March 26, 2014 – Washington DC. – NCSF has filed an amicus brief in a military case involving a marine who engaged in a consensual threesome and because of that was convicted of adultery, attempted consensual sodomy and indecent conduct, a "crime" based solely on undefined sexual conduct inconsistent with "common propriety."
"When the Levee Breaks: A guide to dealing with and avoiding arrest and prosecution in BDSM scenes."
"When the Levee Breaks" is a companion to the NCSF publication, "The Aftermath," and is a guide to provide a perspective for those who have, through mistake, misunderstanding, or a fleeting lapse of reason, committed an act of criminally actionable sexual assault. It is not intended to provide a defense for indefensible acts."When the Levee Breaks" also provides information on how to better protect oneself against arrest and prosecution.
"The Aftermath: A guide for victims of sexual assault and/or intimate partner violence in the BDSM community," by Natalie Quintero
"The Aftermath" is a compilation of advice that is regularly provided to victims who ask for help through NCSF's Incident Reporting & Response project. This guide will educate anyone in the BDSM community who has been victimized on what one might expect to experience after an assault, what one's options are, things to consider when weighing options and making decisions on what to do next, what one might expect if one decides to report the experience, as well as the resources available to assist in coping with and healing from abuse.
In most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said:
“Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…”Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980).
The 2008 survey saw a total of 3,058 responses collected. Of those, 2,412 respondents resided in the United States (83.4%). Of the remaining 480 respondents, a total of over 42 other countries were represented. Where appropriate, the data is compared to the 1998 Violence & Discrimination Survey Against Sexual Minorities which collected over 1,000 responses to similar questions over the course of a year. The 1998 survey did not cover business or event-related experiences of harassment, nor did it ask about Internet experiences. The 2008 survey also included more questions about sexual activity and identity.
Table 1. Gender
Table 2. Sexual Orientation
A total of 1,146 (37.5%) respondents indicated that they had either been discriminated against, had experienced some form of harassment or violence, or had some form of harassment or discrimination aimed at their BDSM-leather-fetish-related business. Of the respondents who reported some form of persecution,
476 (41.5%) identified as male
615 (53.7%) identified as female
9 (.8%) identified as intersexed
78 (6.8%) identified as transgendered
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
Of the 1,146 respondents who indicated that they had either been discriminated against or had experienced some form of harassment or violence,
380 (33.2%) identified as heterosexual,
440 (38.4%) identified as bisexual
292 (25.5%) identified as gay or lesbian.
97 (8.5%) indicated that they identified in some other way from heterosexual, bisexual or gay/lesbian.
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
The sexual orientation of respondents who were discriminated against or had experienced some form of harassment or violence is compared in Table 6.1 to the total percentage of respondents who identified their orientation. It is interesting to note that Gay/lesbian, Bisexual and Other respondents have slightly higher rates of persecution than their average percentage of total respondents, while Heterosexuals are less likely to be discriminated against.
Table 3. Sexual Orientation and Discrimination
Total Percent 2008 Respondents
In 1998, the survey asked: "Are you completely 'out' about your involvement in sexual minority practices? "62% stated they were not "completely out." That is statistically almost the same as the 59.5 and 59.7% of respondents in the current survey who said they weren't out to work and/or family.
11.3% (346) of the total number of respondents (3,058) reported being discriminated against by professional or personal service providers. That is 30% (346) of the respondents who were discriminated against (1,146). Those respondents could check one or more of the specific ways they were discriminated against (Table 8.), with 48.8% discriminated against by a medical doctor, and 39.3% discriminated against by a mental health practitioner.
Table 4. Discrimination by Professionals
Mental health practitioner
Police or govt. employee
Other Professional service provider
Other Personal service provider
In total, 203 (6.6%) respondents stated their business had been harassed or discriminated against.
Respondents could check one or more of the specific ways they were discriminated against (Table 5.).
Table 5. Business Discrimination
Negative media coverage
Harassment by police/author
Harassment by neighbors
Harassment by organizations
Loss of lease
Refused credit card services
Loss of business
Refused insurance coverage
Loss of occupancy certificate
When asked, "Have you curtailed your use of the Internet for fear of prosecution?" More than one-third of the respondents, 1,065 (34.8%) of the 3058 respondents, said "yes". Respondents could check one or more of the specific ways they curtailed their Internet use (Table 10.).
Table 6. Curtailed Internet Use
Didn't post image
Didn't visit website
Didn't post text
Didn't link to website
Didn't join email group
Posted 18-over warn
Didn't add meta-text
9.3% of respondents, 285 out of the total returned surveys, reported that US 2257 had an impact on their use of the Internet. Of the 1,065 respondents who indicated that they had curtailed their use of the Internet regarding BDSM activities, 214 (20.1%) reported that US 2257 was a significant reason for that curtailment.
When respondents who experienced violence and/or harassment were asked, "Did you press charges?" 90% said no as compared to 96% of the respondents in the 1998 survey who did not press charges.
Affidavit of Susan Wright in Response to Affirmation in Opposition to Motion to File a Memorandum of Law Amicus Curiae
N.Y. Co. Ind. No 10938/96
Cal. No. 98-10474
1. I, Susan Wright, am the Executive Director of the National Coalition for Sexual Freedom (NCSF) .
2. I write this affidavit in response to the DA's Brief in Opposition to the NCSF request to file an Amicus Curia Brief. I am at a loss as to why the Appellate Division of the DA's office has labeled the NCSF a "phantom entity. In August 1998, I contacted Martha Bashford at the D.A.'s office because she had worked with one of the NCSF Board organizations, Gay Male S/M Activists (GMSMA) , on a criminal case (the so-called Dangerous Top, Michael Payte). (see Appendix A, Village Voice article by Guy Trebay.) Martha Bashford suggested I send an email proposing that: the NCSF and the DA's office have a meeting to ensure the DA's position would not harm our constituents. I received no response to my requests, and contacted Martha Bashford again in October 1998. We spoke briefly, but no arrangements were made at that point for a meeting. In late l998, the NCSF began considering the necessity of filing an Amicus Brief.
3. The NCSF was founded in 1997 and consists of 20 organizations with a combined membership of 6,500. The NCSF is an advocacy and lobbying organization that supports the understanding and tolerance of sexual minority practices. The NCSF has been noted by the New York media in this capacity (see Appendix B, article from the New York Blade which cites NCSF's activity on sexual liberation issues). NCSF is in the process of incorporating in the State of Virginia and applying for a 501(C)4 status. Our accountant is: Rob Lyons at (301) 6648204; and our filing attorney is Jeff Yablon at Shaw Pittman, 2300 N. Street N.W , Washington DC 20)37. The executive office of the NCSF is currently in my home office at 381 Manhattan Avenue, Brooklyn, NY, 11211 (718)383-3318. Additional information on NCSF can be provided upon request.
