Consent and Non-Consent in Power Exchange

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A few days ago, the NCSF dropped me an e-mail…which I assume went out to every other person on the NCSF mailing list, about starting a national dialog on consent, here on Fetlife and in local communities.  Instead of being pleased, I found myself concerned.   
Since I’ve written on the topic not only of consent, but informed consent, and am generally anywhere between mildly and highly pleased with the NCSF, that’s not a typical reaction, and I had to explain it to myself.  Why would I be deeply uneasy about this initiative?    In the next paragraphs, I’ll try to answer that question in a way that digs down to the issues and inconsistencies that exist within our communities’ attitudes on consent.
I’m not honestly sure I’m following the strict policies of the group in posting here, but I seem to be following the common practice of the past 24 hours, and I think given the gravity of the debate and the frankness of the invitation comment is warranted.
Despite the intro, this isn’t an attack on the NCSF or its “Consent Counts” campaign, a valuable undertaking that has the potential to have real benefits and advance our sexual freedoms.  It is a first step to participating  in the dialog.
In the following paragraphs I am going to answer these questions
  • What exactly is NCSF doing?
  • What is the cause for concern?
  • Who could be hurt?
  • Why does it matter?
  • What are some constructive solutions?



What exactly is NCSF doing?

On Saturday, July 8, 2000 at about 10:30pm, police entered the home of Benjamin Davis in Attleboro Massachusetts, the site of a consensual BDSM party.  As about forty stunned guests were held at the site, police performed a warrantless search confiscating computers and personal property of the host, and thousands of dollars worth of BDSM toys from the guests, many of which they issued no receipts for.  Shocked guest Stefany Reed was arrested for assaulting another woman with either a spatula or a spoon. 
Despite the obviously ludicrous nature of the “Paddleboro” raid it was a firm reminder that practicing BDSM…even discreetly and behind closed doors…wasn’t “safe.”  Without a liberal local press and court jurisdiction, top flight attorney, and the intervention of the NCSF, Davis might have lost more than money and time. 
Overseas in Manchester in 1990 a similar garish set of raids on the homes and businesses of  homosexual men in “Operation Spanner” had turned out far worse…the raids revealed nothing other than consensual BDSM practices however despite testimony from all the men involved that they consented to being hurt, eleven were convicted of crimes, and three Anthony Brown, Roland Jaggard, and Colin Laskey, were sentenced to prison terms of up to four and a half years.  The Spanner Case eventually reached the European Court of Human Rights, and the Spanner Trust carries out work similar to that of the NCSF in the UK.
The situation is serious.  While spectacular raids such as “Spanner” and “Paddleboro” are uncommon at the present, BDSM issues still lead to criminal charges, cause problems in separation and divorce proceedings, random private quarrels, police interventions, and possibly most importantly decisions involving custody of minors.   
Many in our communities, particularly in rural or conservative areas, have to hide their sexual expression diligently from family and even close friends, knowing that exposure would result in a visit from Child Protective Services, or loss of custody or visitation rights.  The situation is nothing like fair or equal and is a stressful nightmare for the persons involved.
According to the NCSF   the call for a communities-wide dialog on consent is part of the “Consent Counts” project which was launched by the BDSM-leather-fetish communities in 2006 to decriminalize consensual BDSM in U.S. law by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes.
They admit the situation isn’t optimistic “To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct,” however the NCSF is working to take the issue on.  Legal cases are driven by precedent, so establishing the legitimacy of a consent defense in just a few cases can set precedents that have a watershed effect.   The basis for using BDSM activities to restrict custody or visitation is based on the presumption of its criminality…to put minor children into a house where BDSM is practiced, if it is criminal, is the same as to put them into a crack house.  If BDSM is not criminal this presumption crumbles with a resulting effect on the much broader issue of custody.
So what’s bad about this?  In regards to the aims of the NCSF, nothing at all.  It’s important work and I honor them for spearheading it.
The NCSF circular says that a dialog is required because “as part of decriminalizing BDSM in the legal codes, we need to be able to articulate a clear definition of consent that the BDSM communities believe in….What do we mean by consent? When is consent invalidated?”
The circular states that the results of this survey will assist in the creation of a statement on consent that will be presented for the consideration by the BDSM communities at LLC (Leather Leadership Conference) in Seattle in 2013.
Several other questions are put forward in the same letter, including “Does ‘safe, sane, consensual’ still work as a community creed?” something which for many reasons arouses my concern. 
While I admire the desire to improve the standing of consent as a legal defense, It is hard not to read into these words an implicit assumption that this dialog will produce not only a “definition of consent” for use in dealing with the legal community but a new “community creed,”  which is alarming to those of us who don’t feel our communities has, or should have a “creed” or any other element of absolute dogma.
As a strong and outspoken believer in guidelines, education, and information I do not believe that there is, has been, or should be a “community creed,” and I think it is important to enter into this dialog with the understanding that the function of leadership in our communities is to provide guidance and information,  not creeds and rules.
I am concerned that an externally-focused effort at advocacy seems likely through this dialog to become an inward-focused effort at community reform…”getting us all on the same page” about consent.
Attempts to  articulate “a clear definition”  that “BDSM communities believe in” is only going to be successful if we recognize that there cannot be any one definition, but rather a vast range of beliefs and viewpoints, some more legitimate than others, but none identical.
Clearly this dialog is going to occur and I am not opposing it, but I am adding my own voice and encouraging other like-minded individuals to add theirs.  I am not claiming to be a visionary or voice crying in the wilderness, simply a sometime journalist attempting to summarize and articulate ideas I have heard and agree with, including many put forward by leaders and members of our communities far more experienced than myself.   I do not claim to speak for anyone but myself, but I do not claim that my ideas are unique or original. 
My deepest concern is that any agreement on definitions or creed produced by a dialog that is heavily oriented towards dealing with decriminalization will tend by necessity be narrow and legally focused, and I think this has the potential to be divisive and counterproductive by being even less useful and representative of actual practice than “Safe Sane and Consensual.” 
The Need for a Creed
 I’m spoiled.  I live in a major metropolitan area, and am fortunate enough to include among my friends a number of teachers on BDSM, M/s, and extreme play.  Just as I’m occasionally surprised to pass some windowless fortress-like superchurch and be reminded that out there, away from educated, intellectual circles, fundamentalism still holds great sway, it is sometimes shocking to be reminded that among people in the larger BDSM communities “creeds” in general and “SSC” in particular are not dead issues, replaced with dialog and education.
