Occasionally, I read things that make my blood boil – such as this report, a must-read for those of us who value the freedom of those of us in the scene to enjoy consensual play:
A couple who decided to engage in kinky BDSM sex now face prosecution after police decided to file charges of aggravated assault against the man, despite both parties consenting. The couple, a 32-year-old man and a 16-year-old girl (the age of consent in Sweden is 15), met on a Swedish sex website and struck up a steamy BDSM-based relationship.
The girl, apparently the masochist of the pair, wrote in a letter that she wanted to be “used, abused and thoroughly humiliated,” and her sadistic partner was only too happy to oblige, locking her into a cage and applying nipple clamps, amongst other acts. However, a relative of the girl noticed bruises left over from their play, and police soon stuck their nose in with a view to arresting the man.
The public prosecutor is outraged at the consenting couple’s dungeon antics, conceding that whilst she cannot charge the man with rape due to the consenting nature of their sex, she can still charge him with aggravated assault whether both parties consented or not: “What I want to establish is that even if they say they are in agreement over this then you not allowed to seriously assault someone. It is on this issue that the district court has to issue a ruling, is this aggravated assault and was she able to agree to it?”
Sweden apparently allows consenting parties to beat each other’s brains out if they do so in the ring, as with boxing or similar, but it may very well not be permissible to engage in rough sex or BDSM play, consent or no.
The defendant is said to be calling an expert in sadomasochism to testify on his behalf, in a case which could soon be giving police in less radical nations ideas about how to finally get rid of their unwanted perverts without falling foul of tedious arguments over civil liberties – simply accuse them of violence against women.
20-odd years on from the UK’s Spanner case, it horrifies me to see a member of the kink community being prosecuted in an EU country. Following the link trail back takes us to this local newspaper site, but there’s not much in the way of discussion there.
Surely the weight of reasoned opinion from those of us in the scene across Europe and beyond must be able to be brought to bear somehow to help the defendant’s case? I wonder if there’s a Swedish BDSM community which is up in arms about this, rallying to support those involved – for the young woman concerned must be almost as traumatised at seeing her play partner being prosecuted as he is to be heading to court. (Who knows, too, whether he needs help with legal costs to get the best possible representation).
The prosecutor is one Ulrika Rogland, and she’s been merrily offering TV interviews about the case, but I can’t find any way to contact her to express my views – although I am going to drop a line to the academic mentioned in the original article.
Anyone got any other bright ideas as to how we could offer our support? At the very least, adding your comments here would be a start…
I’ve been a long time lurker-reader of your blog but when I read this I had to say something.
I can’t believe that this is truly happening! If this case goes through how long until a prosecutor decides that the bruises on my backside are “non-consensual”. Where will the law draw the line? It’s ridiculous.
If you find out any more about this, please post it. Maybe there’s some way we can show our support to the man and girl involved. If an EU country is doing this, it’s entirely possible that a similar case could show up here in America.
@Quel – thanks. Here’s hoping a few more folks join the chorus of disapproval and that we can collectively find a way to help.
It’s important that the link be made to boxing, hockey, etc. and the consensual nature of the assaults there. This needs to be fought on legal grounds and political grounds, as most likely, technically and legally, you can’t consent to an assault in most countries. If it is a jury trial, it has to be selected very carefully. I’m guessing that if the woman had been 30 years old, the prosecution wouldn’t have be brought. But, even though the legal age of consent is 16, I’m sure the age difference was a factor i.e. “protecting our youth from predatory older men.” The next step is changing the assault laws, but that won’t be easy.
This is just ridiculous. I can’t believe people can still be prosecuted for being who they are.
I wonder, though, if this case would have been prosecuted if the girl had been older? Not to say that over 16’s shouldn’t be allowed to practice BDSM, but I’m not sure this would have been as big a case in Sweden if it had involved two people in their thirties.
If you do find a way to contact the prosecutor involved, you have my email address. Do pass on the information. I’m afraid that as long as we don’t have contact details for anyone, there isn’t much we can do other than trying to get more media attention for this case to let our views be heard. On the other hand, more media attention might not be what the defendant or the girl in question want right now.
This is indeed outrageous, given that the girl was over the age of consent. Though it could happen in the UK too, even with an older recipient.
The law here is that you can consent to “common assault” but not to “assault causing actual bodily harm”. The threshold for actual bodily harm is very low in statute law – any injury that is not “transient and trifling” counts as ABH. However, the Crown Prosecution Service has guidelines on what they will actually prosecute as ABH, and they put the threshold much higher.
