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Memorandum of Law of Amicus Curiae, NCSF

MEMORANDUM OF LAW OF AMICUS CURIAE

 

NATIONAL COALITION FOR SEXUAL FREEDOM 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT

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THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.

Plaintiff-Respondent, 10938/96

-against-
OLIVER JOVANOVIC,

Defendant-Appellant.

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MEMORANDUM OF LAW OF AMICUS CURIAE

 

NATIONAL COALITION FOR SEXUAL FREEDOM

 

PRELIMINARY STATEMENT

 

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.



 

QUESTIONS PRESENTED

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

Introduction

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.

(R. 3424-3425).

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). See also S 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.



 

ARGUMENT

 

POINT I

 

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)"). See also People 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.

 

 

POINT II

 

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.") (citing People 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)). See also People 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." See also, 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. See Appleby, 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. See Mercury 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. See Mercury 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.



 

CONCLUSION  

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



Respectfully submitted,


MICHAEL THOMAS FOIS

Attorney for Amicus Curiae

National Coalition for Sexual Freedom

381 Manhattan Ave.

Brooklyn, New York 11211

(212) 353-8984

 

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. See Sexual 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). See Different 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. See People 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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    Tags: Legal Case Curiae
  • Affirmation of Michael Thomas Fois in response to opposition to motion to file

    SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96 -against-   OLIVER JOVANOVIC, Defendant-Appellant. -----------------------------------------------------------------------X   AFFIRMATION OF MICHAEL THOMAS FOIS IN RESPONSE TO OPPOSITION OF THE DISTRICT ATTORNEY TO MOTION TO FILE A MEMORANDUM OF LAW AMICUS CURIA Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and…






    Tags: Legal Case
  • Affirmation in opposition to motion to file

    AFFIRMATION IN OPPOSITION TO MOTION TO FILE A -against- MEMORANDUM OF LAW   AMICUS CURIAE   SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------ THE PEOPLE OF THE STATE OF NEW YORK Respondent, AFFIRMATION IN OPPOSITION TO MOTION TO FILE A -against- MEMORANDUM OF LAW AMICUS CURIAE OLIVER JOVANOVIC, N.Y. Co. Ind. No. 10938/96 Defendant-Appellant. Cal. No. 98-10474 ------------------------------------------------------   MARK DWYER, an attorney duly…






    Tags: Legal Case
  • Memorandum of Law of Amicus Curiae, NCSF

    MEMORANDUM OF LAW OF AMICUS CURIAE  NATIONAL COALITION FOR SEXUAL FREEDOM  SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ------------------------------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96-against- OLIVER JOVANOVIC, Defendant-Appellant.------------------------------------------------------------------------------------------------X  MEMORANDUM OF LAW OF AMICUS CURIAE  NATIONAL COALITION FOR SEXUAL FREEDOM  PRELIMINARY STATEMENT   This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic…






    Tags: Legal Case
  • Affirmation of Michael Thomas Fois

    AFFIRMATION OF MICHAEL THOMAS FOIS   SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ----------------------------------------------------------------------- x THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/96   -against-   OLIVER JOVANOVIC, Defendant-Appellant. ----------------------------------------------------------------------- x       AFFIRMATION OF MICHAEL THOMAS FOIS     Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury,…






    Tags: Legal Case
  • Notice of motion requesting leave to file memorandum of Law as Amicus Curiae

    NOTICE OF MOTION REQUESTING LEAVE TO FILE MEMORANDUM OF LAW AS AMICUS CURIAE   SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT -----------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Indictment No. Plaintiff-Respondent, 10938/ -against-   OLIVER JOVANOVIC, Defendant-Appellant. -----------------------------------------------------------------------X   NOTICE OF MOTION REQUESTING LEAVE TO FILE MEMORANDUM OF LAW AS AMICUS CURIAE   Please take notice that, Upon the annexed Affirmation of Michael…






    Tags: Legal Case
Barbara Nitke Case (CDA)

Barbara Nitke Case (CDA)

