WHO NEEDS CONSENT AND WHO CARES ABOUT LIMITS?
The answer to the provocative headline for this blog is simple – you, me, and everyone else. Further to this, I would argue that consent is the biggest issue that people practising a D/s lifestyle or participating in BDSM activities need to consider in 2021. Limits are equally important, although I would consider limits and consent the same thing – in that a person giving consent, does so to a point or limit. In other words, any limits are part of what participants are consenting to.
Everyone has limits and all consent is given within those limits – even if the only limit is – don’t kill me. The nature of consent as prescribed in law in 2021 is such that when consent is given it is for something specific and not anything or everything. That being the case, there will inevitably be limits, even if those limits are only simply the boundaries of what the people involved are consenting to. They might be consenting to vaginal sex – which means that anal sex would be beyond the limit of that consent, and they may be consenting to mild pain, which means that serious pain is beyond the limit of the consent given.
This highlights the importance of being absolutely clear on what a person is consenting to. Indeed, being absolutely clear on what a person is consenting to (including limits) is a legal and moral obligation.
While there may be some variations from state to state and country to country, in Western Australia the law states that:
- Consensual sex occurs when all parties are of legal age, agree to engage in the sexual activity, and have the freedom and capacity to make that choice. This means agreeing to sexual relations without fear, coercion, force, or intimidation.
- Giving consent is active, not passive. It means freely choosing to say ‘yes’ and being free to change your mind at any time.
- In Western Australia, the legal age for males and females to consent to sexual activity is 16 years of age. If you have sex with someone who is under 16 years of age it is a crime.
- It is also a crime to have a sexual relationship with someone under 18 years of age if you have a relationship of authority with them, for example, you are their teacher or employer.
- If someone is not able to give consent to sex, regardless of their age, it is a crime to have a sexual relationship with them. People who cannot give consent are those who are:
- unconscious, asleep, intoxicated, drugged, or otherwise unable to say ‘yes’.
- have a psychological or decision-making disability that impacts on their ability to understand what they are consenting to.
This summary highlights the legal requirements for consent. It also begins to address the moral requirements for consent – which in my view are and should be more onerous than the legal requirements. I would argue that we all have a moral obligation to ensure we have consent, that consent is informed and that it has been offered enthusiastically.
There are I suspect a number of miss-understandings or areas lacking clarity in relation to securing legal and moral consent. They include but may not be limited to the following:
- Consent is only required for a new partner or a casual contact.
This is absolutely untrue. A partner in marriage can claim rape if consent is not given. All parties must give consent regardless of the nature of the relationship.
- Consent can be implied.
At least from a legal perspective, this is wrong. Not only must consent be explicit, it must be ‘given freely’, and ‘enthusiastically.’ The law requires ‘enthusiastic consent’.
- Consent is only required for intercourse.
This is completely untrue. Consent is required for ANY sexual act. Indeed, technically, consent is required to touch on the arm or kiss a person on the cheek
- Consent is only required for the centre of attention.
Consent is required from all participants in an activity. Indeed, morally there is also an obligation to secure consent from other present but not directly involved in the activity.
- Saying yes is enough.
Yes, is not enough. In addition to being enthusiastic, as noted above, the participants must also be ‘informed.’ Within reason, participants need to know what they are agreeing to.
These are just some of the common myths that can get participants into legal and moral hot water when engaging in any sexual act, let alone a D/s activity. I would argue that given the nature of D/s activities, the requirements for consent need to be more onerous, especially regarding all parties being informed. It is difficult to know exactly what is going to occur in some paly sessions, but to the extent it is possible – all parties need to know exactly what will happen and what can be the consequences – good and bad.
Here are my tips regarding consent in a D/s environment:
- Ensure ALL parties are informed about what is to occur and the possible consequences.
- Ensure that consent is given enthusiastically and in a way all participants can hear.
- If there are any concerns at all, get written consent – but don’t think this is enough.
- In securing informed and enthusiastic consent, ensure you address limits.
- Wherever possible, give priority to playing with people you know.
- If you are ever in any doubt about limits being crossed – check and check again.
- Have in place a limit system – green light all good, amber getting close & red stop.
- Treat consent as a moral issue, applying higher standards than the law requires.
It is also important to remember that:
- Consent laws vary from place to place and can vary from time to time.
- You may not always be on good terms with people you are playing with today.
- Public opinion is driving authorities to be tough on consent in 2021.
- BDSM is not often, but on occasion can be dangerous.
- Consent to an act with is not legal, cannot be recognised consensual by the law.
- You have a moral obligation to act above and beyond legal requirements.
Consent is a vexed issue. It is an issue we must all keep top of mind.
What are your thoughts?