People who engage in hardcore S&M practices run the risk of butting into criminal and civil law, especially when injury occurs or police somehow get involved.

I’ve written here about the problems some in our local S&M community have faced. For example, when a neighbor calls police complaining of screaming or moaning coming from a nearby home, the police assume it’s a “domestic disturbance.”

New laws dealing with domestic violence require police to arrest the “tormentor” regardless of the nature of the relationship. Locally, Chief Landsdowne has trained officers in understanding differences between true “domestic violence” and S&M relationships, whether they exist in heterosexual or homosexual relations.

Nevertheless, the police will treat the person who suffers an “injury” and wants to pursue a claim as a “victim” of domestic abuse, with the person causing the injury as the “batterer.”

California law presumes that a person may consent to a simple “battery.” But no one consents to an “aggravated assault.” A California case from years ago held that a victim of a vicious whipping did not “consent” to that kind of injury, even though he had consented to other types of physical behavior.

While S&M issues ordinarily see light outside a dungeon, a case in Massachusetts is generating controversy.

In April 2006, in Lynn, Mass., Gary LeBlanc, then a 48-year-old Gulf Oil sales executive, had an S&M encounter gone awry with Adrian Exley, a younger man from Britain, who visited the U.S. to meet LeBlanc.

Exley and LeBlance met through a Web site for gay men into rubber, leather, and plastic.

Exley wanted LeBlanc to wrap him in heavy plastic, then bind him with duct tape. LeBlanc put a leather hood over Exley’s head, and he inserted a plastic straw through the garb so Exley could breathe. Then LeBlanc put Exley into a closet and left him there for several hours.

Unbeknownst to LeBlanc, the straw fell out of Exley’s mouth and he suffocated. When LeBlanc found Exley dead, he panicked. He and a friend took the corpse to Rhode Island and buried the body there.

LeBlanc, perhaps so racked with guilt, committed suicide a short time later. He left suicide notes describing everything, at least his version of events.

Now Exley’s heirs have brought suit against LeBlanc’s sizeable estate. They are suing for wrongful death.

In an ordinary “negligence” case, the person who causes another’s injury through negligence or reckless conduct is generally liable for the death. However, attorneys who deal with S&M cases often compare S&M activities with recreational sports. In other words, persons assume the risk of injury as part of the sport.

A key issue in this civil case is something akin to “consent” and “assumption of the risk.”

The attorney for LeBlanc’s estate says that “Exley knew the risks going in. What occurred was an act or actions between two consenting adults, both of whom knew what they were doing, and it had a tragic end.”

Exley’s attorneys argue that Exley didn’t consent to letting LeBlanc to kill him. They assert that LeBlanc, knowing the risk of death, had a duty to check on Exley regularly to ensure his safety.

In this case, experts in S&M may testify. One expert will testify that experienced persons in S&M (as LeBlanc was) know there is a safe word. Men who had been with LeBlanc would testify at trial that they had been with LeBlanc and that he had ignored their use of “safe” words and continued to engage in risky behavior even though the other men did not consent.

If this case does, in fact, result in a large award, look for insurance companies to add language in homeowners’ insurance policies exculpating them from liability for S&M activities.

Intentional misconduct is already excluded under insurance policies. However, clever attorneys for injured parties will argue that the homeowner negligently engaged in risky conduct.