The Board of Directors of the NCSF consists of representatives from five of the largest and oldest organizations (dating back to 1971) in our coalition. Most of these organizations enjoy formal not-for-profit status in their own right. (See Appendix: one-page mission statements from each of the five organizations sitting on the Board of the NCSF.) The Board Members are:
The Eulenspiegel Society
P.O. Box 2783
New York, NY 10163-2783
The Society of Janus
P.O. Box 426794
San Francisco, CA 94142
National Leather Association- International
3439 N.E. Sandy Boulevard #155
Portland, Oregon 97232
P.O. Box 11161
Arlington VA 22210
Gay Male S/M Activists
332 Bleecker Street, #D23
New York, NY 10014
The other fifteen organizations that belong to the NCSF are: Boston Dungeon Society (Massachusetts), Connecticut Munches (Connecticut), Knot For Everyone (New Jersey), LATCHES (National), Ohio Leather Coalition (Ohio), People Exchanging Power - PEP (Ohio), Memphis Power Exchange (Tennessee), The Power Exchange (Maryland), The Red Chair (Alabama), The Rose Garden (Southwest), SigMa (Washington DC), SMART - Sado Masochist Alliance Real Time (Ohio), St. Louis Leather & Lace (Missouri), TALON (North Carolina), and The Tri-State Couples Club (Pennsylvania).
6. On January 7th 1993, the NCSF received a copy of the D.A.'s brief which by eliminating consent as a defense and denying the constitutionality of practicing sadomasochism, effectively criminalizes sadomasochistic activity. The NCSF retained Michael T. Fois as Counsel of Record to file an Amicus Brief on behalf of our organization. At that time, we believed oral argument was scheduled for mid-February.
7. This is the first time the NCSF has injected itself into any legal proceeding, however the NCSF has been active in both National and local sexual minority issues. we release a weekly Media Update (archived on our website at www.ncsfreedom.org) covering sexual minorities in the news media, and as part of our anti-defamation efforts, the NCSF opposed the State University of NY's condemnation of President Bowen for including sexual minority topics in a Women's Conference at SUNY New Paltz. The NCSF participated in Lobby Day in April 1997 in Washington DC, lobbying for equality in the workplace for sexual minorities. The NCSF is currently analyzing the 1,000+ returned surveys from the lst National Survey of Violence & Discrimination Against Sexual Minorities, and in the summer of 1998, I gave over 50 radio interviews around the country on the preliminary results of this survey.
8. The reaction of the D.A. after the attempts the NCSF has made to open a dialogue on this matter simply proves the need for diligent representation of sexual minority issues. Mark Dwyer states in his Opposition: "under the Penal Law, if a sadomasochist engages in conduct that falls within the assault statutes (e.g., in intentionally causing physical injury or I serious physical injury to another) , he is guilty of assault, regardless of whether the victim I consents." There are tens of thousands of practitioners of sadomasochism in New York who would be justifiably concerned with this statement, as it comes from a D.A. who has already concluded that hot candle wax is "a dangerous weapon." The NCSF contends that consent is the basis for determining if an activity is sadomasochism rather than assault. The DA has ignored our offers to educate them as to sadomasochistic practices and the nature of consent in those practices. We hope this Court is more receptive.
Notary Public, State of New York
No. 0 1 PR6010126
Qualified in Kings County
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 response to the Affirmation of Assistant District Attorney Mark Dwyer, dated January 26, 1999 (the "Dwyer Aff."), submitted in opposition to the NCSF's motion for leave to file a Memorandum of Law as amicus curiae in the above-captioned matter.
Whether due to negligence or willful misrepresentation, the District Attorney's Affirmation borders on the sanctionable. It contains numerous false statements and the District Attorney has, without using the exact words, accused the NCSF, and myself, of misrepresenting itself to this Court. The District Attorney falsely states that "the so-called NCSF is just such a phantom entity." (Dwyer Aff. ¦ 3). At one point, the District Attorney accuses the NCSF, and myself, of listing a "phoney address." (Dwyer Aff. ¦ 4). The District Attorney affirmed to this Court that "[f]rom 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." (Dwyer Aff. ¦ 8). To make these statements, without any evidentiary support, should be enough to raise the ire of this Court; to do so, as the District Attorney does here, in the face of overwhelming evidence to the contrary, I believe borders on the sanctionable. As court filings are privileged, this filing provides our only redress to the District Attorney's defamation. While I cannot opine as to what degree of actual knowledge ADA Mark Dwyer had upon filing his affirmation, the Office of the District Attorney, as an institution, possessed information when it filed its affirmation that refutes many claims it subsequently made; information that clearly established that the NCSF is a recognized national not-for-profit organization with a duly constituted board and a substantial membership. Pointedly, the District Attorney had no difficulty effecting personal service upon the phantom it now asks this Court to ignore.
I note that at no time did the District Attorney attempt to contact me, the attorney of record, regarding the status of the NCSF. One would expect that, if the District Attorney honestly doubted the validity of the NCSF, its first move would be to call the telephone number on the Notice of Motion -- my number. To contact the attorney of record is not merely common courtesy and standard practice; it is also a critical element of due diligence prior to making the type of attack the District Attorney launched in its affirmation.
ATTORNEY'S KNOWLEDGE THEREOF
Far from a being a phantom, the NCSF consists of twenty organizations, some nearly thirty years old, whose combined membership is 6,500. When it filed the Notice of Motion, the NCSF did not believe it necessary to provide extensive background information. The NCSF, which had been in contact with the District Attorney's office regarding this case, was shocked to have its validity questioned. As its credibility, indeed its very existence, has been called into question, the NCSF now provides the Court with greater detail through this Affirmation and the attached Affidavit of NCSF Executive Director Susan Wright (the "Wright Aff."). I do not believe it is appropriate or helpful to flood this Court with affidavits at this point, but the NCSF stands willing to provide additional documentation and third party affidavits should the Court so desire. Throughout these documents this Court will note numerous contact addresses and phone numbers the Court may use to verify the information the NCSF presents
It should be noted that the District Attorney, while arguing this Court should ignore the NCSF as a phantom, failed to disclose that it has been in contact with the NCSF on this case since August 1998, and that it had worked extensively with a NCSF board member in a criminal investigation in 1996. NCSF Executive Director Susan Wright first contacted Assistant District Attorney Martha Bashford of the sex crimes unit regarding the Jovanovic case in August 1998. ADA Bashford discussed the concerns of the NCSF with Ms. Wright again in October 1998. (Wright Aff. ¦ 2). While the concerns of the NCSF were not fully addressed, nothing in the NCSF dealings with the District Attorney's office at that time indicated that the District Attorney believed it was dealing with a "phantom" or in any way challenged the validity of the NCSF.
ADA Bashford's name was not pulled out of hat; the NCSF contacted her because she had worked with a NCSF board member, the Gay Male S/M Activists ("GMSMA"), on a criminal investigation in 1996. (Wright Aff. ¦ 2). The mission statement of the GMSMA is annexed to the Wright Affidavit. Briefly, the GMSMA is a not-for-profit group established in 1982 to create a more supportive community for gay men involved in sadomasochism. The District Attorney's office utilized the resources of the GMSMA in identifying potential witnesses in what the New York media labled the "Dangerous Top" case. See"Dangerous Top" Unmasked: D.A. Investigates S/M Torture Charges, by Guy Trebay, Village Voice 1996, a copy of which is annexed to the Wright Affidavit. More details regarding the GMSMA and its work with the District Attorney's office can be provided if the Court so desires.
