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"Choke hold"

on Thursday, 03 March 2011. Posted in Media Updates

Kink community worried about state legislator’s attempt to curb domestic violence

San Diego City Beat

It’s not as if California’s gimps, leather daddies and dominatrices are going to march on the state Capitol, but the kink and fetish lobby will send a letter to Sen. Christine Kehoe, a Democrat who represents parts of San Diego, about a piece of legislation that could inadvertently clamp down on their fun.

On Feb. 16, Kehoe introduced SB 430, which would create new categories of violent crime—attempted strangulation and suffocation. Both felonies would be punishable by mandatory two, three or four years in prison, plus an extra two years if the perpetrator is in a relationship with the victim.

The intent is to crack down on domestic violence, but, because of the bill’s wording, the National Coalition for Sexual Freedom (NCSF) says the legislation could have the unintended consequence of criminalizing a range of intense sexual activities, especially within the scope of “breath play.”

SB 430 defines “strangle” as to “intentionally, knowingly, or recklessly impede the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.” The definition of “suffocate”—“intentionally, knowingly, or recklessly impede the normal breathing of a person”—could have the greatest impact on BDSM practitioners, since even milder sexual practices, such as face-sitting and the use of leashes, gags, gas masks and hoods, can impede breathing.

What makes the bill especially dangerous to sexual liberties is it specifically states prosecutors do not need to prove intent to cause harm in order to secure a conviction. However, Kehoe’s office tells CityBeat that the law would only apply to perpetrators who “willfully and unlawfully” strangle or suffocate another person. This language, they say, would exempt legal activities, such as wrestling teams, from prosecution.

Susan Wright, national spokesperson for NCSF, says that doesn’t go far enough and the bill should explicitly exempt consensual activities.

“We would want to them insert ‘non-consensual,’ so it wouldn’t be misinterpreted by people whose standards are different from ours in terms of what they believe people do,” Wright says. “Some people like intensity with their sex.”

Even though Kehoe may have noble motives, Wright says, the bill could give sexually conservative prosecutors a tool to persecute those who engage in bondage, sado-masochism, domination, leather play and other kinks.

“Point taken,” Kehoe told CityBeat. “We haven’t heard from that community, and we’ll have to deal with their concerns when we hear more about it.”

The NCSF is currently evaluating laws in every state as part of its “Consent Counts” project to identify places where consent is not a defense to assault and battery. Wright points to the famous 2000 “Paddleboro” case in Attleboro, Mass., where prosecutors pursued criminal charges against individuals caught using wooden paddles at a sex party. The organization also supported the defense of the “San Diego Six,” the members of the “pansexual leather / BDSM fetish group” Club X who were prosecuted for various lewd-acts-in-public charges related to a fetish party in 1999. Eventually, then-San Diego City Attorney Casey Gwinn dropped the charges against five of the defendants. The other defendant won a not-guilty verdict. ...

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