Who are you Going to Call?

 Posted by on August 29, 2010
Aug 292010

by Brian Flaherty

If I had my way, the only place Kink and Law would intersect would be in the playroom, and then only after some negotiation. I mean… who doesn’t appreciate a good private-interrogation, salacious-arrest or barter-for-prison-privileges scene? I picture a leather-clad cop, reflective sunglasses, meticulously strapped with an oversized… but I digress. Alas, the intersection of kink and the law is not always so appealing, not always so fortunate.

So where is the unfortunate intersection of Kink and Law? Too often it is around consent; by law you cannot consent to assault – you cannot consent to be harmed. There are some obvious exceptions – sporting events, for example: boxers consent to beat each other senseless in the ring. But you cannot consent to assault – you cannot allow yourself to be harmed – in the context of a sexual relationship. So…that spanking you gave last night? Criminal. That dashing domme who flogged you with little mercy and great care before putting you to bed stung and exhausted? A felon. That violet wand you saved your pennies for? Use it like that, and it’s a dangerous weapon. These are not antiquated uses for arcane laws: they’ve been used against kinksters in recent memory: during a raid in Attleboro, Mass (aka Paddleboro), to convict Dr. Oliver Jovanovic in New York, and as the backbone of Operation Spanner in the UK. Assault laws continue to be used to prosecute consensual BDSM not only in this country but abroad

But kink and the law intersect in other places, too – for example, employment discrimination: Can someone fire you for being kinky outside of work? Child custody: is evidence of a kinky lifestyle admissible at a child-custody hearing? What about zoning? Domestic violence? Obscenity? There are many places where kink and the law intersect, places you’d never go on purpose, but places you may find yourself one day. So while the laws and cases themselves may be fascinating and enlightening, the most important information here must be: what would you do if this happened to you? How would you react? Who would you call? Who’s got your back?

First: how would you react if law enforcement came knocking on your playroom door? Better yet, how should you react if law enforcement came knocking on your door? There are many online guides to your rights when confronted by law enforcement – guides you should read if encounters with police are a real possibility. But if you don’t get to them before official disaster strikes, here are the most important rules to keep in mind:

  1. Be polite but firm – never confrontational or antagonistic.
  2. Ask for a search warrant before allowing an officer into a room. You do not have to let the police into a private space unless they have a warrant (there are a few exceptions to this, discussed in the ACLU publication linked below).
  3. The answer to a casual sounding “mind if I look around” is no. A request for consent doesn’t sound like “will you consent to a search of your premises?”
  4. If you are arrested, do not say anything except “I would like to talk to a lawyer.”

These are just the basics – the things you must know. For a much better discussion of your rights when encountering the police, you should check out the ACLU publication Know Your Rights When Encountering Law Enforcement. And for a discussion of how to deal with law enforcement in BDSM, check out the police tips published by the National Coalition for Sexual Freedom.

So what’s the next step? If you do get arrested, how do you find a lawyer? And how do you deal with the inevitable media shit-storm that results when sex and law collide? Your first step is to call the National Coalition for Sexual Freedom (online at http://www.ncsfreedom.org). In their own words, NCSF is the group that “takes the lead in defending the rights of individuals and groups in the SM-leather-fetish, swing and polyamory communities.” They can help you with the next steps; In many instances they are able to connect you with a kink-aware attorney. They are also able to help you deal with any brewing media storm. If you don’t know about these folks, check out their website, become a member – they do tremendous work, and they deserve your support (so what are you waiting for? Go to their website, click where it says “join today…”).

How else do you turn to find a lawyer? You turn to your community – you look to people who have been there before. You turn to local fetish organizations for help (here in Massachusetts we turn to the fabulous New England Leather Alliance, who in addition to organizing the FFF, does great outreach and advocacy work, and did some great work around the Paddleboro debacle mentioned above). Or…the great thing about kinky social networking is not just that you can get off on all of the pretty pictures, the great thing about social networking is the huge community of people you can turn to. You can look to groups like FetLife’s BDSM & The Law (VERY IMPORTANT NOTE: you do not post a broad “what should I do” inquiry. You already know what you should do: you should find a lawyer. Take the law into your own hands and you’ve got a fool for a client. You should post something about looking for a lawyer). There is no reason to go blindly into a phonebook or lawyer referral service looking for help: you turn to your people.

This presentation has attempted to put to together some legal information on alternative sexualities. Legal Information does not constitute legal advice. If you have specific questions please consult an attorney.