Consent as a Defense: a suggested course of action (for Massachusetts)

By Brian Flaherty

Over the past several months I’ve written quite a bit about consent as a defense to BDSM – actually, I’ve written about how consent is NOT a defense to BDSM (there’s a recap buried hereCoffee and…Legal Discussions and the Awareness Conference), I thought I would offer a few suggestions.

First, we cannot simply “repeal the laws against BDSM.” These are the assault and battery laws, which exist for good reason. However, the problem is that these laws:MGL 265 sec. 13A Assault and Battery and MGL 265 sec. 15A Assault and Battery with a Dangerous Weapon, can be used to prosecute consensual sado-masochistic activity – most notably in Commonwealth v.Appleby, 380 Mass. 296 (1980) and again in the more recent Paddlboro affair. It was in Appleby that the court explicitly found that “Regardless whether sexual activity was involved in the incident in question, [one party’s] consent to assault and battery by [another party] by means of a dangerous weapon (a riding crop) cannot absolve [the second party] of the crime charged, punishable under MGL 265 Sec. 15A.” This is about as clear as you get, and it is an expression of the law currently in force in Massachusetts.

Second, if the problem is Abbleby, why can’t we just attack it directly & try to get it overruled? The problem here is the cases can only be overruled by courts of the same level. Appleby was decided by the Supreme Judicial Court of Massachusetts – the highest court in the state. In order for them to hear a case that might overrule Appleby, someone would have to go to trial for consensual assault, lose at the trial court level and appeal to the Massachusetts Appeals court, lose there, and then appeal to the Supreme Judicial Court. The SJC would then have to explicitly overrule Appleby with respect to BDSM conduct. The chances of this happening are infinitesimally small – however if by diabolical hazard it did happen in my lifetime, chances are good that lives of people we know and love would be ruined as they trudged along the very expensive road to “victory.”

The answer, I believe, lies in getting our beloved and perpetually democratic state legislature to pass a law that says that consent is a possible defense to assault. And believe it or not, there actually exists a reputable model for doing this – one that has been adopted by several states already. It comes from the American Law Institute’s Model Penal Code section 2.11 – which specifically deals with consent to assault. That section reads:

§ 2.11. Consent.

(1) In General. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

(2) Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:

(a) the bodily injury consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law; or

(c) the consent establishes a justification for the conduct under Article 3 of the Code.

(3) Ineffective Consent. Unless otherwise provided by the Code or by the law defining the offense, assent does not constitute consent if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or

(b) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(d) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

So where does BDSM fall? I’m thinking either (2)(a) the bodily injury consented to or threatened by the conduct consented to is not serious, or (2)(b)the conduct and injury are reasonably foreseeable…etc.etc.

This is not an airtight solution – so much hinges on the definitions of “serious bodily injury “ (which is defined in the Massachusetts statues as “bodily injury which results in a permanent disfigurement, protracted loss or impairment of a bodily function, limb or organ, or substantial risk of death.” MGL 265 sec. 13k) and of “concerted activity not forbidden by law.” Not an airtight solution, but it does give a defense attorney a much better starting point than, say, Appleby & a prayer.

So what do we do next? Well, for those who remember Schoolhouse Rock, we need a bill. We can write a proposal for this law in the form of a bill and petition the legislature. However, in order to have the bill actually brought to the floor, we need to find a state legislator to sponsor it. I’m happy to do the writing – as far as I can tell, the American Law Institute has already done the lion’s share of the work. Anyone want to help turn it into a petition, gather signatures, and find a legislator to sponsor it?