Up Front by Emma Hart

And my friends wonder why I was so absolutely dead set on turning up for jury duty no matter what. And getting picked, even if I had to lawyer-language my way through any challenges.

This. Is. Why.

Oh, that sucks so bad. I hate self-appointed experts with a passion.

I served on a jury just once. It was a rape trial. Nothing as potentially nuanced as any sort of BDSM.

The jury instructions at the end of this were that it was not rape if an ordinary person in the same situation would reasonably believe they had consent.

Unfortunately it seems what many jurors consider reasonable is very very far from what it should be.

The jury instructions at the end of this were that it was not rape if an ordinary person in the same situation would reasonably believe they had consent.

Everything else aside, I am so bummed that the question still apparently being asked is "Did she refuse consent?" not "Did he get consent?" But then I also thought "my partner is vomiting" was an obvious sign that something was very wrong, so...

Everything else aside, I am so bummed that the question still apparently being asked is "Did she refuse consent?" not "Did he get consent?" But then I also thought "my partner is vomiting" was an obvious sign that something was very wrong, so...

I get it - consent isn't always verbal or specifically affirmative. But in the case I was on I'm pretty sure that locking your flatmates out then physically dragging a woman upstairs and blocking her exit was something a reasonable person might have considered would raise some consent issues. Sadly most of my fellow jurors disagreed.

I like the idea of jury trials, but I think they're really really flawed.

I certainly think vomiting and panic attack are good signs that maybe not everyone has the same idea.

It has been suggested somewhere recently (can't recall where) that the time has arrived to stop using juries for these sort of cases and rely instead on some sort of panel of experts. It's one way of avoiding myths about consent. But the entire logic of using randomly selected juries in criminal cases is that they can judge these things using actual social mores - what we as a society actually believe, for better or worse. That has proved to be a remarkably enduring and resilient principle. Still, they don't use juries any more for complex fraud cases - deemed to be too long and difficult for ordinary members of the public to decide. So why not rape cases too?

The trouble with the "panel of experts" is that typically that means older, white, men. Often in legal systems that means especially preferring to use judges. Who have traditionally produced uneven outcomes in things like rape cases.

I'm inclined to the view that the law should be restated to remind participants that the "typical person" and "ordinary" person are both middle-aged women not entirely of Anglo-Saxon ethnicity. The typical judge, OTOH is a 60 year old rich white man ho has likely never been in a non-privileged situation.

On that note, I think that when on trial every member of the "legal professions" (broadly interpreted) should be represented by lawyers who may only use NZSL when dealing with people other than the defendant. Give them the hill to climb of not being able to speak in court and being reliant on others to convey their privilege. I mean "case".

So if you don't like judges and juries are problematic, how do you want these cases decided?

For what it's worth, the High Court has about 40 judges and I think 15 of them are women. Not all of the men are white although most of them are. Hardly a bastion of diversity but probably better than many think.

I am intrigued (to the point where I am currently wading through someone's PhD comparing rape trials in Britain and the Netherlands) by the idea of switching from adversarial to inquisitorial trials.

Inquisitorial could be better, but as I said:

the law should be restated to remind participants that the "typical person" and "ordinary" person are both middle-aged women not entirely of Anglo-Saxon ethnicity.

I would also like to see experts selected similarly. Let the court of appeal bring the full weight of it's countering expertise to bear when necessary.

Admittedly I would also prefer that the accused be better protected and automatically compensated when necessary. As the saying goes, I'd rather see 100 men compensated for their time in prison pending successful appeal than a single innocent man have his life destroyed without compensation because "we found you not guilty in the end".

I get sick of this stupid trope that consent is ONLY granted in a kink context via the use of safe words.

I don't use safe words at all in private play, except when someone I'm playing with happens to use them. I personally prefer the words "stop", "slow down", and "I'm not sure if I like this, but I'll see how I go" to retain their usual meanings. Obviously I'm happy to negotiate that, but I've done so just once. Lots of people pipe up with the "traffic signals" in extremis, and that is obviously instantly understandable too.

That all requires some experience and trust on both sides, to understand that absolutely anything can be a safe word when it's delivered in the right tone. As the inimitable Laura Antoniou says, you have to be terminally stupid or unambiguously abusive to not halt proceedings if someone says, "I am going to pick up the phone and dial the cops if you don't instantly stop what the fuck you're doing."

