Saturday, February 28, 2009

When Is ProDomming Like Vagrancy?

Edward Lawson, social critic and civil rights activist, fought the good fight. Between March 1975 and January 1977 Lawson was arrested 15 times in California for violating a vagrancy statute which required people to "stop and identify" themselves. The law read:
Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: .... (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer to do so, if the surrounding circumstances are such as to indicate to a reasonable
man that the public safety demands such identification.
Lawson sued the cops in federal court in Los Angeles seeking a declaratory judgement that the statute was so vague it didn't let folks know how to act. It also let the cops enforce the law any way they saw fit. Representing himself, Lawson fought the power all the way to the United States Supreme Court and won. In Kolender v. Lawson the Court struck down the California vagrancy statute and held that it was "unconstitutionally vague within the meaning of the Due Process clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a “credible and reliable” identification."

There's some wonderful language in Lawson and ya know I've got a fetish for the well-turned phrase. SCOTUS said, "Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty."

They went on to say that, "[a]s generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." The Court was all about clear notice to the people as to what was a no-no. The Supremes saw in the California law an amorphous stricture which permitted “a standardless sweep [that] allow[ed] policemen, prosecutors, and juries to pursue their personal predilections.”

Does this sound familiar? If you've checked the Max Board or Yin's blog recently the NCSF has reported that the Manhattan District Attorney's Office believes activities such as "flogging, CBT or genitoture, spanking, body worship and nipple torture, in addition to more overtly sexual activities" would violate New York's criminal law against prostitution if it aroused either party and it was pay-for-play. NCSF reports Lisa Friel, Chief of the Sex Crimes Unit, lectured that the undefined "sexual conduct" element of the prostitution statute should not be objective at all but should be defined by "what is arousing to the participants". Ms. Friel, a rather hot and dommy prosecutrix, harangued that at least one prior lower court opinion had gotten it all wrong. She seemed big on backing the "standardless sweep" - a tactic which so troubled Edward Lawson that he made a Supreme Court case out of it - and won.

Now look, I'm one to talk. I think everything in the dungeon is arousing. I think it's deeply romantic. But who am I? And more importantly, who is Lisa Friel? It's the law that must clearly say what is illegal and must guide both citizen and cop to fairly follow and evenly enforce it. The doctrine of void-for-vagueness is complicated. There are loads of cases and twisting, winding, double blind reasoning. But, as NCSF was saying in their email posted on The Hang, the essence of Lawson provides a basis to challenge the New York prostitution statute as unconstitutionally vague.

Personally, I think such a challenge should be sex worker driven and planned. What does a prodomme who just wants to work for a living need with a privileged, paternalistic, white-guy, wannbe savior.

But ... what if once upon a time three really attractive, well educated, articulate, passionate, accomplished dommes wanted to start a business. Let's call it Domina Dojo. In the preposterously perfect pipedream of my mind's eye, they are a rainbow coalition. This delightful trio is a veritable kinky Charlie's Angels of bdsm charm. Oh, come on! You know who you are!

Let's say in my reverie our heroines outfitted a space and did lots of publicity to advertise a grand opening. They wouldn't have other adult businesses and would offer only two menu items. Bondage and corporal punishment. No OTK spanking and no other activities at all. It's a sexy, edgy, specialty house. Prior to the gala kickoff they inform the Manhattan DA's Office, the New York City Police Department and every newspaper, radio station and TV reporter in town of the ribbon cutting ceremony. Only before they see a single client, they file a declaratory judgement action either in New York State Supreme Court or the United States District Court for the Southern District of New York, seeking to strike down the New York prostitution statute as unconstitutional on the grounds that it is void for vagueness. Oh gosh, let's call the case Domina Dojo v. Morgenthau - or whoever succeeds him as he announced yesterday he's finally retiring. Before our conquistadoras see a single client, they await a ruling from the court.

They possibly would have a "case and controversy", something required to get a federal judge to act. This might be important if they decided they wanted to avoid state judges, many of whom may owe their positions to a mayoral committee. In addition, judges generally won't give advisory opinions. The black robes deal with dispute.