Fortunately, our judiciary at present seems to take a rational view of such matters. I cannot resist quoting a few paragraphs from Mr. Justice Eady’s judgement in the Mosley case from 2008:
113. Perhaps the most artificial argument, verging on desperation, was to the effect that the Claimant was inciting or aiding an offence of assault occasioning actual bodily harm contrary to the Offences against the Person Act 1861 – on himself. There was actual harm and perhaps the application of the large piece of elastoplast on his right buttock would demonstrate, as Mr Myler and Mr Thurlbeck pointed out, that there had been actual wounding as well. (That might be the case also, technically, with decorative piercings.) One must try not to lose all touch with reality, and no-one could pretend that this was either the original reason or a justification for the clandestine filming or the coverage.
115. Mr Warby placed considerable reliance on the case of Brown [1994] 1 AC 212, in which the majority held that neither consent nor the sexual context could afford a defence in a case concerning extreme sado-masochistic activity. Thus, it was argued that the consent of these women to the spanking, despite their evident enjoyment, does not excuse the fact that a technical assault contrary to the 1861 Act was committed by the Claimant with every thwack. Yet again, however, I must try to maintain some sense of reality. In any event, consent is a valid defence so far as common assault is concerned.
117. It is well known that the Attorney-General and the Crown Prosecution Service exercise discretion in deciding whether to institute criminal proceedings and frequently acknowledge that it would not be in the public interest to prosecute every crime – however trivial. I have little doubt that such a discretion would be exercised in cases of this kind. This was rather confirmed by the CPS prosecution guidelines and “Charging Standard” introduced by Mr Price. It would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours. That would plainly not be in the public interest.
Now, how do we go about bringing this to the attention of the Swedish prosecutor?
I think the girl’s age has a lot do with it here. While I feel sick at the idea of any consenting adult being prosecuted for BDSM I can’t help but understand a relative who sees the marks on the 16 year old and over reacts. She may be the age of consent but she’s a minor. The legal coming of age is still 18.
Anyway of course that is just a side issue.
Hopefully the media will give a balanced view of the case and there can be an intelligent debate. Unfortunately from the prosecutor’s interviews and comment it’s more likely to turn into a circus about how wrong and sick BDSM is.
My thoughts, for whatever help they may be as I am in the US and it may be very different
1) Fundraising for legal and other costs.
2) What is the EU or Swedish equivalent of the American Civil Liberties Union? If there is such an organization, writing to them directly and bringing their attention to the case may help some.
3) A letter writing campaign to the local newspaper where the story appeared may carry some weight. (Quite literally, as I do suggest real paper letters rather than email.)
4) In the US qualified persons not directly involved in a case may submit what are called “friend of the court” briefs which add support and information and can influence a judge’s ruling.
5) There are a lot of kinky folks out there, coming together and threatening to or actually boycotting travel to Sweden and Swedish products may get some attention.
This is just what flashed through my mind. If I think of anything better I will check back.
Ms. Betty
PS I will check the forums at Collar Me, a BDSM forum site and see what I can do to stir folks up there, if no one has already.
I have now made a post to Collar Me about the case and asking for more suggestions.
Abel, you can follow the thread here:
http://www.collarchat.com/m_3249749/tm.htm
I, too, am disgusted by this. But I’m hoping that what HH said about the UK will apply in Sweden:
“… the Attorney-General and the Crown Prosecution Service exercise discretion in deciding whether to institute criminal proceedings and frequently acknowledge that it would not be in the public interest to prosecute every crime – however trivial. … It would hardly be appropriate to clutter up the courts with cases of spanking between consenting adults taking place in private property and without disturbing the neighbours.”
Undoubtedly, the age of the girl is a major factor, especially if the prosecutor has her relatives pushing them to do something.
We’re all engaging in activity on a regular basis that is considered illegal (in most US states, too) — but shouldn’t be. I feel the laws are muddy. As a pro-dom I could be prosecuted for assault … but I could also be prosecuted for prostitution just for spanking a guy, even if he were wearing a thong. Even just slapping a bare bottom, I learned recently, could be considered “sexual activity.” I take the risk because I have a very small part-time business and probably fly under the radar.
I’m quite concerned about this prosecution, especially as it’s far from the test case I would have chosen for our community. IMO, the girl would have to be a very mature 16 year old indeed for this sort of apparently intense play with a much older man to be appropriate. Of course, I feel the same way about a sexual relationship between a girl so young and a man twice her age. Nonetheless, propriety and legality are not the same. If the consensual sex was legal, then the BDSM play should be as well.