I have to admit I thought SSC was mostly a relic of the past, relegated to being a good rule of thumb for novices, not a policy to be theologized by intelligent people who discuss the meat of what it is that we do.  After its gasping runoff against RACK in the first decade of this century I haven’t heard anyone put it forward as a “creed” in several years.  A good rule of thumb?  Certainly.  But as Captain Barbossa would say…”it’s more…guidelines.” 
In regards to this debate, on one hand I am encouraged.  There are issues we couldn’t seem to discuss without yelling back in 2002, and I hope maybe now we can look at them and come to sane rational understandings. But another part of me finds it hard not to see a Frankenstein’s monster beginning to twitch back to life under the lightning bolt strikes of the NCSF. 
And yet another part of me thinks that in the era when Fifty Shades of Grey (love it or hate it) has become the fastest-selling paperback of all time there is no central brainstem to our communities and anything we say here will be moot, a forgotten discussion with popular consensus of the millions leaving any dialogs among those of us in the core communities as rarefied academia.  But, fifty years ago some leader of the local fetish clatch, then meeting in someone’s Upper East Side Apartment, probably swore that the publication of The Story of O, and its sale in bookstores as opposed to furtively circulated underground copies would popularize fetish to the point of rendering all sane teaching on the issue moot, but people did write and learn and grow in understanding.    I’ll risk that even as the pool of those who are fascinated by BDSM grows larger, there is a need for intelligent ideas to be put forward, discussed, and debated.
If there is a core to the modern communities Fetlife probably touches it more broadly and directly than any other media, something which NCSF seems to intrinsically understand.  A discussion put forward here must be taken seriously, not for any official or political authority but for its power as a meme. 
 What is the Cause for Concern
To understand the concerns, it’s important to understand a few terms:
Contemporaneous consent– consent that exists right now, this second. According to the law in most sexual matters the instant that you no longer consent a crime has occurred.  It can be presumed that efforts to decriminalize BDSM would focus on establishing contemporaneous consent as a valid defense, which would at least remove the threat of being sentenced for a crime with your partner standing beside you and saying they asked you to do it.
Prior consent – consent that exists when you already consented to something.  Prior consent is very weak in criminal law.  It is sometimes invoked in regards to unintentional injuries in sports.  There is no precedent in which it applies to sexual or related acts, in fact, in R. v. J.A., 2011 SCC 28 the Canadian High Court explicitly ruled against prior consent. Other legal application of prior consent is fairly limited, mostly to medicine, and in some cases to understanding of risk.  It is important to understand that prior consent is always trumped by withdrawal of contemporaneous consent.  In the eyes of the law, no matter how much you swore you wanted something, the instant you don’t anymore, you’re free of the previous promise and anyone holding you to it is a criminal.  It’s important not to get criminal law confused with contracts and debts which deal purely with money. 
My example of this is that a coach can hold a football player to a contract by suing him in court, and he may lose money.  But if the coach tries to hold him in the locker room, physically, it doesn’t matter what the contract said, he’s guilty of false imprisonment. 
Implied consent – the idea that if you’ve consented to something 20 times before, or consent to remain in a situation where it is likely, and don’t actively resist, you consent.  The crusade to criminalize marital rape has focused on and largely invalidated the concept of implied consent.   
Subsequent consent –  consenting after the fact.  In legal terms it has almost no standing, though ethically many people consider it important. 
Changing the Law
NCSF isn’t tryingto change the primacy of contemporaneous consent.  They are tackling the much more limited area of decriminalizing BDSM where contemporaneous consent exists.  And we don’t want law based on prior consent.  A judicial system focused on prior consent would be medieval, allowing for indentured servitude, marital rape, and any number of other unpleasant historic relics.  I could go on at length but the vast trend of modern jurisprudence establishes that a shift away from contemporaneous consent is impossible so the point is not worth great discussion.  Contemporaneous consent is and will be the law of the land. 
The Heart of the Matter
Very simply, prior and implied consent are core to the concept of many D/s and M/s practices but are not recognized under the law, especially if they contravene contemporaneous consent.    
This is not a trivial matter.   Slavery and non-consent are not tiny side issues that don’t matter to the “real BDSM” community.  People do not seek our communities because they read a book that featured depictions of “Safe Sane and Consensual” flogging. They seek our communities because their psychosexual appetites were fired by stories or images that featured strong intimations of non-consent or surrender of consent, from Venus in Furs or Story of O to more contemporary takes..  If they approach our community and we cannot bring them a clear message about power exchange other than “uhh…we don’t do that stuff here…we do SSC here…” they will walk away from us and form their own communities that do not share in the knowledge we have learned.  They will be doomed to reinvent the wheel which means we fail as teachers and guides and “Leather Leadership” means nothing but the maintenance of a tired and increasingly irrelevant afterthought.
In power exchange there are situations where prior consent is agreed by the participants to establish permission for actions against contemporaneous consent.   While it can be argued that such actions are therefore not “really” non-consensual, it is the heart of the practice that they are and that the surrender of consent is real and meaningful.   There is a strong reliance on implied consent, which is perhaps fitting.  The crusade against marital rape was designed to free women from treatment that resembled slavery, so it might make some sense that the intentional practice of slavery involves the dynamic of implied consent. 
The fact that the ethics and practices of a large segment of our communities fall outside the law does not change the fact that they occur every day and are central to the personal sexual expression of many of us.
These practices pass under the hazy term “consensual non-consent (c/nc).”   We could split hairs over definitions of that term but in fact it is a bastardized usage of convenience which has become an uneasy shorthand for those who choose to live within their own ethics outside the narrow boundaries described by the law.  Non-consent requires discussion and an understanding, and it is my very real concern that in the rush to a creed that suits the needs of a legalization agenda we not trample the sexual expression of a large segment of our communities.
Not everyone in our communities approves of c/nc practices, and some who do accept them only to the degree the term is understood to be fantasy or make-believe, and not reflect the core emotional truths of the persons participating.    Many of us would be okay with non-consent if the people involved just didn’t…talk about it so much or want to be recognized and have a firm place in our communities.  Just as many people were fine with gays, as long as they acted straight in public.
