NCSF Statement on Professional Dominatrices in New York
February 11, 2009
NCSF has been contacted by over a dozen concerned members of the BDSM community in New York about the arrests of dozens of professional Dominatrices in Manhattan that started in early 2008.
The pro-Domme community in New York City, which has been a vibrant part of the BDSM community for decades, has been ravaged by these prosecutions for prostitution and for promoting prostitution, resulting in the closure of a number of pro-Domme houses.
NCSF contacted the Manhattan DA's office in order to clarify what sort of "for-pay" BDSM activities are considered legal in New York State. On February 5th, Susan Wright, along with outside counsel, met with ADA Leroy Frazer and Lisa Friel, head of the Sex Crimes Unit, to get their legal opinion.
Pro-Dommes have traditionally considered their BDSM-for-pay to be legal. One case decided by a local misdemeanor court, People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994), supports this position, holding that "sado-masochistic acts such as domination, foot licking, spanking and submission" are not "sexual conduct" prohibited by the prostitution statute. However, that decision is not binding even on other misdemeanor courts, and Ms. Friel described it as "not worth the paper it was written on." Also, as stated in Georgia A.: "The term sexual conduct is not defined in the statute but has since been described in various cases. That conduct includes acts of masturbation, homosexuality, sexual intercourse, or physical contact of the person's clothed or unclothed genitals, buttocks or a woman's breast. ( People v Block, 71 Misc 2d 714 .)"
According to ADA Frazer, their office does not make prosecution of pro-Dommes a priority. However, according to their interpretation of the law, any form of "payment in exchange for touching in an intimate place either over clothing or nude" would constitute prostitution. This includes any touching of the genitals, anus, and breasts.
Under Georgia A, certain BDSM activities such as humiliation, role-play, foot worship, D/s, service activities, and bondage were found to be exempt from the prostitution statute, as long as no other sexual activities were involved. Ms. Friel opined Georgia A is based on a misunderstanding of the scope of the prostitution statute and that "sexual conduct" should be defined as what is arousing to the participants, not what is arousing to the outside "vanilla" observer.
Therefore, activities such as flogging, CBT or genitoture, spanking, body worship and nipple torture, in addition to more overtly sexual activities, would fall within the Manhattan DA's understanding of prostitution when they are done for pay and either party is aroused by them.
NCSF opposes the prosecution of pro-dominants under prostitution laws. Consenting adults engaging in safe, sane, consensual SM, fetishes, and cross-dressing services do not pose legitimate health or safety issues for local communities. What these adults agree to do in private is no one else's business.
NCSF's Communications Decency Act lawsuit with Barbara Nitke made history by challenging the Miller standard of obscenity as it applies to the Internet.
Media reports covering the Communications Decency Act lawsuit launched by co-plaintiffs NCSF and Barbara Nitke: