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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."

Click to open Subject Index, Table of Authorities & Amicus Brief

Click to open Miles Motion

Click to open Miles Brief

Click to open Goverment Brief

Click to open Defense Response

Published in CC Legal

Indictments found and returned in the Superior Court Department on July 23, 2007.

The cases were tried before Richard E. Welch, III, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

James L. Sultan for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

CORDY, J. Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G. L. c. 265, § 16; armed home invasion in violation of G. L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and assault and battery in violation of G. L. c. 265, § 13A.(1) A divided panel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass. App. Ct. 587 (2011), and we granted the defendant's application for further appellate review.

On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 577-578 (2003) (Lawrence), the trial judge committed constitutional error by not instructing the jury that consent is a defense to the crimes of armed home invasion and assault and battery by means of a dangerous weapon. The defendant also claims that the judge erred by admitting certain evidence regarding materials retrieved from his home computer. This evidence included eight photographs and one ninety-second "video clip" (video), each depicting a nude or partially nude woman being strangled seemingly to death; an Internet article reporting the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of images stored on the computer "that were strangulation-oriented or had strangulation themes," as well as testimony about Internet searches and the number of files saved on the computer that concerned asphyxiation.

Click to download a PDF of the case.

Published in CC Legal

"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.

Click to get a PDF of "When the Levee Breaks"


"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.

Click to get a PDF of "The Aftermath"

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).

Click to open Massachusetts v Appleby PDF

 

Published in CC Legal

An early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision.  In that case, Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene.  The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”:

Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.

People v. Samuels  250 Cal.App.2d 501, 514, 58 Cal.Rptr. 439, 447 (Cal.App. 1967)

The Samuels decision was cited as recently as 2006, in People v Febrissy.

Click to open California v Samuels PDF

 

Published in CC Legal

Legal cases dealing with the consent counts project.

To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct.  The following overview, from Consent to Harm by Vera Bergelson, is a good summary of the case law:

Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm.  A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.”  Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.”  Courts tend to inflate the risk and harmfulness of an activity they want to denounce.  For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious.

28 Pace Law Review 683, 691

 


Case index, click to view the individual case summary and a PDF of the case. 

California v Samuels , 4/28/1967

 Massachusetts v Appleby , 4/1/1980

 Iowa v Collier, 5/25/1985

 Helton v Indiana , 12/1/1993

 New York v Jovanovic , 12/21/1999

 Lawrence v Texas, 6/26/2003

 Nebraska v Van , 11/12/2004

 California v Febrissy, 7/1/2006

 Govan v Indiana, 9/9/2009

 Rhode Island v Gasper, 10/30/2009

United States, Appellee v Miles  3/24/2014


Law Review Articles, click to open the individual PDF of this article.

Sex Is Not A Sport: Consent And Violence In Criminal Law , 2001-2002

Beyond The Pleasure Principle: The Criminalization Of Consensual Sadomasochistic Sex , 2001-2002

Morality-Based Legislation Is Alive And Well: Why The Law Permits Consent To Body Modification But Not Sadomasochistic Sex , 2006-2007

The Right to Be Hurt: Testing the Boundaries of Consent , Febuary 2007 

Pain, Pleasure, And Consenting Women: Exploring Feminist Responses To S/M and Its Legal Regulation in Canada Through Jelinek's The Piano Teacher , 2007 

Consent to Harm , 2007-2008

Autonomy, Dignity, and Consent to Harm , 1/29/2008

The Moral Limits Of Consent As A Defense In The Criminal Law , 2009 


 

Law citations dealing with consent, compiled by the NCSF Consent Counts Project 

Alabama  Alaska  Arizona  Arkansas 
California Colorado  Connecticut  Delaware 
D.C. Florida Georgia Hawaii
Idaho  Illinois  Iowa  Kansas 
Kentucky Louisiana  Maine  Maryland 
Massachusetts Michigan Minnesota Mississippi
Missouri Montana Nebraska Nevada
New Hampshire New Jersey New Mexico New York
N. Carolina N. Dakota Ohio Oklahoma
Oregon Pennsylvania Rhode Island S. Carolina
S. Dakota Tennessee Texas Utah
Vermont Virginia Washington W. Virginia
Wisconsin Wyoming    