Ten years ago there was a significant amount of  intolerance, scuffling, name calling, blackballing and bad feeling over these issues, however in recent years there has been wide acceptance of responsible M/s related practices and a de facto acceptance of consensual/non-consent.  There is even a fairly common practical rule of thumb which most of us use implicitly to look at these situation, which we’ll discuss below.
In truth we haven’t faced the issue head on at all…but I’m not sure that’s a bad thing.  The compromise of words has allowed us to live, learn, and grow together.  Using the term “consensual/non-consent” doesn’t make lack of contemporaneous consent legal, but it has allowed a truce in which many old animosities have fallen away and many mainstream players have been able to see that extreme players who choose that path are not Satanic creatures with two heads or abused victims. 
My concern is that in adopting a “community wide” understanding  focused on the Law, we are bound to focus on contemporaneous consent.  That’s fine in regards to the Law, but not if it leads to a new creed which demonizes those who choose to behave otherwise. Past creeds have had real issues, and even now the assumption that SSC is a “community creed” makes me through no will of my own a creedless heretic. 
In fact the creed and values of the communities do not need to reflect the Law.   That does not mean that we are lawless.  The Law is a last resort.  It was not meant to accommodate the social complexities of human intercourse.  It was designed to be a black and white fail-safe when all other methods of social moderation fail.    We can have established ideals and aspirations of trust and ethical power exchange that transcend the law, with the understanding that…if one partner or the other falters…the law will decide the matter and we must suffer its penalties. 
It is also not an established fact that we must agree with, honor, or encourage our communties to honor the law.
In practice we are very supportive of those who engage in criminal behavior because it is core to their psychosexual needs.     It was only in 2003 that the laws against sodomy in 16 U.S. States were struck down by the Supreme Court.  But none of us doubted that the right of individuals to fulfill their own psychosexual needs trumped the law.  None of us said “uhh…look I understand you feel the need to be gay but since it’s against the law in Virginia, could you either consider just being heterosexual for the next few years or moving to Maryland.” 
We pushed, first for “compromises” that allowed the law to move against pedophiles or rapists, but encouraged the law to stay out of individual bedrooms, even where the genitalia were the same.  As time went by the “impossible” problem of actually working the law around the existence of homosexuality began to go away.  There is no easy legal solution to power exchange, but the lack of a 20-20 hindsight easy fix (nothing was easy about the process of legitimizing gay rights), doesn’t mean that we shouldn’t consider it a long term goal.   For now…understanding within our own community…is a start.
From the perspective of someone who presents as a dominant, holding many of the “cards” in my power exchange relationships, it is fitting to me that the law should favor the submissive partner, creating a sort of equity or balance.  But that does not make the Law daily social practice.
I am willing to face the law if I fail so badly in my practice of power exchange that my partner feels it is the only recourse.  That does not mean that I…or anyone else…should be subject to the intolerance of the communities because they and their partner do not choose to follow a “community creed.”
Why Does it Matter?
It may be hard to understand why anyone would care about non-consent, or if they do, not choose simply to  hide and hope that the light of day does not fall on them.  In order to understand the concern and the possible harm, we need to consider:
  •  What is wrong with “Community Creeds”
  • What sort of people would want to forgo contemporaneous consent and why shouldn’t we fear and ostracize them?  Who would actually be harmed



Community Creeds
“Safe Sane and Consensual”
SSC is one of the most widely recognized terms in our communities.  As early as summer 2004, BDSM author Sadie Bonafils (Sensuous Sadie) wrote, “We have no formal rules, except maybe David Stein’s ‘Safe, Sane, and Consensual,’…,” and it is often put forward as a “rule.”  Perhaps unsurprisingly any number of “experts” have defined SSC, and the definitions have sometimes been draconian disenfranching all but the most tepid power exchange.  One oft-repeated myth is that “SSC means playing with safewords,” and that to do otherwise cannot, by definition, be safe, sane or consensual.
Fortunately the people who first used the phrase are still alive, and writing.  In general it’s agreed that the term was first used in an August 1983 report of the New York based Gay Male S/M Activists (GMSMA) which was probably written by slave david stein.  stein doesn’t know for sure if he penned the phrase but believes it is likely that he did, and without question he sat on the Committee that approved the statement.  stein believes the phrase was derived from a common television exhortation to “have a safe and sane Fourth of July.”  The phrase “safe and sane” appears in an earlier essay by Tony DeBlase. 
Through interviews and in his own writing stein has attempted to fight the effort to use SSC to set up a “brand of sex police.” 
Says stein:
“it wasn’t until a couple of years ago that i realized what a monster we had created.   The only reason i ever tell anyone that i was the author is so i’ll have some authority when i explain what we meant by it back then – and what we didn’t mean by it.   Above all, we weren’t trying to establish a fucking credo!”  stein feels that SSC was intended as the opposite of careless, irresponsible, or uninformed S/M.  “We meant doing your homework and taking reasonable precautions. not “coercive abuse of unwilling victims”(1)
“What we intended to leave outside the line was things like sadistic serial killers and snuff scenes for money, coercive s/m of all sorts, not the edgier kinds of consensual play – unless there was a question whether consent was even possible, as with the underage or the mentally unbalanced. We never intended to draw the line to leave out heavy s/m, real pain rather than symbolic pain, blood play, knifeplay, humiliation play, 24/7 Master/slave relationships, and so on. But all these things and more have come under the gun in recent years from self-righteous censors and ‘dungeon monitors’ within our community waving the SSC banner” (2)
“To define is to limit, and GMSMA’s original purpose was not to establish an orthodoxy but to facilitate dialogue – that’s why we resisted attempts to promulgate any ‘official’ definition of S/M or SSC.” (3)
It’s easy to understand the desire to somehow codify SSC in the last few years of the 20th and early 21st century.  Fed by USENET then Worldwide Web, BDSM and related practices had exploded around the world.  Events which previously drew fifteen people now drew fifty.  Kink events were booking campgrounds and hotels in ever increasing numbers.  On the positive side, the public was more aware of BDSM and had a better opinion of it.  On the negative side, as “Paddleboro” proved, it was increasingly hard to simply fly beneath the radar and keep activities private.
The original GMSMA statement was drafted to deal with the need to have a clear statement for not only the press and public, but ultimately police, citizens groups and insurers who needed some definition they could accept of what they were being asked to be okay with.   
