Friday, July 25, 2008

Bonnie & Clyde

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?


Aarkey said...

Lots of good wisdom in there :)

As to this remark "Isn't foot worship just profoundly sexual?" I have to say that Tarentino's dialog in Pulp Fiction sure implies that he'd agree with ya.

I've always wondered, why is it legal to pay someone to film a porno movie but to pay for sex isn't? Why can't you claim you were making a porno movie, but just "forget" to turn on the video? Or the camera woman was so lazy that she forgot to put in film!!! Etc.

I've always wondered why there is what appears to me to be a blatant double standard.

advochasty said...

I like your "I-was-filming-a-porno" defense!!

The anti-sex work thing all is just such an out-moded approach to law making and enforcement. Consensual commercial sex without legalization makes much more sense to me. I actually think that the New York law as applied to bdsm activity is unconstitutionally vague. You just don't know what is "sexual conduct" and what isn't. But enough of Law 101 ...

I'm rentin' Pulp Fiction on Netflix and finding the part about foot worship. :P

Miss Troy Orleans said...
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advochasty said...
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Whizzer said...


Sorry I'm checking in a bit late here, but I'm away and have been a bit tied up - in so many good ways.

Great post. Great advice.

The only thing I would add is - in addition to never talking to the police - NEVER consent to a search of your facility. If they don't have a warrant they don't get to do a search. Don't forcibly keep them out - don't ever resist - but don't say yes. If they come through the door anyway they'll have to explain why they couldn't wait.

Congrats on starting the blog. I like how you are finding some balance with your circumstances.



advochasty said...

Hey Whizzer,

Thanks for dropping by. Fine advice on the don't consent to search front. However, the Fourth Amendment has been essentially gutted by the rightward march of SCOTUS and most lower courts that ya can drive a Mack truck through most exceptions. But don't consent ... ever.

Balance, eh? Have ya read my "High Maintenance" post and ensuing commentary? ;) Actually, the blog is a balancing influence and I'm really enjoying it. Thanks again!!

slave2Catwoman said...

ALL sex acts between consenting adults, for free or for pay should be legal. The state has no right to legislate/punish private conduct.

By the way, the musical acts as illustration are cool. Almost all (if not all) my blog titles are the title of or a line from a song.

advochasty said...


For the record, I agree. It's just that the law doesn't.

Dude, you got the coolest blog. Anybody witha picture of Julie Newmar has got it goin' on!!

Anonymous said...

These houses offer illegal activities. If the dommes did not offer penetration or strap on, or anal play, they would not be arrested.