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AEC v1.0.4

BDSM and the Law


BDSM AND THE LAW

 

The Red Chair Lecture Series

March 7, 2012

All information provided in here is done so for educational purposes. It is general information of necessarily broad scope. The information in this outline is not intended to address a specific legal situation and may or may not be applicable. If you have any questions about a situation in which you find yourself, you may not rely on the statements or information contained in this outline, and you are highly advised to seek professional legal assistance.

While every attempt has been made to ensure that the information contained in this outline is accurate and has been obtained from reliable sources, The Red Chair and its officers, leadership team, members and attorneys are not responsible for any  errors  or  omissions,  or  for  the results  obtained  from  the use  of  this information. All information in this outline is provided “as is,” with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not  limited  to  warrantys  of  performance,  merchantability  and  fitness  for  a particular purpose. In no event will The Red Chair, its officers, leadership team, members or attorneys be liable to you or anyone else for any decision made or action taken in reliance on the information in this outline or for any consequential, special or similar damages, even if advised of the possibility of such damages.

No representation is made that the quality of legal services to be performed is greater than the quality of legal representation from other lawyers.

  1. INTRO TO THE LEGAL FRAMEWORK OF BDSM
  1. Mostly talking about state laws & local ordinances
  2. Federal laws generally do not have much impact.

“I regret to say that we of the FBI are powerless to act in cases of oral-genital intimacy, unless it has in some way obstructed interstate commerce” – J. Edgar Hoover

  1. BDSM & THE CRIMINAL LAW
  1. When does BDSM play constitute assault?
  1. Assault: any touching with intent to injure, insult or provoke.
  2. Use of weapon can turn simple assault into aggravated assault.
  3. Alabama statutes on assault:
  1. Misdemeanor  assault  (up  to  1  yr.): Intent  to  injure  or recklessness + physical injury. Ala. Code §13A-6-22.
  2. Felony assault(13A-6-21). Intent to injury or recklessness + “serious bodily injury” Ala. Code §13A-6-22.
  1. What is “serious bodily injury”? This is often the question.
  2. Often defined as injury that creates substantial  risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of body part or organ.
  3. This should preclude short-term, non-life-threatening injury, but courts tend to inflate the risk &harmfulness of disfavored activities, so injuries caused during BDSM have consistently been classified as “serious.”
  4. Justice Rehnquist’s opinion in Barnes v. Glen Theater (1991) typifies this attitude: “Our society prohibits, and all human societies have prohibited, certain activities not because they harm  others but  because  they are  considered,  in  the traditional phrase, "contra bonos mores," i. e., immoral. In American  society,  such  prohibitions  have  included,  for example,  sadomasochism,  cockfighting, bestiality,  suicide, drug use, prostitution, and sodomy.”
  5. Examples
  1. State v. Collier (Iowa 1985): injuries were swollen lip, large welts on ankles, wrists, hips, buttocks, & severe bruises  on  thighs. Result:  conviction  of  assault resulting in serious injury.
  2. State v. Guinn (Wash. 2001): D convicted of inflicting “serious physical injury” during sex. Injuries: candle wax was “hot and it stung” and nipple clamps were “tight and cutting.” No  evidence victim required any medical attention or suffered wounds of any sort.
  1. BDSM constitutes a felony assault pretty much any time there is injury sufficient to cause the victim to complain to the police about it.

