12.13.09

The Legal Dangers of Rough Sex

Former Missouri House Speaker Rod Jetton says the woman he beat during sex consented to it. Now he's charged with a felony—and perhaps a classic casualty of BDSM's legal booby trap.

One reason many of us get into BDSM is to bring ourselves to what we believe is our limit, and then see if we can push ourselves a little further. Sometimes, that involves screaming, pleading, and begging our partner to stop. It seems contrary to the cardinal rule we’ve been taught about sex since we were adolescents: that “no means no.”

But if you’re into BDSM, sometimes “green balloons” means no. That’s according to the woman who’s accused former Missouri House Speaker Rod Jetton with choking, beating, and possibly drugging her. She claims that after the incident, when Jetton left her apartment, he kissed her on the cheek and said, “You should have said ‘green balloons.’” He was supposedly referring to their “safeword,” the previously agreed-upon word or phrase that partners agree means “stop” before they begin an intense or dangerous sexual scene.

A sexual encounter that lands one person in the hospital (or the morgue) and the other in prison is the ultimate nightmare for people who engage in sex that tests the limits of physical pain.

The details of the incident are still extremely sketchy. Jetton’s accuser claims there was never an agreement or consent for what occurred in her apartment on the night of November 15. According to the police report, there were hand-shaped bruises across her face and a “severe pain” all over her body, that she faded in and out of consciousness, and that she awoke to find him binding her arms with his belt. That doesn’t sound amorous to me, and I know people who like to play rough. According to the probable-cause affidavit, Jetton and the accuser did agree upon the “green balloons” safeword, but in what sort of context the agreement was made remains very unclear.

But even if this was a consensual encounter with a pre-established safeword, it puts both partners in a scary legal predicament, one that haunts those of us who are into things like beating and choking during sex. A sexual encounter gone horribly wrong, landing one person in the hospital (or the morgue) and the other in prison, is the ultimate nightmare for people who engage in sex that tests the limits of physical pain.

We in the BDSM community often joke about giving and receiving severe beatings, making threats and using hyperbolic statements like, “I’m going to beat you so hard you'll wish you’d never been born.” That’s never actually the case it’s just part of getting into the role. People into BDSM are extremely concerned about not causing any real harm. I’ve heard first-time attendees of what are known as "play-parties" say they felt very safe there because of the strong sense of risk-awareness. Any good Dominant will check in on his sub (look him or her in the eye periodically and ask if they're OK), and one who doesn’t will earn themselves a bad reputation very quickly. A beating taken too far can break bones. Choking, done incorrectly, could leave your partner dead. Most kinksters who are involved in very dangerous play (also known as edge-play) and experiment in things like fire-play and knife-play almost always train themselves with basic first-aid skills for cuts, burns, and serious bruises.

Despite all these precautions, there's always the fear that something could go awry. First and foremost, there’s the occasionally murky issue of consent itself. Is it possible to consent to being beaten or choked, or participate in some other possibly harmful activity during sex, then change your mind afterward? What if the abuse was consented to, but ended up being rougher than the submissive party had bargained for? Or even trickier: What happens when someone is so deep in the interaction that they surrender to it even when, subconsciously, they don’t want to. At what point does BDSM become a crime?

Steven (not his real name) is a 31-year-old lawyer who often goes to play parties in a business suit, shiny black shoes, thin leather gloves, and a case of metal “tools” at his side. He is one of the more talented and ruthless sadists I’ve met, as well as a man who has given a lot of thought to the darker sides of limits and boundaries. One interesting phenomenon I’ve noticed in the New York kink world is how many lawyers and law students I seem to meet.

“I am a violation top,” says Steven in his soft-spoken voice. That’s someone who works at bringing a bottom past their personal point of comfort or willingness, and compelling them to dwell there. As a lawyer, he's created his own set of rules, which he says keeps him safely within the law when engaging in BDSM. “Consent is essential, but it’s also tricky when viewing it through a time table. One can give consent before, during, and after a scene, but the levels of consent between these three can shift and vary. I have constructed a sort of ethical tally of time-states in relation to the act: before, during, and after; in order to live with myself, I require two to be present:

“Consent during and after but not before the act is seduction.”

“Before and after, but not during the act…That’s my sweet spot.”

“But before and during but not after the act, that’s just buyer's remorse. There’s no crime in it, and for good reason.”

In other words, Steven believes consent must be clear at certain times during the act and not necessarily after it's over—for it to be legal and ethical. He points to a landmark New York State Supreme Court case that helps illustrate this. In 1998, New York state convicted Oliver Janovich of kidnapping, sexually assaulting, and abusing a woman he had met on the Internet. The young woman testified that they went out to dinner, after which Janovich held her at his apartment against her will, and bound, gagged, tortured, and sodomized her there for 20 hours. The only part of her story Janovich disputed was that it happened “against her will”—he admitted to doing all those things, but he said it was consensual. Either the jury didn’t buy it or just didn’t like what they heard: He was found guilty and sentenced to 15 years in a prison.

The case was overturned 20 months later on an appeal that included new evidence: emails the young woman exchanged with Janovich before the encounter, in which she had described herself as a “pushy bottom” (a submissive who goads her dominant for more intensity). And in email messages sent after the encounter, the woman wrote that she was "quite bruised mentally and physically, but never been so happy to be alive," and that "the taste is so overpoweringly delicious, and at the same time, quite nauseating."

If anything, these exchanges displayed some level of consent both before and after the fact. By Steven’s definition, this is a consensual encounter even if the level of consent during the act remains in question.

Did the jury agree? We’ll never know. The young woman refused to testify and the case was dismissed with prejudice. Janovich was released in December 1999. Had she testified, she would have been rigorously cross-examined about the emails, and the muddy mixture of desires, limits, and agreements might have been at least partially clarified.

One thing that all of my lawyer friends agree upon, though, is that BDSM and the law are a very tricky combination. It's a perfect storm of legal landmines, combining acts that are dangerous (and potentially fatal) with private encounters and, sometimes, ambivalence and miscommunication. Most of the people I know keep themselves to a strict ethical standard during “play” to avoid any potential conflict with their partners. Behind any veneer or acts of cruelty, we care for our partners and playmates very deeply and wish them no harm.

Two factors are essential if you plan to engage in rough or dangerous play. The first is trust. As a member of the New York BDSM community for more than five years, I tell newcomers to take their time learning what they like and dislike, and to develop friendships and play-relationships slowly with people they feel they can trust. As the trust and intimacy grows deeper, then you can experiment in pushing your limits and hope your partner has learned to intuit what you can and can’t handle. It’s dangerous territory, which is why I preach moderation, but the most important element in the world of BDSM, and what some people say is the only truly immutable law, is always consent.

The Jetton case seems to be in a legal gray zone. As of this point there's no proof the encounter was consented to. Also, if a drugging did occur as the defendant claims, then any question of consent is immediately out the window. But whether it was a consensual encounter gone wrong or just plain battery, it stands as a stark reminder that if you decide to play rough, there needs to be calm and clear communication. If there isn’t, people can end up hurt, and not in the good way.

Leon Marborough is 27 years old and lives in Brooklyn, New York. He is writing a memoir of his experiences in the kink and fetish world. You can read excerpts on his blog. Leon Marborough is a pen name.