  • CDA Expert Testimony in the Barbara Nitke Case

    UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X BARBARA NITKE, THE NATIONAL COALITION FOR SEXUAL FREEDOM, and THE NATIONAL COALITION FOR SEXUAL FREEDOM FOUNDATION, Plaintiffs, -against- JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, and THE UNITED STATES OF AMERICA; Defendants. 01 Civ. 11476 (RMB) PLAINTIFFS' RESPONSES AND OBJECTIONS TO DEFENDANTS' FIRST SET OF INTERROGATORIES AND REQUEST FOR DOCUMENTS -------------------------------------------------------------------X   Plaintiffs Barbara Nitke ("Nitke") and…






    Tags: CDA Nitke
  • Govt Motion to Affirm Nitke and NCSF Reply (PDF)

    Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)






    Tags: Civil_Rights CDA
  • Justices Reject Photographer's Appeal

    The Supreme Court refused to hear an appeal yesterday from a New York photographer who said that a federal decency law violated her First Amendment rights to post explicit pictures of sadomasochism and bondage on the Web, The Associated Press reported. The justices affirmed a decision by a special three-judge federal panel upholding the Communications Decency Act of 1996, which made it a crime to post obscene materials on the…






    Tags: Supreme Court Sadomasochism Decency Act
  • Supreme Court Affirms Lower Court's Ruling in Nitke Appeal Without Hearing Oral Arguments

    WASHINGTON, DC - The Supreme Court today denied an appeal by photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) in the case of Nitke v. Gonzalez. The appeal challenged the constitutionality of the Communications Decency Act on the grounds that the obscenity provision of the CDA is overbroad. Last year, a three-judge panel in New York's Southern District had dismissed Nitke's lawsuit, ruling that there was "insufficient…






    Tags: Nightclub Supreme Court
  • Supreme Court Decision in the Communications Decency Act (CDA)

      March 20, 2006 - Washington D.C. Today the U.S. Supreme Court affirmed the Federal District Court's decision in Barbara Nitke and NCSF v. Alberto Gonzales, the challenge to the Communications Decency Act, #01 CIV 11476 (RMB). The Supreme Court has affirmed the lower court's decision without hearing oral arguments, sending a clear signal that the court will not protect free speech rights when it comes to sexually explicit materials.…






    Tags: CDA Legal Supreme Court Nitke
  • Justices Pass on Internet Obscenity Case

    March 20,2006 | WASHINGTON -- The Supreme Court turned back an appeal on Monday from a photographer who claimed a federal decency law violated her free-speech rights to post pictures of sadomasochistic sexual behavior on the Web. Justices affirmed a decision last year by a special three-judge federal panel upholding the 1996 law which makes it a crime to send obscenity over the Internet to children. The court could have…






    Tags: Legal Supreme Court
  • NCSF and Nitke vs. Gonzales Supreme Court Update

    March 3, 2006 - In documents filed with the U.S. Supreme Court, the U.S. Justice Department did not contest NCSF's assertion that NCSF's Communications Decency Act challenge is properly before the Supreme Court on direct appeal. That is a big step forward because that means both sides agree that the Supreme Court should rule on the merits of NCSF and Barbara Nitke's case, and not on any procedural grounds. The…






    Tags: CDA Nitke
  • Communications Decency Act (CDA) Lawsuit

    July 26, 2005 - New York, NY - A three judge panel has made a decision in the National Coalition for Sexual Freedom and acclaimed photographer Barbara Nitke's challenge against the Communications Decency Act (CDA) which criminalizes free speech on the Internet. According to the court, the plaintiffs presented "insufficient evidence" to support findings that the variation in community standards is substantial enough that protected speech is inhibited by the…






    Tags: CDA Nitke
  • Expert Witness Reports Submitted in Nitke v. Ashcroft

    New York, December 18, 2003 - The National Coalition for Sexual Freedom has submitted expert witness reports for their landmark Communications Decency Act lawsuit, Nitke v. Ashcroft (Case No. 01 Civ. 11476). John Wirenius, attorney for plaintiffs NCSF and photographer Barbara Nitke, provided 31 expert witness reports and witnesses who will testify before the three-judge panel for the Southern District of New York.   The expert witness reports support the…






