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BDSM /Ds And The Law
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the following article was taken from http://gloriabrame.com/domidea/rumpoule.htm
BDSM D/s and the Law
copyright © 1998 RUMPOULE
I am Rumpoule,
A Little About Me
I have been a criminal defense lawyer for over twenty years. I've also been in the leather lifestyle for nearly twenty-five years. I am submissive to women as a preferred form of sexuality and lifestyle.
I decided I wanted to give something back to people who, like me, have a different kind sexuality or lifestyle by learning about how the law affects us. I want to collect and pass that information on to the community's members by giving lectures and acting as a resource.
Introduction
As you read this, you may find it to be a little frightening. Please remember that, in a legal sense just as in health considerations, there is no such thing as "safe sex." There is however, with education, "safer sex." Just as in the health arena, education and caution can help to avoid frightening results. So be aware of what you are doing, act responsibly, and you will find you can avoid that which you may fear.
Please keep in mind that there are 50 states, the District of Columbia and the United States. Federal laws generally do not have much impact. In fact, J. Edgar Hoover once said, "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."
Also, within each state there are counties and cities. Each of these areas has their own laws. It would be impossible to inform you of the specific laws in each of these areas. Also, laws change quickly, so what I might write today, may be wrong tomorrow.
So I am only able to tell you the areas of concern and give you the law generally and, in some instances, make specific references to illustrate certain ideas. Please use this information as a guide only.
Last, while I feel I have something to offer the community from my experience and knowledge, this is an area of law that has never really been developed. To be very honest, I am learning this as I go. Being a good resource sometimes requires me to listen or read more than to speak or write.
SM Play Generally
Possible Criminal Charges
The area that I am asked about most often is assault. Tops are afraid they will be charged with assault for their actions. Bottoms have different, but related fears. Assault is generally defined as any touching done with the intent to injure, insult or provoke. In many places simple assaults can be made into "aggravated" assaults depending on certain circumstances related to the status of the victim or the use of objects or weapons.
In most places, "consent" is a defense to assault. However, you should be aware that consent is not always going to be available as a defense. For example, in the Spanner case, 16 gay men in England doing SM privately were arrested and charged with a number of crimes. Regarding assault charges, the defense of "consent" was raised, but denied by the court on the grounds of "public policy." Basically the court decided that the law should not allow someone to consent to be assaulted. Most interesting of the cases was that of John Atkinson, a bottom, who was convicted solely of having aided and abetted others in his own assault.
Consent will also not stand as a defense when the victim lacked the capacity to consent. So if the Bottom is under the influence of drugs or alcohol, their ability to give meaningful consent may be impaired.
Similarly, if consent is obtained by fraud, it will not be available as a defense. So, for example, if a Top misrepresents his abilities or experience, say with a single-tail whip, he may not be able to claim consent as a defense if charged.
Other potential criminal charges include sexual assault if sex play is involved and kidnapping and false imprisonment if bondage is used. While these crimes are different from assault, usually the defense will be consent. Again, consent may be a defense as long as the jurisdiction does not prohibit it for public policy reasons, and if the "victim" has the capacity to give consent and does so knowledgeably.
Indecent or lewd conduct is also a crime on the books of many states. Usually this requires exposing parts of the body, or engaging in conduct that is considered lewd or indecent by the public. You should be careful when engaging in "public" scenes. If the activity is done privately, or in semi-public space where participants have been warned and consented to being exposed to what will be happening, there should not be any problem.
Possession of illegal weapons, objects or substances is another area of concern. This is an area where local laws differ a lot. Be careful of carrying a concealed weapon if you do not have a permit to do so. Remember that some weapons may be illegal, or cannot be carried concealed depending on their character. A simple folding pocketknife may be legal to carry concealed in your pocket in most places. But in some places, depending on the blade size, it may not. Needles may be illegal to possess in some places. And remember that it may be illegal to wear an authentic police, fire or military uniform.
Sodomy laws still existed in 20 states as of 1994. In 1986 in Bowers v. Hardwick, the United States Supreme Court ruled that the constitutional right to privacy (recognized in Griswald v. Connecticut dealing with the right to birth control devices) does not extend to homosexual sodomy. Hardwick was a gay Atlanta man who filed an action to have the Georgia sodomy statute declared unconstitutional. The fact that he was not imprisoned or charged affected the swing vote of Justice Lewis Powell. Powell held there was no privacy right violation, but wrote that imprisonment for such conduct might constitute cruel and unusual punishment under the 8th Amendment. After retiring, Powell said that he probably erred in not finding a privacy right. However, in early March, 1998 the U.S. Supreme Court ruled for the first time in Oncale v. Sundowner Offshore, that unlawful sexual harassment in the workplace extends to incidents involving employees of the same sex. Ironically, in order to keep the case from being a "gay rights" case, the court reasoned with a broader brush saying "harassment is harassment." Thus there may be application of the case to BDSM, D/s situations.
