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| Chapter 3 Domestic Violence |
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Present legal definitions
More reasonable definitions of violence and abuse
Mens rea under the model penal code
Is it always domestic violence?
What does domestic violence and abuse mean? Domestic abuse is defined in Colorado as (C.R.S. § 13-14-101(2)) "'Domestic abuse' means any act or threatened act of violence that is committed by any person against another person to whom the actor is currently or was formerly related, or with whom the actor is living or has lived in the same domicile, or with whom the actor is involved or has been involved in an intimate relationship. 'Domestic abuse' may also include any act or threatened act of violence against the minor children of either of the parties."
Domestic violence (C.R.S. § 18-6-800.3) "...also includes any other crime against a person or against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship."
The definition of domestic abuse is further expanded in C.R.S. § 10-3-1104.8 to include "...psychological harm." The basis for domestic abuse need not even include actual violence or abuse and today it rarely does. In fact in Colorado domestic violence is an add-on charge for any criminal act, and quite a few that don't seem criminal, e.g. eavesdropping. And in 2010 the Colorado Supreme Court in 07SC1088 People vs. Disher ruled that evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship.
The United States Center for Disease Control has also looked at the definition of domestic violence and concludes:
"In recent years, the term 'domestic violence' has begun to include other forms of violence including abuse of elders, children, and siblings. The term 'domestic violence' also tends to overlook male victims and violence between same-sex partners. Therefore, at CDC we prefer using the more specific term 'intimate partner violence (IPV),' defined as actual or threatened physical or sexual violence, or psychological/emotional abuse by a spouse, ex-spouse, boyfriend/ girlfriend, ex-boyfriend/ ex-girlfriend, or date. Some of the common terms that are used to describe intimate partner violence are domestic abuse, spouse abuse, domestic violence, courtship violence, battering, marital rape, and date rape."
In short, domestic abuse and violence, intimate partner violence, or any other terms one cares to invoke, are anything a woman (or man) you have lived with, dated (with or without sexual congress), any one-night stand, lived in the same house with, and any friends or relations, wants it to be. Conversely, in practice there are virtually no restrictions on a woman using the law as "... a method of coercion, control, punishment, intimidation, or revenge..." against a male. Though much rarer, DV laws are also reportedly abused to gain advantage by males and in gay and lesbian relationships.
As one newspaper reporter eloquently put it, with the "fear" basis for domestic violence, "we have done one better than Orwell, rather than being jailed for your own thoughts, you can now be jailed for someone else's thoughts."
Before 1994 some evidence of abuse was required. Someone had to show bruises, or bring in testimony to support the accusation. Under present laws a male need not do anything. All that is required is that a woman say, subjectively, that she is 'fearful' of her partner or a man she has known carnally, simply dated (with or without sexual congress), or even that she is related to a woman the man has known. Very likely she can then obtain restraining orders ex parte (without telling you) under current domestic abuse or stalking statutes.
A "threat" is any misconstruction she may wish to place on anything you may have said or done at any time. You may beat your head or hand against the wall in frustration. That is "violence" under the law. If you shout at her for whatever reason, e.g., she is in the next room and you want her attention, that is "abuse." If you need to get by her in a hurry and move her out of the way, that is "shoving." If you constantly ask her to make the bed or do the dishes, that can be interpreted as "harassment." Your actions may be construed as demeaning and controlling and, thus, constitute "abuse." Unplugging, or disconnecting the telephone may be taken as a male assertion of power and domination. Again, that is "domestic violence." Withholding money is seen as an act of violence by feminists, as is demeaning women. An adulteress may also obtain a restraining order against her husband by claiming he threatened her lover as happened to Dr. Emerson in Texas, or charged with domestic violence as happened to Stewart Marshall in a widely publicized Michigan case in 1996. Thus, under current law, if your wife commits adultery you can, and likely will be charged with one or more crimes.