The District Attorney was aware when it filed its affirmation that the GMSMA was a board member of the NCSF. The District Attorney admits it reviewed the NCSF's website (https://ncsfreedom.org) prior to filling its affirmation (Dwyer Aff. ¦ 7). That website clearly identifies the GMSMA as a board member of the NCSF. The NCSF website clearly lists its Board of Directors and provides the ability to contact those organizations. When the board member is an organization, as is the case with the GMSMA, the website lists the individual from that organization presently serving on the NCSF board. The website also provides the names of nine staff members of the NCSF and the ability to contact those individuals. A printout of the NCSF website is attached to this affirmation; the names of the board and staff members appear on page 3. The underlined words are "hyperlinks." With one click on a hyperlink, a browser is taken directly to an individual e-mail address, in the case of the NCSF staff members, or to another website, as in the case of the board members. To the best of my knowledge, the District Attorney made absolutely no effort to contact any of the individuals or organizations listed on the NCSF website.
These facts of which the District Attorney's office was undoubtedly aware of prior to filing its affirmation more than refute the accusations made in that affirmation. The District Attorney cannot argue that the NCSF's credibility "would be suspect at best" (Dwyer Aff. ¦ 2) when it had in the past relied upon the credibility of one of the NCSF's board members. Nor can it can claim "that the so-called NCSF is just such a phantom entity" (Dwyer Aff. ¦ 3) after having discussions with the so-called phantom's executive director, identifying its board members, and nine of its staff members. And it is absurd to accuse the NCSF of listing "a phoney address" (Dwyer Aff. ¦ 4) when the District Attorney had no difficulty effecting personal service upon the NCSF at the address listed.
More egregious statements, however, exists in the affirmation. The District Attorney affirmed to this Court that "[f]rom 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." (Dwyer Aff. ¦ 8). The District Attorney also affirmed that the NCSF "does not have a verifiable identity." (Dwyer Aff. ¦ 8). These statements are more than misleading, they are defamatory. At the time the District Attorney made these claims, it possessed the names of all seven NCSF board members, nine staff members, and the ability to contact them. ADA Dwyer may believe the NCSF and its website to be no more than a figment of my imagination, but he had an ethical obligation to at least attempt to contact those he dismisses as phantoms before affirming to this Court that the NCSF lacks a "verifiable identity." (Dwyer Aff. ¦ 8).
The District Attorney states that the NCSF "website makes no mention of Michael Fois or his affiliation, if any, with the NCSF." (Dwyer Aff. ¦ 7). I am at a loss as to the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Had I believed my personal background to be of relevance I would have appended a resume. It is clear that the only point of this statement is to cast dispersions upon myself. While I believe ad hominem attacks normally not worthy of response, for the elucidation of the Court, I will briefly describe my background and relation to this case. I am not a member of the NCSF or of any of its member organizations and for that reason do not appear on their website. I was first contacted by the NCSF in mid 1998, having been referred to them by another attorney. I had recently left the legal department of the Federal Reserve Bank of New York, for which I had worked for seven years, the last four of which I was in the Litigation and Enforcement Division. In that capacity, I investigated banking fraud and had occasion to work with the District Attorney's office. I agreed to assist the NCSF, pro bono, because I was concerned that an overaction to a horrendous case could create bad law and reduce the civil liberties enjoyed by all New Yorkers. As has become axiomatic, hard cases make bad law. Northern securities Co. v. United States, 193 U.S. 197, 401 (1904)(Holmes, J., dissenting). My worst fears were realized when I saw the District Attorney's brief and the broadside it laid into civil liberties and consensual sexual conduct.
Through the statements discussed above, the District Attorney denigrates the NCSF and myself and attempts to convince this Court that we have misrepresented ourselves and are really nothing more than a pair of computer hackers who lack "recognized reliability, and expertise in legal matters." (Dwyer Aff. ¦ 2). This description contradicts the information possessed by the District Attorney at the time it filed its affirmation. Were such statements made outside of a court filing, they would constitute defamation per se.
MORE THAN TWO PEOPLE WITH A COMPUTER:
VERIFICATION OF THE NCSF
The District Attorney affirmed that "a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF." (Dwyer Aff. ¦ 3). We question both the scope and the effectiveness of the District Attorney's "comprehensive" review. It clearly failed to include the District Attorney's own records; if it had, it would have revealed ADA Bashford's contact with the NCSF as well as the involvement of the GMSMA in the Dangerous Top case. There simply are not that many cases dealing with sadomasochism in any context; its hard to imagine that a case less than three years old that generated substantial media coverage would fall through the cracks.
The District Attorney's "comprehensive" review also could not have included the local media, which has reported on the NCSF. See, Silence of the lambdas, by Katie Szymanski, New York Blade News, September 4, 1998, a copy of which is annexed to the Wright Affidavit. Nor could it have included the national media, for the NCSF gave nearly 50 radio interviews in 1998. (Wright Aff. ¦ 7). And although the District Attorney found the NCSF website, it could not have searched the world wide web. Had it, it would have found reports regarding the NCSF's lobbying and the NCSF's National Survey of Violence & Discrimination Against Sexual Minorities. See, e.g., GenderTalk at http://www.gendertalk.com/GTransgr/iyf897.htm; GenderNews at http://www.ifge.org/news/1998/april/nws4298c.htm. Clearly, the thousand plus respondents to the NCSF's survey had no difficulty finding the NCSF.
The District Attorney affirmed that "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." (Dwyer Aff. ¦ 3). The NCSF is not sure why the District Attorney failed to find the NCSF's filings. Perhaps the District Attorney only searched locally, not nationally. The NCSF's executive office is in New York, but its situs for incorporation and its not-for-profit status is in Washington DC The NCSF would have readily provided copies of the relevant documentation had the District Attorney so requested; it never did. The NCSF now provides, in the Wright Affidavit, contact information for its accountant and the attorney responsible for its incorporation and not-for-profit filings, should the Court desire confirmation of the NCSF's not-for-profit status. (Wright Aff. ¦ 2).
The District Attorney affirmed that the address provided by the NCSF "appears to be a phoney address." (Dwyer Aff. ¦ 4). Here the District Attorney explicitly accuses the NCSF and myself of making a misrepresentation to this Court; an accusation the District Attorney bases solely on the use of a Brooklyn address with a Manhattan phone number. To the best of my knowledge, the District Attorney made no effort to contact anyone at the listed address to determine whether, in fact, it belonged to the NCSF. I am a solo practitioner and do not maintain an office; so, for the purposes of this litigation, I utilized the executive office of my client, the NCSF, which is located in Brooklyn at the address originally listed on the Notice of Motion. (Wright Aff. ¦ 2). Like many not-for-profit organizations, the executive office of the NCSF is located at the residential address of its executive director. While I lack an office, I do have a phone and that information was supplied. Hence the Manhattan telephone number listed on the Notice of Motion. The District Attorney had no difficulty effecting personal service upon the NCSF at the address it insists is phoney.
The District Attorney notes that the zip code originally listed as part of the NCSF's address on the Notice of Motion was for lower Manhattan while the rest of the address was in Brooklyn. (Dwyer Aff. ¦ 4). The District Attorney misleadingly implies that this bolsters its "phoney address" assertion. The District Attorney, however, fails to disclose to this Court that it is aware the original zip code was a typographical error and that it was made aware of that typographical error the same day it was served the Notice of Motion. The NCSF subsequently provided the District Attorney with the correct zip code. The zip code error was discovered almost immediately after the Notice of Motion was filed -- which was the same day it was served, Friday, January 22, 1999. The District Attorney's office was informed of the error that same day; the specific individual was Carmen Mejia, tel. 335-9342. The correct zip code, the one the District Attorney used and lists in its affirmation, was provided to the District Attorney by the NCSF. The Appellant was also provided with the correct address and I personally corrected the addresses in the court filings.
