THE
LAW, S/M and YOU
BY A.
SPENCER BERGSTEDT, ATTORNEY AT LAW
copyright A. Spencer Bergstedt 1994
The law
has historically had a large role in how players 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 willl
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.
Law is
divided into two categories - criminal and civil. Both
have an impact on S/M.
CRIMINAL
There
are two aspects of criminal law that the S/M player
should keep in mind: private and public activity.
Private 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. Types of crimes that you could potentially
be charged with include (but are 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 - the very act 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
the 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.
ASSAULT
Technically, assault is defined as a non-consensual
touching of a person by another person. Therefore, if
scenes are consensual, the likelihood of actual
prosecution is slight. By that I mean that the police
might arrest you to harass you BUT the prosecutors
office would likely decide against filing 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 my state of Washington -
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.
Assault
can be charged as either a misdemeanor or a felony
depending on the circumstances. (There are 4 degrees
of assault) E.g. the use of weapons, the infliction of
great bodily harm, and the intent to inflict such
great bodily harm. Depending on what you do with your
play, you may very quickly jump into the felony
category.
INDECENT EXPOSURE
In
Washington, this is a misdemeanor crime unless you
expose yourself to someone under the age of 14, in
which case it becomes a felony.
You
must expose yourself in an open and obscene manner to
have committed this crime. Here 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.
RAPE
Forced
and/or non-consensual sexual intercourse or contact
which includes any penetration, however slight, of the
vagina or anus, with any object; touching of one
person genitals to the anus or mouth of another; any
touching of the sexual/intimate parts of another for
sexual gratification.
Rape is
a felony crime.
Consent
is a defense to this crime.
KIDNAPPING/UNLAWFUL IMPRISONMENT
These
are crimes of restraining another person without their
consent and are felonies (in Washington - when in
doubt, check your local and state laws).
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.
OTHER
AREAS OF CRIMINAL LAW
Another
area that questions come up in is for Pro Dommes. It
is quite clear that the main focus of law enforcement
in harassing or arresting Pro Dommes is prostitution
and child pornography - NOT S/M. If you are a Pro
Domme and you get raided or arrested - chances are the
cops are going to bust you for prostitution. However,
most prostitution laws limit the definition to
engaging in sexual conduct in exchange for a fee. So
as long as you're not doing that, you'll likely be OK.
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. HOWEVER, if
arrested, you should get an attorney immediately.
Prostitution is generally a misdemeanor.
WHAT TO
DO IF THE COPS COME KNOCKING ON MY DOOR
1. Stay
calm.
2. You
do not need to 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.
3.
Explain calmly to the cops what the noise was all
about - E.g., just good loud sex.
4. 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.
5. Call
a lawyer immediately.
6.
Remember, if they book you, you'll likely have to
remove all your piercing.
7. Stay
calm.
WHAT TO
DO IN CASE A SCENE BECOMES NON-CONSENSUAL OR ABUSIVE
1. Stay
calm
2. Call
the police
3. 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
4. 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.
5. 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 ahold of the police.
6. Tell
the truth about what happened
7.
Contact a friend who can either stay with you or that
you can stay with.
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.
-Liquor
control board rules
-Impersonating an officer (for you uniform
enthusiasts)
-Carrying weapons
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.
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 blade yourlocal
law allows you to carry.
UNIFORMS
You may
not impersonate a police or fire official. 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.
LIQUOR
CONTROL BOARD
Please
don't put our friendly bar owners out of business by
doing something that violates the liquor control board
rules. These rules are much stricter than you might
imagine and the penalty's for violation are stiff.
In
Washington, it is unlawful in a bar for staff to
expose their nipples, any portion of pubic hair, anus,
cleft of the buttocks, vulva or genitals.
To
encourage or permit anyone on the premises to touch,
caress or fondle the breasts, buttocks, anus or
genitals or another person. (this rule has been used
to fine a bar owner for two customers slow dancing
together where the one person rubbed his hand over his
partner's ass)
To
permit anyone in the bar to wear a device which
simulates any of the areas not allowed to be exposed.
(This is why we don't see dildos involved in fantasy;s
at contests here)
To
permit anyone to perform acts of: intercourse,
masturbation, sodomy, oral copulation, flagellation
(flogging), touching, caressing, etc.
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.
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:
1. Talk
to the police, file a report and press for criminal
charges; and/or
2. 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
To be
used if there is a threat of immediate danger/harm,
protective orders are a means to keep someone away
from you. They can be obtained either through superior
or district court.
CONTRACTS
Contracts for sexual services are not legally binding.
However, if your's is a service-oriented contract, it
might be enforceable.
In any
event, I believe 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 bahavior.
Be
prepared that if you want to make it legally binding
that you must follow principles of contract. If you
are unclear about what these are - you might wish to
consult with a lawyer.
PROTECTIONS
Wills
Living
wills
Powers
of attorney
Authorizations for hospital visits
instructions on what to do with your S/M stuff if you
get sick, hurt or die
**NOTE:
With all of these documents it is important to execute
them before serious injury or illness sets in as you
may then be termed incompetent to execute them.
WILLS
A Will
is a document by which you designate how you want your
property distributed upon your death; 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
desginations 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 philosphy 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
incapactiation 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.
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. Give a trusted friend or family
member instructions on what to do with your toys and
leathers 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.
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.
Should
you have any questions not answered in this article,
you can contact me at:
A.
Spencer Bergstedt
1211
Smith Tower
506
Second Avenue
Seattle
WA 98104
206-682-4267