    Tags: Nitke
Nea vs. Findlay Case

Nea vs. Findlay Case

  • Govt Motion to Affirm Nitke and NCSF Reply (PDF)

    Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)






    Tags: Civil_Rights CDA
  • Case summary of Nea vs. Findlay

      Argued: March 31, 1998 Decided: June 25, 1998 Issue: Freedom of Speech -- Whether a law requiring the National Endowment for the Arts to consider "general standards of decency and respect for the diverse beliefs and values of the American public" before awarding grants to artistic projects is impermissibly viewpoint-based and unconstitutionally vague. Vote: 8-1; No, the law does not violate the First Amendment. Facts: In 1990, Congress amended…






    Tags: Legal
CDA Media Reports

CDA Media Reports

Media reports covering the Communications Decency Act lawsuit launched by co-plaintiffs NCSF and Barbara Nitke.

  • NEWSBYTES - December 19, 2001

    Net Obscenity Provisions Revocation Sought NEWSBYTES By David McGuire http://www.NEWSBYTES.com December 19, 2001, Washington, DC -- A small civil liberties group has asked a federal judge in New York to revoke what remains of an Internet pornography law that was gutted by the U.S. Supreme Court in 1997. In a complaint filed in a New York City Federal Court [http://www.USCourts.gov ] last week, the National Coalition for Sexual Freedom [https://ncsfreedom.org…






    Tags: Media News
  • San Francisco Bay Guardian - January 14, 2002

    Techsploitation By Annalee Newitz San Francisco Bay Guardian, January 14, 2002   HERE'S YET ANOTHER wacky fact you probably didn't know about the Communications Decency Act ole Bill Clinton signed into law way back in 1996: the good citizens of some small town in Arizona or southern California might have the power to send you to jail if they think the contents of your Web site are "obscene." The CDA…






    Tags: Media CDA
  • San Francisco Frontiers - January 23, 2002

    Communications Decency Act A Lingering Coup de Grace? By Tim Kingston   January 23, 2002   You may dimly recall the Communications Decency Act of 1996, which unsuccessfully attempted to define and proscribe "indecency" on the Internet. That law's legal core--its indecency provision--was immediately challenged and rapidly struck down as unconstitutional by free- and electronic-speech advocates. But, what many may not know is that another portion of the law, prohibiting…






    Tags: Media CDA
  • Ynot News - January 2, 2002

    Can David Beat Goliath in the Battle of Obscenity? Part 2   By Judd Handler   Ynot News, January 2, 2002   Last week's editorial featured an interview with John Wirenius, lead counsel for the National Coalition for Sexual Freedom and Barbara Nitke, an adult content photographer. Wirenius, on behalf of the NCSF and Nitke, filed a lawsuit on December 11 against Attorney General John Ashcroft seeking to overturn Internet…






    Tags: Media CDA
  • Ynot News - December 20, 2001

    Can David Beat Goliath in the Battle of Obscenity? By Judd Handler   Ynot News, December 20, 2001   One would think it would take the giants of the industry to force the government to rethink existing, not-applicable-to-the-Internet obscenity laws. On the contrary, the little players may be the ones who are successful in getting the federal government and the Supreme Court to throw out irrelevant local community standards when…






    Tags: Media CDA
  • Wired - December 12, 2001

    New Suit Targets Obscenity Law By Julia Scheeres Wired, December 12, 2001    A national organization that promotes sexual tolerance and an artist who photographs pictures of couples engaged in sadomasochism filed a lawsuit Tuesday seeking to overturn Internet obscenity laws. The National Coalition for Sexual Freedom and photographer Barbara Nitke argue that the obscenity provision of the Communications Decency Act (CDA) is so broad that it violates free speech.…