Cathy Young, in an article on domestic violations in Reason Magazine reviews how ridiculous the definition of domestic abuse has become:
"...in her landmark book, The Battered Woman (1979), [Denver-based] psychologist Lenore Walker writes that 'a battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something' (emphasis added). While Walker focuses primarily on women who have been physically assaulted, she also talks about men 'battering' their wives by, for example, being inattentive. Pamphlets distributed by family violence programs stress that one doesn't have to be hit to be abused and list such forms of abuse as 'calling you names,' 'criticizing you for small things,' or 'making you feel bad about yourself.' A booklet published by the state of New Jersey, Domestic Violence: The Law and You, informs the reader that she is a victim of domestic violence if she has experienced 'embarrassment or alarm because of lewd or shocking behavior' or 'repeated verbal humiliation and attacks.'"
Note that before Ms. Walker's husband, Dr. Morton Flax, committed suicide "People close to the couple have described Dr. Flax as a 'battered man.'" according to Richard Bennett.
Frequently, charges of abuse will be based on how she feels, or her emotions. A shouting match, and most couples engage in these at some point, is domestic abuse under current law. So is shoving, however minor, even if all the man is doing is trying to leave the room or house. Thus, the charges may lack substance but, for example, any requirement by the accused that harassment be documented will probably be disregarded by the prosecution and the court. Massachusetts Bar Association past-President Elaine Epstein stated in the late 1990's that: "It has become essentially impossible to effectively represent a man against whom any allegation of domestic violence has been made."
Fortunately, by 2011, in part due to the numerous and blatant false allegations, it has become virtually impossible to convict a man, or woman, of domestic violence if they plead innocent and demand a jury trial, particularly if they have a competent criminal defense attorney. As Wendy McElroy noted in a November 2010 article "...only 30.5 percent of those arrested are convicted." Except in the most egregious cases of violence almost the only men and women convicted of domestic violence now are those who mistakenly and stupidly accept a plea bargain. But McElroy also notes that each year over a million Americans are now arrested for domestic violence, making a mockery of justice.
The concept of "fear" as a basis for abuse is irrational at its very root. Nothing in the law makes allowance for phobic women where virtually everything causes them to be afraid. Such incidents as she heard the screen door squeak in the night, and then a car drove away, may be sufficient to claim you are stalking her. If you are already under a restraining order you may thus find yourself in jail because the wind blew that night, and the neighbor's boyfriend got mad and left early.
Conversely, many women respond to the "flight or fight" reflex with irrational violence. That appears to be particularly true within their homes.
In summary, whether you have dated, lived in the same domicile, or had casual sex with a woman you are deemed to have been an "intimate partner" of hers. As such, you are liable to mandatory arrest at any time, at any place, without a warrant, and without any substantiating evidence. A simple call to 911 on her part is all it takes. A call from one of her relatives, or a neighbor, will suffice as well, as hearsay is admissible.
As a result of such a call you will be arrested without a warrant and imprisoned without bail for an indeterminate time; evicted from your home if you are living together; placed under restraining orders that will prevent you from ever possessing a weapon again; and forbidden to possess or consume an alcoholic beverage or controlled substance. Because you cannot communicate with anyone known or related to the "victim," you will be grossly handicapped in gathering evidence in your behalf. And this punishment, that includes a night or weekend in jail, occurs long before any determination of guilt on your part.
Thus, you are guilty until you can prove yourself innocent and, even then, you will probably be judged guilty by many just on the basis of her accusation. So not only are you accused ex parte but you are convicted in absentia. You may also be punished by the court and required to pay for 'treatment' before your trial if you plead innocent.
These definitions of domestic violence and abuse are rooted in the paradigm of domestic violence promoted by feminists: The innocent woman, powerless and trapped by economic or psychological dependency, is always victimized by the brutal, domineering man who uses force to impose control in order to maintain the patriarchy.
Of course feminists completely ignore numerous studies showing that approximately 50% of the violence between couples is mutual combat and 25%-30% of the total is exclusively female against male assault. There is also mounting evidence that in the majority of cases (~60%) where women are injured by domestic violence, the female initiated the violence that left her injured.
There is no sharp demarcation between a physical act and violence. We list a number of situations where a partner may be injured or hurt that cannot reasonably be regarded as domestic violence in a following section. The use of force and violence against a woman may also be justified, or required by law, in a number of circumstances, e.g., self defense or to prevent harm to others. The use of force and violence is also essential to maintaining order in society and defending against external enemies, who may also be female.