For play with strangers, I stick to the conventions, although I do explain that "stop" means STOP to me. That they should continue to use their preferred safewords, but unless they make it clear I should do otherwise right now, "stop" means play will halt. And to be honest, if they use the word and they didn't mean to in that sense, I don't care if it breaks the mood when I stop and check in. Or if I hear or see anything that's the slightest bit ambiguous..

There are literally 2 people I can completely "let go" with in a scene, and that comfort and understanding has to be *earned* on both sides over time. As it should be.

... And here's me nerdily explaining all my stuff in great depth. Proof!

Anyway, fuck safe words as an attempted get-out clause. Consent is an active process, and if you have someone VOMITING (let alone all the other stuff) , why the hell are you not checking in (unless you've very specially negotiated your emetic scene, and if it's the first time, I'm going to be checking in anyway).

Yes, some people want to become quivering messes on the floor, but complete loss of control requires a lot of trust and build-up. I've personally refused to play with acquaintances who utterly "lose themselves" (or seem to) in public play - it doesn't feel safe for ME.

Anyway, this arsewipe is the kink equivalent of the drunk-date rapist - "But she didn't say no! How could I have known she didn't want it?!"

People, including juries, need to understand that the actual test is how you positively knew she (he/they) DID want it. It's not hard.

On another note, would you consider using the terms top/bottom as more generic terms for the parties in a kink scenario? All doms are tops, but not all tops are doms (ahem). Also, dom/sub tends more to imply fixed roles in a relationship, while top/bottom can equally apply to roles or who's doing what in a particular scene (physical or not).

People, including juries, need to understand...

While I've tried not to take it personally, I still wonder occasionally why I was rejected for jury service while the guy in the beige safari suit with the obvious toupee got to stay. I've no idea whether the ability to assess the suitability of potential jurors by simply casting an eye over the cut of their jib is part of a lawyer's formal training, but I suspect there's at least a teensy element of cynicism in how it's applied.

Being diagnosed with a cognitive disability doesn't disqualify one from jury service. In the case I'm familiar with, when the prospective juror's mother called the MOJ she was told in no uncertain terms to butt out. Fair enough, even the best of carers may need reminding on occasion that their loved ones have become, in theory at least, autonomous adults.

So if you don't like judges and juries are problematic, how do you want these cases decided?

FWIW in the past when I've thought about this, the best I can come up with is some sort of "professional juror" - people, not necessarily lawyers or judges, who've undergone some level of formal training on law, evidence, process etc...

But I don't know how it would work, or how you get a good cross section of people.

However my experience in a jury room was shocking. I believe I'm a fairly legally literate person, and many fellow jurors were not. The way the case was discussed and decisions were made was not something I was comfortable with, especially when it came to actually trying to decide guilt.

To hear "well she shouldn't have gone to his house" or "she chose to get drunk with him" said in that room was disillusioning.

I've no idea whether the ability to assess the suitability of potential jurors by simply casting an eye over the cut of their jib is part of a lawyer's formal training, but I suspect there's at least a teensy element of cynicism in how it's applied.

That was one of the most surprising things to me - that jury selection is based on literally nothing. There's no opportunity for lawyers to query the jurors, they simply object to them on site as they walk toward the jury box. That's it.

That's not a selection process, it's a discrimination process.

I was called for jury service in a trial of a skinhead allegedly assaulting someone. The Prosecution objected to me.

The Prosecution!!!

Male pattern baldness does not equal sympathy for skinheads!

I tend to regard myself as vanilla with strawberry elements. That said, it is one of the hallmarks of LGBT BDSM community life that it is safe, sane and consensual. For the LGBT leather community, the horrific Colin Ireland anti-leather serial killer case was directly motivated by the anti-leather Operation Spanner. BDSM is a consensual adult activity, Based on New Zealand's own R v Chignall (teenage dominatrix) case in the nineties, one would have assumed that the New Zealand judiciary would think twice before negotiating this sexual politics arena again. I stand with my LGBT BDSM sisters and brothers (and genderfluid individuals). How organised are straight leather communities? The impression I got from Patrick Califia is that the BDSM communities are fragmented, or at least they were in the nineties...?

On another note, would you consider using the terms top/bottom as more generic terms for the parties in a kink scenario? All doms are tops, but not all tops are doms (ahem).

