Before I begin, a disclaimer.
I am not your lawyer. This is not legal advice. You cannot rely on what I'm saying here as legal counsel. We do not have an attorney-client relationship. You have to sign a retainer agreement for that to happen. I am not available for hire here. This is a blog and not a law office. I disavow responsibility for any actions taken as a result of reading these hopelessly conflicted ramblings of my submissive mind.
How's that for a CYA??
There have been a number of publicized busts of commercial bdsm establishments in New York over the past few months. Cops have generally used the prostitution statute to make these arrests though there has been at least one felony promoting prostitution charge brought. Article 230.00 of the New York State Penal Law defines prostitution as follows;
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
So the question is ... what's sexual conduct? Stunningly, it is undefined in the statutory scheme. The incredibly lovely and super talented [name removed to protect the innocent] (with a little help from a certain friend) wrote a very informative piece about some of the relevant case law in New York which might be used to define sexual conduct in a prosecution of commercial bdsm sex workers. The problem with all this case law is it is not from higher courts and really holds very little real authority.
Sexual conduct is a very broad term. Strap-on sure qualifies. What about caning? Don't some of us orgasm when worked over with a fine length of rattan? Isn't foot worship just profoundly sexual? Do you ever get hard when you're lashed to a cold steel St. Andrew's cross? I could go on and on, but I think that anything done in the dungeon is arguably sexual conduct and if it is done for money it potentially violates the law.
Dommes ... try this role play on for size. You are an expert witness for the prosecution. Your task is to give examples from your practice of when your clients became sexually aroused from what you did to them. Play this role with abandon. If you truly do, you'll immediately understand why "sexual conduct" is very broad terminology.
And guys, you can get arrested and charged with patronizing a "prostitute" (I really hate the word) if you're in a dungeon when a bust goes down. While it's dommes who have been arrested, the patronizing statute was used extensively in the 80's in New York when there was an open street hooker scene. Have they been prosecuting guys? No. But they could ...
Sure, you can look at the cases and construct good arguments that commercial bdsm is not prostitution. However, the real question is can the cops and prosecutors argue it the other way and make arrests. I think the answer is yes, they could and are doing that.
What to do? Accept the fact that we are all outlaws. Non-violent (er...ok, yer throwing single tails, not lead) Bonnies playin' with consenting Clydes. What are some of the precautions you can take?
- Ideally, dommes should screen heavily and consider limiting major practice expansion to referrals from other dommes or trusted subs.
- Avoid business models that permit a call-up and walk-in trade. The house shift that accepts same day walk-ins is easy pickin's for an undercover op.
- Carry the name and 24 hour phone number of a non-scene criminal defense lawyer on you always. Not some big firm type. Somebody who knows how to get to the courthouse. The New York Criminal Bar Association is a good place to start to shop for this kinda lawyer.
- Do not talk to the cops, no matter what. They will use it against you. Tell 'em you want your lawyer.
- Call the lawyer whose name and number you've been carrying.
- Take a deep breath ... in New York it takes about 24 hours from arrest to arraignment before a judge. You'll get out of jail. Keep to yourself, don't bother others, don't talk about your situation.
- Don't jump at the first deal. So called "quality-of-life" offenses are sent to the Midtown Community Court. They want to "help" you, counsel you and rehabilitate you. Actively lobby your lawyer for the best deal. (an adjournment in contemplation of dismissal or "ACD").
- If you are charged with either prostitution or patronizing, you will not get a jury trial, it will be a judge trial. Those are often hard to win and you risk a criminal record. Talk to your lawyer alot. Make him or her deal with you.
- Be careful out there ... as Mommy Dearest used to say ... an ounce of prevention is worth a pound of the cure.
This is not an "attack on our lifestyle". It is simple law enforcement. The law is what it is and until it changes you must deal with shifting enforcement priorities.
Besides ... isn't it just a little romantic bein' a desperado?