    Tags: Media CDA
  • Spectator Magazine - January 11, 2002

    STANDING UP TO BE COUNTED: BARBARA NITKE CHALLENGES JOHN ASHCROFT ON S/M AND INTERNET OBSCENITY By David Steinberg Spectator Magazine, January 11, 2002 "No matter how we're wired to express love, freedom is having the courage to be who we are." - Photographer/plaintiff Barbara Nitke On December 11, Barbara Nitke and the National Coalition for Sexual Freedom brought suit in New York City's Federal District Court, seeking to have the…






    Tags: Media CDA
  • New York Press - August 28, 2002

    What's Obscene in Podunk By John Strausbaugh New York Press, August 28, 2002   Barbara Nitke is a well-known and much-seen photographer in her field. She's president of the New York Camera Club and teaches a course in darkroom technique at SVA. A nice, neat, sweet individual, she's the very very last person in New York City you'd suspect of being a pornographer. Which she's not, not exactly. She's more…






    Tags: Media CDA
  • New York Newsday - July 25 2005

    New York judges refuse to say Internet obscenity law is unconstitutional By LARRY NEUMEISTER Associated Press Writer, July 25, 2005, 7:58 PM EDT  NEW YORK -- A special three-judge federal panel on Monday refused to find unconstitutional a law making it a crime to send obscenity over the Internet to children. The Communications Decency Act of 1996 had been challenged by Barbara Nitke, a photographer who specializes in pictures of…






    Tags: Media CDA
  • New York Daily News - July 15, 2002

    Fotog vs. Feds in Obscenity Law: Files suit to keep photos on Web by Veronica Vera New York Daily News, July 15, 2002 Photographer Barbara Nitke is used to being behind the lens, but if legal matters heat up, she may soon find the government focusing on her. Nitke is ready to step into the foreground as the chief plantiff in Barbara Nitke and the National Coalition for Sexual Freedom…






    Tags: Media CDA
  • Nerve - December 11, 2001

    Nerve December 11, 2001 Photographer Barbara Nitke and the National Coalition for Sexual Freedom (NCSF) filed a lawsuit today, claiming the Internet censorship provision of the Communications Decency Act (CDA) violates the First Amendment right to free speech. The provision stipulates that "local community standards" will judge whether or not something is indecent. Yet attorney John Wirenius argues that "By allowing the most restrictive jurisdiction to define what speech can…






    Tags: Media CDA
  • CNN - December 20, 2001

    Lawsuit targets last scraps of Net-obscenity law By Sam Costello (IDG News) CNN, December 20, 2001 The National Coalition for Sexual Freedom (NCSF) and artist Barbara Nitke have filed a lawsuit challenging the remaining provisions of the Communications Decency Act, much of which was struck down by the U.S. Supreme Court in 1997. The act, or CDA, was passed in 1996 and was the first U.S. law designed to allow…






    Tags: CDA Media
  • Adult Video News - February, 2002

    NCSF Tackles "Community Standards" For The Web By Mark Kernes Adult Video News, February Issue Washington, DC The National Coalition for Sexual Freedom may not be a household name, even in the adult entertainment industry, but if their recently-filed lawsuit succeeds, they may go down in history as the first group to secure Americans' core constitutional speech rights.  NCSF is based in the nation's capital [~] in fact, only a…






    Tags: Media CDA News
  • ABC News - July 29, 2002

    Love or Obscenity? S/M Photographer Challenges Internet Decency Standards By Dean Schabner ABCnews.com, July 29, 2002 When Barbara Nitke wanted to put her photographs of loving couples on the Internet, she thought she should check into the laws first. That's because Nitke's recent photographs have been focused on how some couples express their love through sado-masochism. What Nitke found after reading up on Internet law and talking to lawyers was…






    Tags: Media CDA
  • Govt Motion to Affirm Nitke and NCSF Reply (PDF)

    Govt Motion to Affirm Nitke 05-526 (pdf) (posted 3/2/06) NCSF Reply to Govt Motion to Affirm (doc) (posted 3/2/06)






    Tags: Civil_Rights CDA

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