That is the issue that the NCSF is still grappling with today, and it’s a tough problem, however I do not want to see our leaders take the route of making power exchange the bastard child that’s hidden from company.  Similar strategies by “mainstream” leaders in the gay community have not worked well, creating profound alienation among community members perceived as “too extreme” perhaps exemplified by “A Butch Roadmap” in queer Canadian raconteur Ivan Coyote’s collection Missed her, in which the Chair of the Winnipeg Pride Festival is concerned that the event be “family friendly” and not include “drag queens and butch women.”
Many organizers and promoters wanted to circumscribe BDSM practices to things they felt were easy to defend and explain.  In many cases their heart was in the right place…they wanted to expand the acceptance of BDSM.  The problem is that they did so by walking over the emotional reality of many of the people who invented the practices they adopted, and by promoting intolerance and frustrating the choices of many others.
I support and applaud the basic idea of SSC, but along with david stein must reject any attempt to define the phrase to impose an orthodoxy on BDSM or power exchange.  There is no “agreed on” definition of SSC, and it means precisely what the speaker of the moment says it does…to them and no-one else.  In the end, like everything else, the definition of SSC is a personal one, and what is important is a shared understanding between partners that cannot be replaced with an acronym.  As a tool for promoting discussion and communication between individuals SSC may be useful.  As a “creed” it is simply a bad idea.
Risk Aware Consensual Kink (RACK)
The other noteworthy term we may encounter as a “set of rules” is RACK  (Risk Aware Consensual Kink), put forward in the Eulenspiegel Society’s Prometheus magazine in 1999 by Gary Switch, around the time that the “sex police” began to heat up. 
Switch made an elegant case:
Mountain climbers don’t call their sport safe, for the simple reason that it isn’t; risk is an essential part of the thrill. They handle it by identifying and minimizing the risk through study, training, technique, and practice. I believe this approach will work better for us leatherfolk than claiming that what we do is safe. We want to foster the notion that we develop expertise, that to do what we do properly takes skill developed through a similar process of education, training and practice.
As Switch anticipated when he said “RACK is admittedly more confrontational than SSC. It’s defiant,” there are those who take a dim view of RACK.  Likewise there are those who have attempted to turn Switch’s acronym into a set of rules or a dogma, such as suggesting that “RACK means not playing with safewords.” 
Both concepts are valuable “rules of thumb” but neither are rules of practice, though with its focus on non-definition and education RACK certainly comes closer. 
How bad was it?
I was still making my way around local clubs back in 1998 and had no knowledge of the politics of the scene, though I did run into a few Dungeon Staffers who seemed to consider the phrase SSC some sort of magical or talismanic key, the knowledge of which would make me a sparkly and safe player and rejection of which would make me a scion of the Antichrist.  I know that I was called out by other “experts” for my lack of appreciation for the extended remix of SSC, and eventually engaged in some heated exchanges after the turn of the century when I discovered RACK which came considerably closer to my own understandings.  That’s the view from the ground.  Since I’m not competent to speak on the high politics of the matter, I’m going to quote Master Skip Chasey, a Gay Male Master who is a respected leader, teacher, and presenter on M/s topics, from his Keynote speech at the 2008 Master/slave Conference ten years later.  I’m known for disagreeing about a lot of things with Master Skip, and when I heard this speech I admit I thought he might be an alarmist.  But he was there and I wasn’t, and I’ve verified these remarks with several other sources.
“If you think I’m simply  paranoid, then perhaps you’re unaware that at the 1998 Leather Leadership Conference, a policy statement on the issue of “SM vs. Abuse” was drafted containing some imprecise verbiage that could be interpreted as a condemnation of the dynamic that underlies virtually every Master/slave relationship. And when a few years later that problem was brought to the attention of the kink community’s leading national advocacy organization, who at the time was widely promoting that policy statement, their leadership responded by saying, and I quote, “Those people” — meaning us — [the M/s community – ed.] “are on the fringe. We don’t care about them.” (4)
What sort of people would want to forgo contemporaneous consent and why shouldn’t we fear and ostracize them?  Who would actually be harmed?
Miri walked through the club feeling a little selfconscious in their short outfit and leather accessories.  The look didn’t quite come together as if they were just pretending at BDSM.  Which they were.  Despite some play with a college roomate, Miri, only a sophomore themselves had never even been to a serious party, and now they were wandering around one of the most notorious BDSM clubs on this coast with their “friends” having moved on to sceneplay.  Miri knew enough to know what they wanted.  Pain.  Miri thought quite a lot of pain, and here without the tittering and reserve of friends was the first chance to get it.  The Dominant was older and not terribly attractive but Miri didn’t care…he had a whip and a rough look that said he was capable of violence.  Miri didn’t notice that he was not dressed much like the other people here and didn’t seem to fit in.  He didn’t seem to have many friends and if Miri had paid attention they were the only person who had actually spoken to him in some time. They talked for only a few moments when he said “You’re going to come back to my place.  And I want you to understand something.  There are no rules, no safewords. I am going to do whatever I want.  Once you go in the door, you’ll leave when I say you will…” He already had a hand on Miri’s wrist moving them through the crowd to the door.  “Do you have a bag?”
Stop.  Look.  Listen. 
Miri is our official poster child for abuse within the scene.  For all we know Miri’s new Dom intends for them to end up in the crisper with the arugula.   I started with Miri because I wanted to make clear that I can see and understand the dangers of an ethical structure where consent is not considered important or taught to new members of our communities.  Where DMs do not encourage Safe, sane, and consensual play as a rule of thumb. 
I am not defending random “no safeword – no responsibility play.” I am not defending arrant sexual predators who are not looking to engage in power exchange. 
I’m not suggesting that if the badly dressed Dom engages in sodomy as Miri screams for him not to, he’s not a rapist, because Miri  gave a vague and poorly informed prior consent.  I’ll add that I don’t think Miri’s ass would be any safer if he’d said “I’m a firm SSC player and will never do anything to you against your will,” which is why we need learning and common sense more than creeds.  A list of practical red flags like “don’t leave with a stranger”  that focus on supplementing Miri’s own good judgment is worth twenty “creeds.”
I am not advocating a world in which a quick consent is a ticket to abuse, and those presenting as dominants do not need to take responsibility for their own actions.  We need common sense guidelines in the communities and we should not be a place where new players are treated as red meat for the conscienceless depredations of whatever carrion bird comes across them or old players feel they have no choice but to accept abuse they don’t want.