The District Attorney notes that "this is the first attempt by the NCSF to inject itself into any legal proceeding." (Dwyer Aff. ¦ 6). The point of this statement escapes me, nor do I understand the relevance of this information on whether the NCSF should be allowed to file an amicus brief. Surely the District Attorney does not mean to imply that this Court should refuse to accept the NCSF amicus brief because it is its first legal foray? Under that logic, no organization would ever be allowed to file an amicus brief, for the first one will always be rejected as being the first one! Presumably, the District Attorney means to say that since the NCSF has not sued or been sued, or prosecuted, it must not exist. I do not believe this argument worth commenting on.
The District Attorney likewise affirmed that the NCSF "does not have a verifiable identity and, for all intents and purposes, is accountable to no one." (Dwyer Aff. ¦ 8). This statement is false. The truth is that, at best, the District Attorney chose not to verify the NCSF's identity. As described earlier, its "comprehensive review" was sorely lacking. (¦¦ 11-13, supra). One would think that, if the District Attorney truly doubted the validity of the NCSF, its first move would be to contact the attorney of record, yet no attempt was made to contact me. Nor was any attempt made to contact anyone associated with the NCSF or its member organizations. The information the District Attorney admits possessing, the information provided by the website, was more than sufficient to verify the NCSF's existence and dispel its purported fears of a couple of computer hackers perpetrating some kind of amicus shell game.. (See ¦ 7, supra). That the District Attorney chose not to verify the NCSF's existence is disheartening; that the District Attorney would affirm it could not verify the existence of the NCSF is frightening -- and false.
THE NCSF MUST BE HEARD
Despite the District Attorney's accusations to the contrary, the NCSF is not "accountable to no one." (Dwyer Aff. ¦ 8). It is accountable to its members, its Board of Directors, and, like myself, the NCSF is accountable to this Court. We made ourselves so when we asked to be heard. But the NCSF is not accountable to the District Attorney, and that seems to be the true rationale behind the District Attorney's opposition. Had District Attorney believed the NCSF's amicus brief aided them, I doubt they would have spent three pages trying to prove the NCSF does not exist. Throughout its affirmation, the District Attorney denigrates the NCSF. The NCSF is not concerned with these insults, for it is confident this Court will see through the attacks ad hominem to the weakness of the underlying substantive position.The NCSF, however, feels it must address the District Attorney's position that the NCSF, and its members, are not worthy of being heard by this Court. Indeed, it is because prosecutors are so confident that sexual minorities can be ignored that NCSF feels it must be heard.
The District Attorney asserts that the Notice of Motion was untimely and therefore that the brief should not be received. We disagree. The tight time frame was not created by the NCSF, nor did it work an injustice on any party. The District Attorney's brief was not filed until January 7, 1999, a mere three weeks ago. The need for an amicus brief was not clear prior to our review of the District Attorney's arguments. The NCSF could not have predicted the extreme position taken by the District Attorney in its brief, one that far exceeded any argument made at trial. The NCSF, with substantially less resources than the District Attorney's office, managed to produce and file the Notice of Motion, complete with draft amicus brief, two weeks after the District Attorney's filing. The District Attorney managed to file its opposition, which addresses legal arguments made by the NCSF, with time to spare. The time frame has not worked any unfairness to the District Attorney. The District Attorney's office was informed of NCSF's concerns nearly six months ago; it cannot now claim surprise.
The Court should note that when the NCSF decided to file an amicus brief, it reasonably believed that oral argument would not be before mid-February. (Wright Aff. ¦ 6). When I filed the Notice of Motion on January 22, 1999, I inquired of the clerk when would be the exact date of the oral argument. I was informed that a specific date had not been set but that the case was on the calendar for the mid-February term. This was, in fact, the fourth time I was informed the oral argument was scheduled for mid-February. The first was from Ms. Wright. The second time was when I arranged for the printing of the amicus brief. Michael Burns of Counsel Press, in my presence, called the First Department's clerks' office to clarify the procedures for filing an amicus brief, including the date for oral argument. This was on January 19, 1999. Once again, I was informed that the case was on the calendar for mid-February. The third time was later that same day, when I inquired in person at the Appellate Division, First Department. I was once again informed that by the clerks that oral argument was scheduled for mid-February. I did not learn that the actual oral argument date had been set for February 2, 1999, until I received the District Attorney's affirmation.
I recognize that it is counsel's responsibility, not that of the clerks, to ascertain the correct dates and I take full responsibility for any misunderstanding. I am, however, at a loss as to what additional steps I or the NCSF could have taken to ascertain the dates or expedite the process. I believe it would work an injustice to my client to refuse to accept its brief based on timing factors, especially since those factors did not harm any party and were not a result of any strategic decision by the NCSF.
The District Attorney asserts "the NCSF brief has nothing to offer on the merits." (Dwyer Aff. ¦ 10). While taking no position on the guilt or innocence of the Appellant, the NCSF amicus does addresses the merits of the legal issues raised -- the Constitutional right to privacy and the consent defense. The NCSF amicus provides an in depth analysis on Constitutional law as it impacts this case, an area the District Attorney ignored in its affirmation and barely addressed in its brief. Second, only the NCSF amicus addresses the ramifications of eliminating the consent defense to assault; specifically, the criminalization of consensual conduct ranging from body piercing to contact sports, as well as sadomasochism. Third, only the NCSF amicus provides background information and statistics on sadomasochism; material gleaned form respected social scientists and published in academic journals. The NCSF takes issue with the District Attorney's claim that "the NCSF cites only two New York cases that were not addressed in the People's brief." (Dwyer Aff. ¦ 11). In fact, the NCSF cites a half dozen New York cases not cited by the District Attorney. The cases the District Attorney failed to count are in the amicus
brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.
THE DISTRICT ATTORNEY'S NEW ARGUMENTS
The NCSF does not believe it would be helpful to the Court for us to engage in a point to point response of the District Attorney's response to our arguments; our legal arguments are in our brief. Notably, the District Attorney choose to spend nearly half its affirmation addressing the NCSF's "meritless" position. (Dwyer Aff. ¦¦ 10-15). In fact, the District Attorney submitted 7 pages requesting the Court not read 18! In light of the some 300 pages of briefs submitted by the District Attorney and the Appellant, the NCSF humbly requests this Court accept an additional 18 from the NCSF. The District Attorney concludes that "at bottom, the NCSF's claim is one not of law but of policy." (Dwyer Aff. ¦ 16). The NCSF believes our claim to be both of law and policy; it only ask this Court to address the law.
The NCSF does apologize to this Court for our failure to include in parenthetical information that one of the opinions cited, Mercury Bay Boating Club Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (1st Dept. 1989), aff'd, 76 N.Y.2d 256 (1990), was a concurrence by the Justice Rubin. The NCSF strongly urges that this Court read Justice Rubin's opinion, as he traces the interaction of sportsmanship and law from Pierson v. Post, 3 Caines 175 (1805), through the consent defense to the modern day. Justice Rubin's opinion forced the District Attorney to admit that, in sports at least, "the courts would be required to determine whether consent might be a valid defense [to assault]." (Dwyer Aff. ¦ 13).
