Consensuality Defined

by Jackie Cohen

02/16/04 from Yes Portal

BDSM and fetish pornographers tend to face greater scrutiny for obscenity violations because non-practitioners who don’t understand these types of sexualities are the first to try to prosecute.

But the same laws that inspire the persecutors/prosecutors to pursue these sites are often the same laws that can get the defendants out of red tape -- depending on which attorney handles the case.

Obscenity is legally defined as content that is completely devoid of any redeeming social purpose -- so the successful defense strategy involves the hiring of a "kink-friendly" psychotherapist to provide expert testimony on how the content in question can be used for educational purposes. From the shrink’s perspective, BDSM or fetish porn can help someone who is confused about his/her sexuality.

What kind of head doctor would say something like that under oath? It’s not that far of a stretch for someone who is really dialed in to the mentality. The fact of the matter is that there isn’t enough educational material on the subject of BDSM and fetish, so the porn can be really enlightening.

So long as the content shows mutually consensual BDSM and fetish activity, plenty of psychiatrists would attest to the educational possibilities of the video.

Even so, the challenge faced by any defense counsel is that of having to preach to the unconverted -- vanilla people really have a hard time understanding fetish and BDSM no matter how carefully we try to explain it to them.

These obstacles were explained to me by lawyers while I was writing this topic for Adult Video News Online (See "Perverts Versus Poseurs" ), and allow me to quote from my own story: "’BDSM is exactly the opposite of what it looks like to the outsider,’ says Reed Lee, a Chicago-based First Amendment attorney ( www.xxxlaw.net ) whose clientele includes kink websites. ‘When you look at the scene, more people are identifying with the slaves than with the masters. And often it’s the dominant who’s doing the duty,’ laboring to fulfill a submissive’s fantasy. ‘These people are playing with power.’"

"Fetishes by definition can be even harder for vanilla folk to understand, since these activities involve arousal from things that aren’t direct genital stimulation. Some people can achieve orgasm just from indulging in their particular fetish, while for others it’s foreplay; similarly, some kinksters can be very particular about what turns them on, while others appear to be generalists (this is true for BDSM as well)."

Since everybody seems to like different degrees of role play, pain, restraint and so on, the BDSM and fetish community have gotten damned good at negotiating intimacy beforehand. The difference between hot play and abuse is that the first results from a lot of good communication beforehand and afterward, while abuse entails that nothing has been agreed to beforehand and that malice is at play.

Loving dominants are ones that pay careful attention to submissives’ boundaries and tolerance levels -- in one sense, the submissive serves the dominant by undergoing whatever pain, restraint and domination the top dishes out. The reality is more like what attorney Reed Lee says in the quotes above -- the dominant is really the one doing most of the work, but role-play usually dictates that everyone refer to the bottom as the one in servitude.

Specifically with respect to Sweet Entertainment Group’s legal problems at the mercy of vanilla prosecutors in Canada, my attorney sources have told me that for some reason BDSM and fetish pornographers have a harder time up north than their American counterparts do, due to the wording of the laws.

Ironically, the US law is in some ways more lenient than a lot of BDSM and fetish pornographers realize, since American courts rely on previous cases as examples for how to decide obscenity cases -- since our laws so conveniently leave the definition of obscenity up to community standards. People in the States think that it is technically illegal to depict bondage and sex or sadomasochism and sex -- there’s also the belief that peeing may be okay but peeing onto or into other people is an obscenity violation.

Guess what? None of them are technically illegal -- there have been previous cases finding examples of the above to be illegal, but there are also plenty of content providers who continue to post images of the aforementioned items because they make it damned clear that there’s "redeeming social value" somewhere within the site or publication. A great example is fetish photographer Eric Kroll, whose ostensibly artsy-fartsy sites is full of the kinkiest things I can think of.

I hope for the sake of the pervert community that Sweet Entertainment wins the lawsuit, if it goes through. Meanwhile, to learn more about mutually consensual BDSM and fetish practices, I recommend that you check out Jay Wiseman’s SM 101.