I don’t know when Miri graduates.  I don’t know when Miri is experienced enough to give informed consent, size the man up and say “I will surrender control to you without reservation or safeword, do what you will.” Miri may not ever want to do that and if they don’t, more power to them!  It is, after all, playing with fire. But it is Miri’s choice.   Neither I nor anyone else can come up with hard and fast rules to dictate that choice.  We cannot say “you must see five whippings an asphyx scene, and a pint of bloodletting before you are extreme enough to go on this ride.”  That is why community education and culture are so important. 
Mouthing some creed will not in any way take the place of real scene knowledge and life experience.  I think it is more likely to give Miri an artificial feeling of safety than any sort of protection. 
We don’t need to say that Miri’s wannabe top “isn’t SSC.”  We need to say “he has a reputation for taking new people home, getting them away from others, and playing too hard without safewords so that people almost never want to scene with him again.  He makes no effort to learn from the communities or find out how to get better and fail less.  He’s dangerous and unpleasant.” 
Common sense.  We’ll come back to Miri in a few moments
Now…let’s look at some other snapshots:
Paul is a Gay male slave in service to Master W., living in the San Francisco.  Now in his mid-30s Paul was kicked out of his parents southwestern home where he was physically but not sexually abused at age 17 when he revealed he was gay and moved out with an older man who also treated him abusively. Functionally illiterate he became involved with drugs and male prostitution. Paul never earned a High School Diploma and has been only sporadically employed.  He has been with his current master for eight years.  Master W holds all of his money, sets a curfew and subjects him to corporal punishment which Paul does not have the right to refuse.  On occasion he has restrained Paul.  Under his current Master, after receiving counseling for BPD and diagnosis of a severe learning disability he has completed a GED, and at last report had been clean for five years.  He considers the discipline of his slavery to be a major factor in his recovery and ability to function.  Paul does not consider that he has the right to consent, but his description of slavery clearly includes episodes where he was disciplined or restrained against his explicitly stated will. 
Lisa is a 23 year old woman who self-identifies as being owned and a pet.  She was raised in a good middle class home by parents who she considers to have been distant.  She has significant issues with acting out and feels emotionally vulnerable.  Her owner disciplines her with Time Outs, but has physically restrained her against her will and locked her in her room on several occasions.  In conversation, Lisa talks cogently about being in a state of somewhat arrested development and behaving childishly.  She praises her Dominant partner (male and 29) for “not putting up with her shit” and “trying to make her grow up.”  She says that she “loses control and throws tantrums,” and concurs with her owner that when she acts like a child she deserves to be treated like one.  Lisa says that she has screamed she was breaking up, called red, threatened to call the police or thrown her cellphone at her owner, however she trusts him not to “let her” run away.  In general Lisa is happy with her relationship but there is no question that she has experienced many punishments and physical restrictions to which she did not contemporaneously consent.
Chris is in her late 20s or 30s, transitioning MTF.  Her Master is a male in his 50s who provides her sole means of support.  Chris considers that her Master is ‘rebuilding her.’  Her experiences involve humiliation play and sexual experiences that she did not consent to, though she clarifies that she does not have the right to say “no.”  She says it is hard for her to establish consent, as several of the “hard scenes” she has done were things she would have never done on her own, and did not want to do at the time.  She considers that she did them not because she consented but because she had given up the right to say “no,” though she observes this might simply be a way of consenting without taking responsibility since she has never been placed under any physical restraint.  She considers that she is mentally and emotionally more healthy than she has been in the past and does not want to return to a situation where she has authority over her own life choices. She discusses intelligently that being supported might be a major motivator to “put up” with things that she does not want, but also feels those scenes have “made her a better person.”  Feeling that she is under the control of another is core to her thinking and actions.   
Beatrice is 43 year old female who identifies as “kinky” and bisexual, living in a suburb of a Midwestern City.  She is divorced.  She is attracted to controlling and often abusive men and is incapable of responding sexually to a man who she does not feel has complete control over her.   Despite her self-hatred for maintaining her abusive relationships, Beatrice has not found a satisfactory long term partner in the local BDSM communities.  “I need someone who is willing to take it all. If I don’t absolutely believe they will do that, I can’t respond to them.”  She has experimented with other partners but is only responsive in a situation where she feels genuinely out of control.  At the same time she has grown tired of random abuse and seeks someone who she can sincerely feel has the strength to take complete control of her life and consistently demonstrate that control without behaving in an extremely abusive fashion.  “I don’t talk about it much in the scene.  I’m mostly looking online….it’s not okay.”  She is explicit that she wants to find what she’s looking for and despises people who want to “fix her.”
These snapshots (some details altered to protect privacy and none of these people were partners of mine) provide some clear looks at power exchange Relationships which have varied elements from draconian to rather soft, but present core aspects in which contemporaneous consent was not present. In Beatrice’ case she lacks a functional relationship with the NC elements she desires and settles for less functional relationships outside the communities to meet those needs.  At a high level all of these individuals gave prior consent to their partner, and all affirm that consent.  In the long run.
“No Means…something”
Enough models.  Time to get personal. Let’s talk about me…
It would be easier to hide behind pictures of submissives I’ve known.  In a sexual context the word consent is linked to rape, and when I stand as a white, primarily heterosexual, male, presenting as a dominant, and talk about an issue where rape is involved, I’m standing on a load of high explosives.  To discuss personal responsibility in the context of consent is in some forums to be shouted down as “victim blaming,” and to do it as a male brings the added charge of “mansplaining.”  But if we are to have a true dialog on consent, not indoctrinational instruction on the correct way to have sex, then the issue of personal responsibility must be on the table for everyone…man, woman, queer, dominant, submissive, switch, kinky and anyone else who wants to step beyond conventional sexuality into the exploration of the alternative.
I want to be clear that I do not find rape to be acceptable.  I have seen the impact of the damage that it has caused to individuals and families.  I and others sometimes use the term “rape” for forced sex activities in a consensual context, because it elicits a strong emotional reaction from the bottom which they desire and or need.  I understand the difference, and it is because I care about the issue of informed consent and overarching consent that I am willing to shine a light and explore this murky issue, rather than kicking it back under the carpet and hoping everything comes out okay in the end.