I’m delurking here as I find this an interesting question. I have read about this here in Sweden but I never understood that it actually happened here.
In the interview the man is said to be 38 years old, the girl is said to have consented before and during the scene but afterwards she changed her mind. It is also mentioned that the girl has been inflicting harm on herself (there is a word for this which I don’t know, but the behaviour depicted in “the secretary” where the girl cuts herself )
They are also interviewing the local spokes person for the RFSU (the Swedish Association for Sexuality Education). He questions the prosecutor and defends the right for people to engage in these activities as consenting adults. I think this is a good channel if you want to protest. This is the homepage: http://www.rfsu.se/en/Engelska/ and this apparently happened in Malmö, http://www.rfsu.se/sv/RFSU-nara-dig/RFSU-Malmo/Var-styrelse/ the chairman is called Jonas Bengtsson and the media contact is Jack Lukkerz. It’s firstname.familyname@rfsu.se
I hope this can be helpful for you. It’s weird and sad that this happens in Sweden…
Hi, all, and thanks for the comments.
I’ve not had a reply yet from the folks I’ve written to in Sweden – not altogether surprising, I guess. @Em – thanks for delurking: I’ve written to RFSU in Malmo but they haven’t replied yet.
Without any contact back from the country in which this is happening, I’m struggling to work out whether we can all help – and suspecting that help may not actually be wanted / appreciated.
A common theme in the responses is the age different between those involved. This is an interesting point for me. If the girl was above the legal age of consent, then that age (15 in Sweden) would strike me as an absolutely robust cut-off point. It’s not an “age of consent for some activities and not others”.
Where some might get confused:
– is there a case to say that although she was above the age of consent, she wasn’t yet an adult – and does that have an impact on her ability to ‘consent’. (Answer: no, IMHO).
– when they made contact, was she on a site that allowed under 18s to post? And if not, was he right to contact her and to stay in touch if she knew she wasn’t old enough to be on the site? (Answer: I wouldn’t want to judge without knowing the facts of the case, but I hope that this isn’t the case. Even if it is, it doesn’t seem to me to equate consensual play that might have resulted with ‘assault’).
– is it OK for someone to play with a partner so much younger, and still pretty young and (presumably) pretty inexperienced. (Hey, I’ve had my fingers badly burnt in the past from this, as have those closest to me, so am particularly cautious in this respect personally – but I’m not judgmental of those whose play crosses age boundaries, and am very mindful of people for whom things work wonderfully despite the young lady’s relative youth and a large age gap)
– can consent be retrospectively withdrawn if one player subsequently regrets what happens. (Answer: no, IMHO).
There does seem to be something of a parallel on the ‘ability to consent’ front with the Mood debate a few months back – although that was very different in nature, in that the alleged victim there apparently claimed that safewords had been ignored *during the scene*. Here’s the debate, if anyone wants to check back:
http://www.spankingwriters.com/blog/2010/02/06/police-raid-spanking-movie-producer-some-thoughts/
Thanks again for the comments thus far, and do keep adding your thoughts. This case is too important to ignore.
Thank you for following this, Abel, and please keep me updated if there is anything I can do directly.
A note to @Em, re: “It is also mentioned that the girl has been inflicting harm on herself (there is a word for this which I don’t know, but the behaviour depicted in “the secretary” where the girl cuts herself )”
Those who engage in such activity call it, “cutting” — not a very imaginative term, but to the point! Only people who talk about it but don’t actually do it call it “self-harming” — most “cutters” see themselves as actually gaining something from the experience, not as “hurting” themselves.
People cut themselves for a huge variety of reasons — some very negative indeed. But a less negative reason is if you are a masochist who does not have anyone to “play” with, but you want to get the endorphin rush and the thrill you would get from a BDSM scene with another person.
When I was 17, I wasn’t fully ready to admit to myself that I was a masochist, but I think those desires played into the fact that I myself was a cutter. When I was cutting myself, I most certainly did not see it as self harming, but on par with getting a tattoo or piecing. (Which I was not legally allowed to do without parental permission!)
The fact that the girl was a cutter could mean she has some emotional issues that led her to look for an unhealthy situation … or it could just mean that she was a frustrated masochist who, as soon as it was legal, went out and found a partner!
Thanks for your response, Abel. I want to be clear: I don’t think that everyone who is involved in a relationship with someone of a different age is doing something wrong– far from it. People from different cultures, religions, and age groups fall in love with one another every day. Decent people are decent people, whatever their age. I do worry that young, inexperienced girls are more likely to find themselves in a bad situation, though. Of course, the way to deal with that is community support, not prosecution.