  1. Consent as a Defense to Sadomasochism
  1. Consent will NOT be available as a defense when
  1. Victim lacks capacity to consent
  1. Age
  2. Mental capacity
  3. Sufficiently impaired by drugs or alcohol
  4. If by fraud or misrepresentation
  1. What about cases of true consent, voluntarily given by someone with capacity to give consent?
  1. Before 17th century consent was viewed as a complete ban on prosecution. Volenti non fit injuria: "a person is not wronged by that to which he consents.”
  2. Law changed in the 17th century as result of monopolization by the State of punishment and legitimate use of force.
  1. “According to the current rule of consent, a person may not agree to physical injury.  In practically every single case involving consensual sadomasochistic beating, the defendant was convicted of assault.” 28 Pace Law Review 686 (2008)
  1. Cases before 2003:
  1. People  v.  Samuels  (1967):  often  cited  as  first  American case refusing to extend defense of consent to  BDSM. California gay doctor convicted of aggravated assault after photo lab turned over his home film.
  2. Commonwealth  v.  Appleby  (1980):  consent is  no defense to BDSM even when for explicit purpose of sexual gratification.
  3. Regina  v.  Brown  (Eng. H.L.  1993)  (“The  Spanner Case”): famous sting of BDSM club in England. Video of  genitalia  maltreatment,  ritualistic  beatings  with bare  hands,  stinging  nettles,  spiked  belts,  & cat-o'-nine-tails; branding; bleeding; scarring. Safe words were used and obeyed, and activities were in a highly controlled private setting. Defendants pleaded guilty, sentenced 3 to 18 months, and argued consent. Conviction affirmed.
  1. Lawrence v. Texas (2003): US Supreme Court struck down Texas criminal statute prohibiting consensual gay sodomy. Law gives substantial protection to adults in private matters of sex; government shouldn’t invade personal relationship "absent injury to a person or abuse of an institution the law protects." Lawrence is important here because it raised the question: might BDSM – also a private matter of sex – be protected as well?
  2. Despite Lawrence, cases mostly continue to indicate consent would be rejected as a defense:
  1. “…Lawrence has not ushered relationships involving bondage, dominance, and sadomasochism (BDSM) and other voluntary but forcible sex play into the ‘zone of dignity.’” 12th Annual Review  of  Gender  and Sexuality Law: Constitutional Law Chapter: Sexual Privacy after Lawrence V. Texas,” THE GEORGETOWN JOURNAL OF GENDER AND THE LAW, 12 Geo. J. Gender & L. 333 (2011).
  2. State v. Van, 688 N.W.2d 600 (Neb. 2004). Affirmed conviction of defendant for assault and kidnaping. Facts:  dominant & submissive agreed to extreme physical/mental abuse "without limits, to have no safe words, and to be permanent.” Submissive testified he expected to be tortured, humiliated & eventually die at dominant’s hands; when he changed his mind, dominant tortured him more harshly. Court rejected dominant’s defense of consent, holding Lawrence does  not  “even  remotely  suggest  nonconsensual sexual conduct is constitutionally protected or that consent, once given, can never be withdrawn.”
  3. No Alabama cases on consent in the context of BDSM.
  4. People v. Jovanovic, 95 N.Y.2d 846 (2000), or the “Cybersex Torture Case.” First US appellate decision to hold (in effect) one does not commit assault if victim consents.
  1. Male grad student at Columbia sentenced 15 to life for kidnapping, assaulting & sexually abusing female Barnard College student. Defendant did not testify. Testimony of victim established that they met online, frequently e-mailed regarding mutual interest in BDSM. Victim admitted S&M with another man and described intimate detail of her S&M fantasies, including being tortured.  She wrote:  "He was a sadomasochist and now I'm his slave and its (sic) painful, but the fun of telling my friends 'hey I'm a sadomasochist' more than outweighs the torment,” and that she was a “pushy bottom.” Top tied her and poured hot candle wax on her, restrained her breathing, penetrated her anally.
  2. At trial, defendant asserted consensual S&M. Court refused to admit emails. Defendant was convicted.
  3. Appellate court held emails relevant to victim’s state of mind as to consent and D’s state of mind as to reasonableness of consent. Implied that consent was available as defense to act of assault.
  1. The Future?
  1. As BDSM “goes main stream,” courts will be presented with more and more questions of BDSM and assault.
  1. Pure BDSM cases do get hauled into court. Example “Paddleboro” (2001): police in Attleboro MA raided private party & arrested host & guest who paddled another woman with large wooden kitchen spoon, allegedly causing bruising & bleeding. Charges ultimately dropped.
  2. But vast majority of cases involve genuine abuse. “In the  vast  majority  of  cases  that  make  it  into  the criminal justice  system, consent is questionable at best.”
  1. Summary:
  1. BDSM widespread and increasingly culturally acceptable.
  2. Prosecution for true BDSM likely to be rare; Paddleboro is an outlier.  As a practical matter, very difficult to prosecute where participants have played by the rules and no one wants to press charges.
  1. BUT: prosecution will likely happen if someone gets seriously injured during BDSM.
  1. In Alabama, it is foolish to rely on consent as a shield.
  1. Ala. Code § 13A-2-7 states consent is available only if the bodily harm is “not serious.” So Alabama BDSM comes  with  a  Catch-22:  consent is  available as a defense if it is not needed (i.e.,when the injury is “not serious”),  but  if  it  is  needed  (i.e., is “serious”), it is not available.
  2. §  13A-2-7  would likely  prevent  Alabama  from following Jovanovic, which is  a  New  York,  not an Alabama, case.
  1. Best advice:
  1. Top and bottom should stay on the same page with crystal clear communication, negotiationand consent.
  2. Review your play practices
  1. Know your partners.
  2. Know your capabilities and limitations.
  3. It  is  almost certainly  safer to play  in  a structured, monitored environment.
  4. Safe words should be observed scrupulously
  5. Drink/do drugs at your own risk.
  6. Adhere to SSC rather than RACK.
  7. These are things conscientious BDSM folk do anyway.  Many date-rape issues could be avoided if the vanilla world adopted the standards the kinky world follows in negotiations and refrained from excessive use of drugs/alcohol.

