Neither trifling nor transient (27)

Thu 24 Jul 08, 6:51 PM
LadyAlpha
UK, 21 mths£
I've been contemplating breaking the law. Contemplating the subject, that is, of breaking the law, rather than contemplating breaking the law.
Although I may have been breaking the law, and I may continue to do so. Who knows, when the definition on which the law is based is wide open to interpretation? Less so now, following Max Mosely's case, but there's still a long way to go. As you probably know, the definition I refer to is 'trifling and transient'. Any activity in bdsm that causes an injury that is not trifling and transient is an assault and hence an offence.
In contemplating such issues, I tend to move quickly from 'the law' to 'social acceptability', as it is my understanding that the law is there to keep human activity within socially acceptable boundaries. The law should reflect what people want and define the moral stance of the age, and in untested law, as this is, that is what must be considered at the stage when it is tested and a firmer definition, through case law, pinned down.
'Trifling' is a word that with no given context is difficult to pin down. Looking it up gives definitions such as 'negligible' 'not worth considering' and 'of little importance'. These definitions also are context sensitive: a bruise from wild sex may be of little importance if avoiding it meant no wild sex. But a broken leg gained by falling off a step ladder hanging Christmas decorations and keeping you off work for 6 weeks may be well be of importance, at very least cannot be described as 'not worth considering'.
'Transient' seems easier to deal with. 'Not permanent' is an easy extrapolation, isn't it? But while a cane weal that sadly fades way after two hours is clearly transient, what of the bruise for two weeks, the broken leg of 6 weeks or the nerve aggravation of 2 years? They are, in fact, transient, simply because they are not permanent. By definition, transient is something that does not last ever, and in the context of an injury to living body, the only meaningful interpretation of 'for ever' is something that doesn't heal, while not 'for ever' is something that does heal. There's no time scale implied, though, just whether a healing process occurs or not..
So far, I have moved forward a little from the idea commonly held that injuries must be confined to something that isn't serious and doesn't last long. In fact, it doesn't matter if they do last a long time, just as long as they aren't permanent, as long as they will heal. But what constitutes trifling is still problem.
'Trifing' desperately needs a context, and to try to rationalise a context, I contemplated bdsm in terms of it's major constituent parts: sex and endorphins.
Sex, as far as I know, has never been outlawed on the grounds that it's dangerous, much as many people would seem to like to. I know of no cases where a charge of GBH or manslaughter was brought against someone for injury or death caused by the process of sex itself, although there must have been times when orgasm has triggered heart attack, or, at least, falling out of bed and getting a nasty bang on the head.
So, its safe to take out the sex element, and declare it not relevant to the law on assault. Which leaves us with endorphins. It is the seeking of endorphin rushes that leads to the risks in bdsm. Pain and the apprehension of being in vulnerable situations gives rise to adrenaline production, and seeking increasing levels of endorphins leads to more extreme play, and that is the crux of the problem: those levels of play can lead to injuries or risk of injuries that the law seeks to control.
In order to rationalise and hopefully then gain some understanding of what the law seeks to do, or should seek to do when the definitions it is based on are tested, I tried to look for similar, but socially accepted activity.
The obvious one is sport. The competition element in sport is much like the sex element of bdsm: it drives the whole thing but in itself, it doesn't cause injury. The rest of sport is made up of endorphin raising activity or injury, and often, the quest for the 'feel good' factor, the endorphins themselves, drive the whole process.
And, like bdsm, it has many different levels, from the jog up the street and back, right through to the extreme sports where life and limb are clearly at risk.
I'm not aware of much social censure of injuries gained through sport, beyond a move now against boxing. By and large, its accepted that a broken leg is perfectly acceptable in a rugby game, as is, for the few, the risk of getting frost bite and losing limbs or life on an Alpine mountain ridge. I'm not aware of charges of assault being laid against sportsmen who cause injuries or even death.
This, of course, drives a hole straight through bdsm's limitation that injuries must be transient. In sport, there's no such limitation, so perhaps we have to accept that endorphin rush through sexual activity is less acceptable than endorphin rush through sporting activity. 'Trifling' too, is hard to see at work as a limitation in sport.
What is clear is that the acceptable limit for sport is on the basis of a risk / benefit optimisation: for the casual jogger, a stitch is as much discomfort as they would be happy to suffer, for the league football player, a broken limb isn't going to be of great concern in itself and for the extreme adventurer the risk of loss of limb or life isn't going to stop them. The benefit outweighs the risk. The value of the benefit is accepted by society: there are no calls for the costs of healthcare to be avoided, there is no feeling that the suffering or loss caused to family and employers is wrong, there is no feeling that the risk taken by rescue services to haul in the stranded mountaineer is wrong. Importantly, society is happy to accept the sportsman's own value judgement, his own sense of the risk it's worth taking to gain the benefit, and this isn't examined by court of law.
Which leaves us with two questions:
If we can't take a standard from a similar activity, where can we take it from?
Why is it different from that other activity?
It may be better for us, as a community, to contemplate these questions before we try to decide what is acceptable and what isn't. Because at the moment we are having to try to take responsibility as a series of individuals with no knowledge of what we're supposed to be doing, and each carrying a high risk should things go wrong as, occasionally, they always will. I would certainly like to know that the 'risks' I take in bdsm practice are viewed by my peers as being within the range of acceptable behaviour, and I would like to know that if things did go wrong, the bdsm equivalent of being caught in an ice storm on the Alpine ridge, that I could point to discussion documents and recognised standards of play within the scene that showed that acceptability.