Fontes distinguishes between violence, abuse, and sexual assaults as follows:
"The definition for domestic violence covers only that form of abuse which is non-sexual yet physical in nature. It is an act carried out with the intention, or perceived intention, of causing physical pain or injury to one's spouse or domestic partner. The definition of domestic abuse includes physical assault but can also include verbal, emotional, psychological, financial, and other forms of non-physical abuse. The definition of sexual assault addresses issues of rape, sexual acts against another's will, and assaults of a sexual nature such as sexual mutilation or injury to sexual organs in either males or females."
Gelles (1997, p. 14 ) defines violence among intimates as: "an act carried out with the intention or perceived intention of causing physical pain or injury to another person."
Accidents, play, sleep disorders, nightmares (often a problem with combat veterans), and self-inflicted injuries, deliberately self injuries, all fall outside the definition of violence.
Force and violence are also commonly used for the discipline of children. So long as the force and violence are controlled and disciplined, such usage is generally accepted by society. Gelles (1997, p. 14 ) refers to such violence as 'normal' as distinguished from abusive.
Normal violence in a family environment encompasses the commonplace slaps, pushes, shoves, and spankings that are usually considered an acceptable part of raising children or interacting with a spouse. For example, few people would consider a wife slapping her husband as domestic violence. Nor should the reverse generally be cause for police action. The most common form of "domestic violence" occurs between siblings and only very rarely is that taken to be anything but normal.
Further, normal couples play with one another, and such play can be quite rough.
Research is tending to show that kids roughhousing with Dad may be an essential component of normal development.
Lovemaking can also involve such things as scratching, spanking, hitting, or biting during heights of passion. Injuries such as bites, scratches, and bruises inflicted during extremes of passion are thus normal violence as well. Also, about 10-15% of couples engage in some mutually-acceptable level of S&M and that too falls within 'normal' levels of violence. Couples who engage in games of bondage and domination probably fall within this range as well.
In many cases the use of violence may be justified by circumstances. Between normal and abusive violence lies those areas where violence against one's partner may be justified. Such acts would include self-defense, e.g., alcohol might cause loss of control in either partner; to prevent harm to others, e.g., the children; and to prevent harm to one's partner, e.g., they may be delusional and attempting to jump out of a window.
Gelles (1997, p. 15 ) defines abusive violence as: "...acts that have a high potential for injuring the person being hit. Included in this definition are punches, kicks, bites, chokings, beatings, shootings, stabbings, or attempted shootings or stabbings."
In his book on abused men, Phillip Cook (p. 2) provides similar definitions of domestic violence and abuse as given below:
Violence: An act carried out with the intention, or perceived intention, of causing physical injury or pain to another person.
Minor violent acts: To throw something at another; to push, grab, shove, slap, or spank.
Severe violent acts: To kick, bite, or hit with a fist; burn or scald; to hit or try to hit with an object; to beat up the other; to threaten with a knife, gun, or other deadly weapon; to use a knife, gun, or other deadly weapon.
Abuse: Physical abuse or threat of physical abuse; using violence or carrying out violent acts.
The definitions above are in accord with those used by Straus and others in their studies, as well as those presented in the Reverends Sewell's report on family violence.
When we talk about abuse or violence, we use these definitions. It is our contention that criminal penalties should only be attached to severe violent acts.
If any semblance of due process is to be maintained we must also consider intent, or "mens rea," that focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness, or willful blindness.
"Mens rea" comes from the Latin phrase; "Actus non facit reum nisi mens sit rea," translated "An act does not make a man guilty unless his mind be also guilty." Mens rea roughly translates to "guilty mind."
According to Wikipedia, with due process, some level of "mens rea" is almost always a required element of the crime with which the defendant is charged, and must be proven by the prosecution, the exception being strict liability crimes or torts. Most civil law claims also incorporate some level of "mens rea" as a required element.
An illustration of "mens rea" would be the difference between hurting someone voluntarily and accidentally; in the first case, the "mens rea," the intention to hurt, is present but not in the second one.
The four levels of "mens rea" set forth in the Model Penal Code are:
(1) Purposely Express purpose to commit a specific crime against a particular person.
(2) Knowingly Knowledge that one's actions would certainly result in a crime against someone, but did not specifically intend to commit that crime against the particular victim which one is accused of injuring. This also covers the concept of willful blindness. Willful blindness is where a person knows that something is very probable, but avoids investigating to gain that knowledge.
