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Tuesday, August 19, 2014

Trafficking law and BDSM

Trafficking law and BDSM

 Posted by  on July 1, 2014

CageIf you’ve been paying attention to the news, or to NCSF Media Updates, you’ve probably read about a recent case brewing in Natchitoches Parish, Louisiana, of BDSM gone horribly wrong. Horribly. At the beginning of June the first story arrived, sensationalized: Three accused of keeping transgender woman as slave in Natchitoches Parish: “According to investigators, the victim was held captive, tortured and forced to perform menial tasks and sexual acts.” Several days later another story appeared, dubious: While it may be hard to understand, Facebook pictures from the victim in the Natchitoches human trafficking and slavery as imply she didn’t hate her arrangement. She even posted a picture of her slave barcode as her profile picture…[she] had a high enough status within the BDSM community to come to parties in Shreveport.”
So which is it? A case of horrific slavery and torture? A Master/slave scenario that began consensually and crossed over into abuse? The likelihood is that we’ll never really know what happened – there will be plea bargains & state’s evidence, and jail time, but likely no trial (ala Ed Bagley). What we do know is three people, Amber Lopes, George Rodriguez, and Christina Harper, are charged with battery, kidnapping, false imprisonment…. and human trafficking. Given the alleged facts, the first three make sense. They are crimes within the police power of the state, traditionally criminalized at a state level. But human trafficking? Laws against trafficking, even as they are passed at the state level, are intended to combat “trade in people,” where people are acquired or provided through force, fraud or coercion, for the purposes of labor. These laws are designed to combat conspiracies, rather than to prosecute individual incidents. Nevertheless, this marks at least the third time (including Ed Bagley, and Glenn Marcus) where trafficking charges were brought against someone for crimes which bear certain hallmarks of BDSM relationships – and I think it’s a trend that bears some unpacking.
Trafficking laws began on an international level, to combat an international phenomenon. In 2000, the United Nations adopted a protocol against human trafficking as part of a convention against transnational organized crime. The first section of the U.S. Federal Trafficking Victims Protection Actrefers several times to the international and “growing transnational crime.” In 2003 the Federal Government incentivized states to pass their own trafficking laws – nevertheless these, too, are based on laws intended to fight the coerced movement of people transnationally for the purposes of labor. Trafficking laws were never intended to be used for consensual relationships gone horribly non-consensual, never intended to be used for individual crimes for which there is already a perfectly appropriate legal response[1]. If, as is alleged, Amber Lopes, George Rodriguez, and Christina Harper, held this woman against her will, abusing her non-consensually, that’s kidnapping, false imprisonment and aggravated battery. Already the three could be eligible for prison sentences of 50 years. The introduction of “human trafficking” into this mix weakens and warps the real definition of trafficking, and smacks of something like hysteria on the part of Louisiana Law Enforcement.
Furthermore: using sex trafficking laws to prosecute activity that mirrors BDSM behavior – and in particular M/s behavior – is a dangerous precedent. The crime of trafficking requires “force, fraud or coercion” – in other words, the crime of trafficking negates the possibility of consent (it is a contradiction – at least in the law’s mind’s eye – for someone to consent to being forced to do something). Indeed, the legal definition of trafficking from the international protocol linked above (to which most laws against human trafficking are traceable) explicitly negates the possibility of consent:
(a) “Trafficking in persons” shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means of the
threat or use of force or other forms of coercion, of abduction, of fraud, of
deception…………

(b) The consent of a victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this article shall be
irrelevant where any of the means set forth in subparagraph (a) have been
used;
In other words, The law has always had difficulty fitting it’s theoretical little mind around the concept of “consensual non-consent.” For example, we can imagine an entirely consensual scene where someone is punished for inadequate service, and made to ‘try again’ under threat of even harsher punishment. We can imagine a situation – again consensual – where someone is tied to a task or person until that task or person is completely satisfied. Alas the law cannot imagine such things; to the law, these things are coerced labor or labor under threat of force, for which consent is not a possible defense. We spend a good deal of time talking about how consent ought to count as a defense to assault. Should it also count, then, as a defense to trafficking?
[1] In a similar vein, the U.S. Supreme Court just decided a case, Bond v. United States (discussionhere) where it said that the chemical weapons treaty, although incorporated into federal law, could not be used against a woman for spreading ill-intentioned chemicals on doorknobs and other surfaces likely to be handled by her husband’s illicit lover (& her former best friend).   In that case, the court wrote that “the law should not be read to ‘convert an astonishing amount’ of local criminal conduct into matters for federal law enforcement.”
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About the Author

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Brian has worked as a librarian for almost 20 years, which is why when he walks into bookstores customers immediately ask him for assistance. He specializes in researching law, sex, and wehre the two meet. He has taught classes in topics as diverse as legal research, and strap-on sex, and has written on topics equally diverse. For years he has done it for himself, now he does it for a few close friends. One day he'll do it for money.

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