It's a wet and windy winter's day. The mud is inches deep, the two sides are locked in serious combat. The local rugby derby.
Jim, the slightest half back you ever saw has the ball, just hooked out from the scrum. He's accelerating away, but the full back, as wide as a barn door, has him in his sights. He's a big, big man, but he appears to be doing about Mach 1.5 just now, right on collision course with the 7 stone wet through Jim.
'Pinocchio' yells Jim, his safe word. This is a bit more than he bargained for. The match stops, and everyone goes away good naturedly.
The two mountaineers, bagging their Munroes in Scotland. Nearing the top of Ben Loyal in March, they get caught in an unexpected snowstorm on the icy arête. Suddenly, the day climb becomes very frightening as they begin to slip down the slope, the freshly fallen snow gliding easily over the ice sheet. 'Amber' shouts one, immediately upgraded to 'Red' by the other, and the snow stops, the dangerous overlay vanishes and they wander down for a nice cup of tea.
Declaring SSC and safe words, trying to fit within the obvious intent of 'trifling and transient' won't serve us. It will leave us with the equivalent of the above. We need to be bolder than that.
Lady Alpha.
Intelligent domination and disciplinary coaching Life coaching and therapy Kinky Cottage: Play and guest room for hire Kinkdom

24 Jul 08, 10:16 PM
emark
UK, 5 yrs An interesting read. I think perhaps a closer comparison to S&M is body modifications - in some cases, they crossover in that activities like cutting or branding can come under both, just depending on the intent. One is legal, but the other is seemingly illegal.

LadyAlpha wrote:
Sex, as far as I know, has never been outlawed on the grounds that it's dangerous, much as many people would seem to like to. I know of no cases where a charge of GBH or manslaughter was brought against someone for injury or death caused by the process of sex itself, although there must have been times when orgasm has triggered heart attack, or, at least, falling out of bed and getting a nasty bang on the head.
It depends whether it counts as "sex itself", but note there was R v. Slingsby where someone died as a result of cuts unintentionally inflicted from a signet ring during fisting. Charges were brought, but yes he was found not guilty ( http://www.swarb.co.uk/lisc/Crime19951995.php ).
Section 63 criminalises "extreme" images of consenting adults - see http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... .

24 Jul 08, 10:40 PM
Tied_and_Tickled
UK, 2 yrs LA
Congratulations on a really EXCELLENT 1000th post!
The logic of your argument for BDSM to be treated like other sports and activities with risk is inescapable. You fully expose the unacceptable vagueness of the criteria of 'trifling and transient' as the test for the legality of BDSM injuries.
Have you ever considered a career as a barrister?
I have often wondered whether Liz Longhurst would have campaigned to stop hang gliding, horse riding or skiing if her daughter had died whilst taking part in one of these or another dangerous sport. If she had campaigned it seems unlikely that she would have got the support that she has gained simply because her daughter's choice of enjoyment was SEXUAL.
The 'No Sex we're British' hangover from puritan times is still strong in our country today. The Health and Safety mentality is also very oppressive.
In my home town the unusual and hazardous sport of sand yachting was a popular attraction. Sand yachts can travel at up to 60 mph along flat beaches. A few years ago an unfortunate accident resulted in the death of a bystander. Safety could have been improved. Instead the sand yachting was banned!
A campaign is needed to give the right to citizens to enjoy consensual dangerous activities when reasonable precautions are taken to avoid harm to other people.
T&T