For this reason, I find it quite problematic that a young person can be past the age of consent but not old enough to explore the kinky blogosphere– or any adult material. I shudder to think about how my kinky exploration would have turned out without the friends I’ve made on the internet. And I was 40, not 16, at the time I began that exploration. So it would help if our laws were a bit more consistent, providing young people with the information they need to make informed decisions about sex, vanilla or kinky.
Zille – thank you for clarifying what I meant and explaining a few things about cutting. I have no personal experience of cutting and I think what you write about it being an outlet for masochists is interesting! Certainly something to keep in mind also, cutting does not necessarily mean that someone is mentally ill.
I think I agree with Indy that it is unfortunate that the girl is so young (and the cutting makes it hard for me not to think of her as young and very vulnerable). As I remember being 16 you are very young, immature and insecure. I can’t help but feel that a man so much older is somewhat taking advantage of the situation. To me it would be a lot different if the girl was 19 or 20.
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Sadly, this is a common problem, as laws about assault have been used in other cases to criminalize what we do. It’s often argued in these cases that consent does not negate an act of assault. This same problem is the same reason that couples in America have to be careful. Here in Florida, if there’s a call made to the police about domestic violence, then the police will take someone to jail if there is *any* evidence that someone was injured. Consent is not a defense. It’s scary, but that’s how it is.
I posted a case that got under my skin at my blog back on May 28th: http://missmaggiemayhem.com/2010/05/28/when-the-legal-system-tells-you-what-to-do-in-bed/
To make a long story short, an American man accused of sexual assault has been ordered by a judge not to engage in any BDSM or sexually fetishistic behavior in the time leading up to his trial.
It’s true, we have had many gains from a mainstream conversation about spanking, BDSM, or fetishes but we’re also caught in a type of purgatory. More people are familiar with some aspect of alternative sex play but very few are actually educated about it.
Some friends with far greater knowledge than me have posted here, but to recapitulate in one place opinions I’ve offered elsewhere:
1. The age of consent in most people in the EU is 14 (Spain 13). To avoid possible abuse by adults in positions of trust e.g. teachers or sports trainers, several countries proscribe sexual contact with teenagers based on age difference with such adults.
2. The age of majority (voting age) is 16 in China, Austria and Brazil, 17 in several US states. 16 is being striven for in several European countries
3. SM was removed from the index of mental disorders in Sweden’s westerly neighbor Norway earlier this year http://www.revisef65.org/friskmelding_eng.html
4. SM is legal to the south of Sweden in Germany. It is classified as wounding with the individual’s consent which does not offend public mores.
5. Sauna birching is legal to Sweden’s east in Finland (and in Sweden I believe too).
6. A bit long this: (A case if branding). In R v Wilson (1996) 2 Cr App Rep 241 … Held, allowing the appeal, that (1) Brown is not authority for the proposition that consent is no defence to a charge under section 47 of the Offences Against the Person Act 1861 in all circumstances where actual bodily harm is deliberately inflicted. What the appellant had done, if carried out with the consent of an adult, did not involve an offence under section 47, albeit that actual bodily harm was deliberately inflicted. (2) Consensual activity between husband and wife, in the privacy of the matrimonial home, is not a proper matter for criminal investigation or prosecution.
7. Adding the opinion in 7 to that cited by HH in Mosley v News International it would appear that the CPS in the UK holds that it is improper to pursue a case based on clearly consensual SM
8. A little facetious I know, but if the 16 year-old had been the top, would there be a case?
R
Pretty late when I wrote the above last night.
1. The age of consent in most people in the EU is 14 (Spain 13). should read: The age of consent for…
and
6. A bit long this: (A case if branding). should read: A bit long this: (A case of branding).
Sorry.
R
Hi everyone and greetings from southern Sweden.
First of all, thanks fpr Your support and yes, i’m a little engaged in the case and i’m also sorry that i can’t tell you very much.
Here are, of course, several people working with this.
However, i has a question that can help us…
Statictics numbers regarding accidents related to SM-sex on their own, like selfbondage, selfstruggling etc before and after the Spanner-case. Links would be very appreciated.
And since i’ve read some misunderstanding here in this thread. The age for sexual consent in Sweden is 15 and for porno photo and moviemaking it is 18.
However the prosecutor negitates the girls age and only prosecutes for assault and battery (of the highest degree).
The girls markings etc was of course typical from a SM-session, her logic there is unclear but she says in interviews that using a whip (flogger) makes it to the highest degree.
