Hi all,

While nowadays I strive to avoid posting meaningful content to Tribe (helping increase the profits of a corporation that has made it very clear that they don't want "our kind" around _really grates on me), I nonetheless decided to post the following essays here. They were recently posted in an association I moderate called "BDSM Risk Management" over on www.free-association.net. Those of you who are not already "over there" are hereby cordially invited to join the vibrant and growing BDSM community there.

Best,

Jay

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I Want My Thrills! The Misadventures of Doofus
Defendant

by Jay Wiseman, JD
jaywiseman@yahoo.com

One of the ways that my thinking has changed since I got my law degree is that I have a much clearer understanding of how a court is likely to make a decision, should a severe injury or death occur, as to whether or not the behavior that led up to the injury or death was reasonable, negligent, or reckless.

In particular, if a given activity with little social utility has a foreseeable but small probability of causing a very serious harm, and a person chooses to engage in the activity because they wanted the associated thrill, and the foreseeable harm results, then that person is fully liable, both civilly and criminally, for causing the harm.

That the harm had a low probability of occurring is _not_ a defense in a court of law.

That they did not intend to cause the harm that resulted is _not_ a defense in a court of law.

Let me give you an example. Let's say that we've got Doofus Defendant, who lives way out in an isolated part of his county on a back country road. While most of it curves, this county road happens to have a four-mile long straight stretch to it. Every day and every night, on his way to or home from work, Doofus likes to see how fast he can get his car going on that long straight-away. He enjoys the thrill. Even though the posted speed limit is 35, Doofus has learned that he can get his ride up to 90 on that long straight-away before he has to slow down for the upcoming curve.

He does this on his way to and home from work every single morning and night for over five years. In other words, he does this twice a day times five workdays a week times fifty working weeks per year times five years. That means that he does it over 2500 times with no harm to anybody.

Doofus knows that he _could_ hit somebody at that speed, especially at night, and if he did then he'd probably kill them, but hey, nobody is _ever_ there, so no problem, right? It's just not gonna happen. Besides, he really enjoys the thrill.

Then, one winter night, when it's dark while he comes home from work, Doofus has gotten his ride up to 80 mph, just like he's harmlessly done thousands of times before, when a naked male pedestrian looms in the road just ahead of him. (It later turns out that the guy was dropped off there, naked, as part of a fraternity initiation.)

Because Doofus is "over-driving" his headlights, he has absolutely no chance to miss the guy. What this means is that Doofus gets a _very_ brief glimpse of the pedestrian in his headlights, complete with the look of growing surprise on the guy's face, before Doofus plows into the pedestrian, killing him instantly.

Legally speaking, Doofus is _FUCKED_.

More properly, Doofus is looking at a second-degree murder charge under a "reckless endangerment" theory.

Let's say that again: Second-degree murder.

Second degree fucking A murder.

In California, that's 15 years to life, and because California is a "truth in sentencing" state,
Doofus will have to do at least 85% of his minimum sentence (twelve years and nine months) before he even sees a parole board, and California parole boards, nowadays, are notoriously reluctant to grant parole to murderers.

Think about that. Stop for a moment and think about that.

Because he wanted his thrills, he drove his car in a reckless manner and his recklessness put other people in harm's way. Somebody died as a result of his choosing to engage in reckless behavior to get his thrills. The fact that his driving had a low probability of causing anybody harm because he did it on a back-country road that "nobody" ever walks on is _not_ a defense he can raise. Doofus is a murderer.

Under the law, it's foreseeable that somebody may be walking on an isolated back-country at night because it's a public road and people have a right to walk there. Therefore Doofus has a non-excusable duty to drive with due care. Had Doofus been on his own private property, he might have had a "low probability of harm" defense because the naked guy would likely have been a trespasser and as a general rule no duty is owed to undiscovered trespassers, but here Doofus was on a public road, so he doesn't have that defense. He's liable for any foreseeable harm caused by his recklessness.

That gay man who "only punches guys over thirty" in the chest is taking _precisely_ the same sort of risk.

I want my thrills! I want my thrills, and I get them from putting my partner's life in danger! Yeah, I know that _hypothetically_ they could die from what I'm doing to them, but don't harsh my buzz, man. Besides, there's almost no chance that they'll really die. And like I said, I want my thrills!

Tell the judge all about it, at your sentencing hearing.

Very sincerely,

Jay Wiseman, JD

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The Learned Hand Test As Applied to BDSM
by Jay Wiseman, JD
jaywiseman@yahoo.com

Hi all,

A couple of quick comments.

Nobody, especially me, is advocating "then let's just ban everything" or something along those lines. Actually, that's an example of the "slippery slope" logical fallacy.

As to where do draw the line, the _courts_ commonly draw the line by using what's called the "risk/utility" test, originally put forth by Justice Learned Hand. (Gad, what a great name. BTW, he just may have been poly.) If something you do lands you in court, be it civil or criminal, there is a very high probability that this is the test by which what you chose to do will be judged. Let's therefore take a closer look at it.

