Some cases arising from BDSM incidents have been prosecuted under the criminal charge of battery. Battery, unlike assault, does not necessarily involve an attack by one person against another. The crime of battery is injurious touching or striking of one person by another. Thus, in battery cases, there is an issue as to the context in which the injurious touching or striking occurred. As the Court of Appeals of Indiana stated in Helton v. State, 624N.E.2d499(1993) at 514, n.22:
Consent is connected with the harm or evil sought to be prevented; therefore, if the victim consents to the defendant’s touching, that touching is not rude or insolent and should not be considered unlawful unless it meets one of the exceptions to the general rule.
The exceptions to the general rule (in Indiana) that consent is a defense to battery, and specifically is a defense available in cases “involving sexual overtones”, are as follows:
(1) Where the defendant goes beyond acts consented to; (2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as, as where there are no sexual overtones and the battery is a severe one which involves a breach of the public peace, as well as, an invasion of the victim’s physical security; (3) Where consent is ineffective as where it is obtained by fraud or from one lacking legal capacity to consent; (4) Where a deadly weapon is employed; (5) Where death results; or, (6) Where the battery is atrocious or aggravated. [Helton 624 N.E.2d at 514, citing Jaske v. State, 539N.E.2d 14, 18 (Supreme Court Indiana 1989).]
The concept here is that touching or striking, unlike an attack, is not inherently criminal. (Similarly, the conduct underlying the offense of rape—sexual intercourse—is mutually pleasurable conduct when consensual, and becomes criminal only in the absence of consent.) Thus, when that conduct is consensual, even where some injury is caused, it is more palatable to find that such consent prevents the conduct from being a criminal offense.