THE LAW, S/M and YOU

BY A. SPENCER BERGSTEDT
Attorney at Law

About the author:
Spencer Bergstedt is a Seattle attorney and long time activist in the national GLBTQ and Kink communities. He is a former Co-Chair of the Seattle Commission for Lesbians and Gays, has sat on the boards of such diverse organizations as The Pride Foundation and KUOW Radio, and is a former President of the National Leather Association: International and sits on the board of the National Lesbian and Gay Law Association. He is a frequent national speaker on legal issues related to sexual minorities, Transgender issues and SM. He is the author of Translegalities: A Legal Guide for Transsexuals.

INTRODUCTION

There are scores of people in the world who engage in what is commonly termed sado-masochistic sexual activity. SM can be referred to by any number of monikers - SM, BDSM, LeatherSex, S&M, S/M, D/s, Bondage & Discipline, and more. SM is a blanket term for a huge variety of alternative ways to have erotic interchange, express sexuality and/or make love. No one person who identifies as an SM player may do all, most or even many things, of the lists of available options of SM interaction. Everyone has their own preferences, their own fantasies, their own limitation, and their own levels of tolerance. Some may like bondage but dislike pain; others like latex but not leather; some may enjoy piercing but not whipping; some like tickling and nothing else! It is all highly individual.

What is common amongst all the categories listed above is that the participants in these activities are often deemed perverted, deviant, sick and wrong. People often approach SM with nothing but negative stereotypes brought on by seeing distortions of SM reality in films like " Cruising" or "Pulp Fiction", or they are merely titillated by the imagery of SM that can be found in a Madonna video. Further, we live in a culture that still isn't used to the idea that sex can be fun, pleasurable and recreational and include all sorts of activities. Moreover, there are some people who confuse fantasy and reality where SM is concerned - thinking that SM players don’t know the difference.

Society, and the law, on the whole tends to ostracize or condemn what is perceived as different. If a person doesn’t fit the normative molds, they are weird, strange, and possibly sick and dangerous. That can be because you’re queer, disabled, or engage in SM.

The law has historically had a large role in how people go about doing S/M play. From police raids of both yesteryear and today to the effect that participation in S/M might have on issues like child custody, the law has always had an interest in that which society deems abnormal or immoral.

This article is designed to highlight some of the areas of the law that you as a Leatherman or leatherwoman should be aware of. The actual laws of course will vary from state to state, county to county and city to city, but, hopefully, this article will help point you in the direction of finding more information about the laws where you live.

TYPES OF LAW

Law is can be divided into three broad categories criminal, regulatory and civil. Each area of law can, and all too often does, have an impact on people engaging in S/M.

CRIMINAL
There are two aspects of criminal law that the S/M player should keep in mind:

(a) private activity and (b) public activity. Private activity refers to actions that may take place in your home or other private place and public refers to public places, like bars, events, and outdoors.

Private
There are a number of things that one should be aware of as the law relates to S/M in private. First and foremost is that the (minor) possibility always exists that you may be suspected of committing a crime if it becomes known that you engage in S/M and the cops take an interest. There are a number of crimes that you could potentially be charged with including, but not limited to:

Assault
Indecent Exposure
Rape
Kidnapping
False imprisonment
Reckless endangerment
Possession of illegal weapons or substances (e.g., possession of needles for temporary piercing may be illegal in your state)
And in some states certain acts of sex and/or the presence of certain sex toys in a certain quantity may leave you open to prosecution under state laws that prohibit sodomy and/or the illegal possession and/or sale of sex toys.

At the outset I should note that (depending on where you live) it is highly unlikely that you would ever have a problem with the cops. But the possibility does exist. Being educated about what the laws are in your area is vital, being educated about your legal rights is also vital, and acting calmly in the face of possible trouble is the most vital of all.

1. ASSAULT
Technically, assault is defined as a non consensual touching of a person by another person. It is also sometimes referred to as battery, however, in most statutes and ordinances, it is termed assault. There are generally varying degrees of severity of the charge and each escalation of degree carries with it the potential for a higher level of punishment. Assault can be charged as either a misdemeanor or a felony depending on the circumstances. (There are usually 4 degrees of assault) The use of weapons, the infliction of great bodily harm, and the intent to inflict such great bodily harm will escalate the level of the charge.

