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Tuesday, August 19, 2014

IS THIS LEGAL? Federal Law ,BDSM, and You.

Federal Law and BDSM

 Posted by  on October 11, 2011

By Brian Flaherty
Over the past few decades, the number of federal criminal laws has grown dramatically. Crimes which used to be prosecuted in the states have been adopted – co-opted – by the federal code. For example, in 1994 the U.S. Congress passed the Violence against Women Act, among other things federalizing laws against domestic violence. In part the justification for passing VAWA was the perception that states were not doing enough to fight domestic violence. However, this kind of federalization of a crime which is by common law dealt with in the states is constitutionally questionable. Or to put this another way: we have local police, and we have state police. We don’t have a federal police department which should be on call to respond to domestic violence in violation of the Violence Against Women Act.
How does this play out in the world of kink and the law? Well, to begin with, the “laws against BDSM” which you’ve read so darned much about over the years – especially if you subscribe to the often.. er.. contentious (read: rife with bullying) Kink and the Law group on Fetlife – are in fact the state assault laws. The legal fact is that in many, if not most jurisdictions, you cannot legally consent to assault in the context of BDSM (or in the context of anything else that isn’t a sport). There is right now not a single legal opinion that holds that you can consent to physical assault – slapping, whipping, cutting, piercing, etc. etc. – in the context of BDSM; there are several that say you cannot. However, the practical fact is that prosecutions for consensual BDSM are extremely rare. Just to one side of non-existent, actually. So if state “laws against BDSM” are ineffective and unenforced, is there a move to federalize prosecution of BDSM? To consider this properly, you need to know about the case of United States v. Glenn Marcus.
The facts, briefly summarized *here
The sex trafficking statute, 18 USC 1591, reads in significant part: “Whoever knowingly … in or affecting interstate or foreign commerce … recruits, entices, harbors, transports, provides, or obtains by any means a person … knowing that force, fraud, or coercion … will be used to cause the person to engage in a commercial sex act [shall be guilty of a crime].” It is a law that was passed to combat the very real problem of international sex trafficking – to quote from the debates, it was passed to address the problem of women and children “forced against their will into the sex trade, transported across international borders, and left defenseless in a foreign country.” It was not passed to address issues borne of a BDSM relationship gone horribly wrong. Don’t get me wrong: I believe that as soon as the relationship between Mr. Marcus and Jodi became non-consensual, many awful crimes were committed, for which Marcus should be held criminally responsible: assault, sexual assault and false imprisonment to name a few. And certainly according to the facts and the letter of the law, Mr. Marcus could be (and was) found guilty of the federal crime of Sex Trafficking. But to allow the federal prosecution of what amounts to violations of state law sets a dangerous precedent – in criminal law generally, and in sex law especially.
The problem with the federalization of criminal law in this context is that federal criminal law is a political football. Candidates want to be seen as “tough on crime,” and so support broader and broader federal crimes, with stiffer and stiffer penalties. So the punishment for conduct in violation of a federal criminal statute can be up to 10 times the punishment for the same conduct if prosecuted under state law. Furthermore, no matter how much more tolerant of sexual identity they may try to appear, politicians – democrats and republicans alike – are increasingly conservative when it comes to punishing sexual behavior.
 Posted by  on August 2, 2012

