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Affirmation in opposition to motion to file













N.Y. Co. Ind. No. 10938/96


Cal. No. 98-10474



MARK DWYER, an attorney duly admitted to practice before the courts of this state, affirms:


1. I am an Assistant District Attorney, of counsel to ROBERT M. MORGENTHAU, District Attorney of New York County. I submit this affirmation in response to the motion of Michael Thomas Fois in the above-captioned matter. Mr. Fois identifies himself as an attorney for the National Coalition for Sexual Freedom (NCSF), and seeks leave to file a Memorandum of Law amicus curiae on behalf of that organization (Fois Aff. 1). 


2. Of course, this Court has the discretion to permit interested parties to file amicus curiae briefs that may prove helpful to the Court. However, the People respectfully submit that this Court should accept amicus briefs only from organizations with recognized reliability, and expertise in legal matters. On a practical level, there is no point in burdening the Court, or the parties, with a brief filed by a phantom entity. Furthermore, the credibility of such an organization would be suspect at best, which would raise serious doubts about the substance of any arguments it wishes to present.


3. Our research reveals that the so-called NCSF is just such a phantom entity. About all that Mr. Fois asserts concerning the NCSF is that it is a "not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere" (Fois Aff. t 2) However, a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF. Indeed, a thorough search of the relevant public records indicates that no organization named the "National Coalition for Sexual Freedom" has ever filed for non-profit status, nor has any such organization filed a tax return or been chartered as a business entity.


4. In his motion, Mr. Fois lists the address of the NCSF as 381 Manhattan Avenue, Brooklyn, NY 10009, and lists its phone number as (212) 353-8984 (Notice of Mot.). This appears to be a phony address. For starters, the phone number is a Manhattan phone number (area code 212), while the address is in Brooklyn. And the zip code listed (10009) is located in lower Manhattan -- not in Brooklyn. The correct zip code for 381 Manhattan Avenue in Brooklyn is 11211.


5. Moreover, no organization called the NCSF is listed at either the address or phone number provided by Mr. Fois. The address is not a business address; it is a residential apartment building. Neither Mr. Fois nor the NCSF is listed as a resident of that building. The phone number provided is a residential number, listed in the Manhattan phone book as belonging to Mr. Fois.


6. Further, there is no mention of the NCSF in any reported opinion, in any jurisdiction. As far as we can tell, this is the first attempt by the NCSF to inject itself into any legal proceeding.


7. While the NCSF does not seem to exist in the "real" world, it does appear to exist in the "virtual" world of cyberspace. The NCSF has a website (httv://, which is dedicated to the discussion of various sexual practices (including, but not limited to, sadomasochism) , and which contains links to other websites of a similar nature. The website makes no mention of Michael Fois or his affiliation, if any, with the NCSF.

  1. From all that appears, the NCSF might simply be one or two people who have a computer, internet access, and the capacity to create a website. It does not have a verifiable identity and, for all intents and purposes, is accountable to no one. Under these circumstances, the People respectfully submit that it would not be a sound exercise of discretion for this Court to accept an amicus brief from the NCSF.
  2. Furthermore, the NCSF's motion to file a Memorandum of Law amicus curiae is untimely. As this

Court is undoubtedly aware, this case has attracted more than its share of media attention.

Yet the NCSF waited until January 22, 1999 -- merely eleven days before the scheduled oral argument date of February 2, 1999 -- to file its motion, and made the motion returnable on the day of oral argument. By filing at such a late date, the NCSF has given the parties little opportunity to respond to its contentions. This alone is a sufficient reason to deny the NCSF's application to file an amicus brief.


10. Further, the NCSF brief has nothing to offer on the merits. First, the NCSF characterizes the People's position as an argument that all sadomasochistic conduct is illegal (Mem. of Law at 2-3) That is an absurd mischaracterization. The People instead have argued that if all the statutory elements of assault are made out, that the victim allegedly consented is not a defense.


