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Wednesday, August 13, 2014

Implied consent

Levels of Consent

  • Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Best Practices indicates to avoid instances of implied consent.
  • Express consent is clearly and unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, e.g. by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given.
  • Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts.
  • Unanimous consent, or general consent, by a group of several parties (e.g., an association) is consent given by all parties.

Consent Violation

Just as there are different levels of consent, others may have different threshholds for consent violation. Violation of consent doesn't even require touch; it can include invading someone's personal space, using certain language with someone, or expecting someone to use certain language or obey certain etiquette. There is a huge spectrum of consent violations, from personal space invasions to rape and assault. Despite the varying degrees of perceived "severity" throughout the spectrum of consent violation, all consent violations are serious matters.
If you have had your consent violated, consider discreetly reporting the behavior to the individual either privately or with a third party present, or to a presiding authority figure such as a DM. If the violator is not informed of the consent violation they will have no opportunity to accept responsibility for their behavior and make correction; that in mind, it is your choice as to whether or not to tell someone else about a consent violation and you do not have to. Expect to provide the following details if you should choose to report the violation to an authority figure:
  •  Was the behavior in the context of a negotiated scene?
  •  Is this is a negotiated hard limit violation? Was the house safeword ignored?
  •  Are there any witnesses to the negotiation? To the scene? To the Interaction?
  •  Did you tell the person that they violated your consent? If not, why not?
  •  Would you like the opportunity to discuss this with a third party present with the accused? If not, why not?
  •  What would you like to see done to help ensure this doesn't happen again?
  •  Is there anything we can do to make you feel more comfortable?
It is imperative you have this information available as without it there is little anyone can do to help you resolve the situation satisfactorily. Also recognize that while you may have had your consent violated, the job of a presiding authority is not to presume guilt or innocence for any party, and that while you may have had your consent violated, they have vested interest in preventing gossip, character assassination and false allegations as well as protecting the consent of everyone, which can make their job very difficult so please be patient and understanding as they work to help keep the community safe.
If you are told you have violated someone's consent (whether accidentally or out of lack of information or forgetfulness) best practices indicates to be sure to:
  • Make available an opportunity for them to speak with you and air the greivance either publicly, privately and possibly with a third party mediator to protect those involved.
  • Verbalize what has been done wrong as you understand it.
  • Make an immediate genuine apology for any wrongdoing.
  • Make reasonable efforts to do right by them and correct any harm inflicted.
  • Make serious learning efforts concerning methods and techniques of how to not repeat that behavior in the future.
Doing so can go a long way to correct the situation.
It is always good to be aware that every person's boundaries deserve equal respect. Best Practices indicate that it is proper etiquette to ask before touching anybody. This also goes for calling people anything other than their given name or pronoun or standing or sitting within a foot or two of a person.
See also Negotiation and CNC.

Consent Fallacies

While consent violations are serious matters, not everything that is labelled as a consent violation is a consent violation as some may use this and other terms for unscrupulous purposes. Learn to protect yourself and your play partners from common dishonorable rhetoric.

The top is always completely responsible for what happens in a scene; this is what you agree to as a top.

This is incorrect assuming we are dealing with competent and consenting adults. The bottom is also responsible for entering into the agreement and trusting the top to care for them during a scene and has a vested interest in their own well being before entering a scene. A bottom choosing a top is a very important decision, power and responsibility that always carries with it some level of risk, as is a submissive choosing who to let dominate them, or a slave choosing aMaster to serve. It is imperative that bottoms understand this concept when choosing a top to trust with their well being, and if they do not, they cannot give informed and meaningful consent.
This means that while the top is not excused for their actions and intentions during a scene, they cannot be reasonably held completely responsible for things they couldn't possibly have any understanding of as that is an impossible and unreal expectation. Further, it is impossible to script and discuss every possible outcome for a scene and many bottoms will also object to knowing all of the details as that may ruin the activities for them.
In some cases, something that makes the bottom feel violated may not be even known to the bottom before the scene begins and the action triggers a feeling of violation. This is not the same as violation of a pre negotiated hard limit. There is no way the top can know of something if the bottom does not even know it about themselves.
In such an instance, it is important for the top to end the scene, be considerate, explain that they did not understand the situation, and offer to help in any way they may reasonably be able to. It is very important that they be willing and available to talk with the subject openly and supportively whenever reasonably possible. Failing to follow this procedure does not necessarily indicate any sort of consent violation.
For the bottom, it is important to effectively communicate their feelings, wants and needs as soon as is reasonably appropriate so that the top may be informed of their current or past situation and learn from it and adjust accordingly. Failure to follow this procedure does not invalidate their feelings.

