AFFIRMATION OF MICHAEL THOMAS FOIS
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
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THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
Plaintiff-Respondent, 10938/96
-against-
OLIVER JOVANOVIC,
Defendant-Appellant.
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AFFIRMATION OF MICHAEL THOMAS FOIS
Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states
under penalty of perjury, the following:
I represent the National Coalition for Sexual Freedom ("NCSF") and file this affirmation in support of the NCSF’s request for leave to file a Memorandum of Law as amicus citriae in the above-captioned matter.
2. The NCSF is a not for profit organization, founded to defend the right of
American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in ser-vin- these ooals, opposes Governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community.
3. On July 7, 1999, the NCSF received the section of the District Attorney’s Brief in
the above captioned matter titled Point XI: The Trial Court Properly Instructed the Jury
that Consent is Not a Defense to Assault (Answering- Defendant’s Brief, Point X). In that
section, the District Attorney argued for nothing short of an absolute ban on consensual
sadomasochistic conduct. The trial court’s ruling, and the position urged by the District
Attorney, if allowed to stand, would criminalize private consensual sexual conduct.
4. The interests of the NCSF, its membership and constituents, are not adequately
represented by either the prosecution or the defense. The District Attorney’s position
would subject NCSF members to persecution and prosecution for private consensual
conduct; the defendant’s arguments are such that this Court could overturn the conviction
without addressing the trial court’s ruling, that consent is not a defense to a charge of
assault.
5. The NCSF voices no opinion as to the quantum of evidence below. the credibility
of the witnesses or the validity of the char-es as applied to appellant. The NCSF takes no
position on the ultimate disposition of the case, and does not opine as to whether the record supports a finding that the trial court’s ruling, constitute harmless error.
Dated: New York, New York
January 1999
Respectfully submitted,
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom, 381 Manhattan Ave.
Brooklyn, New York 11211 (212) 353-8984