Click to download a PDF of this document

State Assault Consent Definitions Cases
AL 13A-6-20 (1st degree) 13A-2-7  13A-1-2   
13A-6-21 (2nd degree) (physical injury, serious physical injury)
13A-6-22 (3rd degree)  
AK 11.41.200 (1st degree)   11.81.900 (serious physical injury, reckless)  
11.41.210 (2nd degree)
11.41.220 (3rd degree)
11.41.250 (reckless endangerment)
AZ 13-1203 Simple Assault      
13-12-4 Aggravated Assault
 
AR 5-13-201 1st degree battery   5-1-102 definitions  
5-13-202 2nd degree battery
5-13-203 3rd degree battery
5-13-204 Aggravated assault
5-13-205 1st degree assault
5-13-206 2nd degree assault
5-13-207 3rd degree assault
 
CA Penal Code 241 Assault, Punishment   Penal Code 7 Words and Phrases defined  
Penal Code 243 Battery, Punishment Penal Code 240 Assault Defined
Penal Code 245 Assault with deadly weapon or force likely to produce great bodily injury Penal Code 242 Battery Defined
   
CO 18-3-202 (1st degree)      
18-3-203 (2nd degree)
18-3-204 (3rd degree)
18-3-208 (reckless endangerment)
CT 53a-59 (1st degree)   53a-3 (serious physical injury, recklessly)  
53a-60 (2nd degree)
53a-61 (3rd degree)
53a-63 (reckless endangerment 1st degree)
53a-64 (reckless endangerment 2nd degree)
DE 11 Del Code 611 (3rd degree) 11 Del. Code 452 Consent of victim to inflictions of physical injury as defense 11 Del Code 222  
11 Del Code 612 (2nd degree)
11 Del Code 613 (1st degree)
11 Del Code 603 (reckless endangering 2nd degree)
11 Del Code 604 (reckless endangering 1st degree)
DC 22-404 (Assault)   No definitions section in this particular subchapter – “Serious bodily injury” defined elsewhere  
22-404.01 (Aggravated Assault)
22-407 (threats of bodily harm)
 
FL 784.011 Assault      
784.021 Aggravated Assault
784.03 Battery, Felony battery
784.045 Aggravated Battery
 
GA 16-5-20 Simple Assault   Definitions contained within the statutes  
16-5-23 Simple Battery
16-5-23.1 Battery
HI 707-710 Assault 1st degree 702-734 Consent to Bodily Injury 707-700 definitions related to offenses against the person  
707-711 Assault 2nd degree
707-712 Assault 3rd degree
707-713 Reckless Endangering 1st degree
707-714 Reckless Endangering 2nd degree
ID 18-902 Assault   18-101, 18-101A (both are “Definitions” sections)  
18-904 Battery 18-901 “Assault”
18-906 Aggravated Assault 18-903 “Battery”
18-908 Aggravated Battery 18-905 “Aggravated Assault”
  18-907 “Aggravated Battery”
IL 720 ILCS/21-1 Assault   720 ILCS 5/2 et seq. contains definitions – no good definitions of “serious bodily injury”  
720 ILCS/21-2 Aggravated Assault
720 ILCS/21-3 Battery
720 ILCS/21-4 Aggravated Battery
720 ILCS/21-5 Reckless Conduct
IN 35-42-2-1 Battery   35-41-1-4 “Bodily Injury”  
35-42-2-1.5 Aggravated battery 35-41-1-25 “Serious bodily injury”
35-42-2-2 Criminal recklessness  
IA 708.1 Assault Defined   708.1 Assault Defined  
708.2 Penalties for Assault
KS 21-3408 Assault 21-3201 Criminal Intent 21-3110 Definitions  
21-3410 Aggravated Assault 21-3204 Guilt without criminal intent
KY 508.010 (1st degree)   500.080 Definitions  
508.020 (2nd degree)
508.025 (3rd degree)
508.030 (4th degree)
508.060 (wanton endangerment 1st degree)
508.070 (wanton endangerment 2nd degree)
 
