NCSF Statement on Pro Dom work and Prostitution statutes
I love the National Coalition for Sexual Freedom. The NCSF is one of those organizations you know you can count on to fight for the right to sexual expression even around stigmatized types of sexual expression like exchanging sex for money, or engaging in BDSM.
Prostitution arrests in Dungeons and porn shops (where prostitution may not have been occurring at all) have raised much concern, and NCSF advocates spoke with law enforcement representatives to find out how they're interpreting "prostitution". The findings are troubling and are reported below.
NCSF Statement on Professional Dominatrices in New York NCSF has been contacted by over a dozen concerned members of the BDSM community in New York about the arrests of dozens of professional Dominatrices in Manhattan that started in early 2008. The pro-Domme community in New York City, which has been a vibrant part of the BDSM community for decades, has been ravaged by these prosecutions for prostitution and for promoting prostitution, resulting in the closure of a number of pro-Domme houses.
NCSF contacted the Manhattan DA’s office in order to clarify what sort of “for-pay” BDSM activities are considered legal in New York State. On February 5th, Susan Wright, along with outside counsel, met with ADA Leroy Frazer and Lisa Friel, head of the Sex Crimes Unit, to get their legal opinion.
Pro-Dommes have traditionally considered their BDSM-for-pay to be legal. One case decided by a local misdemeanor court, People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994), supports this position, holding that “sado-masochistic acts such as domination, foot licking, spanking and submission” are not “sexual conduct” prohibited by the prostitution statute. However, that decision is not binding even on other misdemeanor courts, and Ms. Friel described it as “not worth the paper it was written on.” Also, as stated in Georgia A.:
“The term sexual conduct is not defined in the statute but has since been described in various cases. That conduct includes acts of masturbation, homosexuality, sexual intercourse, or physical contact of the person’s clothed or unclothed genitals, buttocks or a woman’s breast. ( People v Block, 71 Misc 2d 714 [1972].)”
According to ADA Frazer, their office does not make prosecution of pro-Dommes a priority. However, according to their interpretation of the law, any form of “payment in exchange for touching in an intimate place either over clothing or nude” would constitute prostitution. This includes any touching of the genitals, anus, and breasts.
Under Georgia A, certain BDSM activities such as humiliation, role-play, foot worship, D/s, service activities, and bondage were found to be exempt from the prostitution statute, as long as no other sexual activities were involved. Ms. Friel opined Georgia A is based on a misunderstanding of the scope of the prostitution statute and that “sexual conduct” should be defined as what is arousing to the participants, not what is arousing to the outside “vanilla” observer.
Therefore, activities such as flogging, CBT or genitorture, spanking, body worship and nipple torture, in addition to more overtly sexual activities, would fall within the Manhattan DA’s understanding of prostitution when they are done for pay and either party is aroused by them.
NCSF opposes the prosecution of pro-dominants under prostitution laws. Consenting adults engaging in safe, sane, consensual SM, fetishes, and cross-dressing services do not pose legitimate health or safety issues for local communities. What these adults agree to do in private is no one else’s business.
NCSF is currently exploring ways to cooperate with other sex-positive activist groups in New York City to protest these arrests, as well as the alleged entrapment and arrests of gay men for prostitution. If you have been arrested for prostitution for doing BDSM activities, or if you would like more information, please contact: susanw@ncsfreedom.org
Hi Elizabeth, You say that
Hi Elizabeth,
You say that "the findings are troubling" (when investigating how law enforcement is interpreting prostitution). Are they really? It seems that they are defining most BDSM acts as sexual (and of course defining prostitution as sexual acts for pay). Personally, I think that both of those definitions are spot on. Oh, I realise that there's a lot more to BDSM than simple pneumatic arousal, but for most people, even ones we might consider to be very "vanilla" there's more to sex than that also.
Should we really complain that BDSM is treated as sex? I've heard people complain when BDSM *wasn't* treated as sex. In fact, if BDSM isn't sex, why would sex positive groups be involved in this campaign?
Now that I've said all that, do I think that Pro Doms should be arrested? Of course not. They should be given government grant's as far as I'm concerned. :) But other types of prostitutes shouldn't be arrested either. I don't really understand how any type of sexual activity for pay can pose "health or safety issues for local communities".
I think that the troubling
I think that the troubling aspects of the findings are that the ADAs making policy are forming a significant shift in the public prosecution paradigm and that people who were complying with law enforcement policies are no longer in compliance not because they are doing anything different but because they were redefined into illegality.