Depending on what you do with your play, you may very quickly jump into the felony category.

The operative definitional word in assault statutes is "consent". The main struggle that SM players have had in the law is that the prosecutors, juries and courts have failed - for the most part - to rule favorably on the issue of SM being a consensual activity. There are but a handful of cases on the appellate level that can be researched but in nearly every one of them, the court has ruled that one cannot consent to an assault. However, those same courts seem to have no problem with contact sports. And aren’t we really talking about fairly unequal levels of risk of injury? That is, that one is more likely to be injured in a contact sport than engaging in SM. But the courts have nonetheless not adopted that philosophy as yet. Why? The fairly easy answer is because SM involves sex and eroticism - which cause discomfort in our court system and our overall culture.

Even with that sort of approbation against consent as a defense in assault cases, the likelihood of actual prosecution is slight. By that I mean that the police might arrest you to harass you BUT it is unlikely that a prosecutor would decide to file charges against you because the "victim" consented to the activity. Since prosecutors are in the business of sending criminals to jail, if the "victim" insists there was no crime, the prosecutor generally won't push it.

HOWEVER many state's including the state of Washington, where my practice is located have enacted Domestic Violence statutes which can change police and prosecutor protocol. Generally under these types of law, police and prosecutors are encouraged to dismiss the "victim's" statements about not wanting to press charges and move forward with the case. The law is designed to protect repeat victims of domestic violence/abuse who may be reluctant to press charges against their abusers. More often than not, police are instructed to arrest both parties if a domestic violence call is made.

If you are in a domestic violence situation, get out and get help! The National Leather Association International has some excellent materials on SM and Abuse which can be accessed via:

NLAI
3439 NE Sandy Blvd. #155
Portland OR 97232
https://www.nla-international.com/
Contact the President of NLA-I

2. INDECENT EXPOSURE
In most places, this is a misdemeanor crime unless you expose yourself or even dress provocatively - or engage in activity that exceeds what is considered publicly decent. If you engage in such conduct in front of or near someone under the age of 14 - the charge may be a felony.

You must expose yourself in an open and obscene manner to have committed this crime. In Washington, it has been held sufficient to charge you with indecent exposure if you are in your own house/apartment and someone can see in to your house/apartment.

3. RAPE
This is generally defined as forced and/or non consensual sexual intercourse or contact which includes any penetration, however slight, of the vagina or anus, with any object; the touching of one persons genitals to the anus or mouth of another; or any touching of the sexual/intimate parts of another for sexual gratification.

Rape is a felony crime which can be escalated in degree by the use of a weapon or if other harm is caused to the victim. Again, the kinds of activities that one may engage in with SM could lead to an escalated charge. Consent is a defense to a charge of rape.

4. KIDNAPPING
This is a crime of restraining and moving another person without their consent and is generally considered a felony (in Washington when in doubt, check your local and state laws). The crime can be escalated if weapons are used.

If you are planning "abduction" scenes, do so with the utmost care so as not to run afoul of the law by having an innocent bystander witness your scene and report it as a crime.

5. UNLAWFUL IMPRISONMENT
This is another crime of restraint wherein someone is being held without their consent.

If you are playing with someone in a private space and they express a clear wish to leave, do not detain them. Failure to do so could become very unpleasant for you in the future.

6. RECKLESS ENDANGERMENT
This is a crime that you could potentially be charged with if your actions are perceived to have recklessly endangered another person, whether that be through bondage or the use of various toys.

7. WEAPONS/SUBSTANCES
It is important that you find out if there are certain items which are illegal for you to possess in your area. E.g., in many states, hypodermic needles (used for temporary play piercings) may only be obtained with a valid prescription, or may not be available at all. You run the risk of being charged with possession of such items if the police search your premises incident to an arrest.

8. SODOMY
Sodomy laws are still on the books in many states and the law generally applies to both gays and heterosexual sex that involves either anal genital contact or oral genital or oral anal contact. However, some states only apply such laws to homosexuals (a number of these state statutes have fallen under legal challenge in the past few years - e.g., Maryland, Texas, and Georgia). Each state with sodomy laws still on the books will classify them as either felony or misdemeanor crimes, with varying punishments depending on the classification.