(3) Recklessly Knowledge that one's actions had an unjustifiable risk of leading to a certain result, but did not care about that risk ("reckless disregard"), and acted anyway. It should be noted that under the MPC, barring contradictory statutory language, recklessness is the minimum mens rea that will lead to criminal liability. This covers the "depraved heart" state of mens rea, which is an extreme disregard for human life. Examples include playing Russian Roulette, street racing, and other highly dangerous activities.
(4) Negligently Did not intend to cause the result that happened, but failed to exercise a reasonable duty of care to prevent that result (which includes failing to become aware of the risk of that result.) The above is the tort standard of negligence. In general this is not enough for criminal liability. Criminal negligence is a "gross deviation" from the standards of normal conduct and includes a substantial and unjustifiable risk. For example, one might be negligent for failing to put up a fence to keep children away from your pool. This will not lead to criminal charges. Criminal negligence might include keeping a vicious dog tied to a tree with twine.
A fifth uncodified level exists in practice if not in the idealized Model Penal Code.
(5) Strict liability Strict liability is usually for "public welfare" offenses, like parking tickets, environmental regulations, and other such things. It is where the mental state of the defendant bears no relevance to the prosecution of the crime; the act itself is enough for conviction. Strict liability is rather rare in criminal law, but it does happen. For instance, statutory rape is a strict liability crime. Even if the defendant believed the girl to be over the age of consent, he is still guilty of statutory rape. As with all statements of the law, there are some jurisdictions that modify or ignore this rule. They are a minority. In most jurisdictions you are strictly liable for the age of the girl, even if she lied about it. The same is true for other forms of child molestation.
Note that the definition of abuse above does not include emotional abuse: the denigration, humiliation, lies, slander, and degradation generally conceded to be the most common form of abuse used by women. But men are by no means adverse to using emotional abuse as well. Domestic abuse seems to always include emotional abuse and may, or may not, include physical abuse.
Both men and women describe the continual denigration and degradation of emotional abuse as having the most lasting effects after the relationship or abuse have stopped.
Continued emotional abuse may escalate to include physical abuse.
However, we see no reasonable way to either define or control emotional abuse without introducing the concept of thought control. Of course, with the concept of "politically correct," feminists have attempted that process to the horror of most rational humans. In today's radical feminist dogma and ideologically-inspired laws, emotional abuse is at the level of: "I think, therefore I am abused."
We most certainly do not want to have the power of thought control within the State. The cure is worse than the disease.
If emotional and physical abuse of an unresisting intimate partner are combined and continue over time it is regarded as "battering."
The term "batterer" is commonly misused in domestic violence debates. Battering does not refer to a single argument, nor does it mean the occasional conflicts that many couples have that may grow to yelling at each other and some pushing or shoving.
Rather, battering involves beating and verbally abusing an intimate partner over a long period of time (Levy, 1984, p. 23). Dutton (2006, p. 188) would limit the use of the term "batterer" to someone who repeatedly struck or kicked a person who was not resisting.
The level of violence may increase with time in a battering relationship. Emotional abuse and personal degradation of the abused partner may also increase. Usually, however, either the violence and abuse deescalates or the "victim" leaves the relationship and that typically occurs without intercession by the legal system.
Battering in a relationship may continue for years and is aimed at controlling one's partner or children through the use of terror, confusion, and disabling the target's ability to think and reason for themselves.
It is generally accepted that actual battering is much less common than isolated episodes of severe violence in both men and women but reliable estimates are not available to our knowledge.
About 50% of intimate partner violence follows a pattern of mutual violence. Couples who routinely engage in mutual combat cannot be classified as "batterers" so these cases must be excluded.
It is thus very difficult to get an accurate picture of how common battering, as defined above, really is. Certainly it is no more than a few percent of current domestic violence cases and no more than 5% at the most. Battered men, and women, also appear the least likely to report their problems to authorities or to seek help.
Where children are involved they are commonly scarred for life by the experience. There is evidence that in some cases (~30%) they may in turn batter their intimate partners and children.