Finally…I want to reiterate that I’m not talking about people who are new to alternative sexuality, and lack the experience to give informed consent.  I’m talking about situations where the people involved have the clear experience, mental clarity, and will to decide for themselves to engage in activities where they wish to give up their right to contemporaneous consent.  And again, I don’t think that I or anyone else can set up a litmus test of when someone is “ready” for this.  The individual must decide, and if we want to help them not to decide wrongly, they need real pictures, models, exposure, talk and examples, not mindless bon-mots.  They need to be able to see and talk to other extreme players and have their activities public enough that they can see not only the positive sides, but the crashes, doubt, self-hatred and despair that can occur when we deal with the core of our psychosexual being.
I am not ashamed of who I am.  I am a democrat in the universal sense, and I believe in human freedoms.  At the same time, in my own relationships I find a fulfillment of my sexual identity when others surrender consent to me, and I accept it.  I have tried to focus on finding partners and situations where such expressions are constructive and meet a need.
I could write pages dissecting the situations in which consent is dicey and there’s no clear answer, but instead I’m going to pare down and focus on one example. 
Like a lot of people, I hate peppy slogans. “No means no” had its place as a student anti-date rape slogan in Vancouver in the early 1980s, heavily promoted by the Canadian Federation of Students, and while commendable as an effort to educate about consent, like the subsequent “Just say no,” anti-drug campaign (which probably copied its success) it was a sound-bite answer to a complex problem.  It was a good awareness-raiser, but the dialog about consent should have deepened over thirty two years as it has on drugs, not stalled on a buzz-phrase.
In the real world, “No” means an unfathomable number of things depending on a million factors ranging from which MAOA allele you have to the current market price of cereal grain on the Shenzhen Stock Exchange.  It has to do with psychological makeup, religious upbringing, neurochemistry, how we respond to authority, and how we were raised.
It is the case that “if someone says no, stopping is a really good idea for your own safety and freedom.”  If you say “no means no at my event, in my dungeon, and on my insurance” I support you 100%.  If you say “No means you could end up in jail if you don’t know exactly what you’re doing” I couldn’t agree more…
The problem is that as a BDSM Trainer, I am in the position of having prior consent to violate contemporaneous consent.  And it is my job to know when to do that and how, so that subsequent consent confirms that I made a good choice and incidentally I do not end up in jail. 
To me, “no” means “good luck kid, you may be damned if you do and damned if you don’t.”  However when I have made promises and commitments as a trainer to support and change someone,  with the understanding that they needed and desired someone to force change when they hit the barriers that had thus far held them back, I cannot excuse myself from that responsibility with a trite saying. 
The thing which my partner is trusting me to do is to second guess when “no” means “stop” and when “no” means “I am testing…not consciously but out of emotional instinct and programming…that you have the resolve and control abilities you said you did, and I will be thoroughly disillusioned and go elsewhere to find support if you back down to me just because I said ‘no,’ and consider that you failed in our larger agreement.” 
Why would anyone do that?  Many reasons.  Often the core is the inability to feel emotionally safe with someone who won’t override your consent.  If you consider that our caretakers/parents for the first sixteen years of our lives frequently override our consent, and that only in our teen years do we begin to thwart them, the connection between overriding consent and feeling emotionally safe may become more clear. People who feel out of control often seek someone who will take care of them as their parents did…and that means exerting control no matter what.   And for adults that sometimes means knowing you can’t intimidate your partner even with the biggest threat you have.  For people who lack the ability to change themselves a partner who commits to not being intimidated when they don’t “wanna” change can be critical.  And that means not being dissuaded by lack of contemporaneous consent when the basic framework of prior consent seems intact.  We don’t usually hate our parents for too long for not letting us have ice cream before dinner, but in the moment, our hatred may be intense, real and focused.
The presumption of contemporaneous consent draws from the basic assumption that all human beingswant to be high-functioning adults 24/7.  The root of D/s is that many humans wantto be freed from that responsibility during their sexual or intimate experiences…and to achieve that they must retreat from the high-functioning adult mind that gives them the discretion to know when “no” is a good idea.  They build trust situations with their partner to give up their right to act as a high functioning adult in order to achieve a mental or emotional state, sexual or otherwise.  Is that insane or wrong?  Someone who jumps out of an airplane, or on a bungee line is doing approximately the same thing…they are giving up most of the control of their environment to achieve an emotional state.  Taking a profound risk.  And for some, there is the desire to remain in that state, for long periods of time or permanently.  Is there an obligation to “come down?”  Is there a reason people should not live in the emotional states they choose.
Do I think that respect for these states and the abrogation of responsibility should be written into law.  No!  Do I think our communities should support them in that choice, and support also the people who aid them?
Absolutely.   It is the core of what we are about.  The right to choose our own emotional and psychosexual states, not those dictated by tradition or society.
The Lords of Dogtown
The biographical movie Lords of Dogtown is set in the early 1970s in Santa Monica.  It chronicles the rise of the influential “Z-Boys” skateboarding group, which included legends Tony Alva, Stacy Peralta and Jay Adams.  Director Catherine Hardwicke chronicles their invention of a new type of skateboarding we’d recognize as modern, breaking into dry swimming pools during a drought to perfect moves more risky and spectacular than anything previous.  They are thrill seekers and risk takers.
Shaun White hadn’t been born when the Z-Boys broke into their first swimming pool to ride the concrete curves, but a quarter century later he would take Olympic Gold Medals in snowboarding at Torino and Vancouver, as well as medals in skateboarding at the U.S. X-Games.
In most communities which embrace personal expression through risk there has been a move to a smoother integration between those extremists driven by need who seek to push the boundaries of normal behavior for experience, and those who seek a more moderated or recreational experience.  Nobody says you have to be Jay Adams to ride a skateboard.   Nobody says you have to pit your life in an epic battle to climb a mountain or jump from a plane.  But we recognize that there is a smooth line between those who choose safety and stability and those who challenge the limits of it.  And we embrace those extremes, which is why there are X-Games as well as Olympics.
I don’t expect every new bottom who walks into the scene to be a BDSM Jay Adams.  I don’t expect every new top who walks into the scene to become a Trainer who plays with the balance and limits of consensuality.  But if Miri is meant in time to become one of those players, I want Miri to have a clear line of learning that gives them the very best chance of choosing wisely and carefully when to sacrifice consent.  Miri may be just another kid playing at being the fictional characters of O. or Severin, who quickly finds that being tied up a few times a week and kissing a boot is more than enough to fulfill their internal needs.  But Miri may also find deep fulfillment in having their ego destroyed and rebuilt in a program of 24/7 power exchange. 