25 Jul 08, 12:08 AM
VoltaireFlambee
UK, 4 yrs This woman is wrong.
It is wrong that someone that gorgeous and kinky is also so wise.
Wrong, wrong wrong.
Get yer rubber knickers on pet, mek us a cuppa tea.
We're not worthy.
wow you have a half sister? is it the top half or the bottom half? how do they keep her alive? Randy on 'My Name is Earl"

25 Jul 08, 1:03 AM
Sorceror
UK, 5 yrs

LadyAlpha wrote:
Neither trifling nor transient
I've been contemplating breaking the law. Contemplating the subject, that is, of breaking the law, rather than contemplating breaking the law.
Although I may have been breaking the law, and I may continue to do so. Who knows, when the definition on which the law is based is wide open to interpretation? Less so now, following Max Mosely's case, but there's still a long way to go. As you probably know, the definition I refer to is 'trifling and transient'. Any activity in bdsm that causes an injury that is not trifling and transient is an assault and hence an offence.
In contemplating such issues, I tend to move quickly from 'the law' to 'social acceptability', as it is my understanding that the law is there to keep human activity within socially acceptable boundaries. The law should reflect what people want and define the moral stance of the age, and in untested law, as this is, that is what must be considered at the stage when it is tested and a firmer definition, through case law, pinned down.
'Trifling' is a word that with no given context is difficult to pin down. Looking it up gives definitions such as 'negligible' 'not worth considering' and 'of little importance'. These definitions also are context sensitive: a bruise from wild sex may be of little importance if avoiding it meant no wild sex. But a broken leg gained by falling off a step ladder hanging Christmas decorations and keeping you off work for 6 weeks may be well be of importance, at very least cannot be described as 'not worth considering'.
'Transient' seems easier to deal with. 'Not permanent' is an easy extrapolation, isn't it? But while a cane weal that sadly fades way after two hours is clearly transient, what of the bruise for two weeks, the broken leg of 6 weeks or the nerve aggravation of 2 years? They are, in fact, transient, simply because they are not permanent. By definition, transient is something that does not last ever, and in the context of an injury to living body, the only meaningful interpretation of 'for ever' is something that doesn't heal, while not 'for ever' is something that does heal. There's no time scale implied, though, just whether a healing process occurs or not..
So far, I have moved forward a little from the idea commonly held that injuries must be confined to something that isn't serious and doesn't last long. In fact, it doesn't matter if they do last a long time, just as long as they aren't permanent, as long as they will heal. But what constitutes trifling is still problem.
'Trifing' desperately needs a context, and to try to rationalise a context, I contemplated bdsm in terms of it's major constituent parts: sex and endorphins.
Sex, as far as I know, has never been outlawed on the grounds that it's dangerous, much as many people would seem to like to. I know of no cases where a charge of GBH or manslaughter was brought against someone for injury or death caused by the process of sex itself, although there must have been times when orgasm has triggered heart attack, or, at least, falling out of bed and getting a nasty bang on the head.
So, its safe to take out the sex element, and declare it not relevant to the law on assault. Which leaves us with endorphins. It is the seeking of endorphin rushes that leads to the risks in bdsm. Pain and the apprehension of being in vulnerable situations gives rise to adrenaline production, and seeking increasing levels of endorphins leads to more extreme play, and that is the crux of the problem: those levels of play can lead to injuries or risk of injuries that the law seeks to control.
In order to rationalise and hopefully then gain some understanding of what the law seeks to do, or should seek to do when the definitions it is based on are tested, I tried to look for similar, but socially accepted activity.
The obvious one is sport. The competition element in sport is much like the sex element of bdsm: it drives the whole thing but in itself, it doesn't cause injury. The rest of sport is made up of endorphin raising activity or injury, and often, the quest for the 'feel good' factor, the endorphins themselves, drive the whole process.
And, like bdsm, it has many different levels, from the jog up the street and back, right through to the extreme sports where life and limb are clearly at risk.
I'm not aware of much social censure of injuries gained through sport, beyond a move now against boxing. By and large, its accepted that a broken leg is perfectly acceptable in a rugby game, as is, for the few, the risk of getting frost bite and losing limbs or life on an Alpine mountain ridge. I'm not aware of charges of assault being laid against sportsmen who cause injuries or even death.
This, of course, drives a hole straight through bdsm's limitation that injuries must be transient. In sport, there's no such limitation, so perhaps we have to accept that endorphin rush through sexual activity is less acceptable than endorphin rush through sporting activity. 'Trifling' too, is hard to see at work as a limitation in sport.
What is clear is that the acceptable limit for sport is on the basis of a risk / benefit optimisation: for the casual jogger, a stitch is as much discomfort as they would be happy to suffer, for the league football player, a broken limb isn't going to be of great concern in itself and for the extreme adventurer the risk of loss of limb or life isn't going to stop them. The benefit outweighs the risk. The value of the benefit is accepted by society: there are no calls for the costs of healthcare to be avoided, there is no feeling that the suffering or loss caused to family and employers is wrong, there is no feeling that the risk taken by rescue services to haul in the stranded mountaineer is wrong. Importantly, society is happy to accept the sportsman's own value judgement, his own sense of the risk it's worth taking to gain the benefit, and this isn't examined by court of law.
Which leaves us with two questions:
If we can't take a standard from a similar activity, where can we take it from?
Why is it different from that other activity?
It may be better for us, as a community, to contemplate these questions before we try to decide what is acceptable and what isn't. Because at the moment we are having to try to take responsibility as a series of individuals with no knowledge of what we're supposed to be doing, and each carrying a high risk should things go wrong as, occasionally, they always will. I would certainly like to know that the 'risks' I take in bdsm practice are viewed by my peers as being within the range of acceptable behaviour, and I would like to know that if things did go wrong, the bdsm equivalent of being caught in an ice storm on the Alpine ridge, that I could point to discussion documents and recognised standards of play within the scene that showed that acceptability.