  1. Other Potential Criminal Charges
  1. Sexual assault, if sex is involved; Class B felony (2 to 20 yrs.)
  2. Kidnapping if bondage is involved; Class A felony (10 yrs. to life.)
  3. Indecent or lewd conduct in exposing parts of the body. Class C misdemeanor in Alabama. Be careful with "public" scenes; if activity done privately, or in a semi-public space where participants have been warned and consented to being exposed, shouldn’t be any problem.
  4. Possession of illegal weapons, objects or substances
  1. Local laws differ a lot. Beware of local ordinances.
  2. Be careful of carrying a concealed weapon if you do not have a permit to do so. Folding knife may or may not be legal, depending on blade size.
  3. Alabama: Concealment of a Bowie or similar knife on person $50-500 and 6 mo. A Bowie knife is generally any large sheath knife with a crossguard and a clip point. One case held a 7-10" knife with a width 1-1.25" was not a Bowie knife; another held that an 11” butcher knife coming to a sharp point was.
  1. Consensual sodomy, gay or otherwise, NOT illegal but protected as a matter of privacy after Lawrence.

  1. What To Do If the Police Arrive
  1. Why the Police May Come
  1. A third party may not understand negotiated consentand may call the police.
  2. Police have tended to  take a hard line on domestic abuse situations since the O.J. Simpson case.
  3. If  neighbors hear  blood-curdling  screams,  police  have duty/right to investigate.
  1. First and foremost: stay calm
  1. If you lose calm, get belligerent or indignant, you lose whatever persuasive power you have to get the call to go your way.
  2. Not just the top; even more important for the bottom to be able to explain calmly and confidently that while he or she was screaming, it was for mutual enjoyment and with consent.
  1. Consent to enter and search
  1. Never consent to a search of your home or vehicle. Calmly and clearly say “No, you may not enter,” or “No, you do not have my permission to search,” or “I want you to leave now.”
  2. Don’t be intimidated by a threat to get a warrant.
  3. However, if despite your refusal of consent the police enter, you should step aside and don’t resist. Your focus is not to prevent the search – you can’t, at this point – but to build a case that the fruits of the search should be excluded because of the illegal search – the “exclusionary rule.”
  1. If you are arrested
  1. Remain silent if arrested, and do not resist.
  2. Record ASAP in writing the name and badge number of  the officers and the facts of the entry and search, and at the top of the paper, write in bold letters, "FOR MY ATTORNEY.”
  3. Consult with  lawyer  ASAP  and  don’t discuss with  anyone except lawyer.
  1. If you are not arrested
  1. You do not have to speak to police if you don’t wish.
  2. If you wish to remain silent, say calmly and clearly, "I don't want to talk to you," or "I want to speak to a lawyer first." (See Appendix A, “Why You Should Never Talk to the Police!”).
  3. If you wish to speak to police and it seems like a good idea, remember one thing: Tell the truth. Do not say anything that is untruthful and do not hide anything.
  4. Don't callit BDSM; call it "kinky sex." Always minimize BDSM angle while telling truth.
  1. Prosecuting a criminal assault on you
  1. Sometimes criminals vicimize members of our community.  Someone may consent to bondage and flogging, but not sexual activity, and find themselves to be the victim of a sexual assault.
  2. You must decide quickly if you wish to report to police. This is a very personal decision.
  1. What to do
  1. Stay calm.
  2. Get medical assistance.
  3. Call police immediately.
  4. Do not shower, urinate, or clean up.
  5. Take pictures.
  6. May consult attorney or get support from friends.