9. PROFESSIONAL DOMINANCE
Another area that gives rise to questions is Professional Dominance. It is quite clear that the main focus of law enforcement in harassing or arresting Pro Dom/mes is prostitution and child pornography NOT S/M. If you are a Pro Dom/me and you get raided or arrested chances are the cops are going to bust you for prostitution. Most prostitution laws limit the definition to engaging in sexual conduct in exchange for a fee but some states, like New Jersey, clearly include professional dominance in the prostitution statute. Sexual conduct is generally very loosely defined and conceivably, CBT could be considered sexual contact. Certainly, allowing a client to masturbate in your presence at the end of a session would be considered sexual contact. The best advice is simply to not engage in anything that might be considered sexual contact.

Be cautioned however that this does not mean that the cops won't arrest you to harass you simply that the prosecutor won't be able to charge you with much of anything. If you do get arrested, you should get an attorney immediately.

Prostitution is generally a misdemeanor. However, if you have other pro Dom/mes working in your dungeon space, that charge could very easily become a pandering/pimping charge which is a felony.

WHAT TO DO IF THE COPS COME KNOCKING ON MY DOOR

Stay calm
You do not need to give consent for the cops to come into your house. You can force them to come back with a search warrant. HOWEVER, if they believe someone is in immediate harm, they have probable cause to enter without a warrant.
Explain calmly to the cops what the noise was all about E.g., just good loud sex.
If you are arrested, DON'T say anything. You are not under any obligation to make a statement without an attorney present. Keep track of the officers’ names, badge numbers, and whether or not they read you your rights.
Call a lawyer immediately.
Remember, if they book you, if you have piercing, you'll likely have to remove all of them.
Stay calm.

WHAT TO DO IN CASE A SCENE BECOMES NON CONSENSUAL OR ABUSIVE

Stay calm
Call the police
Call an attorney for yourself. The legal system can be hard to negotiate and the last thing you want is for the cops to treat you like the criminal
Do not shower or clean up if there has been physical damage or rape. Physical evidence cuts, bruises, semen, blood, hair or skin samples, and even clothing fibers can be very important evidence. Take pictures if you can.
Get medical assistance if you need it. This should be done before step 2 if you need immediate assistance. Plus, the hospital can help get a hold of the police.
Tell the truth about what happened
Contact a friend who can either stay with you or that you can stay with.

(See also, NCSF materials on Police and SM as well as materials from the NLAI Domestic Violence Project and Law Information Project)

Public Law
What we're talking about here is what happens when you leave your house in bars, at events, on the street.

The same laws that are discussed above still apply, but now we have some new things to contend with as well.

Impersonating an officer (for you uniform enthusiasts)
Carrying weapons
Lewd Conduct

As to the crimes discussed above the main thing to remember is this when you are out in public, not everyone is aware of the negotiations you and your partner have engage in and therefore, what you know to be consensual may not look very consensual from the outside. That 3rd party may decide to call the cops because what you are doing doesn't look consensual.

1. UNIFORMS
Most cities, counties and sometimes even states have laws which make it illegal for you to impersonate a police or fire official, or even emergency personnel like ambulance drivers. Basically what this means is don't wear an exact replica of a law/fire enforcement agency whose jurisdiction you are in and do not ever hold yourself out to be a police officer/fire fighter. Do not put any real or fake weapons in a gun holster if you are out and about. You might also choose to wear an overcoat/jacket when going from car to bar.

In addition, there may be federal violations for wearing a armed forces uniform.

(For more on this area of the law, see the article, "Uniforms and the Law", Spencer Bergstedt, Esq. and Michael Hernandez, Esq., IN UNIFORM MAGAZINE, Issue #10, Fall 1997)

2. WEAPONS
If you carry a gun, make sure you have a concealed weapons permit and a licensed and registered weapon.

If you carry a knife, check to see what size and types of blades your local law allows you to carry.

There are also a number of rather esoteric laws out there about what is considered an illegal weapon. The best thing you can do is to go to your local public library and do some research about what is considered illegal in your city, county and state. Some laws include:

Handcuffs are illegal in Boston, Numchucks are illegal in Seattle, certain stud types (that you might put on a leather jacket) are illegal in Los Angeles, brass knuckles and lead lined police gloves are illegal in a number of places, and switchblades are illegal every where in the US.