Only tops can be dangerous and incompetent.

This is incorrect. Tops take many risks when playing with a bottom, to include but not limited to potential false or manipulated accusations for consent violation and jailing or imprisonment in many areas as BDSM may be considered violence and abuse in many areas of the world. Further, taking into consideration that a bottom may be prone to a certain kind of behavior or trait that they do not approve of is a matter of preference, not discrimination, as bottoms are not entitled with rights to play with a given top. A top may choose to play or not play with anyone of their choosing for any reason at all, including no reason given as they must consent to the terms of the scene as well.

If the bottom feels they were violated, then they were violated.

This is incorrect. In order for a violation to occur a clear boundary must be set first. Without a clear line to cross there can be no violation. This does not mean that there cannot be upset/uncomfortable feelings, there most certainly can be, but these are as a result of the ignorance of the top and the failure to communicate the boundary from the bottom, which in some cases, they may not have even been aware of to communicate the limit to begin with. In such a case it would be impossible for the top to understand ahead of time, and that is an unreasonable expectation, not a violation of a boundary.
Further, because of instances of diminished capacity, if the bottom and top agree to play to a point where the bottom may become diminished in capacity (which is always a possibility), they must accept that there is a potential for mistakes to happen without clear fault as the top cannot read the mind of the bottom or the future of the mind of the bottom, nor can the bottom effectively communicate how they are currently feeling or how they will feel about things later when they are not in a diminished capacity.
It is inappropriate to label issues that may arise during agreed upon periods of diminished capacity (potentially any scene) as consent violations unless there were clearly defined boundaries in place that were violated such as disrespecting negotiated hard limits during that time. Further, a bottom may enter a state of diminished capacity without choosing to, without any intention of the top, and without showing clear signs of their state to a top. It is important for tops to check in such as using safe signals like the two squeeze test, and for bottoms to recognize that this is always a potential scenario when choosing to play with a top and if they are unable to accept that risk without assigning blame to the top, they should not consent to play as that will invariably result in a violation of the top’s consent to the scene.
It is important to use extensive negotiations the first time you play with someone so as to understand what their hard limits are. It is important for negotiating parties to opt in and opt out of certain categories and detail anything that they might feel needs special consideration and trust that the bottom and the top will both act in good faith on what is discussed and agreed upon. It is important to understand that in no case can everything be opted into, or out of, and in some cases definitions will vary, such as one person assuming that knife play indicates that cutting is acceptable while another does not. It is important for everyone to be sure they are comfortable with the bottom’s ability to communicate what it is that they want and do not want, in the previous example they might state if they aren't sure if knives include cutting or not and don't want to discuss it, they might simply state "I do not wish to engage in knife play" or more precisely "I do not wish to engage in blood play" as part of the negotiations.
Similarly, if the bottom or top feels that with the absence of a clearly defined "yes", any alternate activity is considered a clear "no" as far as consent and negotiation is concerned, it is important to communicate that concept to a play partner as this is not a universally understood, adopted, or even desirable style of play for many for a wide array of various reasons.
If you are especially unable to trust someone, or are concerned that someone (top or bottom) does not have the capacity to responsibly manage a crisis situation where blame is not clearly placed in the case of an accident, or if you feel they cannot deal with an uncomfortable situation by discussing it reasonably as a responsible adult, do not play with them.

Other Fallacies

Other fallacies are known to exist involving consent and consent violation. Be prepared to understand a wide variety of fallacies and how to redirect them with compassion and understanding by listening and having a greater understanding through studying fallacies in general.

Hurt VS. Harm

For many participating in SM pain is a goal of their play.
Best Practices indicates:
Those that claim the right to decide for themselves what sexual activities they will partake in, including pain play, must recognize the rights which they claim come with a heavy load of responsibility. One who is not prepared to accept that responsibility should never pick up an implement to top with for an SM scene. Tops are responsible for the health and safety of their partners and themselves, and bottoms too are responsible for themselves and communicating with full disclosure to their partners. Be sure to research and calculate informed levels of risk as well as start low and slow when trying a new activity. Remember, it is okay to cause pain in a consensual fashion, but not to do damage which does not readily and quickly heal.

Consent and Sexual Activity

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape. Children below a certain age, the "age of consent", are deemed not to be able to give valid consent as understood in law to sexual acts in most jurisdictions. Within the literature concerning sexual activity and consent there is no consensus on a strict definition of the term consent or how it should be communicated. Consent must be voluntary and not obtained by coercion or threats. Consent can be revoked at any moment. Best Practices indicate to always very explicitly negotiate all forms of interaction in a Scene before it begins, but especially so concerning sexual conduct.