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

[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."