3. LEWD CONDUCT
Over the past few years, there have been an increasing number of raids on bars and clubs where SM or adult events are being held wherein the patrons have been charged with violations of lewd conduct ordinances. Such ordinances tend to be very vaguely written and are today most often used by police as a tool of harassment against certain groups of people - most often gays, lesbians, transgendered people and SM folks.

While it is certainly obnoxious that people have been arrested, charged, and often embarrassed and outed about their activities, the overall news seems to be favoring the rights of citizens to congregate for sexually titillating purposes. For example, In early 2000, a group of 6 people were arrested for lewd conduct at a private SM event in San Diego, CA. The first defendant to be tried won at trial and the jury sent a clear message to the prosecutor’s office that they felt the charges were not only unwarranted but that it was a waste of taxpayer money to be seeking out such cases at private events. Similarly, regarding the raid of a club in the Fort Lauderdale, FL area, a judge there ruled that lewd conduct charges were unfair when no citizen had complained of being offended but where police had specifically gone to the club to seek out violations of the ordinance.

REGULATORY LAW
Regulatory law refers to administrative rules promulgated by various governmental departments in relation to the areas of private and public enterprise that they govern. Examples include Health Departments, Liquor Control Boards, Fire Marshall’s and Zoning Offices. Typically the statutes that create these departments give each department broad power to create rules and regulations for how businesses governed by that department shall operate. Little, if any, of the scrutiny and public commentary that is usual in creating statutes and ordinances occurs in the promulgation of regulatory regulations. These regulations however, are most often the ones that are used to attack various segments of alternative communities, including the GLBTQ and SM communities.

HEALTH DEPARTMENT
Health Department regulations govern such things as cleanliness in a bar or sex club, the number of restrooms and shower facilities that must be present, service of food or drink in such establishments, etc.
If you are operating a club, it is imperative to get the rules and regulations of your local health department and comply with those rules at all times.
LIQUOR CONTROL BOARD
Please don't put our friendly bar owners out of business by doing something that violates the liquor control board rules in your state! These rules are much stricter than you might imagine and the penalty's for violation are stiff and may include closures and/or heavy fines. Most often, liquor control agents seem to target gay and lesbian bars as well as those that cater to the SM communities. We’ve seen closures in many cities in the past few years ranging from Boston to smaller communities in Wisconsin and Virginia.
For example, it may be unlawful in a bar for staff and/ or patrons to expose their nipples, any portion of pubic hair, anus, cleft of the buttocks, vulva or genitals. Or to encourage or permit anyone on the premises to touch, caress or fondle the breasts, buttocks, anus or genitals or another person. Or to permit anyone in the bar to wear a device which simulates any of the areas not allowed to be exposed. Or to permit anyone to perform acts of: intercourse, masturbation, sodomy, oral copulation, flagellation (flogging), touching, caressing, etc.

Sometimes these types of rules come with a caveat, such as: "UNLESS the performance/entertainer is on a stage at least 18 inches in height and at least 6 feet from the nearest patron."

Definitely check the laws of your own state, county and city as well as administrative rules propagated by the state liquor control board to find out what's legal and not where you live.

If you are throwing an event where alcohol will be served, make sure that you get the appropriate banquet licenses.
FIRE MARSHALL
This is an often overlooked area for those throwing fetish or SM events whether in bars or in other locations. All buildings get rated for occupancy and one of the easiest ways to get shut down is to have a space that is overcrowded.

Fire inspections are generally scheduled (and limited to) a few times per year. Sometimes to harass gay, lesbian and SM establishments, fire inspectors come in more often than allowed under the relevant statute or regulation. It is always useful to check on what your rights are under the fire marshall’s regulations.
ZONING
Zoning violations have been in the news a great deal in the past 2 years with a number of SM related businesses being shut down, threatened with closure, and/or fined, for alleged zoning violations. Most often what has occurred is that the zoning office has charged private SM clubs by lumping them into the category of adult businesses like strip clubs, porn shops, arcades, etc. Recently, the closure of Play House Studios in Baltimore, MD led to activism by the owners and the National Coalition for Sexual Freedom to successfully educate the Baltimore Zoning Commission about why the private SM clubs are not akin to adult businesses and which resulted in a reversal of the violation citation that had been issued.