I presented a class on BDSM, Sex, and the Law: Consent and Beyond at the New England Dungeon Society last Friday, subtitle: “when things go horribly wrong.”   Because the truth is, “The Law” doesn’t get involved unless things do go horribly wrong.  In fact, some might say that getting “The Law” involved is the very definition of things going horribly wrong.  Nevertheless, I had the pleasure of doing this presentation, and it gave me a chance to think a lot about where the criminal law and BDSM intersect, how that intersection has changed over the years, and where we’re headed.  Note: I am not covering every relevant case here – for those interested in a comprehensive listing of state appellate decisions, check out the consent counts resources site at NCSF.
Looking at the cases and the law, it appears that over time, courts have become more willing to accept consent as a defense to assault in the context of a BDSM relationship.  The first important case here is from 1967, People v. Samuels.  This case is notable because it is the only case with no complaining witness – no “victim.”    Every other case here is based on a relationship gone horribly wrong; the prosecution was based entirely on a film.  In that case, the court wrote that it was a matter of “common knowledge” that nobody in “full possession of his mental faculties” would consent to such assault.  Nevertheless, the court continued, even if there was consent, Samuels would still be guilty of aggravated assault.  Again in 1980, the Massachusetts case of Commonwealth v. Appleby, the court wrote “Private consensual sadomasochistic behavior was not a defense to the charge of assault and battery.”
Fast forward to 1985, the Iowa cases of State v. Collier – another case where the court considers consent as a possible defense to BDSM.  This case is interesting because Iowa actually has a law that provides for consent as a defense to assault, so long as the assault is in the context of a “sport, social or other activity not in itself criminal,” for example.. boxing, or football.  Alas, the court didn’t see BDSM as a sport, a social, or even an other activity.  The court wrote: “it is simply preposterous to advocate…that the Iowa legislature even remotely intended that the sadomasochistic activity evidenced in this case was a “social or other activity” within the meaning of the statute.  Not good for our side – but I would call attention to “social or other activity” language.  I believe that as BDSM becomes a recognized “social or other activity,” the courts will be more likely to find consent as a defense. Moving on…
In 1999, the case of New York case of People v. Jovanovic is interesting with regard to consent to assault.  There was extensive email negotiation between Oliver Jovanovic and Jamie Rzucek.  They met, had a rather intense scene, & afterwards she went to the police claiming that it was assault (remember the part about relationships gone horribly wrong?).  At trial, the court excluded the email negotiation from evidence, saying that it should be kept out by New York’s rape shield law.  Oliver Jovanovic was convicted of sexual assault, assault, and kidnapping, and given a 15 year sentence.  The appeals court, however, said that the Emails should be allowed as a defense to sexual assault (where consent IS a defense) and Kidnapping (where consent is ALSO a defense), and so threw out those convictions.  The court also threw out the conviction for assault  suggesting that consent might have been a defense for that as well.  They wrote in a footnote that consent was still not a viable defense – despite the fact that they just allowed it.  Weird, huh?
One more state case – the 2009 Rhode Island case of State v. Gaspar: It begins the way many of these cases begin: Boy meets girl on internet, boy and girl connect & have intense scene, relationship goes wrong, boy is charged with assault.  But in this case, in instructing the jury, the judge writes that the case “ultimately presented only one question… did the events of the night in question constitute a mutually consensual sexual encounter between two adults, or a brutal sexual assault?”  While the judge writes about consent to sexual assault, he’s clearly talking about the BDSM scene as a whole.  And so in this case, the way I read it, consent could have been allowed as a defense to BDSM.  Alas, the case was decided on technical points, and so the court never really held that consent was or was not a defense.
As I was looking at these cases & preparing a presentation, there seemed to be a trajectory – that through the years, the courts have grown more willing to accept consent as a defense to assault in the context of BDSM.  In 1967, consent to assault was evidence of someone “not in full possession of his mental faculties.”  In 1985, it was “preposterous; in 2009 it seems as though the court was ready to accept this.  At the same time, BDSM itself seems to have gained a certain amount of public acceptability (evidence of this is easy to find, from the exponential growth of fairs and fleas, to the local bestseller lists).    I would argue that as the things we do become more culturally acknowledged, as we are considered in full possession of our mental faculties, as we are removed from the DSM-V, BDSM begins to be seen as a “social or other activity,” consent becomes more available as a defense.
This, for me, is something of an evolution.  At one point, I might have advocated for a specific defense for consensual assault in the context of BDSM.  However, in relationships and scenes that do not go horribly wrong, it is exceedingly rare that someone is charged with assault.   On the other hand, assault is all-too-common in relationships gone wrong: Domestic Violence.  In situations of domestic violence, it is also common for the complaining witness, the victim, to recant their story out of fear of future abuse.  If there was an explicit defense to assault between consenting adults in a relationship, it would be too easy for an abuser to claim that the assault, the violence, was consensual – especially where a victim recants their testimony.  As I said, I believe the answer is in a cultural recognition of BDSM relationships as a perfectly healthy relationships, and “assault” within such relationships as “sport, social, or other activity.”
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The law: unenforced, and (un)civil.