If I'm walking down a conservative town's street in a tee shirt and blue jeans and someone comes up to me and splashes my shirt with water, my nipples will show through the material. As a guy I'm not worried about indecency, I might take off my shirt to dry off, but what if without warning men were suddenly required to comply with the same laws women are required to comply with. A officer tickets me with indecent exposure because a policy change at the station encourages him to ticket men and women equally under the law. Am I stretching the matter a bit? Yes, but it's not that far a stretch.
Non-comprehensively if pain is differently arousing to different people and for those that pain is a positive experience and BDSM is cool then two consenting adults can exchange pain without assault charges being pressed by involved agencies. Furthermore in a provider/client relationship administering pain can be a transaction that is not PV/anal/oral/manual sex and so is not considered sex for money. If arousal is thrown into the mix then a subjective element that was not enforceable previously causes a shift in the definition of what is legally sex and what is legally prostitution. If I'm aroused by being shampooed prior to a haircut and my hairdresser is aware of that I might be engaging in solicitation by paying for the shampoo under these guidelines, hence my hairdresser and I are sex criminals. Seems ridiculous? (it is) If I testify that she had reason to believe that I was aroused and continued in the newly redefined sex act anyway and took money for that act, she and I then are both convictable.
This example is less unlikely if a brazilian wax is the activity in question and either a male or a female client or provider was aroused by the experience. Genital contact being the other requirement for conviction is no longer a missing element.
According to their
According to their definition a lapdance is prostitution, as is a breast massage if a woman is receiving it.
If the measure of a crime is how the person is aroused by the act then it is truely a thought crime or even an autonomic reaction crime predicated on learned or wired responses. This is sloppy law generated at the law enforcement end of the legal system. This cultural manefestation of law enforcement is hostile to legal sex workers to such a degree that entrapment is an understatement and what was permissible last year is no longer permissible with no law passed by legislative bodies just a policy change from the DA's office and the vice squads in question. Is this simply a pressure from the Mayor to increase convictions?
A more likely scenerio is that there is are ambitious ADAs that want to run for the DA seat being vacated by the current New York City DA who has recently stated that he will be stepping down at the end of his term. Considering that a tough on crime platform is standard for that type of campaign then a public exposure of the intent to cook the numbers with the very high conviction rate of soliciting charges might diffuse the situation or might backfire and give them a public platform to slam their agenda down the public throats.
Investigating even the public records of an ADA or a group of ADAs is tricky at best and always political. However the need to do so when an appointed politico abuses their power for political (career) gain weilding their power to target minority and fringe groups is obvious. Having a national organization spearhead a sensitive issue like this is safer because a local group is likely to be targeted, intimidated, legally embroiled and shut down.
here's to mud on faces
Or perhaps there was a severe embarrassment that encouraged the NYPD and NYDA to appear to strongly crack down on prostitution.
www.queensda.org/newpressreleases/2008/july/taylor_07_17_2008.ple.pdf
ambiguity and law
Jade, Chris, it's a fascinating conversation and if it were purely theoretical it would be a lot less troubling. The fact that we're talking about how laws are actually applied makes it a matter that is troubling to me. And Chris, as you point out, the fact that this is all so politicized and not at all rational makes it worse.
Jade, I agree with you that the real problem is not so much in whether or not BDSM is defined as sexual, but in whether exchange of sexual interaction for money is criminalized in the first place.
But to step beyond that question for a moment, what troubled me in the findings reported by NCSF was how ambiguous were the law enforcement standards, and even more ambiguous was one interpretation of those standards. When Ms. Friel suggests that "sexual conduct" (which is illegal to peform for money) should be defined as anything that is arousing to the participants, suddenly just about anything can be prostitution.
Now, perhaps that is actually the way to go. Perhaps adopting such a wide-ranging definition of prostitution would be the way to once and for all show how ridiculous is to put so much energy and so many resources into prohibiting prostitution. But I suspect in the United States anyway the reaction would be to further lock down the dominant sense of sexual "decency" instead of to expand sexual freedom. Perhaps I'm just feeling extra cynical right now, but when in NYC the police are propositioning people browsing in porn shops and then arresting them when they agree to have anonymous sex in exchange for cash, the cynicism feels at least a little bit warranted.
...because public space really matters!
Elizabeth
When Ms. Friel suggests that
When Ms. Friel suggests that "sexual conduct" (which is illegal to peform for money) should be defined as anything that is arousing to the participants, suddenly just about anything can be prostitution.
Exactly. And I can't wait to see the cops break down the restaurant doors and start arresting every man who buys dinner for a woman who batted her eyelashes.
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