LA 14:38 Simple Assault   14:2 definitions  
14:37 Aggravated Assault 14:33 Battery Defined
  14:36 Assault Defined
ME Tit. 17A Sec. 207 Assault   Title 17A Sec. 2 (Bodily Injury, Serious Bodily Injury, Recklessly)  
17A sec. 208 Aggravated Assault
17A Sec. 211 Reckless Conduct
 
MD 3-202 (1st degree) 3-207 (dismissal possible if both victim and defendant agree) 3-201 Definitions  
3-203 (2nd degree) 3-209 defenses
3-204 reckless endangerment  
MA Ch. 265 sec. 13A Assault or Assault and Battery   None direct, but analogous to ch. 265 sec. 13K  
MI 750.81 Assault   “Serious Injury” defined in the caselaw  
750.81a w/infliction of serious injury
 
MN 609.221 (1st degree)   609.02 Definitions  
609-222 (2nd degree)
609-223 (3rd degree)
609-2231 (4th degree)
609.224 (5th degree)
 
MS 97-3-7 Simple and Aggravated Assault      
MO 565.050 (1st degree) 565.08 565.002 (Serious physical injury)  
565.060 (2nd degree)
565.070 (3rd degree)
MT 45-5-201 Assault 45-2-211 Consent as a Defense 45-2-101 General definitions  
45-5-202 Aggravated Assault
45-5-207 Criminal Endangerment
45-5-208 Negligent Endangerment
NE 28-308 (1st degree)   28-109 (Serious Bodily Injury)  
28-309 (2nd degree)
28-310 (3rd degree)
NV 200.471 Assault, Definitions, Penalties      
200.481 Battery, Definitions, Penalties
NH 631:1 (1st degree) 626:6 Consent (similar to MPC) 625:11 General definitions  
631:2 (2nd degree)
631:2-a (Simple assault)
631:3 Reckless Conduct
NJ 2C:12-1 (Assault) 2C:2-10 (Lifted from the MPC) 2C:3-11 (bodily harm, serious bodily harm)  
2C:12-2 (reckless endangerment)
NM 30-3-1 Assault   30-1-12 (Great Bodily Harm)  
30-3-2 Aggravated Assault
30-3-3 Assault with intent to commit violent felony
30-3-4 Battery
30-3-5 Aggravated Battery
NY Penal Law 120.00 (3rd degree)   Penal Law 10.00 (Serious Physical Injury,  
Penal Law 120.05 (2nd degree)
Penal Law 120.10 (1st degree)
Penal Law 120.20 (Reckless Endangerment 2nd degree)
Penal Law 120.25 (Reckless Endangerment 1st degree)
NC 14-32.4 (Assault inflicting serious injury, Strangulation)   Definitions contained in the assault statutes  
14-33 (Misdemeanor assults, batteries, affrays)
ND 12.1-17-01 Simple Assault 12.1-17-08 Consent as a Defense (very similar to MPC) 12.1-01-04 General Definitions  
12.1-17-01.1 Assault
12.1-17-02 Aggravated Assault
12.1-17-03 Reckless Endangering
OH 2903.13 Assault 2901.21 Requirements for Criminal Liability 2901.01  
2903.11 Felonious Assault
2903.12 Aggravated Assault
2903.14 Negligent Assault
OK 644 Assault and Battery   641 Assault  
645 Assault and Battery with a Dangerous Weapon 642 Battery
646 Aggravated Assault and battery  
647 Punishment for Aggravated Assault and Battery  
OR 163.160 (4th degree)   161.015 Definitions  
163.165 (3rd degree)
163.175 (2nd degree)
163.185 (1st degree)
 