So terminology is always problematic, but there are really two main reasons I've made the choices I have. One, I know just as many people who are uncomfortable with being called Tops or bottoms as Doms or subs, and two, I think the latter terminology is more familiar to vanilla people, which is the audience I'm writing for.

by the idea of switching from adversarial to inquisitorial trials

I look forward to a post about your conclusions.

From everything I've read, the problem is NOT the jury. The problem is the use of the adversarial legal system. There have been reviews that have come to the conclusion that the adversarial system fails in rape cases.

But there is a huge emotional investment by those who practice and more importantly by those who teach the law that the adversarial system cannot be questioned.

I don't know how we can change the system but it is so obviously failing women. It really should be a national scandal that rape victims are not protected by (from?) the lawyers of this country.

I also can't help but wonder whether anyone involved in that trial ever considered the gender-flipped version of events. How would they have reacted if she had gone round to his place, bent him over the banister and pegged him until he bled? Somehow I have trouble imagining the legal system saying "oh yes, any reasonable person would expect him to be happy with that".

Somehow I have trouble imagining the legal system saying "oh yes, any reasonable person would expect him to be happy with that".

Sadly, you would be immensely surprised and saddened by what the legal system might expect.

In my experience as a member of both, the BDSM communities are not as fragmented as the queer ones, at least in Australia and NZ.

Of course, yes, there are sub-communities with particular interests, and leather men tend to be very much into their own scene (not many public kink events go in for sex on premises, whereas of course gay bathhouses facilitate it l. And each town tends to have their own prevailing micro-cultures and "influencers".

But there's more mixing in general compared to the more "parallel play" of queer communities (although that has definitely been undergoing change itself over the last several years in terms of being more cohesive - at least that's my impression).

My impression of the SF scene - not that I have ever participated in it - was that there were two factors that splintered things a fair amount.

One is that if there are significant numbers of people into so many arcane things, they're going to tend to glom onto the particular speciality scene that is particularly to their taste. There are SO many kinky scenes in SF- why would you spend significant time with old school leather men if you were an egalitarian vegan lesbian Japanese rope nerd? (I'm not exaggerating very much.)

Whereas in at least one town in NZ, there were so few "good" tops/doms around that the otherwise-inclined formed a group where they would take turns taking care of business for each other. Everyone had preferences and no-goes, but they also adapted to various things that may not have been 1st on their menus. And I think that's still a significant ethos for our smaller communities - there's more mixing and matching. We don't mind sharing space, in general.

Secondly, in SF, there was a huge impact from the "lesbian sex wars" and the anti-porn (which generally conflated to anti-sexual-violence) branches of feminism, particularly during the mid-80s to mid-90s, when Califia started getting published more prolifically.

Those influcences hit NZ as well - ironically, I was put off kink for many years by a certain bunch of women in Auckland who might have taken Macho Sluts a little bit to heart in their behaviour at vanilla parties. And the overly puritanical side was also in force - I remember some very earnest debates on whether penetrative sex (not even with strap-ons!) was "unPC". Funnily enough, everyone I actually shagged seemed quite keen on the act.

But my impression was that those debates weren't quite so polarising and long-lasting as they were in the US. There were a hell of a lot less people in NZ who'd done gender studies or whatever at university in NZ, and had that much time or energy for the more rarefied debates. Although debates WERE had.

Finally, I think the combination of the smorgasbord environment and socio-political disputes had a synergistic effect in SF - the latter widened the small cracks that were already there.

At the risk of derailing into the topic of jury trials, there's been a wee outbreak of moaning in the UK about their stupid jury-protection laws. It's vaguely relevant because they refer to the Aotearoa research. That's one of the very few actual cold hard looks as how juries work. And there are horror stories...

There was a newspaper article about a horrifying jury decision, followed by a parliamentary panic and rush to stop that ever happening again. Not the miscarriage of justice, obviously, but the revelation:

I defended the New Statesman during the legal fallout of the 1970s scandal. But ultimately a veil of secrecy was drawn over the British jury system

Which refers to this older article about the kiwi study:

A new study reveals some unsettling facts about the secret world of the juror - they often feel intimidated, scared and confused.

Secret Barrister is also good, like this case where a jury found someone guilty of "pretending to be a doctor while brown"

(I won't be offended if you moderate this away)