The NCSF believe it should address the one new legal citation the District Attorney added in its affirmation. In refuting the plethora of New York case law provide by the NCSF in the amicus brief, the District Attorney refers only to the Restatement (Second) Torts for the proposition that consent is not a defense to a criminal prosecution unless such a defense is provide by statute. (Dwyer Aff. ¦ 15, citing Restatement (Second) Torts ¤ 892C, cmt. a and ill.1). This "majority rule" summary of the general trends in American law is not linked by the District Attorney to the laws of the State of New York. In the face of an unbroken common law tradition, continuing to the present, the District Attorney bears the burden of proving that these decisions on the consent defense to assault have been overturned either by the courts or the legislature. The District Attorney has utterly failed to do so. They fail even to reconcile the Restatement's position with that expressed by Justice Rubin in Mercury Bay Boating Club Inc., a position the District Attorney quoted only two paragraphs earlier. (Dwyer Aff. ¦ 13).
The District Attorney states that the NCSF's belief that the position urged by the District Attorney would result in criminalizing all sadomasochistic conduct is an "absurd mischaracterization." (Dwyer Aff. ¦ 10). The District Attorney still does not get it. Without the consent defense, the Penal Law effectively criminalized not only sadomasochism but a host of other activities, including contact sports, body piercing, even a Rabbi performing a circumcision of an adult convert to Judaism! Such a result, the NCSF argues, would violate the State Constitution. The decision as to what conduct falls within the confines of the statute is, in the first instance, made by the District Attorney in the drafting of the indictment. While an indictment, of course, is a mere accusation, on the strength of such accusations defendants are subject to the risk, exposure, and expense of trial. As the Court noted in People v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989), even innocent defendants will be reluctant to contest ill founded accusations in the glare of publicity. The assault statute can be expanded or contracted at the District Attorney's whim - and the District Attorney's disingenuous behavior in this case strongly leads the NCSF to distrust the District Attorney's whims. The NCSF requests this Court permit the filing of an amicus brief and to consider the argument that the consent defense recognized by Justice Rubin also applies to sadomasochism.
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 isjust 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 islisted 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://www.ncsfreedom.org), 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.
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.
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
SUPREME COURT OF THESTATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
THE PEOPLE OF THE STATE OF NEW YORK
AFFIRMATION IN OPPOSITION TO MOTION
TO FILE A MEMORANDUM OF LAW AMICUS CURIAE
N.Y. Co. Ind. No. 10938/96
Cal. No. 98-10474
ROBERT M. MORGENTHAU
New York County
One Hogan Place
New York, New York 10013
This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic was convicted on April 15, 1998, of kidnaping, assault in the second and third degrees, and of sexual abuse.
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 serving these goals, 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. According to the most recent Kinsey Institute Report on Sex, 5 to 10 percent of Americans engage in sadomasochism, a figure which is conservative.(1) These consenting adults are in relationships ranging the romantic gamut from married couples and life partners to casual lovers. Certainly, as the growing mainstream status and public candor of best-selling authors, film makers and recording artists who regularly feature such themes makes clear, the themes of erotic dominance and submission intrigue a substantial portion of the body politic. See, e.g., Anne Rice, Exit to Eden (1985); Crash (David Cronenberg, dir., 1997); Madonna, Sex (1990).
NCSF voices no opinion as to the quantum of evidence below, the credibility of the witnesses or the validity of the charges as applied to appellant. However, the sweeping scope of the trial court's ruling, and the absolutist ban on sadomasochistic behavior between consenting adults urged by the District Attorney in its brief on appeal, threatens the constitutional right to privacy and the freedom of many citizens beyond Oliver Jovanovic. Therefore, NCSF files this amicus brief because the case in question resulted in rulings by the trial court judge, the Honorable William A. Wetzel, which if taken at face value, as indeed the District Attorney herein urges, criminalize this innocuous love-play, engaged in by consenting adults. What is worse, the charge did so in the absence of decisional or statutory authority and in the face of expressly governing case law holding squarely to the contrary. In fact, under the law and Constitution of the State of New York, the right of privacy protects consensual lovers engaging in sexual contact, inclusive of sadomasochistic practices. Moreover, on the statutory issue of the definition of assault, the Court below erroneously misconstrued the decisional law in its assumption that consent, as a general matter, cannot be a defense to a charge of assault.
Finally, the District Attorney for the County of New York has submitted a brief in opposition to the appeal, asserting that "no New York court decision holds that consent is a defense to assault." (District Attorney's Brief at 137). In fact, a myriad of decisions, only some of which are discussed herein, hold squarely to the contrary, suggesting that the District Attorney fell asleep at the switch -- a metaphor whose suggestions of a misdirected and out-of-control train is appropriate in the face of the minimum of 5 percent of the adult population whose right to private consensual sexual conduct of their choice will be steam rolled should the District Attorney prevail in its attempt to criminalize consensual sadomasochistic conduct. Likewise, each and every one of the out-of-jurisdiction decisions cited by the District Attorney to establish the untenable claim that consent is not a defense to assault is inapplicable as they involve holdings that "great bodily injury" or "atrocious assault and battery" are not vitiated by consent, holdings far beyond the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for.
The charge at issue was delivered over objection by the defense; therefore the objection is preserved, and ripe for this Court's review. People v. Crimmins, 36 N.Y.2d 236 (1975). However, NCSF takes no position as to whether the ruling below constituted harmless error or indeed as to the guilt or innocence of Jovanovic.
1. Whether the right to privacy guaranteed to all citizens of the State of New York under the Federal and State Constitutions protects the right of consenting adults to engage in erotic play including but not limited to sadomasochistic conduct.
2. Whether the charge to the jury that consent could not form a defense to a charge of assault was error.
STATEMENT OF FACTS
On December 5, 1996, Oliver Jovanovic ("appellant") was arrested, and charged with kidnaping, aggravated sexual abuse, sexual abuse, two counts of assault in the second degree, one count of assault in the third degree, and sodomy.
On April 15, 1998, he was acquitted of the sodomy and the aggravated sexual abuse counts, but was convicted of kidnaping, assault in the second and third degrees, and of sexual abuse. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment.
The charges stemmed from appellant's encounter on November 21, 1996, with a Barnard College student (whose name has been omitted from the published records of the case to safeguard her privacy, and in consideration of which is not employed herein). In their encounter, a date arranged after several e-mail interchanges over several occasions, appellant and the complainant dined at a mutually agreed upon place, and appellant invited the complainant to his apartment, to which it is agreed that she repaired voluntarily.
Once at appellant's apartment, the complainant stated, appellant ordered her to strip, which she did, bound her to his futon, and engaged in pain-inflicting conduct with her, involving the use of a baton and hot candle wax. The complainant maintained that she was kept by appellant at his home against her will, and that he restrained her forcibly for over 20 hours.
At trial, appellant put forward a consent defense to all charges. After the charge conference, in a letter dated April 10, 1998, attorney Frederick L. Souinsky requested that the prosecutor's request for a charge that consent is not a defense to the assault counts be denied, asserting both Constitutional and statutory grounds for the impermissibility of such a charge.
The Charge on Assault and Consent
The Court, over defense objection, nonetheless delivered charges that consent was not a defense to assault.
On the first count of assault in the second degree, the Court instructed the jury that
In order for you to find the defendant guilty of this crime, the People must prove from all the evidence in this case beyond a reasonable doubt both of the following two elements:
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim's] thighs by means of a dangerous instrument, to wit, a baton. Two, that the defendant did so with intent to cause physical injury to her.