Advice
Remember that although you may have negotiated a scene with someone, the public around you was not part of those discussions and may not understand what you are doing is consensual and someone may call the police. Also, since the O.J. Simpson case, the police have taken a hard line on domestic abuse situations and frequently will make an arrest even when the "victim" says what happened was consensual.
If the police do show up the first thing you must remember to do is to stay calm. If you lose your calm, or get belligerent or indignant with officers, they will not listen to you.
You may have a choice in some things, and not in others. If the police arrive at your home because neighbors have heard blood-curdling screams, they have a duty, and the right, to make sure everyone one is all right. While your activities are safe, sane and consensual, we all want the police to be able to enter a home in an emergency situation to rescue someone who is the victim of a violent criminal. Again, remembering to stay calm will help a great deal. And not just the Top! It is even more important for the Bottom to be able to speak calmly and confidently to the police and explain that while he or she was screaming, it was all being done for mutual enjoyment and with consent.
If, for some reason, you do not want the police to enter your home, you should say so in a calm voice and in clear terms such as, "no, you may not enter," or "no, you do not have my permission to search," or "I want you to leave now." The police may threaten to get a warrant. But don't be intimidated by their threat to do that. On the other hand, if the police, despite this, tell you they are going to enter, then step aside and do not resist.
If you have been arrested, you should remain silent. You should also remain calm and, regardless of whether the officers are right or wrong, do not resist them. You should also remember, and record in writing as soon as possible before your memory fades, the name and badge numbers of the officers as well as the facts of what happened. Record this on a piece of paper and, at the top of the paper, write in bold letters, "FOR MY ATTORNEY."
You should consult with a lawyer as soon as you can. Do not discuss the case with ANYONE except an attorney.
If you have not been arrested but, for some reason, do not want to speak to the police, you do not have to. Again, if you intend to remain silent, do so in a calm voice and in clear terms such as "I don't want to talk to you," or "I want to speak to a lawyer first."
On the other hand, if you have not been arrested, and talking to the police seems like a good thing to do to explain an innocent situation, remember one thing: tell the truth. Do not say anything that is untruthful and do not hide anything.
Sometimes, criminals who do not believe in safe, sane and consensual conduct victimize members of our community. Someone may consent to bondage and flogging, but not sexual activity, and find that themselves to be the victim of a sexual assault. If this happens, you need to decide quickly if you are going to report the offense to the police. It is a personal decision. But if you want a successful prosecution of the assailant, you should do some things to help.
Stay calm.
Get medical assistance.
Call the police immediately.
Do not shower, urinate, or clean up.
Take pictures.
You may also wish to consult with an attorney or get other support from friends.
copyright © 1998 RUMPOULE
I am Rumpoule,
A Little About Me
I have been a criminal defense lawyer for over twenty years. I've also been in the leather lifestyle for nearly twenty-five years. I am submissive to women as a preferred form of sexuality and lifestyle.
I decided I wanted to give something back to people who, like me, have a different kind sexuality or lifestyle by learning about how the law affects us. I want to collect and pass that information on to the community's members by giving lectures and acting as a resource.
Introduction
As you read this, you may find it to be a little frightening. Please remember that, in a legal sense just as in health considerations, there is no such thing as "safe sex." There is however, with education, "safer sex." Just as in the health arena, education and caution can help to avoid frightening results. So be aware of what you are doing, act responsibly, and you will find you can avoid that which you may fear.
Please keep in mind that there are 50 states, the District of Columbia and the United States. Federal laws generally do not have much impact. In fact, J. Edgar Hoover once said, "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."
Also, within each state there are counties and cities. Each of these areas has their own laws. It would be impossible to inform you of the specific laws in each of these areas. Also, laws change quickly, so what I might write today, may be wrong tomorrow.
So I am only able to tell you the areas of concern and give you the law generally and, in some instances, make specific references to illustrate certain ideas. Please use this information as a guide only.
Last, while I feel I have something to offer the community from my experience and knowledge, this is an area of law that has never really been developed. To be very honest, I am learning this as I go. Being a good resource sometimes requires me to listen or read more than to speak or write.
SM Play Generally
Possible Criminal Charges
The area that I am asked about most often is assault. Tops are afraid they will be charged with assault for their actions. Bottoms have different, but related fears. Assault is generally defined as any touching done with the intent to injure, insult or provoke. In many places simple assaults can be made into "aggravated" assaults depending on certain circumstances related to the status of the victim or the use of objects or weapons.
In most places, "consent" is a defense to assault. However, you should be aware that consent is not always going to be available as a defense. For example, in the Spanner case, 16 gay men in England doing SM privately were arrested and charged with a number of crimes. Regarding assault charges, the defense of "consent" was raised, but denied by the court on the grounds of "public policy." Basically the court decided that the law should not allow someone to consent to be assaulted. Most interesting of the cases was that of John Atkinson, a bottom, who was convicted solely of having aided and abetted others in his own assault.
Consent will also not stand as a defense when the victim lacked the capacity to consent. So if the Bottom is under the influence of drugs or alcohol, their ability to give meaningful consent may be impaired.
