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Consent Legal Cases

Legal cases dealing with the consent counts project.

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.  The following overview, from Consent to Harm by Vera Bergelson, is a good summary of the case law:

Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm.  A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.”  Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.”  Courts tend to inflate the risk and harmfulness of an activity they want to denounce.  For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious.

28 Pace Law Review 683, 691

 


Case index, click to view the individual case summary and a PDF of the case. 

California v Samuels , 4/28/1967

 Massachusetts v Appleby , 4/1/1980

 Iowa v Collier, 5/25/1985

 Helton v Indiana , 12/1/1993

 New York v Jovanovic , 12/21/1999

 Lawrence v Texas, 6/26/2003

 Nebraska v Van , 11/12/2004

 California v Febrissy, 7/1/2006

 Govan v Indiana, 9/9/2009

 Rhode Island v Gasper, 10/30/2009

United States, Appellee v Miles  3/24/2014


Law Review Articles, click to open the individual PDF of this article.

Sex Is Not A Sport: Consent And Violence In Criminal Law , 2001-2002

Beyond The Pleasure Principle: The Criminalization Of Consensual Sadomasochistic Sex , 2001-2002

Morality-Based Legislation Is Alive And Well: Why The Law Permits Consent To Body Modification But Not Sadomasochistic Sex , 2006-2007

The Right to Be Hurt: Testing the Boundaries of Consent , Febuary 2007 

Pain, Pleasure, And Consenting Women: Exploring Feminist Responses To S/M and Its Legal Regulation in Canada Through Jelinek's The Piano Teacher , 2007 

Consent to Harm , 2007-2008

Autonomy, Dignity, and Consent to Harm , 1/29/2008

The Moral Limits Of Consent As A Defense In The Criminal Law , 2009 


 
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