Is it Assault or Kink Play?
Info given here is from the NCSF website on kink and assault. Having a solid grasp on the difference, both personally and legally, is very important and I would like to address what NCSF has spoken on and bring awareness so others may find this and perhaps learn something or share these resources to those that need it.
1. It can be considered assault or sexual assault if...
•Your withdrawal of consent or safe word/safe sign is ignored and intimate activity continues.
•Your partner goes beyond the limits of what you agreed to do before you started.
•Your partner pressured, tricked,threatened or forced you into activities or a relationship you don’t really want.
2. My limits were violated, but everything else we’ve done was consensual –is it still assault?
It may be assault if any activity is done that goes beyond what you consented to, or your previously stated limits. Someone also might violate your consent though poor communication, misunderstanding, technical accidents, lack of knowledge, or lack of expertise. Errors, miscommunications and misunderstandings can occur if you don’t fully discuss the desires and limits of those involved, taking into account familiarity with each other and the activities planned.
3. Is it rape or criminal assault if I’ve had sex or done BDSM before with the person who violated my consent?
Even if you have done certain things with someone before, you have the legal right not to do those activities again.If you have done BDSM with someone before, you may both agree that tacit or ongoing consent to those particular activities exists until you withdraw consent. But legally you can always withdraw your consent, and if you withdraw consent to any activities or to a power exchange relationship then your partner has to stop.If you go to the police in this situation, whether there will be an arrest or criminal charges will not be entirely up to you.Police and prosecutors will make those decisions based on the specifics of the laws where you live, but also based on their judgment about how a jury would react to the facts and whether or not they think they can win the case.They may decide that they will not prosecute, but that is not the same thing as deciding that the violation didn't happen,or that it was okay.
4. If I don’t resist physically,does that mean it isn't rape or sexual assault?
Physical resistance is not always possible or safe. Victims often shut down in response to assault, emotionally and physically.It is still assault if you withdraw consent or safe word,but don’t physically resist.
5. I was drunk and/or my partner was drunk,does that mean it wasn't rape or criminal assault?
A person’s state of mental impairment is not a defense for committing assault. If you aren’t of sound mind, then you can’t consent to BDSM activities.If you can’t drive, you can’t consent. If you’re taking prescription medication which prohibits driving, then you can’t consent
6. Am I partially to blame if I said “yes” up until I said “no”?
Absolutely not. If a partner deliberately goes beyond what you agreed to, violates your limits, or continues an activity after you withdraw consent,then it is assault. Many people who have experienced rape, assault or abuse blame themselves, and that's a normal way to feel, but the person responsible for the harm that you suffered is the person who harmed you.When you are doing BDSM, it is the bottom’s ethical responsibility to be clear about limits and to communicate that consent is withdrawn, and it’s the top’s legal obligation, even if the bottom’s communication is not clear, to stop what is happening until consent is reaffirmed.
The NCSF website has many more points on this topic and info regarding consent, abuse, and play. There is even a State-by-State Assault info page on their website, if you need to understand the laws around this topic. Remember that safe and consensual play is critical, and understanding what is being consented to, and with whom, and how is all part of the healthy communication needs of any kink/sexual play.
There is also a page on Dealing with Assault.
