The use of release forms at play parties is useful in several respects. However, such forms are not and should not be considered an absolute, impenetrable shield against all problems. Even the best written form cannot protect against consequences of illegal activity or of one’s willful, reckless or negligent behavior. There is significant case law that says that a person cannot consent to serious bodily injury. In such a case, a release would be ineffective. Moreover, consent can be withdrawn at any time, so a release cannot trump a subsequent decision. Even the most dedicated slave cannot give up his or her ability or absolute legal right to decide to change that status.

Even so, such a document does provide a certain modicum of protection. A person who signs a well-drafted release can be said to have knowledge the nature of the activity that he or she is agreeing to be involved in. It also can set forth the ground rules and procedures, including the procedures for the players involved to immediately cease activity. Acceptable and unacceptable activity should also be set forth in the document, as should the pertinent legal provisions. Beyond that, a document setting forth the proper protocols of a particular event can serve as a helpful guideline for participants, particularly those who are new to either the community or the venue.

While there are some general legal principles involved, the statutes, ordinances and controlling case law will vary by location. Therefore, these documents should be drafted to specifically address local conditions.

Thus, these documents serve two valuable functions. The first is informational, which can obviously help avoid or minimize problems. The second is a certain important but also limited amount of legal protection. A properly drafted document can show informed consent. Even though such consent cannot be considered absolute and may be limited by law, it still covers a significant amount of activity. For one thing, the release can and should address the person’s understanding of and willingness to undertake a certain level of risk. Even content that describes the limits of consent and the ability and means to withdraw consent provide a certain level of legal cover. It should be noted, however, that as with any document with legal significance, a release form should be reviewed by an attorney familiar with the laws in this area.
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Addendum by
Conrad
Panel Chair, managing partner in a small law firm located in Las Vegas, Nevada.

Allen has done a great job with a basic overview. I would like to add a few more observations. Now, like Allen, I would like to note that this is not legal advice and cannot be treated as such, but is simply information provided by somebody who has perhaps some experience in this area. But to receive actual legal advice you will need to go to a licensed attorney in your jurisdiction.

It is appropriate that Allen spends very little time talking about the actual direct legal effect of release forms. Releases, in so far as they purport to give up a person’s right to sue are disfavored throughout the United States. There are some jurisdictions that do not allow them at all, while other jurisdictions only allow them in certain circumstances, but nowhere are they an ironclad protection. Further, no jurisdiction allows one to give up their right to complain if they become the victim of allegedly criminal activity. Most people do not know that releases are so weak, so they do have a value because often when someone signs a release they think they are signing away rights.

Now that’s is the civil side of things; I am primarily a criminal defense attorney and it is in the area of the criminal law that I find releases and waivers to be most fascinating. If written correctly, a release can be exceedingly helpful with regard to the dissemination of information.

Releases can be written in such a way as to at least partially explain (and put a favorable light upon) activities so that courts and law enforcement personnel have a ready, written explanation provided to them at the proper time. That proper time is NOT usually at the scene of a possible criminal investigation and should be chosen carefully, with the aid of an attorney experienced in criminal defense.

Space and time concerns are such that I cannot go into this fully, but I note that releases can help define the parameters of communication of consent under which parties were playing. Please understand that I am talking about the communication of consent (or revocation of consent). It is a principle of law that no one can ever give up their right to revoke consent to an activity. One can always revoke consent at any point. However, a release form, if written properly, can establish within the form itself how someone is revoking that consent. For example, a bottom who is gagged cannot reliably remove consent through oral communication (they can’t say “red” or “stop”). What they can do is agree (and place in a release) that a scarf held in their hand (for example) can be dropped as the equivalent of a safeword. Having this written up in a release form allows not just clarity for the situation but if there are subsequent misunderstandings it allows a top who may be accused of exceeding the boundaries of consent to point to the communication mechanisms which are provided for in the release form and that they were followed.

At some point in the future we can perhaps spend some time on what sort of specific things might be useful within a party release/waiver. For now, I think our readers can see that both Allen and I believe that releases can be useful if written correctly and if not relied upon too heavily in the place of common sense.