Some battering victims, whether men or women, describe a recognizable cycle of violence in which (a) tension with their partner perceptibly builds, (b) their partner then violently explodes both physically and verbally, (c) followed by a period of loving reconciliation in which the abusive partner is extremely attentive, loving, and kind. Such cycles may be repeated many times with a discernible periodicity and apparently exist in both heterosexual and homosexual couples.
A kindly Dr. Jekyll to a terrifying Mr(s). Hyde personality transformation may also become evident to a partner unfortunate enough to be involved with a batterer.
With an abusive woman a man might associate the tension-building period with PMS or other times of a woman's monthly cycle. We know of no scientific evidence at present to support such a relationship, however. One reason for that lack is that all present funding goes toward studying violence against women.
Other factors in dangerous violence by males and females are physical or mental illness. (Dutton, 1995, p. 140-155, Gelles, 1997, p. 80) find that borderline personality disorder (BPD), which is marked by a proclivity for intense relationships, fear of abandonment, and proneness to rage, to be strongly associated with male battering of women. While we know of no studies making such an association with violent women, 75% of the diagnosed cases of BPD are females, and it is estimated that 2% of the population suffer from BPD.
Those who escape life with a batterer commonly suffer some form of post-traumatic stress such as alcoholism, eating disorders, irresponsible sex as a form of escape, or other erratic behavior.
In examining the demographics of restraining orders in Colorado we can find no evidence that domestic violence and abuse are primarily associated with married couples.
John Maguire has pointed out that:
"Although the words 'domestic' violence are commonly used, some commentators say that a better description would be 'shack-up' violence, because violence is most common, especially where children are involved where the woman is living with a boy friend. In a piece in the Weekly Standard last December by John A. Barnes, he cited four studies which show 'that the incidence of abuse was an astounding 33 times higher in homes where the mother was cohabiting with an unrelated boyfriend than in a stable nuclear family.'"
Thus, it appears that feminist theory applies mainly to "shack-up" violence but the laws have been applied universally to the detriment and destruction of families.
From our perspective, the destruction of marriage and families is a basic objective of radical feminists. Thus, the domestic abuse laws enacted in conformance with feminist ideology act to undermine and destroy our society.
In examining the influences of race, ethnicity, gender, and place, Lauritsen and White (2001, p. 53) state that: "...the proportion of households with children that are female-headed was the strongest and most consistent community predictor of risk for all forms of violence." Thus, to reduce family violence, a main effort must be to reduce the percentage of single mothers in society.
In a subsequent section we examine when it is not domestic violence. Erin Pizzey states that:
"...it is essential to understand the differentiation between our use of the words battered and violence-prone. For us, a battered person is the innocent victim of another person's violence; a violence-prone person is the victim of their own addiction to violence."
In her book, The Emotional Terrorist and the Violence Prone, Ms. Pizzey (1998, p.47-48) points out:
"...that the difference between a non-violent woman and a violent woman is that a non-violent woman can get into a relationship with a man who is violent, and love the man but hate his violence. A violence-prone woman will look for a violent man with whom she will hate the man but cling to his violence."
A non-violent, and even a violence-prone woman may need to call the police because there is a real need for intervention. However, there are many other reasons a woman may report a male.
The following reasons apply particularly, but not exclusively, to violence-prone women:
1. Women are encouraged to report male abuse by countless media reminders. Propaganda always includes the female victim and the male perpetrator. Conversely, men are discouraged from claiming to be victims of violent women, and the male is commonly arrested if he does report an assault by a female.
2. Some women call police because they are frightened by a minor incident. Or perhaps she thought calling the police was a 'trump card' in an argument. These women often do not realize that with one phone call they have invited the government and feminism into their home and that it will take years, if ever, before the damage can be contained.
3. Some women make false reports because there are legal, financial, and child custody rewards for making a such reports, and there are no penalties for such lies.
Under current laws you are guilty of domestic violence for any major or minor act that your intimate female partner or acquaintance charges you with.
John D. MacDonald has pointed out that:
"Direct public suspicion at any honest man, back it up with a distortion of facts, spread new slanders, and not only will there be a quick willingness to believe, but the man himself, made aware of all this, will give all the responses of guilt as he tries to persuade all of his innocence. The blush of outrage is no different in tint than the blush of shame."
