PUBLIC INDECENCY LAWS

By Uncommon Ground

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BD/SM GROUPS & THE LAW

This page deals with public indecency laws.

A common question affecting BD/SM support groups is whether their activities are subject to the public indecency laws. The answer is not unless:

• your activities are in a public place; or
• your activities are in a place where they may reasonably be expected to be seen by members of the public.

PUBLIC INDECENCY

A meeting of a BD/SM group in someone's home or a play party in someone's home poses no problem. Your home is not a public place, and your guests are not members of the public. If you draw the curtains and close the door, it is not reasonable to expect members of the public to see in. You may still have issues of noise and parking, but not public indecency.

Exposure to public indecency laws, if it occurs at all, comes for BD/SM groups that rent commercial premises for their meetings. The educational program at the meeting may require the exposure of genitals, breasts, or buttocks. At other times, the program may require acts or simulated acts that are prohibited by a public indecency statute or ordinance.

The consensus in the BD/SM community is that BD/SM and its safety aspects cannot be taught adequately without exposing the genitals, breasts, or buttocks content as needed for the subject at hand. Nor can BD/SM techniques and safety be taught without showing how a scene is done. There is no other way to impart BD/SM know-how effectively.

1. Are commercial premises a "public place"?

It depends. Typically a public place is one to which the public or a substantial segment of the public has access. By way of example, the statute or ordinance may list highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings.

2. Even if your group doesn't meet in a "public place," can your activities be seen by members of the public?

The best approach is to exclude the public by making your meeting or party a members only event (accessible only to members and their guests). Posting a "members only" sign at or near the entrance is helpful. Checking membership cards or checking names on a membership roster is likewise helpful.

The real issue, for local officials intent on suppressing your group, is whether an argument could be made that you are open to the public because anyone can buy a membership. In actuality, this begs the question. It overlooks the fact that the right to participate is premised on more than just buying a membership, much like buying a ticket. This overlooks the fact that your group undoubtedly has conditions of membership.

Whether premises are open to the public is determined by the permission you extend as the occupier of the premises. In Colorado, the following test applies: "Open to the public means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe no permission to enter or remain is required." content People v. Bozeman, 624 P.2d 916, 918 (Colo. App. 1980). content Accord, People v. Ridenour, 878 P.2d 23, 26 (Colo. App. 1994).

Although the buildings in the content Bozeman and content Ridenour cases were partially open to the public, both involved unlawful police entry into areas of the buildings that were not open to the public. The key was that a reasonable person would not have concluded that he or she had permission to enter or remain in those parts of the buildings.