Therefore, under this count of the indictment, and the next two counts of the indictment [the second count of assault in the second degree and one count of assault in the third degree], I instruct you it is not a defense to claim that the person assaulted consented to the assault.
Therefore, if you find that the defendant assaulted [the victim] under the two elements that I just instructed you about, you may not consider any claim that she consented to that assault.
(R. at 3421)
The court below charged the jury in substantially similar terms with respect to the second count of assault in the second degree, except that the dangerous instrument alleged to have been used under that count was the candle wax. (R. at 3422-3423).
With respect to assault in the third degree and consent, the Court below charged as follows:
Now, in order for you to find the defendant guilty of this crime, the People must prove from all of the evidence in the case beyond a reasonable doubt both of the following two elements:
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim] by biting her breasts, and two that the defendant did so with intent to cause physical injury to her.
Therefore, if you find that the People have proven beyond a reasonable doubt both of those elements you must then find the defendant guilty of count nine assault in the third degree as charged in this count. It is not a defense to claim that the person assaulted consented to the assault.
Conviction and Sentence
On April 15, 1998, appellant was convicted of kidnaping, sex abuse and one count each of assault in the second and third degrees. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment. This appeal followed.
Sadomasochism and the Scholars
This Court is asked to take judicial notice of the fact that a burgeoning number of scholars have observed the long-term practice of sadomasochistic sexual behaviors in relationships. In addition to the examples cited in the Preliminary Statement, both male and female college students have over the past three decades been documented as evincing an interest in sadomasochism. "Coercive Sexual Fantasies of College Men as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression," V. Greedlinger & D. Byrne, 23 Journ. Sex Research, no. 1 (1987) (concluding that 80% of male students surveyed enjoyed the fantasy of being tied up and forced to have sex by a woman); Different Loving, supra, at 7, 14-18.
Moreover, the empiric and anecdotal studies of those who regularly practice sadomasochistic behavior all emphasize that the hallmarks of sadomasochistic practice are summed up in the tripartite motto "safe, sane, and consensual." Different Loving, supra at 49; "Safety Restrictions," Tim Woodward & Stephanie Jones, Best of Skin Two, pp. 131-141 (1993). SeealsoS and M: Studies in Sadomasochism, T. Weinberg & G.W. Kamel (1983); "An Exploratory-Descriptive Study of a Sadomasochistically Oriented Sample," Charles Moser & Eugene Levitt, 23 Journ. Sex Research, no. 3 pp. 322-337 (1987); Erotic Power: An Exploration of Dominance and Submission, Gini Graham Scott (1983). In short, consent -- full, meaningful, voluntary and informed -- is the distinguishing factor between sadomasochism and abuse in the eyes of those who practice the former, and who eschew the latter. By its jury charge, the Court below has sweepingly obviated this distinction, in defiance both of common sense and of common (and Constitutional) law, and criminalized consensual sexual conduct.
UNDER THE FEDERAL AND STATE CONSTITUTIONS,
PRIVATE, NONCOMMERCIAL CONSENSUAL SEXUAL
CONDUCT MAY NOT BE CRIMINALIZED
The United States Constitution, and, independently, the Constitution of New York State, as the Court of Appeals has recognized, extends the right of privacy to strike down provisions of the Penal Law which purport to criminalize consensual private sexual conduct. People v. Onofre, 51 N.Y.2d 476 (1980) (striking statutory proscription of consensual sodomy or deviate sexual intercourse between unmarried persons). In Onofre, the Court held that the right to privacy is "a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by government restraint." 51 N.Y.2d at 485. Finding guidance in the Supreme Court of the United State's decisions, including those in Loving v. Virginia, 388 U.S. 1 (1967) (invalidating state statutory ban on inter-racial marriage), Griswold v. Connecticut, 381 U.S. 479 (1965) (striking state statute banning sale of contraceptives as impermissibly invasive of "the sacred precincts of the marriage bed"), and Stanley v. Georgia, 394 U.S. 557 (1969) (voiding prosecution for possession of obscene materials in the home), the Court in Onofre carved out a zone of personal autonomy:
In light of these decisions, protecting under the cloak of the right to privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears from excluding from the same protection decisions such as those made by defendants before us to seek sexual gratification from what at least once was commonly referred to as "deviate" conduct so long as the decisions are voluntarily made by adults in a non-commercial private setting.
51 N.Y.2d at 488.
This decision by the Court of Appeals was reaffirmed three years later in People v. Uplinger, 58 N.Y.2d 936, 938 (1983), and remains "firmly rooted in our law." John C. v. Martha A., 156 Misc.2d 222, 592 N.Y.S.2d 229, 232 (City Ct. N.Y. Co. 1992) ("[p]rivate, consensual adult sexual conduct is none of a court's business unless it impinges upon a strong countervailing public policy (e.g., commercialized sexual activity), or another relationship (e.g., adultery)"). SeealsoPeople v. Anonymous Female, 143 Misc.2d 197 (City Ct. Buffalo 1989) (finding that act of oral sodomy, performed under conditions leading to reasonable expectation of privacy, could not constitutionally be proscribed even if overseen; relying on Onofre); People v. Thousand, 121 Misc.2d 937 (City Ct. Rochester 1983).(2)
Under both the Federal and State Constitutions, therefore, it is clear that private consensual sexual conduct among adults is presumptively protected, in the absence of a serious public policy underlying regulation. What is further clear is that sadomasochistic practices fall within the definition of sexual practices so protected; the Court of Appeals in Onofre held that the ambit of privacy includes "deviate" sexual conduct, not merely sexual conduct enjoyed by the mainstream of citizens. Onofre, 51 N.Y.2d at 488. The Legislature has, in the general obscenity section, included sadism and masochism among the sexual subjects which, if defined in a manner pruriently appealing to the interest in sex, and depicted without redeeming social value, may be prosecuted and proscribed. Penal Law ¤ 235.00. Likewise, in specifying materials defined as "indecent" and thus unfit for dissemination for children, the Legislature included what it somewhat harshly terms "sadomasochistic abuse" (which it defines as "flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or sexually restrained on the part of one so clothed").(3) Penal Law ¤ 235.20(5). In short, the sexual nature of sadomasochism is conceded.(4) That sadomasochism is within the protections of Onofre therefore cannot be doubted. Accordingly, the Court below was in error to grant the prosecution request to charge that voluntary consent on the part of the complainant was not a defense to the charges against appellant.
The District Attorney gives short shrift to Onofre and completely ignores its progeny, choosing instead to rely on cases from other jurisdictions, cases which cannot be viewed as having even persuasive authority as to the scope of protections guaranteed by the State Constitution. In addressing Onofre, the District Attorney argues solely that the specific conduct engaged in by defendant is not protected by Onofre, conduct the District Attorney describes as non-consensual. (District Attorney's Brief at 140-1). The District Attorney never addresses whether consensual sadomasochistic conduct is covered by Onofre and protected by the State Constitution. The District Attorney's grasp on the Federal Constitution seems equally tenuous, as they incorrectly cite Mishkin v. New York, 383 U.S. 502 (1966), for the proposition that "publications depicting sadomasochism are not protected by the First Amendment." (District
Attorney's Brief at 140). To the contrary, Mishkin holds that publications depicting sadomasochism are held to the same standard as those depicting heterosexual sexual conduct. Mishkin, 383 U.S. at 508.