  1. BDSM & PORNOGRAPHY
  1. BDSM pornography is not in and of itself illegal. Private possession of sexually explicit materials is not likely to be a problem.
  2. Exception: Furnishing a child with pornography.
  1. It  is  a  crime  in  all states  intentionally to furnish  a  minor  with pornography.
  2. Most states (including Alabama) have passed laws that make it a crime to recklessly or negligently expose children to pornography. In many states there is strict liability under these laws.
  1. Alabama: a year in jail, $10,000 fine.
  1. If you have sexually explicit materials in home and children get their hands on it, you may be suffering serious criminal exposure. Lock it up.
  1. PRO-DOMMES, PROSTITUTION AND PANDERING
  1. Prostitution is usually defined as "sexual conduct for money."
  2. Laws regarding application of prostitution statutes to professional dominants and dungeons vary greatly state to state.
  3. California: Professional dommes are not arrested for prostitution as long as there is no "sexual contact" with the client.
  4. Arizona: Prostitution is defined to include "Sadomasochistic abuse" which is further defined to include, "flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.”
  5. Alabama
  1. 13A-12-120: Prostitution is “the commission by a person of any natural or unnatural sexualact, deviate sexualintercourse, or sexual contact for monetary consideration or other thing of value.
  1. Sexual Contact”: “Any  touching  of  the  sexual or  other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.”
  2. Class A misdemeanor
  1. No Alabama cases on whether pro domme fits this statute; does not appear to be the case if genitals are not touched.

  1. CIVIL LIABILITY
  1. Criminal cases differ from civil cases.
  1. In criminal cases, a prosecutor brings criminal charges after reviewing the police reports and evidence. Punishment can include incarceration or fine.
  2. In civil cases, lawsuitsare brought by individualcitizens (plaintiff) but can only result in monetary damages and not incarceration of the defendant.
  1. Anything that can result in criminal charges can also result in a civil complaint as well.
  1. For civil assault, a plaintiff must prove
  1. defendant touched plaintiff
  2. defendant intended  to  touch  plaintiff
  3. the  touching  was conducted in a harmful or offensive manner.  Actual injury to body is not necessary.
  1. False imprisonment is the civil equivalent of criminal kidnapping.
  2. The proof required in a civil suit is “preponderance of the evidence,” less than the "proof beyond reasonable doubt” standard in a criminal case.
  3. Other actions exist in civil law besides those involving intentional conduct.
  1. Negligence,  for  example,  may  be  brought  for providing  faulty equipment  or  failing to maintain  it.  Be  careful about  making representations of factas to safety! If fraudulent or demonstrably false, these can not only negate consent (as shown above), but also may impose a higher standard of care. You may become a guarantor of whatever you  promise, even  if  you  were  not  negligent  in  the  first instance and did what any reasonable person could do.

  1. MASTER-SLAVE CONTRACTS
  1. Master/Slave contracts are not binding. They are void as against public policy.
  2. Master/Slave contracts may, however, serve other good purposes if they are well-drafted
  1. May show the knowledge, intent, and state of mind of the parties at the time the contract is signed. This may negative an element of a specific intent crime, or provide support for a defense where available.
  2. May show what parties agreed to, and spell out promises that were made or were not made.
  3. May show awareness of risk.
  1. It may be advisable to have witnesses to the “contract” who are willing to testify about circumstances of the signing and/or ceremony to  establish that the agreement was entered into voluntarily, consensually, and without coercion or force.

