Abortive Motion to Strike Proposed Section 213.10 of Model Penal Code

Model Penal Code: Sexual Assault and Related Offenses
Tentative Draft No. 5
Motion to Strike in Its Entirety Section 213.10
Affirmative Defense of Explicit Prior Permission
Submitted by George W. Liebmann
This defense is a novelty; it would be grossly inappropriate in a Restatement and is no less so in
a Model Penal Code if one believes that criminal laws should be based on a societal consensus..
The Reporters invoke inferences from a New York Appellate Division case involving an
evidence question as their only support, while conceding that “other decisions clearly upholding
the defense in a BDSM context are rare or nonexistent.” It is also conceded that “a prominent
advisory group for the BDSM community reports: “to date, there is not a single appellate court
decision anywhere in this country that has accepted consent as a defense in an assault or abuse
prosecution arising from BDSM conduct.” (Tentative Draft No. 5, at Page 476, note 25). Model
Code indeed!
Striking the section in toto eliminates the notion, fostered by the Reporter’s Notes which the
membership is powerless to edit that BDSM practices short of “serious risk of death, serious
permanent disfigurement or loss of function, or loss of function of any bodily member or organ”
enjoy statutory or constitutional protection under the ‘moral autonomy’ rhetoric of Justice
Kennedy’s opinion in Lawrence v. Texas. The Reporters are eager to protect “physical
discomfort, bruising, and even sharpened pain associated with paddling, slapping, handcuffing
and the like.”
The effect of striking the section will still leave the affirmative defense to assault provided by
Section 2.11(2)(c) of the 1962 draft, which is appropriately limited to consent to “bodily
harm…not serious” and which is unrelated to any special claim for immunity for sexual practices.
The effort by the Reporters to analogize BDSM practices to injuries caused by boxing matches
and the like founders on the fact that BDSM acts are conducted in secret and are not subject to
suppression, reporting, or scrutiny by third-party witnesses.
The Reporters disparage as potentially obsolete the American case law opposing their position,
including State v. Collier, 372 N.W.303 (Iowa 1985);People v. Samuels, 250 Cal.App. 2nd 507
(Cal. App.1967);and State v. Guinn, 109 Wash. App 1020 (Wash.App.2009). They neglect to
cite two other similar cases, Morton v. Commonwealth, 184 Va. 1009, 37 S.E.2nd 43 (1941) and
State v. Brown, 143N.J. Super 571,364 A.2nd 22 (N.J.Super.,1971).
More alarmingly, the Reporters who elsewhere are keenly interested in English and foreign law,
as in their discussion of ‘consent’ in Section 213.06, make no reference to two extremely wellknown cases, one arising in the context of heterosexual BDSM and one in the context of
homosexual BDSM. Instead, they refer no less than five times to the effusions of a BDSM
advocacy group. They also refer to the Kinsey report of seventy years ago, whose methodology has been much
questioned, which alleged that BDSM practices are widespread. It may be recalled that the
nation’s leading theologian at the time, and its leading literary critic cautioned against giving
normative significance to potentially biased social science. R. Niebuhr, “Kinsey and the Moral
Problem of Man’s Sexual Life,” and L. Trilling, “The Kinsey Report,” in D. Geddes, An
Analysis of the Kinsey Reports (New York: Mentor, 1954).
The most recent of the two cases is R. v. Emmett, a decision of the European Court of Human
Rights, reported in 1999 All E.R.(D.) 647, declaring “whilst a person has a general right of free
will, a state may, as a matter of public policy, restrict that in certain cases, for example for the
general public good and for the protection of morals.”
An even more emphatic judgment was that of Lord Templeman for the majority in the case of R.
v. Brown, 1 A.C. 212 (1993 (House of Lords):
“In principle, there is a difference between violence which is incidental and violence which is
inflicted for the indulgence of cruelty. The violence of sado-masochistic encounters involves the
indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the
participants and unpredictably dangerous. I am not prepared to invent a defense of consent for
such masochistic encounters which breed and glorify cruelty. Society is entitled and bound to
protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil
thing–cruelty is uncivilized.”
The Reporters’ suggestion that cases with which they disagree may have been overtaken by
events is belied by the Royal Assent given on April 29,2021, three weeks ago, to the English
Domestic Abuse Act, chapter 17 of the Acts of 2021, sections 70 and 71 of which expressly bar a
‘rough sex’ defense declaring that “it is not a defense that a victim consented to the infliction of
serious harm for the purpose of obtaining sexual gratification.” and expressly dealing with
reckless infliction of serious harm by affecting the ability to breathe
A draft which is by no stretch of imagination a Model Code resting on some semblance of social
agreement should not be before the Institute. The Reporters’ belief in what they call ‘moral
autonomy’ also is invoked in Section 213.06 for the proposition that despite their prior behavior,
women have an unlimited right to become the obverse of Lord Byron’s damsel who “saying
she’d ne’er consent, consented.”
Mr. Justice Douglas in his S.E.C. days once wrote of Directors Who Do Not Direct (47 Harvard
L.Rev.1305 (1934). It is the unpleasant duty of the author of this Motion to complain of
“Reporters Who Do Not Report,” and to suggest that Section 213.10 is not only foolish in its
own right but casts doubt on much that has been said previously.

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