It's a wet and windy winter's day. The mud is inches deep, the two sides are locked in serious combat. The local rugby derby.
Jim, the slightest half back you ever saw has the ball, just hooked out from the scrum. He's accelerating away, but the full back, as wide as a barn door, has him in his sights. He's a big, big man, but he appears to be doing about Mach 1.5 just now, right on collision course with the 7 stone wet through Jim.
'Pinocchio' yells Jim, his safe word. This is a bit more than he bargained for. The match stops, and everyone goes away good naturedly.
The two mountaineers, bagging their Munroes in Scotland. Nearing the top of Ben Loyal in March, they get caught in an unexpected snowstorm on the icy arête. Suddenly, the day climb becomes very frightening as they begin to slip down the slope, the freshly fallen snow gliding easily over the ice sheet. 'Amber' shouts one, immediately upgraded to 'Red' by the other, and the snow stops, the dangerous overlay vanishes and they wander down for a nice cup of tea.
Declaring SSC and safe words, trying to fit within the obvious intent of 'trifling and transient' won't serve us. It will leave us with the equivalent of the above. We need to be bolder than that.
Lady Alpha.

Interesting because recently the English courts have been very kink friendly. As an obiter dicta (aside) on a branding case the Court of Appeal said that consensual sexual activities between a man and his wife "were not merely not a proper subject for polce prosecution they were not a proper subject for police investigation". In crude terms (no offence intended boys [and girls] in blue) - Plod should F*%£ off and mind their own business. Whilst not directly applying to Pro situations the courts have shown a great and understandable reluctance to become involved in deciding exactly what people should be able to do with their own bodies in the private. Unless either party complains to the police or serious injuries are caused you should now be relatively safe.
Am I worthy ? I'm not sure. Can I take the Pepsi challenge ?
S....x.

25 Jul 08, 2:19 AM
emark
UK, 5 yrs
Tied_and_Tickled wrote:
I have often wondered whether Liz Longhurst would have campaigned to stop hang gliding, horse riding or skiing if her daughter had died whilst taking part in one of these or another dangerous sport. If she had campaigned it seems unlikely that she would have got the support that she has gained simply because her daughter's choice of enjoyment was SEXUAL.
Or come to that, would she have wanted to criminalise photos of dangerous sports?
And images that appear to be people pretending that they might be likely to engage in a dangerous sport?
Or sports that aren't dangerous, but we don't like all that running around in mud, so we'll criminalise pictures of that too?
Yes, I fully agree with you - for some reason, logic goes out the window when it comes to sex.
Section 63 criminalises "extreme" images of consenting adults - see http://www.backlash-uk.org.uk/ and http://www.seenoevil.org.uk/wiki/index.php/Main_... .
Edited 25 Jul 08, 2:20 AM by emark

