The law: unenforced, and (un)civil.

 Posted by on January 1, 2011
Jan 012011

By Brian Flaherty

Unless you’ve been asleep for the past month, you’ve noticed that the military’s ludicrous “don’t ask, don’t tell” policy has finally been repealed. This repeal has been the topic of many a heated discussion lately – though the heat hasn’t been what you’d anticipate if you have spend any time listening to John McCain. Most lawyer/military folk I’ve talked to are supremely irritated that we’ve wasted so much time on this; consensus is that the government should just do the right thing and move on. However, a fair number have echoed the sentiments of a friend, ex-(insert branch of service here), who said “what drives me crazy is that the law is so uneven. I know there have been people kicked out of the service for disclosing – I get that, and it sucks. But when I was in, there were a bunch of people who were gay, and everybody knew it, and everybody was OK with it – it wasn’t this huge problem it’s made to be.”

After I got over my initial shock that the written law is not always the enforced law, I thought a bit about what the law says vs. what is actually considered illegal. For entertainment, I sometimes recite chapter and verse the unenforced laws in Massachusetts (did you know that anyone convicted of Blasphemy in the Massachusetts can be legally “bound to good behavior?” Delicious, isn’t it!). But this is a parlor game. Unenforced criminal laws can create real problems for people outside of the criminal justice system. For example, for many years (before Lawrence v. Texas), “unenforced” sodomy laws were cited as one of the main legal reasons for prohibiting gay parenting. The most infamous recent case of this was the custody battle of Sharon Bottoms, a lesbian mom in Virginia. In that case, the court awarded custody of Sharon Bottoms’ child to the grandmother; the court wrote: “Conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth, Code § 18.2-361 [Virginia’s sodomy law]; thus, that conduct is another important consideration in determining custody.” Bottoms v. Bottoms, 457 S.E.2d 102 at 108. This despite the fact that the sodomy law in Virginia hadn’t been used since 1923. Worse still, in Pennsylvania a court once determined that although at the time Pennsylvania had abolished their sodomy laws, a lesbian mother should be denied custody of her child because, even though Pennsylvania had repealed its sodomy law, she might be arrested if she ever traveled to a state that did have a sodomy law on the books.

Gratefully, sodomy laws are a thing of the past. But there are still criminal laws that, while unenforced as criminal laws, rear their ugly heads in other contexts. Among them are what the prone-to-panic refer to as the “Law against BDSM” – the public policy based law that consent is no defense to assault, even in the context of a BDSM relationship. Now whenever you talk about consent, law, and BDSM, people divide themselves into two camps: those who insist that the mantra: “consent is no defense to assault” is an urban myth, and those who believe there’s a great legal roundup of moral impurity afoot and that our community is next. Neither is true: regarding the first, the Supreme Judicial Court of Massachusetts just decided a case on December 14, 2010 where they held that “Where a defendant’s touching is physically harmful, the victim’s consent is immaterial, for purposes of determining whether defendant has committed intentional assault and battery” 458 Mass 526 at 529 Regarding the second, well, if there was such a legal push to incarcerate the kinky, we would never be able to organize fairs, fleamarkets and festivals around consensual flogging. The truth tends to be more nuanced than what you read on the internet.

While criminal prosecutions for consensual BDSM are rare, many of the things we do – the “touching [that] is physically harmful” – constitute criminal assault. Nevertheless, few if any of us have ever done time for consensual assault. But while these laws may be unenforced as criminal laws, they can still be used in a civil context. As happened with sodomy laws in the past, a devious family court judge might use these “unenforced” laws as a means to deny custody or visitation to a kinky parent. They might be used to try to justify employment or housing discrimination. These things happen to people we know and love: check out NCSF’s survey of violence and discrimination of sexual minorities; read the survey analysis and the victims’ stories. Do you think that such things would happen as readily if there were no legal basis for believing that sado-masochistic sex was illegal?

So you look around and count the number of people you know who could be convicted of assault for spanking, flogging, bondage, some kind of play that could be “physically harmful” – I suspect it’s a good number – and then you count the ones who have been convicted of assault for consensual BDSM – I suspect it’s zero. And you conclude that although assault laws could be used against your community, it never ever happens; they are unenforced, and so they don’t matter. Think again. Unused criminal laws rear their ugly heads in unexpected places where they are used to justify discrimination and worse. (check out Undead Laws: The Use of Historically Unenforced Criminal Statutes in Non-Criminal Litigations. “But those laws are never used” was no excuse to stop fighting sodomy laws, and it’s no excuse to stop fighting laws that criminalize consensual BDSM.

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