go back and forth and confirm consent every week (since it’s implied), and Mary decides that she wants John out of the picture and decides to trick him by not telling him that she no longer consents, by failing to resist or tell John the fact that she withdraws consent, and waiting for John to slip into bed and attempt to make love, John has a defense to rape.
Even if prostitution were legal in such a jurisdiction, you cannot contract to illegal acts. And sex without ongoing consent is illegal.
First problem is there is no resistance requirement in rape law - multiple cases have specifically removed it (though Pennsylvania may have backdoored it back in). The “implied consent” in that situation is meaningless. In every jurisdiction I know, in this situation John hasn’t got a need for a defense to rape, because he hasn’t committed rape, unless Mary specifically indicates non-consent. The only exception in the US I can think of is New Jersey, where the existence of the ongoing pattern would probably be considered consent in the absence of an expression of non-consent.
I think the premise of this debate is that such consent was given. I haven’t heard ANYONE argue that this would have been OK without the prior consent. Perhaps you were working with a different set of assumptions than everyone else.
Remember the pitting is because the court said he is a rapist regardless of whether prior consent was given or not.
If I pulled your teeth while you were unconscious without your consent, it would probably be assault.
That is the premise underlying this entire debate. If no such consent was given then there really isn’t anything to argue about. If you prefer assuming away the argument then I guess that is your prerogative.
Says who? I suppose in Canada, that is now the case but why should it be the case?
Ermm. Not to take Dio’s side on his tangent but no you can’t do that without interference. There is good public policy behind not letting you be a danger to yourself. We put people who want to cut off their own arms in a padded cell so they can’t hurt themselves. The correct response to Dio’s analogy with cutting off f arms is that its not even a reasonably good analogy
Cutting off your own arms is not BDSM, its mental illness.
The court is correct, but as it happens there ALSO was no prior consent.
One of the elements of rape is lack of consent. so it is not like someone asking you to murder them because if I stick a dildo up your ass with your consent then it is not rape. The question is whether prior consent can be given to have sex while unconscious.
I don’t think the record is clear about whether or not there was prior consent but this debate becomes meaningless once we assume away consent because I have not heard ANYONE say that it would have been OK without the consent.
You are effectively arguing against the hypothetical. Just assume that consent was given.
Once I got my breasts grabbed and handled roughly in my sleep by someone I was married to at the time. Far from getting me in the mood, it was an uncomfortable and distressful way to have been awoken. It was a case of sexual assault. Needless to say that was the last time I ever slept with that individual, and then I proceeded to move out. In a long-time couple, the initiation of sex may come to take place without negotiation, following a well-established pattern of steps. Perhaps in my ex’s mind, grabbing my breasts while I was asleep was an acceptable variant on the old rules of initiating sex. Instead, it frightened and upset me.
That sounds really horrible; I’m so sorry that happened to you.
I get that it’s probably not a super common like, hence the “kink” label. Me, I like the dreams it gives me for those few moments before I wake up, and I wake up feeling sort of buzzy and aroused. But again, I’ve requested it specifically, and so my partner knows I like it. That really does make all the difference, or there’d be no thread here. 
You didn’t give consent before you were unconscious; I have. So what he did to you was wrong and assault, when for me, with this partner, it’s lovemaking.