But the dommes have one - with Lisa Friel. They wanna know who she thinks she is! They want to know can they make a living and provide a service without violating the law and getting shipped up the river to the Big House. Maybe they don't think it's Ms. Friel who ought to be judge and jury. They certainly don't think she's concerned with "individual freedoms within a framework of ordered liberty." Most importantly, they are unlikely to get arrested because they haven't done anything even arguably illegal yet. They just want to work. Hmmmm ... now that might be a fun case.

This, dear reader, is pure fantasy. There are many ways this would likely not work. And it's just the merry musings of a hopelessly conflicted bdsm romantic. It's not legal advice. And no, I'm not your lawyer. And even if we fought the law, you know what they say about that.


Her Majesty's Plaything said...

Hi Advo:

Wow! This was a great post! The workings of your romantic maso persona and your keen legal mind rolled into one!!

I really have a hard time with the legal establishment coming down on BDSM. We know it's about bolstering their reputation and making themselves look good. Nothing more.

I just watched a fascinating film called "The Changeling" yesterday. It's supposed to be based on a true story in which the LAPD, responding to a report that a mother's child has disappeared, gives her the wrong boy and asks her to "play along". When she doesn't and keeps insisting they gave her the wrong child they try to destroy her reputation and eventually have her committed to an insane asylum. There she meets lots of other women who have been committed by the LAPD under a "code 12". It's one of the darkest movies I've ever seen. The film illustrates what many have come to believe about those in power; they care about nothing other than assuring they remain in power and will stop at nothing to ensure that nobody gets in their way. Only someone sleeping through the last 8 years of the Bush junta could have avoided having similar thoughts from time to time.

Personally I think prostitution should be legal (along with pot) so I am probably the wrong guy to go to bat for the cause. Just think how much money the state could make off the vices of men like you and I? Heck it would probably be enough to help us out of the economic black hole Bush left the country in! Not that I smoke pot...anymore! ;-)

Great choice for the video clip BTW. Love that song! ;-)



advochasty said...

The whole legalization of commercial bdsm is a slippery slope. Testing, training, regulation, licensing. It would go on and on. IMO some form of decriminalization would be preferrable.

Ultimately, I come back to prodommes and clients being part of an outsider/outlaw community. It's just tough in NYC on the dommes right now. I was inspired to think about a fantasy law suit because it's a community that is important to me and I was thinking about what might be done.

The song just came to me - then I found the Clash rendition. It just seemed to fit!! Glad you liked it!!

slave7 said...

Great post. Seriously though, the D.J. route is not that farfetched. The one trick is getting a judge who won't decide the case based on popular opinion.

advochasty said...

You know, when I first read your suggestion on Yin's blog I sort of was like "Yeah sure...". But I did a bit of research and I really agree with you that the vehicle of an action for declaratory judgement is not a completely far-fetched procedural route.

I think federal judges, powerful and tenured for life, are somewhat less likely to decide cases based on popular opinion. State judges stand election or undergo reappointment processes fairly regularly. Though even if you got in the door of SDNY, you have some doozie dangers in black robes awaiting the random assignment process. Then again, you could get someone good.

Thanks for dropping by!!

slave7 said...
This comment has been removed by the author.
slave7 said...

There is no doubt that in New York the caselaw on prostitution/bdsm is non-existent. If a declaratory judgment action could be decided on its merits ( rather than some Judge dismissing it on a technicality), it would go all the way up to the Court of Appeals. You would be considered a deity in every dungeon in New York!

advochasty said...

It's a wonderful thought!

Deity, shmeeity

I'd settle for Yin using me as a guinea pig at RopeShare!! :-P

slave7 said...

Lets not get too greedy. Deity maybe, Yin guinea pig, that's asking a bit much don't you think?

advochasty said...

Silly me ... of course you are right.

I should be punished for my greed, don't you think? Know anyone who's good at that sort of thing? ;-P