/Kinky
First of all. It is great that people outside of Sweden notices this. It is an important case and it is possible that the outcome will affect not only the BDSM community in Sweden but in other countries as well.
With that said… There is a lot of debate about this going on Darkside.se, Swedens largest online BDSM community. There is a lot of rumours about the case. Some, who claim to personally know the girl, say that it was all completely consensual and that no harm came to the girl. It is said that it was a friend as well as a relative to the girl who called the police.
Then there has been a post made on Darkside which is allegedly from the girl herself where she claims that she wanted to stop but that he wouldn’t respect her no. She also states that she knew nothing about BDSM before hand and that he didn’t tell her anything about safewords.
It is impossible for us to know which story is true. But if it is the latter, which a lot o people on Darkside is leaning towards, then it was clearly assault and the verdict should be pretty straightforward.
If indeed she was consenting all the time then this case will be very important in determining where the limit for what you can consent to is. It is possible that is exactly the prosecuters goal. Since BDSM is no longer considered a mental disorder in Sweden it is possible that the legal system wants to establish some precedent regarding BDSM vs assualt.
And finally, since bloggcomments isn’t the ideal form for a discussion. If anyone wants to know more about this I suggest you visit the thread started in the Swedish fetischist group on FetLife: http://fetlife.com/groups/6531/group_posts/670967?page=1#group_comment_6983378
Thanks to everyone for their thoughtful contributions, and particularly for both of the comments from people in Sweden. I’m glad the case is being taken seriously there.
If it is the case that safewords were ignored, then clearly it’s non-consensual. But I suspect that that is a very big “if”.
@ulm_snaga – we’ve always found that comments here have been a really good place “for a discussion”, but thanks for pointing out the Fetlife thread too. I’ve already posted there and there are a few interesting posts on that that people might be interested to read.
If i put it this way…
This case has definitely two victims, the girl and the man, our mission is to make sure that there will not be a lot of victims.
The problem is that many people dont know anything about BDSM, SSC and so on, for them it is just abuse of someone.
Information is critical so why not make a BDSM-week in EU?
Lot of fun but also a great way to inform people of what we are doing, safety etc and i’m sure that there would be a lot of curious people that wants to learn more.
/Kinky
I think it is better to try to give some facts about what happened, rather than having lots of loose speculation.
This should give a fairly accurate report of the sequence of events. It has been compiled from public records. The names are assumed.
Anders and Charlotte at first meet at a contact site, and then continue with a chat on a Wednesday in early January. They exchange mails, checklists, slave contracts etc and they decide to meet on Friday evening that week.
They meet and play various S&M games between Friday and Sunday.
At this point something may have gone wrong, causing Charlotte to possibly have a crisis reaction later on, as well as maybe getting pains after lashes that also caused bruises.
Friends and parents notice that something is wrong, and a friend reports to the police after Charlotte tells a made-up story.
As Charlotte feels ashamed and does not want to say she agreed, she tells this made-up story about three men, torture and rape when questioned by the police. This leads to a man named Bengt being arrested, interrogated and eventually released as Bengt was never involved. Around the same time Anders is arrested.
The prosecutor then decides to charge Anders for gross assault.
BTW, i had some help with the translation from swedish
/Kinky
This is very difficult. From what we’re told, we cannot know whether limits were crossed or a safeword was ignored, and that is key to the issue of consent.
On one hand those are the sorts of questions that a court is well equipped to decide. On the other hand the court may decide that consent is irrelevant, and hat is the point on which lobbying or expert witnesses may be needed.
The girl’s age does not make it any easier, as some will feel that she was too young to give informed consent anyway. Certainly her later actions in making up a story about rape and torture do not reassure us about her maturity. My own view on that is that we must take our steer from the age of consent in the country concerned: we may think that 16 is too young, based on our own local standards, but to distinguish between the age of consent for “vanilla” sex and that for BDSM seems discriminatory: think back to the (recent) days when the UK had different ages of consent for heterosexual and homosexual sex.
HH
The prosecutor doesnt mention anything about the girls age so it should (in the best of the worlds) be irrelevant for the case.
Yes, it is a extremely complex situation but i promise you that i will keep you informed.
/Kinky
@Kent: will this be trial by jury, or is it decided by a judge?
I’m afraid I know nothing about the Swedish legal system.
HH
Closing the loop on this one: the accused was found not guilty by the Swedish courts:
http://www.spankingwriters.com/blog/2010/09/30/news-acquittal-in-swedish-case/
http://www.thelocal.se/29302/20100928/