About one-half the men we encounter who have become ensnared in false allegations and the court-assisted vengeance and vindictiveness of a former intimate partner become so incoherent with rage that they appear to justify the laws they are trapped with. In such cases current laws are more likely to incite violence than deter it. In fact, Dugan and others (2000) found that:
"...Increases in the willingness of prosecutors' offices to take cases of protection order violation were associated with increases in the homicide of white married intimates, black unmarried intimates, and white unmarried females..."
It would seem more reasonable to limit charges of domestic violence to severe violent acts while safeguarding the civil liberties of all parties. Couples often push each other when quarreling, for example. However, the courts aren't large enough to handle every such case. Nor, in most cases, should the State concern itself with family quarrels unless we want to destroy the family institution, and our society, entirely.
The present laws, generated by feminist doctrine, have as their avowed purpose permanently separating the man and woman no matter what the circumstances, and no matter how fervently the women wish otherwise. These laws are based on the unsubstantiated theory that 'wife battering' is an inherent part of, and is required to maintain the patriarchy.
Hand in hand with this agenda are feminist backed 'must arrest' C.R.S. § 18-6-803.6 and similar legal policies which exist in hundreds of jurisdictions, including Colorado. These laws require police to arrest one partner almost always the man when called to a domestic dispute. Even when things have completely cooled down, there was no hitting, and the woman doesn't want the man arrested.
'No-drop' (C.R.S. § 18-6-801) laws do not allow a woman to drop abuse charges once they're filed by the police, even if her motive was anger, not fear, and she admits she was lying to the police. That is a result of radical feminist dogma that it is always the male who batters and that the battering follows a predictable cycle of violence in which (a) tension with their partner perceptibly builds, (b) their partner then violently explodes both physically and verbally, (c) followed by a period of loving reconciliation in which the abusive partner is extremely attentive, loving, and kind. However, battering is only apparent in 3% to 5% of domestic violence cases.
In Colorado, based on an unsupported allegation and without a hearing, it is mandatory (C.R.S. § 18-1-1001) for judges to issue a restraining order separating the parties in all domestic violence cases.
Such practices treat women like children, and ensure that if couples stay together and most in fact do at least in the near term nothing really changes, though the woman might mistakenly and dangerously be led to believe it has.
Several respected studies suggest that current legal practices can escalate spousal violence in some men by further enraging them. A example of this occurred in Colorado Springs on August 6, 1999, when Laura Maria Gattas was shot and killed by her estranged husband, Eduardo, when she arrived for work at Memorial Hospital. In a front page story in The Gazette on November 3, 1999, Bill Hethcock stated that: "Colorado Springs police detective Todd Drennan testified in a preliminary hearing his investigation showed Gattas was angry at his wife for having him arrested in May in Toronto, where they lived." Or see the letters by Charles Hanson.
Commonsense should tell you that if you take everything a man holds dear from him, he will be dangerous. Throw him out on the street, take his children from him, convict him without a hearing, throw him in jail on unproven charges, take away the rest of his civil liberties, and few men remain meek and humble.
The failure of the current laws and treatment programs is dramatically evident in a front-page story on repeat offenders in the October 24, 1999, Denver Post. Instead, Diana Protopapa of the Colorado Coalition Against Domestic Violence is quoted in the Denver Post article as saying: "...because a large degree [sic] of women are battered over and over again, we feel we need to create and incorporate harsher deterrents." At this point it is reasonable to ask: How much harsher can you make the laws?
These "one size fits all" laws might make some sense if 'abuse' always meant serious, systematic violence. But the feminist politicization of the term 'abuse' renders it virtually meaningless.
Human relationships are complex and often not subject to rigorous mathematical analysis. Many behaviors now branded "domestic violence" by feminists are well within the range of normal human behavior. For example, couples often scratch and bite during and before sexual congress. Alex Comfort, in his widely read book The Joy of Sex, pointed out in 1972 that: "Tenderness does not exclude extremely violent games..." Such behavior is examined more extensively in a later section on When It Is Not Domestic Violence.
To date we have not found any attempt to subtract from any studies of purported abuse or violence the estimated 10-15% of couples who practice some level of sadomasochism (S&M) in their relationship.
Thus, as a starting point, we promote the use of more consistent and rational definitions, as given above, in order to fix the problem, not the blame.
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