25 Jul 08, 2:37 AM
Esinem
UK, 8 yrs
Could this be what they mean by "trifling"?
Good OP. Yes, totally agree with the sports analogy etc. and the body mod one.
You are as safe as you want to be...but no safer

25 Jul 08, 11:01 AM
Grissom
UK, 16 mths
Brilliantly written, and I agree with you.
The safewords are but one aspect of improving SSC, others involve practice, workshops and checking the reliability of the equipment (as well as maintaining it)
The analogy is good, I guess for the law the issue is heat of the moment - enflamed by passion and lust you are perhaps more likely to get carried away then by playing sport... which of course is a gross generalisation
Better to be a diamond with a flaw then a pebble with none
Assumption is the mother of all cockups
Behind every good slut is a great Mistress

25 Jul 08, 11:20 AM
Grownup_Frankie
UK, 6 mths
Very well written. Oh. Gold Star for the Lady!

We're damned if we do and damned if we don't...So we might as well do.

25 Jul 08, 1:03 PM
LadyAlpha
UK, 21 mths£
Why is sporting risk so readily accepted?
In primitive times, when it was important to go out and fight neighbouring tribes, or go in pursuit of dangerous animals, it was vital to imbue young men with an aggressive, competitive spirit. The endorphin rush of such activity gave such warriors and hunters a tremendous high, but add in community spirit and revelry in victory, the high was shared by many more and heightened in the young men.
But between times, it was no good expecting those young men to happily don Marigolds and get on with the washing up. Responsible community activity was not the way they were trained or conditioned, and maintaining fitness to fight was more important than the dishes anyway. So sport emerged, in, I guess, in tandem with homo-sapien evolving into a sentient societal species. A way of keeping physically fit, a way of establishing competence in martial arts, a way of establishing pecking order and a functional team. Sport was extremely important.
And then into our own historical times, as Merrie Englande was being divided up into estates, and empire wars fought, cultural order was established through birth, through fighting ability and through sporting ability. The sports of gentlemen and the aristocracy: swordsmanship, jousting, fencing, horse riding, yachtsmanship.
It's less obviously important now, although sporting ability can still precedence over academic ability in the great colleges, but it is well established in our society, even if it's not well recognised why.
Which leads to a question:
Does sport carry a rational optimisation of risk and benefit, free as it is from prejudice and misunderstanding, or does it carry a skewed optimisation because its seen honorable to take risk in the sporting arena?
If the former, a prejudice free area of endeavour, it's a good indication of where we should try to set our own standards.
If the latter, or if we don't know, perhaps we should look to another area of personal endeavour and self exploration for our answers.
How about Shamanism, the Sun Dance, religious ritual such as pilgrimage, self flagellation and monastic living? They also involve personal hardship, endorphin release (well, perhaps not the more monastic stuff…) and a personal journey to a position of comfort with oneself, although there are often overtones of the spiritual and religious rather than internalisation to deal with.
Body modification was mentioned as an allied activity, but in many ways, that's just as confusing as bdsm, in that there is little understanding of it outside its own field, and a whole lot of judgement.
Lady Alpha
Intelligent domination and disciplinary coaching Life coaching and therapy Kinky Cottage: Play and guest room for hire Kinkdom

25 Jul 08, 2:13 PM
Grownup_Frankie
UK, 6 mths
Sport AND religeous experience - (you got me thinking now) (girl) - I take it the story of how Odin claimed the runes (knowledge) is well known to everyone? He hung upside down from the world tree for nine days and nights - he *reached down* into its roots - hades, hell - and pulled out the runes, he was *pulled up screaming*...
And its been like that ever since, really, self mortification, self flagation, pole-sitting, forty days in the desert, crucifixtion...(I'm defining religeous 'experience' as an experience of an altered state of awareness, as apposed to talking about organised religion as a social controller).
The human spirit seems to be locked in an endless courtship dance with pain and endurance, under one rationale or another - is it all a matter of reaching down, and pulling up knowledge from the depths of us? Knowledge of how far we CAN reach down, within ourselves?
Though obviously this does not explain cricket.
A question - when we contemplate the edge of something, is it a stubborn refusal to accept limitations, or an innate couriosity that makes us want to leap over?
And is it the same when you're at a wedding and suddenly hear a voice in your head saying 'wouldn't it be terrible if someone jumped up now and started screaming?' and then a moment later you hear the same voice whispering 'why don't you?'
'...go on....do it...do it.........do it.'
.....you...gulp...you DO all hear that voice, don't you?

We're damned if we do and damned if we don't...So we might as well do.

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