CIVIL LAW AND S/M
Civil law applies to things that are not criminal in nature. It covers everything from contracts to divorce to personal injury suits. Here we'll cover:

Using civil law if something goes wrong
Are S/M contracts legally binding?
What can we do to protect ourselves?

IF SOMETHING GOES WRONG
If something goes wrong with a scene or the relationship and non consensual activity/violence/abuse happen the victim can take two courses of action:

Talk to the police, file a report and press for criminal charges; and/or
File a civil lawsuit for damages.

CIVIL SUITS
Civil lawsuits can be an excellent way of seeking compensation for damages inflicted by someone who misuses S/M as an excuse for violence. Damages can be had for things like: actual physical damage; emotional damage; psychological impairment; assault; false imprisonment; etc..

These cases should be handled only with the advice and assistance of an attorney.

ANTI HARASSMENT/PROTECTIVE ORDERS
These can be used if there is a threat of immediate danger/harm from another. Protective Orders are a means to keep someone away from you. They can be obtained either through superior or district court. However, they are not a guarantee that an abuser will stay away, but they generally do work as a deterrent.

CONTRACTS
Contracts are often used in SM relationships to delineate what the rules of conduct will be, what the parties have agreed to do in terms of their SM and their rights and responsibilities for one another. It is important to remember that the kinds of Master/slave contracts that one finds on the internet are NOT legally binding. Neither is any contract for sexual services legally binding.

There are however ways of structuring contracts to be enforceable as they might relate to service and/or an employment type contract. Similarly, a living together agreement may be the most appropriate form of contract in certain relationships. Such contracts can delineate what kind of work the submissive is going to do, how finances will be handled, how ownership of household items and other assets will be treated, what compensation the submissive will receive, what, if any, post-relationship support the submissive will receive, etc.. If this kind of contract is properly structured, it would be entirely legally enforceable. I strongly encourage that you consult with an attorney if you wish to create a legally enforceable contract.

Regardless of whether you require a legally enforceable contract or one that is not, written contracts are a great way to clearly communicate what it is that you've negotiated with your relationship or a scene. The contract could potentially be useful in a situation where one player steps over the line of what was negotiated and engages in non consensual abusive behavior or could be used to show that the parties did have an agreed upon SM relationship.

DISSOLUTION/CHILD CUSTODY
S/M play can impact on divorces and child custody actions as well. In the event that you are getting divorced and have children and the terms won't be mutually agreed upon, you should get the advise of an attorney if you think your spouse will use your S/M against you.

Similarly, in child custody modifications, you should hire an attorney at assist you if your ex brings up the issue of S/M as a reason to limit your access to your children.

There are resources available in terms of expert witnesses from the medical and mental health fields, as well as excellent books like Dr. Charles Moser’s "Bound to Be Free", which discuss SM in clinical and non-judgmental ways. These types of sources should definitely be used to counteract the kinds of negative claims that can be raised during family law cases.

OTHER LEGAL PROTECTIONS
As the saying goes, two things are inevitable, taxes and death. While most folks take their tax planning seriously, few take the time to plan for health problems and/or death.

You can never plan too early - only too late. Yet every day, I see people in my practice who wait until a health issue arises or until they are elderly to take care of their estate planning needs. A well drawn estate plan will save you money and stress in the long run. It will make things much easier for your friends and family to assist you in the case of an illness or accident and will help them move forward in the event of your death.

In the case of the S/M community, planning can be even more important given the familial relationships we are creating and each of us wanting recognition for those family ties. Further, many leatherfolk have strained relationships with blood relations and don't want interference from those people. And no matter how great your relationship may be with friends and family, you may not be out to them about your involvement in S/M and you'll want to ensure that your toys and equipment are dealt with discretely.

Estate planning should be done before signing a Master-Mistress/slave contract to help avoid charges/challenges by blood relations after death that the slave was "coerced" or "unduly influenced" to sign the documents and that therefore they should be considered invalid.