  1. LIQUOR CONTROL AND ALCOHOL/DRUG USE
  1. When alcohol served in public, the government is allowed to be much stricter  and intrusive. Public service or use of alcohol invites government scrutiny.
  2. A.Alcohol or drug use may result in increased liability, even in a private setting.
  1. May heighten the standard of care in negligence cases.
  2. May result in social host liability to third parties, where alcohol is served to incompetent or incapacitated persons and those persons injure the third parties.

  1. FAMILY LAW
  1. BDSM and Children in the House
  1. Do everythingin your power to keepyour lifestyle, toys, etc. away from the children.
  2. Lock up the toys until the children are 18 or older. Exposure to this can be argued to be child molestation.
  3. Deadbolt the dungeon. And don’t call it a “dungeon.”
  1. BDSM and Divorce; Child Custody
  1. This is a particularly difficult and frightening area.
  2. If there is even a hint of a problem with your lifestyle as it relates to your children, you need to contact an attorney right away.
  3. It would be nice if one’s sexual lifestyle was not considered by the courts in determining issues relating to divorce and child custody.
  1. Some cases even say this.
  2. Even in a progressive state, the simple fact remains that people hear cases, and their prejudices and biases inevitably come into play. A judge deciding a custody issue may, at the least, subconsciously be influenced by a sexual lifestyle that he or she considers to be offensive.  The order of the court may not even mention the issue of lifestyle, and the case may appear on the  face to  have  been  resolved  on  other  grounds.  But underneath, lifestyle may be well (consciously or unconsciously) be the reason.
  3. This is what happens in a progressivestate; Alabama is hardly a “progressive state.”
  1. Consult an attorney right away, and don't be shy about your lifestyle when discussing the case.
  1. If the authorities investigate
  1. Again, don't call it BDSM ; call it "kinky sex."
  2. Minimize the BDSM aspect of the matter as much as possible while still being consistent with the truth.
  3. Department  of  Human  Resources  (DHR)  may  come  to  check  on children if they get called in by third parties.
  1. Often  DHR  called  by  service  repairmen  and  grandparents disagree with lifestyle and seek leverage.
  2. Don't tell DHR they come in, but instead get them in and get them out as quickly as possible.
  1. Meet questions simply but succinctly.
  2. Do NOT show DHR your toys.
  1. Make a point of demonstrating that the toys are locked away from the children.
  2. As for that spanking bench or other BDSM furniture: “That's a prop from a play. I’m not sure why we still have that.”
  1. Be very wary of signing any “safety plan,” and never do this without running it by your attorney.
  1. Defer  the  request:  "I  didn't realize  there would be a problem.I’d like to read over with my attorney, please.”
  1. Poly situations
  1. A third in a poly relationship is never referred to “second wife.” This triggers the bigamy statute.
  2. The 3rd gets their own bedroom.
  3. Children are never to know there is sex going on with the third.
  4. In the normal divorce case, a party’s admission of adultery or cheating usually precludes need for further evidence. One doctrine that may be particularly appropriate for poly, however,is condonation, which is the willing continuance of cohabitation or living together in the same place, after the “wrongful acts” are committed, with intention to forgive and resume martial relations. If a poly situation goes bad, in other words, condonation may deflect an allegation of adultery made after the fact by a disgruntled member of the relationship

Appendix A

WHY YOU SHOULD

NEVER TALK TO THE POLICE!

The Fifth Amendment provides to all that “No person…shall be compelled in any criminal case to be a witness against himself.”Justice Robert Jackson believed that when police wanted to talk to a client that “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statements  to  the  police  under  any  circumstances.”  Watts v.  Indiana,  338  U.S.  49,  59 (1949). The heart of the problem of talking to the police is that given the complexity of criminal law and the circumstances that trigger any investigation, it is difficult for anyone to know in advance when a particular statement might appear to the police or a prosecutor to be relevant in any criminal investigation.

REASONS YOU SHOULD NOT TALK TO THE POLICE:

  1. Talking to the police cannot help you.

You cannot talk your way out of getting arrested.