The defendant argued in Mishkin that his publications, which targeted fetishes and sadomasochism, could not be obscene because only a minority of the population would find them erotic and therefore could not satisfy the Prurient-Appeal requirement of the Roth test for obscenity. Rather than holding that sadomasochistic publications are de jure obscene, as the District Attorney implies, the Court disposes of the defendant's argument by holding that where a publication targets a specific audience, and not the public at large, the Prurient-Appeal requirement may be satisfied if the publication appeals to the prurient interest of its target audience. Mishkin, 398 U.S. at 508.
The District Attorney similarly mis-cites Ward v. Illinois, 431 U.S. 767 (1977). Ward did not remove sadomasochistic publications from the ambit of the First Amendment, it merely reaffirms Mishkin in light of intervening obscenity cases which the defendant argued prohibited the proscription of sadomasochistic publications. The defendant argued that in light of the intervening case of Miller v. California, 413 U.S. 15 (1973), sadomasochistic publications could not be proscribed. The explicit holding of the Ward court at issue is: "If the Mishkin publications remain unprotected [in light of Miller], surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law. Ward, 431 U.S. at 773 (emphasis added). The emphasized section underscores that sadomasochistic publications are not automatically unprotected by the First Amendment.
Contrary to the District Attorney's presumption, sadomasochistic publications are neither de facto nor de jure obscene, but may be found to be obscene if they satisfy the requirements of the obscenity tests provided by the Supreme Court; the same tests non-sadomasochistic publications are held to. While the District Attorney may be content to ban everything from Playboy to Jean-Jacques Roseau's Confessions, the Supreme Court fortunately is not so inclined.
The District Attorney cites two out-of-jurisdiction cases for the proposition that "there is no constitutional right to engage in sadomasochistic abuse." (District Attorney's Brief at 140). The first case, State v. Collier, 372N.W.2d 303 (Iowa App. 1985), does not address Constitutional issues at all, but instead turns solely on state statutory grounds. The second case, Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass 1980), does not support the all-out ban on sadomasochistic conduct urged by the District Attorney, but rather argues for a balancing of a citizens right to sexual privacy with the State's interest in protecting its citizens' health. Finally, in both cases, the decision turned on the quantum of physical harm. Were this Court to follow these inapplicable decisions, a balancing of the respective interests would than result, rather than the judicially legislation of a blanket ban on sadomasochism called for by the District Attorney.
CONSENT IS A DEFENSE TO A CRIMINAL CHARGE OF ASSAULT
The District Attorney argue in their opposition papers that the law in New York State supports the lower court's charge that consent does not create a defense to the offense of assault. The District Attorney supports this argument through citation to California and other jurisdiction's decisions, a gambit which is more ingenious than ingenuous in the face of the unbroken chain of decisions, from 1849 to the present day, in which the courts of this State have held precisely to the contrary. In Pillow v. Bushnell, 5 Barb. 156, 161 (Sup. Ct. 1849), the Court squarely held that "[i]f the act complained of as an assault and battery was committed by the consent and request of the wife, it formed an entire defense." A myriad of cases from Pillow to the present have reaffirmed this rule. Indeed, in 1989, this Court relied upon the doctrine, qualifying its applicability to the extent that the actor seeking to invoke the defense must act within the scope of the consent. Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82, 545 N.Y.S.2d 693, 705 (1st Dep't 1989) (noting distinction between customs and usages in sports and legal doctrines, employing the example of a hockey player struck by a stick in play, who "may be deemed to have consented to the use of such tactics by his participation in the game.") (citingPeople v. Freer, 86 Misc.2d 280, 381 N.Y.S.2d 976 (Dist. Ct. Suffolk Co. 1976) (holding that a punch thrown in course of tackle fell within implied consent to tackling in football game, but that a punch thrown afterwards, when play had stopped, did not)). SeealsoPeople v. Lenti, 44 Misc.2d 118, 123-124 (Nassau Co. Ct. 1964) (where injuries inflicted upon participants in fraternity "hell night" were plainly beyond the scope of implied consent, the consent defense is not applicable).
That this unbroken line of precedent remains valid is clear from not only Mercury Bay Boating Club, Inc., supra, decided less than 10 years ago, but from the lack of contrary authority within the jurisdiction. To the extent that the District Attorney, relying on out-of jurisdiction authority, claims a new "trend" away from the consent defense among the State courts, the citations omit the most recent case, Boldt v. Boldt, 97-DR-0441, CA A99286 (Ct. App., Oregon, July 18, 1998) (slip op. attached), in which, although not reaching the issue, the Court of Appeals of the State of Oregon stated that it was "not prepared to declare that whenever competent adults agree to engage in conduct that involves inflicting pain, the behavior necessarily constitutes abuse." The Oregon Court of Appeals echoed the decision enunciated 50 years ago in People v. Steinberg, 73 N.Y.S.2d 475, 479 (City Ct. N.Y. Co. 1947): "It is true that as a rule the consent of the prosecutor, if intelligently given, is a good defense in assault. We have examples in amiable contests, in assaults arising from voluntary sexual relations, and in tumultuous frolics." Seealso, Van Vooren v. Cook, 273 App. Div. 88 (4th Dep't 1947) (same as to general rule; citing cases).
The out-of-jurisdiction decisions cited by the District Attorney are inapplicable as they involve holdings that conduct which "creates an unreasonable risk of severe injury," Collier, 372 N.W.2d at 307, or of "severely or mortally injuring another," People v. Samuels, 58 Cal.Rptr. 439, 447 (Cal.App. 1967), cert.denied, 390 U.S. 1024 (1968), are not vitiated by consent; they do not support the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for. (District Attorney's Brief at 137-8). The decisions turned on the quantum of physical harm and lack of valid consent, not sadomasochism. SeeAppleby, 402 N.E.2d at 1060 (Court notes that the case history involved severe beatings, including one in which the defendant fractured the victim's kneecap); Commonwealth v. Farrell, 78 N.E.2d 697, 704 (Mass. 1948)(assault included severe, permanently disfiguring burns which required months to heal). The out-of-jurisdiction cases cited do not call for a ban on sadomasochism, but rather hold that there is a level of injury beyond which one cannot consent, implying that there is a level of injury that one can consent to without risking prosecution.
Instead of citing New York case law, the District Attorney provides an essay on statutory interpretation, relying on the "structure of the statutory scheme" to conclude -- erroneously -- that since the Legislature did not explicitly provide a consent defense to assault, there is no consent defense to assault. (District Attorney's Brief at 136). The District Attorney ignores, however, that for over a hundred years prior to the most recent reenactment of the Penal Law, which was in 1965, the Courts of the State of New York repeatedly held that consent is a defense to assault. That the Legislature choose not to address the issue when reenacting the assault statutes evinces, if anything, support for the courts' interpretation. It is not surprising, therefore, that courts since 1965 have also held that consent is a defense to assault. SeeMercury Bay Boating, 545 N.Y.S.2d at 705; Freer, 381 N.Y.S.2d at 978.
