Does the Meiwes case bode ill for S/M?

[elfs]

By all accounts, Marwin Meiwes and his breakfast, er, victim are probably well-known to non-US readers. Although the Meiwes case has been downplayed in the US, the actual case is somewhat spectacular. Miewes advertised on the Internet his "search for a young man 18-30 for slaughtering." Bernd Brandes showed up on Meiwes door and offered himself up. There's absolutely no doubt that Brandes and Meiwes were very serious about their agreement: Meiwes would kill and eat Brandes.

German prosecutors want to charge Meiwes with murder. But they can't. Brandes clearly and without apparent duress repeatedly stated his desired to be killed and eaten. Under German law, the most they can charge him with is "unauthorized consensual euthanasia," which carries a maximum penalty of five years in prison. The same is true of cannibalism; the most prosecutors can come up with is "disturbing the peace of the dead," which is not a felony.

A lawyer at the U.N., Noah Leavitt, has proposed a different tack: charge Meiwes with torture. As Leavitt notes:

These international and European law sources appropriately recognize that, when the crime is torture, the victim's consent is almost completely irrelevant. As has been exhaustibly documented in studies from around the world, torture victims will "consent" to almost anything if faced with enough pain. As a result, a victim's consent to torture can never be trusted.

This represents a chilling new possibility for prosecutors who want to appear moral and "doing something": since consent is never a defense in cases of torture, if a prosecutor can convince a judge that S/M constitutes torture, S/M will become de-facto illegal in that district. And it only takes a few precedents to make such an assumption the law of the land.

Comments

[kingfox.livejournal.com]

I didn't think it was downplayed that much in the US. Heard it on Stern, saw it mentioned in many major news sources. Most just left out some of the details that the former related, like Brandes complaining about his half being too rough and undercooked, or the discussion while Brandes was in the tub bleeding of what would be served for breakfast.

errrr...

[http://users.livejournal.com/dominic-m-/]

well i cant say i "agree" with what happend but i can for sure say i dont like any type of conservative person encroaching on anyones rights in general...whether it be "consenual torture" or just some regular s/m stuff.those may definatly not be my things but people should have the right to have s/m fun if they so please without some conservative trying to controll everyone else.

[rapier.livejournal.com]

While in general I tend to distrust slippery-slope statements, this one doesn't seem all that hysterical. I can see this sort of thing happening with nearly any sexual practice that someone might find distateful or immoral. If a clever lawyer can say that someone's consent is immaterial, then any kind of sexual play can be in the crosshairs. It would take another clever lawyer to bring folks in to say that, "No, really, this isn't cruel; no one gets harmed by such-and-so practice; the parties' consent is genuine and valid; don't be such a tightass."

It's just this sort of thinking that renders even oral sex illegal under stringent legal codes like the US' Uniform Code of Military Justice. In the Meiwes case, I'm not sure what legal recourse the prosecution might have. If they decide to go with the torture angle, with any luck the judge will stipulate in his or her ruling that this slaughter-and-consume business is in no way a sex act that can be put in the same conversation with S&M and other non-mainstream sex practices.

Bah, I'm talking out of my ass anyway. I'm not sure how that whole case should proceed.

[fallenpegasus]

In many US juristictions, S&M *isnt* legally considered a sex act, which is how prodoms get away with running their business legally, when madams, pimps, hookers cannot.

[elfs.livejournal.com]

However, in Massachusetts, for example, consent is no defense in an assault case and the law explicitly forbids "the inflicting of pain" for recreational purposes. Sport is not covered as pain is not regarded as the objective and so its inflicting is incidental, not recreational.

In Washington the state supremes have ruled that (again, excepting sport) consent is no defense in an assault case. This is mostly in regard to a gang-initiation ritual that involved a quite serious beating, which was witnessed by but not interrupted by a police officer, but the case does hang over the SM community as a precedent.

A Canadian document on handling assault cases states quite clearly that "were it not for the consent of the participants, ordinary sexual activity would be an example of physical touching that would be a criminal offense."

Those of us who value our freedoms would do well to watch closely any case where the judiciary declares that the a-priori consent of the participants "does not matter."

[en-ki.livejournal.com]

I would be moderately astonished if a judge bought the argument that torture can't be consented to because torture can manufacture consent. It's clear that consent before the act is not a consequence of the act. Generally, though judges will interpret the law to suit the prejudices of the day, they are obliged to make judgments that are not based on transparent falsehoods.

[wendor.livejournal.com]

The issue, unfortunately, is how to prove that there was consent beforehand. Since the judge's involvement is after the fact, all you have is the "victim's" statement that they consented. The concern, of course, is that the "victim" was tortured into agreeing to say that they consented when asked, even though they did no such thing originally.

[en-ki.livejournal.com]

I still don't see how Brandes' state of mind after being "tortured" is relevant. He's not testifying that he consented (he's dead), but there is strong evidence that he consented before the fact. I don't think a reasonable person could doubt that somebody who had consistently claimed that he wanted to be killed and eaten, then went to the house of somebody who had put out an ad looking for someone to kill and eat, then was killed and eaten without resisting at any point, gave consent to the entire process before a hand was laid on him. It seems to me that the question is whether he was competent to give consent at all, and a ruling in that matter wouldn't affect the overall issue of whether consensual damaging activity is OK. (I'm pretty sure the desire of a healthy person to die is already considered prima facie evidence of incompetence in the US, and presumably also in Germany.)

[rapier.livejournal.com]

Lordy mama. You know what this would mean, right? S&M'ers and others who like it a little rough will need to file notarized affidavits asserting consent and get powers of attorney before every fling, romp, session, whathaveyou. Hooray for paperwork! I wonder what such forms would look like?

:-)

[http://users.livejournal.com/dominic-m-/]

maybe they would have little leather clad smiley faces whipping one another on the top.hmm come to think of it that might be fun to have as a smiley online....

[zaiah.livejournal.com]

This is the first I had heard of this case.. and I didn't consider myself that sheltered (even if I have been a little focused with school). :/