The police are allowed to lie to you, so they will tell you things like if you tell them what they want to hear, then you can go home. This is a lie! Once you say what they want you to say, you will be placed under arrest and your statements will be evidence against you. It is impossible to un-ring a bell, think how hard it will be to take back a confession. Prosecutors can convince a jury that you are a liar, after all, you either lied to the police when you made the statement OR you are lying to the jury now by recanting the statement you made to the police.

  1. Anything you tell the police cannot help you.

Remember anything you say can ONLY be used against you, NOT for you!

If you make statements that are in your favor, your attorney cannot question the police about those statements at trial because they are self-serving and are considered HEARSAY under Rule of Evidence801(d)(2)(A).Therefore, the prosecutor will object to any hearsay and the judge will rule for the prosecutor.

  1. There is No Benefit to Talking to Police.

If you are guilty… or even if you are innocent, you may admit guilt without getting any benefit for your admission. Once you make a statement to the police, the prosecutor has no reason to negotiate with your attorney for a reduction of the charge, sentence, etc.

Remember, studies have shown that 86% of all defendant’s plead guilty at some point before trial. Your incriminating statements to the police are admissible evidence at trial.

  1. Small  White  Lies  or  Misstatements  Will  Become Incriminating Statements.

Even if you are innocent and deny guilt and mostly tell the truth when talking to the police, you can easily get carried away and tell some little white lie or make some little mistake in your statement that will hang you.

Innocence Project studies reveal that “in more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, gave outright confessions, or plead guilty.”

  1. Your Innocent Statements Will  Always  Provide Information Against You.

Even if you are innocent and only tellthe truth when making a statement to the police, you always give the police some information that can be used to help convict you.

“One of the Fifth Amendments basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness may, as well as those of wrongdoers, provide the government with incriminating evidence from the speakers own mouth.” Ohio v. Reiner, 532 U.S. 17, 20 (2001).

“Too many Americans, even those who should be better advised view the Fifth Amendment privilege as a shelter for wrongdoers. They too readily assume that those who invoke are either guilty of the crime, or commit perjury claiming this privilege.Ullman v. UnitedStates, 350 U.S. 422 (1956).  Although this is not true, it is an assumption that most jurors make too.

  1. Police Do Not RecallStatementsWith 100% Accuracy.

Even if you are innocent and only tells the truth and do not tell the police anything incriminating there is still a grave chance that your answers can be used  to  crucify you  if the police do  not recall your  statement with 100% accuracy.

Most law enforcement DO NOT use tape recorders! Most investigators will make notes and/or write a statement for you only getting you to sign it. In addition, the meaning of a statement to you may have a totally different meaning to an investigator that believes you were involved in the crime. In most if not all cases, police investigators remember your statement in the most favorable light to build a case against you. Are you willing to take that chance?

  1. Recording by Tape and/or Video May Be Used Against You.

Even if you are innocent and only tells the truth and does not tell the police anything incriminating and your statements are video taped, your answers can be used to crucify you if the police don’t recall their questions with 100% accuracy.

The basic police technique is to ask you questions over and over again until they hear the story they want to hear. Then the investigator will turn on the recording device so that you can tell your story so that is all that’s recorded. An innocent answer can easily become an incriminating answer to a police question when the investigator does not accurately remember what question he asked you to solicit that particular answer.

  1. Mistaken or  Unreliable  Evidence May  Make  Your True Statements Look False.

Even  you  are  innocent  and  only  tell the truth  and  do  not  tell the  police anything incriminating and the entire interview is videotaped, your answers can still be used to crucify you if the police have any evidence, even mistaken or unreliable evidence that any of your statements were false, even if they are true.

For instance, police question you about a murder that happened when you were 3 hours away. However, you were visiting your mother at her home but no one else saw you and you did not use a credit card to buy gas for the trip. Someone near the crime scene comes forward and when shown a photo line-up by police says something like “I went to school with him and I remember seeing him about 40 minutes before the murder a couple of blocks from the store.” Your witness (your mother) is not much good because people expect a mother to lie for her child and the police have an eyewitness. Plus, they now have a secondwitness, the cop you made the statement to who will testify that you lied about being 3 hours away because he has an eyewitness that say you near the crime scene 40 minutes before the murder.

So when police call you and want to get a statement from you, DON’T talk to the police… Call an attorney immediately!