The District Attorney dismisses the cases cited by the defendant for the proposition that consent is a defense to assault as "dicta in a handful of antiquated, lower-court cases" but was forced to grudgingly admit that "[i]n two very old cases, lower courts have mused in dicta that consent may be a defense to assaults arising from 'tumultuous frolics' and 'voluntary sexual relations.'" (District Attorney's Brief at 139, citing Defendant's Brief at 125-6). None of the cases cited by the defense or the NCSF, however, has been overruled and at least one of those "antiquated" cases has been favorably cited by this Court within the past decade. SeeMercury Bay Boating, 543 N.Y.S.2d at 705 (favorably citing Freer which held that participants in sporting events consent to certain acts of violence). In the few New York cases cited by the District Attorney for the opposite proposition, that consent was not a defense to assault, all but one involve minors who, by definition, are not legally capable of giving valid consent. (District Attorney's Brief at 139, fn *, discussing People v. Gibson, 232 N.Y. 458, 462 (1922); People v. Malark, 283 A.D.263 (3rd Dept. 1954); Singer v. People, 13 Hun. 418, 420 (1st Dept.), aff'd, 75 N.Y. 608 (1878); Hays v. People, 1 Hill. 351, 352 (Sup. Ct. 1841)). The remaining case involved illegal street fighting and turned on the court's holding a party cannot consent to an illegal act. (District Attorney's Brief at 139, fn *, discussing People ex rel. Knight v. Eames, 115 N.Y.S.2d 248, 250 (Broome Co. 1952)).
The District Attorney ignores the far reaching effects of striking down the consent defense to assault, which include the criminalization of many sporting events, many forms of non-sadomasochistic consensual sexual contact, and such cultural choices as body piercing. The District Attorney admits that "certain sports that involve physical contact, such as boxing, wrestling, and football, are played regularly and are not regarded as being criminal 'assaults.'"(District Attorney's Brief at 138, fn **). Ignoring this Court's holding in Mercury Bay Boating, and citing no cases of its own in support, the District Attorney argues that the reason "athletes are not prosecuted for assault has nothing to do with the fact that the 'victim' consents." (District Attorney's Brief at 138, fn **). Instead, the District Attorney argues that boxers and wrestlers are not prosecuted for assault because the sports are highly regulated and therefore "sanctioned" by the Legislature. Whatever validity this argument has, it in no way invalidates the consent defense, especially considering that only a small percentage of the contact sports in New York are regulated. It also should be noted that, according to the District Attorney's own view of statutory interpretation, had the Legislature intended to exempt boxing and wrestling from the assault statutes because of the regulatory scheme, it would have explicitly done so. The District Attorney, however, fails to provide a statutory cite to this exemption.
The District Attorney attempts to distinguish football by arguing that "football players may not be convicted of assault because, while they engage in physical contact, they do not intend to cause physical injury to their opponents, and criminal intent is an element of all degrees of criminal assault." (District Attorney's Brief at 138, fn **). Such an argument applies equally well to sadomasochism, whose goal is not injury but mutual personal gratification. Participants in both sporting events and sadomasochism are aware that their conduct may create a risk of injury. But the District Attorney would exempt one from the assault statutes and not the other. The District Attorney makes no attempt to explain why other consensual assaults, such as body piercing, whose goal always involves bodily injury, are not prosecuted.
As the Court in Steinberg made clear, consensual sexual conduct, including sadomasochistic conduct, are not appropriately grist for the criminal justice system. Unless this Court, absent any argument save for the District Attorney's evident disapproval of the sadomasochistic lifestyle, is willing to abandon precedent dating back 150 years, precedent which has been recently followed, and criminalize activity ranging from contact sports to body piercing, as well as all but the tamest sexual contact - all without any legislative enactment - the charge must be declared erroneous.
The consequences of such a declaration the NCSF confidently leaves in the hands of this Court. Taking no position on the ultimate disposition of the case, the NCSF does not opine as to whether the record supports a finding that the error was harmless, or that appellant exceeded any consent obtained. The NCSF does assert that the charge delivered by the Court below effectively criminalizes consensual conduct in a manner which will expose adults practicing consensual sadomasochism to prosecution. The effect of such a ruling would be to greatly expand the discretion of prosecuting attorneys in a manner which they have shown themselves all too willing to abuse; the target of their baseless legal theory, notably, is not any one of the powerful and wealthy sports franchises engaged in contact sports such as boxing, hockey, or football, in which significant injury regularly occurs and sometimes even death takes place. Rather, the District Attorney targets a sexual minority, whose behavior is so misperceived as to be described in the body of one statute as "bizarre" (See Penal Law 235.20(5)), for what is in essence a harmless form of intimacy, behavior which rarely results in serious injury and for which knowing, voluntary consent is a prerequisite. The social stigma attached to sadomasochism, and the stigma of arrest, render those targeted especially vulnerable to prosecution; in usurping the privacy interests and eliminating the age-old consent defense patently available in such cases, the District Attorney, as was the case in Anonymous Female, merely "attempt to avoid the effects of [adverse decisional law] and to take advantage of the strong likelihood that arrested defendants -- male and female -- will, for obvious reasons, seldom go to trial, seldom test the law." 539 N.Y.S.2d at 870. The charge request in this case is nothing short of a license to bully and intimidate a sexual minority based on their private consensual conduct, and must not be allowed.
FOR THE REASONS ABOVE GIVEN, THIS COURT SHOULD DEEM THE CHARGE COMPLAINED OF TO HAVE CONSTITUTED ERROR, AND TO RENDER JUDGMENT IN ACCORDANCE WITH THAT FINDING
Dated: New York, New York
January __, 1999
MICHAEL THOMAS FOIS
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211
1. New Report on Sex, The Kinsey Institute (1990). This is nothing new; a substantial segment of the population has engaged in such behavior for as long as such data has been collected. SeeSexual Behavior in the 1970's, M. Hunt (1974) (In survey of 2,000 respondents, 10.9% of men and 6.7% of women had obtained pleasure from an act of domination and submission); A Research in Marriage, G.V. Hamilton ( 1929) (survey found that 28% of men and 29% of women admitted they derived "pleasurable thrills" from the infliction of some form of pain upon themselves). SeeDifferent Loving: An Exploration of the World of Sexual Dominance and Submission, William D. Brame & Gloria Brame (1993); "Manifest Sadomasochism of Males: Results of an Empirical Study," Andreas Spengler, Archives of Sexual Behavior, vol. 6, pp. 441-56 (1977)
2. The fact that at least two of these decisions post-date the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and that the Court of Appeals has repeatedly made clear that the State Constitution provides a greater quantum of protection for privacy than does the Federal Constitution, renders it unnecessary to examine what impact, if any, Bowers has on Onofre.SeePeople v. Scott, 79 N.Y.2d 474 (1992). Notably, the continuing validity of Onofre is conceded by the District Attorney, who merely urges that this case falls outside of the rule therein enshrined.
3. Notably, this definition would include a film clasic such as Mutiny on the Bounty while a film in which a naked person is flogged by one in a business suit would appear to be exempted.
4. Although the statutes recognize the sexual nature of sadomasochistic conduct, professional sadomasochism is not automatically proscibed by the prostitution statute, as the prostitution statute is more strict in its approach and specifically limits its scope to a few acts defined as "sexual conduct," the exclusion of sadomasochism from which has led at least one court to conclude that a professional dominatrix who did not engage in a sex act enunciated in the statute cannot be found guilty of prostitution. People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994).
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About Consent Counts
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.
BDSM is prosecuted as assault in the U.S., even when it is consensual.
No state or appellate court has allowed consent as a defense to assault in BDSM cases.
Consent Counts is a nationwide project to decriminalize consensual BDSM.
Program Goals: Consent Counts is a nationwide project to decriminalize consensual BDSM through education, advocacy, legal actions and lobbying.