PA 2701 Simple Assault Seemingly allowed in the caselaw 2301 Definitions  
2702 Aggravated Assault
2705 Reckless Endangerment
RI 11-5-1 Assault with intent to commit felonies (incl. sodomy)      
11-5-2 Felony Assault
11-5-3 Simple Assault, Battery
 
SC No statute?      
SD 22-18-1 (Simple Assault)   22-1-2 (Serious bodily injury)  
22-18-1.1 (Aggravated Assault)
TN 39-13-101 Assault 39-13-104 Consent (very much like MPC) 39-11-106 Definitions  
39-13-102 Aggravated Assault
39-13-103 Reckless Endangering
TX Penal Code 22.01 Assault Penal Code 22.06 Consent as a defense to assaultive conduct Penal Code 1.07  
Penal Code 22.02 Aggravated Assault
 
UT 76-5-102 Assault 76-5-104 Consensual Altercation 76-1-601 Definitions  
76-5-103 Aggravated Assault
VT 13 VSA 1023 Simple Assault   13 VSA 1021 Definitions  
13 VSA 1024 Aggravated Assault
13 VSA 1025 Recklessly endangering
 
VA 18.2-57 Assault and Battery      
WA 9A.36.011 (1st degree)   9A.04.110 (Bodily Harm, Great Bodily Harm)  
9A.36.021 (2nd degree)
9A.36.031 (3rd degree)
9A.36.041 (4th degree)
9A.36.050 (Reckless Endangerment)
WV 61-2-9 Malicious or unlawful assault; assault; battery      
WI 940.19 Battery, Substantial Battery, Aggravated Battery   939.22 Words and Phrases Defined  
940.23 Reckless Injury 939.24 Criminal Recklessness
WY 6-2-501 Simple Assault, Battery   6-1-104 (Bodily Injury, Serious Bodily Injury, Recklessly)  
6-2-502 Aggravated Assault, Battery
6-2-504 Reckless Endangering

 

 

 

 

By Susan Wright

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 2008 1998
Women 51% 46%
Men 45% 51%
Transgender 5% 1%
Intersexes 1% 2%

 

Table 2. Sexual Orientation
2008 1998
Heterosexual 41% 40%
Bisexual 35% 36%
Gay/lesbian 22% 22%
Other 7% 4%

 

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
Percent
Persecuted
Gay/lesbian 22% 25.5%
Bisexual 35% 38.4%
Heterosexual 41% 33.2%
Other 7% 8.5%
Total 105% 105.6%

 

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
Medical doctor 48.8%
Mental health practitioner 39.3%
Police or govt. employee 25.4%
Other Professional service provider 8.4%
Lawyer 7.8%
Other Personal service provider 6.1%
Dentist 1.7%
Building contractor 1.7%
Accountant 1.2%
Other 6.9%

 

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 26.1%
Harassment by police/author 22.2%
Harassment by neighbors 20.7%
Harassment by organizations 20.2%
Loss of lease 17.7%
Refused credit card services 14.8%
Loss of business 13.8%
Refused insurance coverage 8.9%
Loss of occupancy certificate 4.9%
Arrest 3.0%
Fines 2.0%
Other 24.6%


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 71.5%
Didn't visit website 45.7%
Didn't post text 43.4%
Didn't link to website 38.7%
Didn't join email group 31.0%
Posted 18-over warn 25.7%
Barred users 16.1%
Didn't add meta-text 8.0%
Other 11.0%

 

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. 

Table 7. Reasons Declined To Press Charges
Fear of further harassment 41.0%
Fear of family disapproval 24.1%
Fear of job safety 22.2%
Fear of legal repercussions 21.9%
Fear of losing child custody 10.6%

 

Copyright Susan Wright, Survey of Violence & Discrimination Agaisnt Sexual Minorities (2008)
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
 
917-848-6544

 

Published in BDSM Survey
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    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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