Members of our communities can make good choices when extreme play and Power Exchanage happen in the open and are openly discussed.  When we have to hide Miri cannot learn from the pain and tears of those who have gone before and must reinvent the wheel.  Miri must get hurt because we have to stay out of site to newcomers like Miri, presumably from learning about the things we do, despite the fact they’ve been described clearly and in context  in books since the 1870s.
A kid may break a leg trying to be Shaun White, and Miri’s heart may be broken trying to be the slave they want to become and believe they are.  But legs and hearts generally heal even if we think they won’t at the time, and the greater risk is that the kid will not set an all time record for Gold Medals in PyeongChang in 2018 or that Miri will not become the person they are entitled to be.  In a way it is a decision.  Is our community about restricting people to keep them safe from what might happen to them, or is it about empowering them to find the answer to their needs? 
I do not want to return to a time when my friends and myself may end up in a BDSM ghetto, where we’re fine…as long as we talk and recruit in secret, and don’t discuss the things we feel, or do in public.  Which…is where all of BDSM and certainly M/s stood twenty five years ago.  I am old enough to remember a time when I felt the need to hide my sexual attitudes and activities from many of my friends, when I felt that expressing my desire for control and authority was inappropriate.  I am old enough to remember the hurt feelings and shocked looks when I began to show myself for what I was.  I don’t care to return there.
What are some constructive solutions?
We need to understand that the legal and social standards for consent are not and do not need to be the same.   Driving 57mph, pinching a pen from work, and copying an MP3 are crimes under the law of the land but we reserve the application of the law for egregious violations. 
Despite a few purists, most of us understand that someone who downloads pirate software for their personal PC, or takes home a pen are not $65 billion swindler Bernard Madoff, and do not deserve 150 years behind bars.   A dominant who holds an upset submissive, who is behaving erratically, for an hour or two is not the same stripe of human as Josef Fritzl, the Austrian engineer who held his teenage daughter captive for years and forced her to bear his children.
There is a reactionary idea that a “no tolerance” policy on consent…which would include most power exchange…protects people.  Better to send a pen-thief up the river for 150 years than have someone sexually assaulted.  I simply don’t think that’s true or sane, nor does it help in the case of any other serious crime.  The law must have hard black and white edges and be draconian, with moderation provided by judges and juries.  To say that the community must judge anyone who plays with the rules of consent the same is to say that we must treat all software pirates like Madoff.  It’s not practical or sane.  Motive, scope, prior consent, and subsequent consent are all fantastically important ethical factors.  My employer would not be happy at my loss or well served if I were sent up the river for illegally downloading software from the company server to my personal PC…and my Trainees would not be happy or well served if I were sent up the river for false imprisonment because I detained them against their will.
Any dialog on consent needs to be based on an understanding that we are not establishing the law…that we are establishing social norms.   There needs to be an understanding that social norms differ from person to person, and that nobody is going to be able to develop a hard and fast “Code” of behavior.
What should the norm be?   I can’t say and neither can you, but we can probably begin to agree it should have something to do with questions asked, honest and full answers given, and enough examples available that those who can’t bring themselves to ask questions can still get an idea of what it is they are looking at becoming involved in. 
I have read and occasionally talked to members of our communities who have the opinion that anyone who would tolerate or refuse to leave a relationship in which nonconsensual activity is an element is abused and inherently needs to be “rescued.”  This seems to be to be a form of paternalism which is if anything greater than mine in practicing consensual non-consent.  They feel that the “abused” partner is necessarily incapable of giving informed consent to remaining in the situation and requires treatment to change their mind and recognize their situation as abusive.  So…a person who is satisfied with their situation and consents to it can become acceptable only by being non-consensually removed from it and undergoing re-education.  Perhaps “we had to destroy the village in order to save it,” would be a good soundbite for this. 

Of course there is the legitimate fear that standing behind those individuals who need to surrender or accept the surrender of contemporaneous consent may be putting a rubberstamp on abuse, or encouraging sickness.  Most of us aren’t old enough to remember a time when even liberal intellectuals considered that homosexuality might in fact just be allowing people whose sexuality had been warped to get off in their harmless but ultimately damaged way, and the murk that made it seem impossible to sort out “legitimate homosexuality” from “Freudian issues,” and made it seem better if it was just tolerated behind the curtains as long as it didn’t hurt anybody who wasn’t already messed up.
Abuse is real.  Abuse exists.  But the solution to it is not to draw arbitrarily low lines about consent in a panic.  It is to seek real, deep, understandings of the psychological nature of consent that leads to a more sophisticated understanding of how it works, when it is impaired, and how to help individuals deal with consent issues.
In practice we already have a rule of thumb.  In practice we presume that if prior and subsequent consent exist on a fairly steady ongoing basis, violations of contemporaneous consent fall within bounds of acceptable behavior.   On a pragmatic level, it’s hard to prove otherwise, and easy to dismiss intermediate non-consent as “playing mind games” or “willing suspension of disbelief.”
Most of us feel more comfortable if individuals are in contact with the communities and we can feel fairly certain that if they desired an exit from their situation…found it abusive in ways which did not meet their personal psychosexual needs…they would be able to find the resources that they need to end it and move. 
The problem is that we have no shared understandings about the underlying dynamics.  So the issue only comes up when there’s a misunderstanding and what starts with prior consent and involves lack of contemporaneous consent explodes into a failure of subsequent consent. 
Most of us who play with the boundaries of consent understand that if the law comes upon us in those in-between times, the only help for us is the goodwill of our submissive in  remembering the prior consent and stating that consent has existed.  The law has no mercy for those times when contemporaneous consent does not exist.   Our communities need to have the sort of understanding that can come only with a fuller understanding of the real mechanisms of consent, and the emotions and needs of those who surrender consent, or accept that surrender.
Capturing the emotional complexity of someone who primarily wishes to be in a state, but at times may not consent to being in that state, is beyond the law.  It should not be beyond the sophistication of our communities. 
This is important because we need to understand that when people seek to meet very extreme psychosexual needs, often born in pain or confusion, there may be pain or confusion and people may get hurt.  We consider the presence of malice, badwill, or recklessness in making our individual decisions as to whether to cry “fair” or “foul.”