11. The NCSF's response to the People's actual position is meritless. As discussed in Point XI of the People's Brief, the plain language of the assault statutes, the structure of the legislative scheme, and the case law compel the conclusion that the Legislature did not intend for consent to be a defense to criminal assault. Nevertheless, the NCSF claims, the People have fallen "asleep at the switch" in making this argument, in that they have failed to notice "a myriad of decisions" in New York cases supposedly rejecting the People's position (Mem. of Law at 3) . Oddly, however, the NCSF cites only two New York cases that were not addressed in the People's brief. See Mercurv Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (lst Dept. 1989), affld, 76 N.Y.2d 256 (1990); Pillow v. Bushnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849) And neither of these cases even remotely supports the NCSF's argument that consent is a defense to criminal assault.


12. First, Mercury Bay, on which the NCSF relies heavily (Mem. of Law at 13-17), is completely inapposite. The issue in that case was whether New Zealand violated the terms of the Deed of Gift of the America's Cup by entering a catamaran in the world famous yacht race. See 150 A.D.2d at 82-101. This, obviously, has nothing to do with whether consent is a defense to criminal assault.


13. The NCSF asserts that Mercury Bay supports its position because of language in a concurring opinion by Justice Rubin, exploring, in dicta, the history of sportsmanship. See 150 A.D.2d at 101. In this discussion, which the NCSF fails to identify as coming from a concurring opinion, Justice Rubin noted that if a hockey player were charged with assault for hitting another player with his hockey stick and injuring him, the courts would be required to determine, inter alia, whether the stick "was wielded with the requisite intent to constitute an assault," and whether the "injured player may be deemed to have consented to the use of such tactics by his participation in the game." However, Justice Rubin did not opine as to whether a hockey player actually is deemed to have consented to such an injury. Rather, Justice Rubin merely made the obvious point that, in such a. case, the courts would be required to determine whether consent might be a valid defense. Ana certainly, Justice Rubin never implied that consent might be a defense to a violent sadomasochistic assault, involving the use of dangerous instruments, as occurred here.


14. The NCSFI s reliance on Pillow v. Bu-shnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849), is equally unavailing. In Pillow, a woman brought a civil suit against her husband for assault and battery. on appeal, the court held that the trial court had erred by permitting the defendant to compel his wife to testify at trial. Id. at 157-61. The court also noted, in dicta that the trial court correctly charged the jury that it would be a defense to the civil suit if the husband could prove that the wife consented to the assault. Id. at 161.


15. Thus, Pillow merely restated the common law rule that a plaintiff may not recover civil damages for assault and battery if he consented to the tortious conduct. See Restatement (Second) Torts ¤ 892A. This is a far different question from whether consent is a defense in a criminal prosecution. Indeed, the Restatement specifically notes that while consent is a defense to a civil assault action, it is not a defense to a criminal prosecution, see Restatement (Second) Torts ¤ 892C, cmt. a and ill. 1, unless, of course, such a defense is provided by statute. And, as detailed in the People's brief, the New York Penal Law does not provide a consent defense to assault.


16. Finally, at bottom, the NCSF's claim is one not of law but of policy. Despite the clear legal precedent to the contrary, the NCSF believes that consensual, sadomasochistic sex should be protected by the law and the constitution, because it is healthy, "innocuous love-play" (Mem. of Law at 2) . The People take no position on the merits of this argument as a political matter; rather, we merely point out that under the Penal Law, if a sadomasochist engages in conduct that falls within the ambit of the assault statutes (e.g., intentionally causes "physical injury" or "serious physical injury" to another) , he is guilty of assault, regardless of whether the victim "consents." Of course, if the NCSF wishes to decriminalize all sadomasochistic assaults, it should take its arguments to the Legislature. After all, its website boasts that it is a lobbying organization.


WHEREFORE, the People respectfully request that the NCSF's motion to file a Memorandum of Law amicus curiae be denied.


Dated: New York, New York January 26, 1999


Assistant District Attorney


CC: Mr. Michael Thomas Fois
Attorney for Amicus Curiae
C/o National Coalition for Sexual Freedom 381 Manhattan Ave.
Brooklyn, NY 11211


Diarmuid M. White, Esq.
Attorney for Defendant
148 East 78th Street
New York, NY 10021




Respondent, -against-





N.Y. Co. Ind. No. 10938/96


Cal. No. 98-10474


District Attorney
New York County
One Hogan Place
New York, New York 10013
(212) 335-9000


Mark Dwyer
Assistant District Attorney
Of Counsel

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NCSF is leading a major national campaign—Consent Counts—to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.

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