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What is consent?

For our purposes, consent is the explicit indication, by written or oral statement, by one person that he/she is willing to have something done to him/her by one or more other persons, or to perform some sort of act at the request or order of one or more other persons.  In terms of sexual consent, consent may be withdrawn at any point, regardless of what has been previously negotiated orally or in writing.

Is a scene contract legally enforceable?

A scene contract is not a legally binding contract, and will not be enforced or recognized by any court.

Can someone give consent in advance? What happens if they withdraw consent mid-scene?

Even if a scene has been pre-negotiated, or even committed to in writing, a submissive can withdraw consent at any time.  That withdrawal must be honored and acted upon immediately. There really aren’t any exceptions. 

How does use of drugs or alcohol change one's ability to consent?

Any altered state of mind affect’s one’s ability to consent.  The consenter must be able to knowingly understand the impact of the consent given. Accordingly, the freedom of consent is directly a function of the ability to consent. Bluntly, consent obtained from someone who is too drunk or high to consent is no consent at all.

What happens if a submissive gets so into "sub space" that they lose the ability to communicate?

This can pose a potential legal problem, similar to a submissive’s overuse of drugs or alcohol.  The consenter may later claim a desire – but inability – to withdraw consent. The sensible solution is for the dominant partner to pay attention, and to proceed with extreme caution with any planned scene activities, particularly when the submissive partner reaches a deep “sub space”.

Can someone who is mentally challenged consent?

While those who are mentally challenged certainly should have the right to sex, they may not be capable of a level of knowing consent that a court would recognize.  As a consequence, it can only be said that consent given by someone that has a mental disease or defect cannot be accepted with confidence.

Why is NCSF focusing on decriminalization versus legalization? 

In addition to the fact that legalization is more difficult to achieve politically and socially, legalization opens the door for increased government regulation, which is not to our advantage.

What is the legal difference in using “safe, sane and consensual” versus “RACK” (Risk Aware Consensual Kink)?

“Safe, sane and consensual” is a term developed by the leather community over a period of many years `and is the basis for the BDSM versus Abuse statement.  RACK is a more recent term and poses a potential legal problem for those who use this term.  If something goes wrong in a scene, use of RACK suggests that one knew that the behavior that they were engaging in was risky, but chose to do it anyway.

Is BDSM consent subject to the same minimum age of consent legal rules as are applied in rape cases?

Yes.

Does a long-term consent agreement, such as in a Master/slave relationship, constitute blanket consent for all BDSM activities?

No. Again, a scene contract is not a legal contract and a submissive can withdraw consent at any time, regardless of the M/s contract.

EndFAQ

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Consent Counts: We're Making a Difference

  • Completed Federal and State Legal Research
  • Developed Educational Programs and Outreach Materials
  • Built Alliances With Sexual Freedom Advocacy Groups

About Consent Counts

NCSF is leading a major national campaign—Consent Counts—to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.

  • BDSM is prosecuted as assault in the U.S., even when it is consensual.
  • No state or appellate court has allowed consent as a defense to assault in BDSM cases.
  • Consent Counts is a nationwide project to decriminalize consensual BDSM.
 
Program Goals:
Consent Counts
is a nationwide project to decriminalize consensual BDSM through education, advocacy, legal actions and lobbying.

 

Contact:
Judy Guerin
Director, Consent Counts 
 
Help us reach more communities