 Posted by  on January 1, 2011
 
By Brian Flaherty
Unless you’ve been asleep for the past month, you’ve noticed that the military’s ludicrous “don’t ask, don’t tell” policy has finally been repealed. This repeal has been the topic of many a heated discussion lately – though the heat hasn’t been what you’d anticipate if you have spend any time listening to John McCain. Most lawyer/military folk I’ve talked to are supremely irritated that we’ve wasted so much time on this; consensus is that the government should just do the right thing and move on. However, a fair number have echoed the sentiments of a friend, ex-(insert branch of service here), who said “what drives me crazy is that the law is so uneven. I know there have been people kicked out of the service for disclosing – I get that, and it sucks. But when I was in, there were a bunch of people who were gay, and everybody knew it, and everybody was OK with it – it wasn’t this huge problem it’s made to be.”
After I got over my initial shock that the written law is not always the enforced law, I thought a bit about what the law says vs. what is actually considered illegal. For entertainment, I sometimes recite chapter and verse the unenforced laws in Massachusetts (did you know that anyone convicted of Blasphemy in the Massachusetts can be legally “bound to good behavior?” Delicious, isn’t it!). But this is a parlor game. Unenforced criminal laws can create real problems for people outside of the criminal justice system. For example, for many years (before Lawrence v. Texas), “unenforced” sodomy laws were cited as one of the main legal reasons for prohibiting gay parenting. The most infamous recent case of this was the custody battle of Sharon Bottoms, a lesbian mom in Virginia. In that case, the court awarded custody of Sharon Bottoms’ child to the grandmother; the court wrote: “Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth, Code § 18.2-361 [Virginia’s sodomy law]; thus, that conduct is another important consideration in determining custody.” Bottoms v. Bottoms, 457 S.E.2d 102 at 108. This despite the fact that the sodomy law in Virginia hadn’t been used since 1923. Worse still, in Pennsylvania a court once determined that although at the time Pennsylvania had abolished their sodomy laws, a lesbian mother should be denied custody of her child because, even though Pennsylvania had repealed its sodomy law, she might be arrested if she ever traveled to a state that did have a sodomy law on the books.
Gratefully, sodomy laws are a thing of the past. But there are still criminal laws that, while unenforced as criminal laws, rear their ugly heads in other contexts. Among them are what the prone-to-panic refer to as the “Law against BDSM” – the public policy based law that consent is no defense to assault, even in the context of a BDSM relationship. Now whenever you talk about consent, law, and BDSM, people divide themselves into two camps: those who insist that the mantra: “consent is no defense to assault” is an urban myth, and those who believe there’s a great legal roundup of moral impurity afoot and that our community is next. Neither is true: regarding the first, the Supreme Judicial Court of Massachusetts just decided a case on December 14, 2010 where they held that “Where a defendant’s touching is physically harmful, the victim’s consent is immaterial, for purposes of determining whether defendant has committed intentional assault and battery” 458 Mass 526 at 529 Regarding the second, well, if there was such a legal push to incarcerate the kinky, we would never be able to organize fairs, flea markets and festivals around consensual flogging. The truth tends to be more nuanced than what you read on the internet.
While criminal prosecutions for consensual BDSM are rare, many of the things we do – the “touching [that] is physically harmful” – constitute criminal assault. Nevertheless, few if any of us have ever done time for consensual assault. But while these laws may be unenforced as criminal laws, they can still be used in a civil context. As happened with sodomy laws in the past, a devious family court judge might use these “unenforced” laws as a means to deny custody or visitation to a kinky parent. They might be used to try to justify employment or housing discrimination. These things happen to people we know and love: check out NCSF’s survey of violence and discrimination of sexual minorities; read the survey analysis and the victims’ stories. Do you think that such things would happen as readily if there were no legal basis for believing that sadomasochistic sex was illegal?
So you look around and count the number of people you know who could be convicted of assault for spanking, flogging, bondage, some kind of play that could be “physically harmful” – I suspect it’s a good number – and then you count the ones who have been convicted of assault for consensual BDSM – I suspect it’s zero. And you conclude that although assault laws could be used against your community, it never ever happens; they are unenforced, and so they don’t matter. Think again. Unused criminal laws rear their ugly heads in unexpected places where they are used to justify discrimination and worse. (check out Undead Laws: The Use of Historically Unenforced Criminal Statutes in Non-Criminal Litigations. “But those laws are never used” was no excuse to stop fighting sodomy laws, and it’s no excuse to stop fighting laws that criminalize consensual BDSM.