Anyhow, the "Hand" test balances four factors, two on each side.

On the one side, we have...

1. The social utility of the conduct.

2. The foreseeability of the type of harm and the risk of harm to others that engaging in the conduct will produce, and the burden of preventing or reducing the likelihood that the conduct will result in harm.

(Essentially all activity we engage in creates some type and degree of risk of harm to others, however that certainly _doesn't_ mean that everything we do is either negligent or reckless.)

On the other side we have…

3. The probability that harm will result, and

4. The severity of the harm that will result.

The court applies what's called a "balancing test" to these four factors. If the court determines that #1 and #2 outweigh #3 and #4, then the conduct is not negligent and there is no liability.

OTOH, if #3 and #4 are found to outweigh #1 and #2, then the conduct is negligent and there is liability. Negligence can be briefly described as a failure to act as a reasonable person would have acted under the same or similar circumstances and such failure causes damage. If a death results from such negligence, then it's likely to be charged as involuntary manslaughter -- which, in California, can even be charged as a misdemeanor if something like careless driving of a car is involved.

Further, if #3 and #4 _greatly_ outweigh #1 and #2, then under civil law the conduct rises to the level of what's called, depending on which legal authority you consult, "gross negligence," "reckless endangerment," or "willful and wanton misconduct." Should a Death occur and result in criminal prosecution, it's known in criminal law by the rather vivid and poetic term of "depraved heart murder" and typically chargeable as second-degree murder

Gross negligence (or whatever substitute term you wish to use) can be briefly described as choosing to engage in behavior with a knowing disregard that the behavior creates a substantial risk of causing harm and with no justification or excuse for doing so.

IN PARTICULAR, a high "severity of harm" (death or great bodily injury) can outweigh a low "probability of harm" enough to put the behavior over into the negligent or even reckless category.

In terms of what we do, under the "Hand" test this shakes out as follows:

I'm willing to argue that there is some social utility in what we do. Sexual arousal and play are good things. So #1 is satisfied.

Further, in much of what we do, there are meaningful precautions that we can take to reduce the probability and/or severity of type of unintentional injury that it is foreseeable might result. So #2 is satisfied.

Regarding #3 and #4, for most of what we do there is a low probability of causing harm and/or the resultant harm is not likely to be severe.

For example, in a spanking there is a high probability that damage will result, but this resultant damage is very unlikely to be severe (welts, small bruises). Further, we can reduce the risk of injury by only hitting "spankable" areas of the body. Therefore, balancing all four factors, most spankings done according to these principles are neither negligent nor reckless, therefore there is no liability -- either civil or criminal.

Overall, most BDSM play can be grouped into three categories. (Note: none of the lists that follow are meant to be all-inclusive. Further, reasonable minds can differ as to which category a given activity should be placed in.)

1. Low probability of harm and/or low severity of harm, plus precautionary measures can be taken regarding the foreseeable harm. Into this category, I'd put most forms of common BDSM play, including most non-extreme forms of bondage, flagellation, clamps, hot wax, D/s, and so forth. (Actually, I'd put most of what we do into this category.) Few if any case reports of death or serious injury, and most injuries that do occur require little or no formal medical care. (Medically, these are known as "self-limiting conditions”; they get better on their own.) Should damage result, the legal defenses of consent and/or assumption of risk are available to the top.

2. Elevated probability of harm and/or elevated severity of harm, however meaningful precautionary measures CAN be taken regarding the foreseeable harm. Into this category, I'd put suspension bondage, fire play, anal fisting, and maybe knife play and enemas. Occasional case reports of death or serious injury requiring formal medical care, or even hospitalization. (However, the lack of a universal reporting system makes systematic study difficult.) Should damage result, the legal defenses of consent and/or assumption of risk are available to the top.

3. Elevated probability of harm and/or elevated severity of harm, and meaningful precautionary measures CANNOT be taken regarding the foreseeable harm. Into this category I'd put breath control play, gun play, self-bondage, chest punching, and ball-kicking. A substantial number of case reports of death or serious injury requiring formal medical care, even hospitalization. (However, again, the lack of a universal reporting system makes the exact number very difficult to determine.) Should damage result, the legal defenses of consent and/or assumption of risk are NOT available to the top.

More briefly, it shakes out by asking the following questions.

First, assume that the person asking the questions is fully and soundly educated as to the potential risks and benefits of a particular activity. (And, around here, that can be a very BIG assumption.)

Now, having made that assumption:

Question one: Is the activity likely to cause a foreseeable type of great bodily injury, or worse? If not, then go ahead and do it. (Keeping in mind that a high severity of harm trumps a low probability of harm.)

Question two: Is the activity likely to produce a foreseeable type of great bodily injury or worse, but meaningful precautions can be taken to greatly reduce the risk? If so, then go ahead and do it, but be sure to take those precautions.

Question three: Is the activity likely to produce a foreseeable type of great bodily injury or worse, and there are NO meaningful precautions that can be taken to greatly reduce the risk? If so, then just maybe you want to sit out this particular dance.