Similarly, if consent is obtained by fraud, it will not be available as a defense. So, for example, if a Top misrepresents his abilities or experience, say with a single-tail whip, he may not be able to claim consent as a defense if charged.
Other potential criminal charges include sexual assault if sex play is involved and kidnapping and false imprisonment if bondage is used. While these crimes are different from assault, usually the defense will be consent. Again, consent may be a defense as long as the jurisdiction does not prohibit it for public policy reasons, and if the "victim" has the capacity to give consent and does so knowledgeably.
Indecent or lewd conduct is also a crime on the books of many states. Usually this requires exposing parts of the body, or engaging in conduct that is considered lewd or indecent by the public. You should be careful when engaging in "public" scenes. If the activity is done privately, or in semi-public space where participants have been warned and consented to being exposed to what will be happening, there should not be any problem.
Possession of illegal weapons, objects or substances is another area of concern. This is an area where local laws differ a lot. Be careful of carrying a concealed weapon if you do not have a permit to do so. Remember that some weapons may be illegal, or cannot be carried concealed depending on their character. A simple folding pocketknife may be legal to carry concealed in your pocket in most places. But in some places, depending on the blade size, it may not. Needles may be illegal to possess in some places. And remember that it may be illegal to wear an authentic police, fire or military uniform.
Sodomy laws still existed in 20 states as of 1994. In 1986 in Bowers v. Hardwick, the United States Supreme Court ruled that the constitutional right to privacy (recognized in Griswald v. Connecticut dealing with the right to birth control devices) does not extend to homosexual sodomy. Hardwick was a gay Atlanta man who filed an action to have the Georgia sodomy statute declared unconstitutional. The fact that he was not imprisoned or charged affected the swing vote of Justice Lewis Powell. Powell held there was no privacy right violation, but wrote that imprisonment for such conduct might constitute cruel and unusual punishment under the 8th Amendment. After retiring, Powell said that he probably erred in not finding a privacy right. However, in early March, 1998 the U.S. Supreme Court ruled for the first time in Oncale v. Sundowner Offshore, that unlawful sexual harassment in the workplace extends to incidents involving employees of the same sex. Ironically, in order to keep the case from being a "gay rights" case, the court reasoned with a broader brush saying "harassment is harassment." Thus there may be application of the case to BDSM, D/s situations.
Advice
Remember that although you may have negotiated a scene with someone, the public around you was not part of those discussions and may not understand what you are doing is consensual and someone may call the police. Also, since the O.J. Simpson case, the police have taken a hard line on domestic abuse situations and frequently will make an arrest even when the "victim" says what happened was consensual.
If the police do show up the first thing you must remember to do is to stay calm. If you lose your calm, or get belligerent or indignant with officers, they will not listen to you.
You may have a choice in some things, and not in others. If the police arrive at your home because neighbors have heard blood-curdling screams, they have a duty, and the right, to make sure everyone one is all right. While your activities are safe, sane and consensual, we all want the police to be able to enter a home in an emergency situation to rescue someone who is the victim of a violent criminal. Again, remembering to stay calm will help a great deal. And not just the Top! It is even more important for the Bottom to be able to speak calmly and confidently to the police and explain that while he or she was screaming, it was all being done for mutual enjoyment and with consent.
If, for some reason, you do not want the police to enter your home, you should say so in a calm voice and in clear terms such as, "no, you may not enter," or "no, you do not have my permission to search," or "I want you to leave now." The police may threaten to get a warrant. But don't be intimidated by their threat to do that. On the other hand, if the police, despite this, tell you they are going to enter, then step aside and do not resist.
If you have been arrested, you should remain silent. You should also remain calm and, regardless of whether the officers are right or wrong, do not resist them. You should also remember, and record in writing as soon as possible before your memory fades, the name and badge numbers of the officers as well as the facts of what happened. Record this on a piece of paper and, at the top of the paper, write in bold letters, "FOR MY ATTORNEY."
You should consult with a lawyer as soon as you can. Do not discuss the case with ANYONE except an attorney.
If you have not been arrested but, for some reason, do not want to speak to the police, you do not have to. Again, if you intend to remain silent, do so in a calm voice and in clear terms such as "I don't want to talk to you," or "I want to speak to a lawyer first."
On the other hand, if you have not been arrested, and talking to the police seems like a good thing to do to explain an innocent situation, remember one thing: tell the truth. Do not say anything that is untruthful and do not hide anything.
Sometimes, criminals who do not believe in safe, sane and consensual conduct victimize members of our community. Someone may consent to bondage and flogging, but not sexual activity, and find that themselves to be the victim of a sexual assault. If this happens, you need to decide quickly if you are going to report the offense to the police. It is a personal decision. But if you want a successful prosecution of the assailant, you should do some things to help.
Stay calm.
Get medical assistance.
Call the police immediately.
Do not shower, urinate, or clean up.
Take pictures.
You may also wish to consult with an attorney or get other support from friends.