There is a case that will go to court in Sweden that puts an interesting question to the test.

Is BDSM illegal?

It’s an interesting question that keep the BDSM community occupied at times, my simple answer to this particular question is straightforward; It depends.

It depends in which country you reside in and the application of the laws in that particular country.

In the UK you have a specific law against the depiction of voilent pornography – The problem with a law like that is the definition itself; what should be considered to be “violent pornography” and does the concept of consensual sex matter?

The application of the law in the UK has shown that it doesn’t matter if the acts being performed are consensual – If the “violent pornography” is photographed or captured on video, the intent to sell or not doesn’t matter, then it is by definition illegal and this is how the law is applied as well by the judicial system in the UK.

The laws in Sweden are more liberal regarding this matter, the judicial system has in most cases stayed away from fiddling when it comes to how people organise their relationships or how they live out their sexuality – Until now.

The district attorney, Ulrika Rogland, in Malmö in the south of Sweden has decided to charge a 32-year old man with assault and battery – Because he carried out a consensual BDSM session together with a 16-year old girl (legal age for sexual acts is 15 in Sweden).

The session took place in January after the man met the young girl through a website where she, according to the man, chatted him up. The couple chatted a lot about what they were going to do when they met up, which they eventually did. The girl was put in a cage and had to write a slave application that also involved some humiliation play. Everything lasted for two days where the girl got flogged and had to wear nipple clamps.

When the mother of the girl saw the bruises she filed a complaint.

There are circumstances that complicates the case – The girl has a history of self hurting behaviour, but she gave consent to the things that she was subjected to, before and during the activities, i.e she didn’t use the established safeword. She, according to the district attorney, regretted afterwards to participating in the session.

This is a sensitive matter in itself.

Imagine being young and not totally secure in your own sexuality. Your mother discovers the bruises and is disgusted by what you have been subjected to. My guess is that it’s not easy to stand your ground and claim with certainty that this is what you want and a major part of your sexuality. You will probably have “second thoughts” and regret in order to not be expelled from your family.

The district attorney has used very strong words, claiming that the girl was humiliated and beaten for several hours with blunt objects and she even had clamps attached to her nipples.

Her advice is that people, if they want to be safe from the law, have to think about how hard they hit and go more easy on things when they do BDSM.

As you might understand, I’m more than critical to this kind of statement. How do you judge when carrying out a flogging session, if you are holding back your blows properly in order to not cross the legal limit between minor assault and battery and assault and battery?

This will probably be impossible to do and the effect is that as a Dominant you will always be handed the short end of the stick if you end up with a play partner that turns out to be a nut job – And yes, nut jobs do exist on the submissive side of things as well.

The issues that are put to the test during this case are the following:

  • How much can you consent to – The district attorney argues that you can only consent to minor assault and battery.
  • Which acts are within limits – This is a tricky thing to judge, especially if you aren’t a participant in the session itself.
  • If you don’t use safewords and consent to the activities, can you actually regret things afterwards and then claim you didn’t want to do it?
  • What are the responsibilities of the Dominant in this case

As you can imagine, it’s very easy to end up in mess here. The girls young age isn’t in favor of the 32-year old Dominant and I am personally afraid that she will be portrayed as a victim without a personal will. The validity of a consent will also be put to test in this case and how seriously you should treat the consent itself. I also find it interesting that the girls self hurting behaviour is mentioned – Which could mean that the district attorney will argue that the Dominant man should have been aware of this and realised that her will to carry out BDSM related activities was only an effect of her psychological instabilities.

If this is the case then we have a district attorney here in Sweden that, between the lines, argues that BDSM is a pathological behaviour – And the first steps will then be taken to, wrongfully, argue that this type of sexual behaviours should be banned.

The other part is what your responsibilities are as a Dominant – What can you do if your potential play partner seems to be psychologically safe, sane and consensual, then all of a sudden turns out to to be the opposite? Is it a required responsibility of the Dominant to ask for a clean bill of health or is the responsibility equally shared between the two parties?

I am worried about what the effects of this case will be, even if I welcome the fact that the concept of consent will actually be tried from a judicial point of view.

 


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