I would like to see our communities’ judgments grow better and more informed.  I do not think that any form of extremism from “my way or the highway” to “SSC” really promotes this.  Slogans and soundbites may be good tools for giving a rough outline to novices, but for the most part they obscure more than they illuminate.
What do we need to learn
Informed consent– we need to develop communities ethics that differentiate informed consent from simply agreeing to something.  Many of the cases raised as objections to relationships based on prior and subsequent consent, such as my example of Miri, are really about lack of informed consent. 
Psychology and Neurochemistry  – I cannot overstate this.  We need to develop a greater understanding of psychology and neurochemistry, including a full understanding of how dopamine, oxytocin and other chemicals may combine to affect our consent in ways more powerful than heroin, so that adults have a better chance of reasonably evaluating why they are entering into a relationship that involves non-consent, and considering if it is a wise idea, and better language for discussing that choice with their friends. 
We need to understand how childhood experience influences trust and dependence, and recognize what co-dependant behaviors look like and when they are and are not reasonable compromises.  We need to understand that people who formed their psychosexual makeup in abusive situations may choose to experiment with close analogues to that situation, may require that in order to sexually orient themselves and function, and that a choice to break away from those needs is not obligatory does not constitute an ability to instantaneously transform their psychosexual makeup. 
We are the communities for alternative sexuality.  If our intent is to make our members live sexually frustrated if their psychosexual needs include things which we find “scary” or “unfair,” or think might be “rooted in sickness,” then we are not fulfilling our role, and are simply creating a new echelon of social restriction. 
Pragmatism – we need to focus not on some ideal, in which everyone becomes a Self-actualized prodigy in the Maslowian sense, but on quality of life on a day to day basis.  Some people do not wish to be fully or partially in control of their own lives.  We need to accept that when and what parts to surrender control of is their choice, and that the dynamics of that are not a smoke and mirrors show, but contradict the legal rules of contemporaneous consent.   It is good to value “standing on your own two feet,” while understanding that it is a legitimate choice not to.  We need to accept that even if someone does want to, they may not immediately be able to, and  may require a period of adjustment and support.
Tolerance and Respect– we need to focus on the rights of the individual, including the right to surrender consent, recognizing that while the law allows them to regain their consent at any given time, we cannot ask them to play act about it, or penalize their partner for fulfilling their needs.  We need to face the realities, not come up with clever word games to make what is really going on easier to accept.  Respect needs to extend to those presenting as dominants, who choose to take the risk of working in a framework where prior and subsequent consent are the only safety net, in order to meet the needs of partners who do not wish to exercise consent, or wish to be subject to experiences that transcend their contemporaneous consent.
Shared experiences– my friends who have doubts about c/nc relationshps usually lose them when they are exposed for some period of time to people who are in such a relationship and are able to discuss intelligently and with perspective, why it meets their needs.  Creating larger webs of shared experience by encouraging people to talk, write, and discuss, freely and without fear of labeling or shame, will allow more perspective for those who are deciding whether or not a given level of consensuality in their relationship is acceptable to them.   The more experience we share and the more stories we tell, the more the outlines of abuse will become clear.  The more stark contrasts will start to emerge.    Words and phrases and terms will grow up where only “feelings” exist now.
Perspective and Intelligence – we will never all agree on what is abuse and what is not, however for more than a century male pedophiles raping little boys was held out as a prime reason not to legitimize homosexuality, and sober and intelligent men were unable to disentangle the two.  Fortunately there are a few clear cut lines that can be drawn, though they still create controversies particularly in regards to adoption. 
The fact that there are abusers does not make all non-consensual play inherently bad, and we need to have the sophistication to discuss it, not bury our heads in the sand. 
Life seldom gives us examples as black and white as Paul’s Master W. and Josef Fritzl to distinguish the extremes of non-consensual behavior.  The law provides a final line in the sand and it took a jury a very short time to send Josef Fritzl away for life, but most cases fall far closer to the middle, and just as the idea of male-male sex was an emotional touchstone that could make it hard for sober people to act logically, the spectre of “slavery” is an emotional touchstone that can make it hard to have logical and well thought out opinions on Power Exchange. 
We will resolve the gray areas only through a high level of information and understanding that allows us to make good point by point appraisals.  In the end the decision to object or not object or intervene and not intervene belongs to each individual.  We cannot make rules only provide advice.  Human relationships exist between individual humans and we cannot control that.
In the end it isn’t the role of our communities or their leaders to make rules as to how humans should behave.  It isn’t our role to be police.  We have police to be police. Setting arbitrary rules for social interactions doesn’t create a safer community it creates a smaller more insular community of people who desire safety, leaving those outside in the millions strong torrent created by the movement of popular fiction and culture to fend for themselves without any help.
The big world will still be out there.  We remain relevant to it by providing resources,…including conflicting guidelines put forward by different people…gives the best opportunity for people to make their own informed choices about how they will behave and what choices they will retain and which they will surrender, or take.
There is legitimate cause for concern.   We must find a way to express the complexity that occurs when overarching consent interacts with the voluntary surrender of contemporaneous consent in the context of power exchange.  I hope…and honestly believe…that at this point that the power exchange communities will not find themselves as a whipping boy, or worse choose to pretend the hard questions do not exist.  I hope that the communities will produce not a creed but an intelligent set of writings, guidelines, thoughts, dialogs and discussions that form the basis for an actual understanding and education on consent that goes beyond some simplistic slogan.
I will close by repeating the comment of slave david stein that “GMSMA’s original purpose was not to establish an orthodoxy but to facilitate dialogue”  and to suggest that this is a good practice for us all.
(1) National Coalition for Sexual Freedom (). NCSF Survey on Consent. Retrieved 13 July 2012 from National Coalition for Sexual Freedom:
 (2) stein,  slave david, under the Guardianship of Master Steve of Buchmann’s (2002). The Making of a Shibboleth. Retrieved 13 July 2012 from david stein:
 (3)  Bonfils, S. (2003) “SCENEprofiles Interview with david stein author and originator of the phrase “Safe, Sane, and Consensual” (SSC).” 
 (4)  stein,  slave david, under the Guardianship of Master Steve of Buchmann’s (2002). The Making of a Shibboleth. Retrieved 13 July 2012 from david stein:
(5) Chasey, Master Skip. THE RISE AND FALL OF THE M/s COMMUNITY (A Cautionary Observation). Retrieved 13 July 2012 from Master/slave Conference:
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