PLANNING AHEAD
When a client comes in to see me about their estate planning, I generally recommend the following documents to them:

Will
Directive to Physicians
Future Durable Power of Attorney for Health Care
Future Durable Power of Attorney
Hospital Visitation Authorization Form

You can prepare any of these documents by yourself. However, I recommend that you DON'T. Each state has different rules related to estate planning which can relate to appropriate language, how to sign and have the documents witnessed as well as estate tax issues of which you should be aware. A competent attorney can help you with all of these aspects of planning your estate.

WHY YOU NEED A WILL
Most people need a thoughtfully prepared will. You will need a will regardless of your age, health, marital status or the amount of property you own. A will can provide peace of mind that your wishes will be carried out upon your death.
Gays, Lesbians, Unmarried Transsexuals/transgenders and Unmarried Het's in particular should take the precaution of explicitly stating our wishes in a will. A will is one of the ways to ensure that our values and desires will be perpetuated after our death, and that the people and causes we care about will receive our property.

A validly executed Will can prevent people that you don't want receiving all or part of your property, like estranged parents or other family members, from getting it and ensure that the folks you want to get your things, will. It is a terrific way to make sure that your leather heritage is passed on as well, by making donations of your belongings, real estate or cash donations to places like THE LEATHER ARCHIVES & MUSEUM. Without stating your desires in a Will, it is likely that your things won’t go where you wanted them.

In addition, a Will is the place for you to designate who will act as your executor; whether you wish to be buried or cremated; if you desire funeral services; establish certain types of trusts; and establish a guardian for your child(ren).

If you die without a Will your estate will be divided according to the statute related to descent and distribution. What this statute says is that the first person in priority is your surviving legal spouse, then your children. If you have neither, then it goes to your parents, brothers and sisters, grandparents, etc.. Unless they can't find anybody, in which case it goes to the state.

The only way you can designate where your property goes is by doing estate planning. A Will, joint property agreement, payable on death accounts, beneficiary designations in life insurance policies, and/or a trust are all ways that you can leave your estate. HOWEVER, a Will should almost always be used in conjunction with any of the other types of estate planning methods to ensure that certain details are handled.
LIVING WILLS
These are technically referred to as Directives to Physicians. This document sets forth your desires to not be kept on life support systems if you are terminally ill. Provision can also be made for specific types of medical treatments and, although a right to die law currently only exists in Oregon, you can make your philosophy known in the document that assisted death might be an option for you once it becomes legally viable.
POWERS OF ATTORNEY
A Power of Attorney is a document in which you designate someone else to act on your behalf. They can be for specific acts like selling a house or more general. In terms of estate planning, we generally talk about 2 different but similar types.
FUTURE DURABLE POWER OF ATTORNEY
This POA goes into effect when the person executing the document (the principal) becomes either incapacitated or incompetent and last during the period of incapacitation or incompetency.
The POA gives the attorney in fact the ability to handle business and financial affairs for the principal and can include making medical decisions.
The POA also nominates the attorney in fact to act as guardian if a guardianship should become necessary.
FUTURE DURABLE POWER OF ATTORNEY FOR HEALTH CARE
This is similar to the document above except that it is directed specifically toward health care and authorizes health care professionals to give information about you to your attorney in fact and authorizes your attorney in fact to make medical decisions for you.
AUTHORIZATION FOR HOSPITAL VISITS
This document ensures that the person you designate can visit you in the hospital and allows you to designate those persons whom you don’t want visiting you.
INSTRUCTIONS FOR WHAT TO DO WITH MY TOYS AND LEATHERS
This becomes critical if you are not out to your biological family about your S/M. Include in your Will a provision that a locked trunk (of a particular description) is to be given to a person. Give that trusted friend or family member instructions on what to do with the contents of that trunk - which may include your toys, books, writings, leathers, etc. - in the event of a medical emergency or death.
The other way to handle these issues if you are out or you don't care what your family thinks is to include instructions for disposition of these items in your Will.

CONCLUSION
This article serves simply as an overview to the main areas of law that may affect the SM player during his or her lifetime. As in all legal matters, when in doubt, or when you have a specific question, consult with a lawyer in your area.

Should you have any questions not answered in this article, you can contact me at: