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  • 1.  The BDSM / S&M line on consent in DV context? (Note: Message rated NC17)

    Posted 06-28-2017 03:03 PM
    This is an unusual question (and when I say that...)

    <x-tab>        </x-tab>Husband obtains a DV TRO after Wife, who is a body-builder and studies kick-boxing, said "I'm going to come over and kick you in the face" during an argument.
    <x-tab>        </x-tab>Husband has been living his life on tape (about 24 hours / day) for the last several weeks and we can establish beyond any question what was and wasn't said. It's very close on whether it was a clear "stop" or not. I'd advised him to tape any conflicts, it was easier for him to just hook up a digital recorder that runs 12 hours at a clip, and he just became used to living that way. He says he never thought most of them would see the light of day.
    <x-tab>        </x-tab>After Husband got his TRO, Wife obtained a TRO (counter-complaint) saying Husband, in essence, sexually assaulted her.
    <x-tab>        </x-tab>Here's the rub -- the parties have been into "activities" that blur the line on consent. Specifically, I've heard Wife saying "you're not even hurting me, you little bi**ch" and other (more explicit) similar things. They did not have a "safe word." He says that the actual "stop" signal was a firm, no kidding, instruction to stop, but that outside of that, "stop" didn't mean "stop" (and would actually result in things getting ramped up and her getting angry).

    <x-tab>        </x-tab>So, the question - is there a case that addresses this kind of situation (maybe in the criminal context, I've never seen a Family case), or am I just going to have to argue that, in the context of their unusual relationship, the lines of consent were blurred?


    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

    </x-sigsep>


  • 2.  RE: The BDSM / S&M line on consent in DV context? (Note: Message rated NC17)

    Posted 06-28-2017 04:01 PM
    I would be concerned about the potential (though I acknowledge it is unlikely) for breaching attorney-client confidentiality rules by posting such a detailed accounting, even without mentioning your client or his partner's name. However, if the other party is represented or becomes represented by someone on this list serve . . .

    Perhaps you significantly altered the details. Or disagree there is any cause for concern. I am not looking for a debate; just throwing this out there as I have thought this about other posts by other members as well.

    Good luck with the case. Sounds like a nightmare to say the least.

    Anne

    Anne Cralle, Esq.

    Sent from my iPad


    Original Message


  • 3.  RE: The BDSM / S&M line on consent in DV context? (Note: Message rated NC17)

    Posted 06-28-2017 04:22 PM

    On principle, I quite agree.

     

    W. S. Gerald Skey, Esq.

    Law Offices of W. S. Gerald Skey, Esq.

    Princeton Commerce Center, Suite G-60

    29 Emmons Drive

    Princeton, New Jersey 08540

    Phone (609) 436-5222

    Fax (609) 228-5242

    www.skeylaw.com

     

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    Original Message


  • 4.  RE: The BDSM / S&M line on consent in DV context? (Note: Message rated NC17)

    Posted 06-29-2017 03:24 PM
    Thanks the comments. I know the issue of what's wise to put on the list or not comes up every now and again, and I'm sensitive to it. While there's generally no discovery in a DV action so I'd be especially reluctant to tip my hand, the adversary was well aware of the tapes as the parties' discussed them at length (with such discussions taped, which appears more to be more of a paradox than it actually is), so I weighed out asking the question against that background. It certainly wasn't anything privileged / confidential.

    Tragically, the case settled this morning -- it would've been the most interesting trial ever, but we agreed to civil restraints and dismissed the DV's.

    (I'm kidding about the "tragically" part of course).



    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

    </x-sigsep>



    Original Message


  • 5.  RE: The BDSM / S&M line on consent in DV context? (Note: Message rated NC17)

    Posted 06-30-2017 07:06 AM
    Congratulations on reaching a settlement in this contentious and disconcerting case. Could not have been easy. Anne

    Anne Cralle, Esq.

    Sent from my iPad


    Original Message