NCSF Statement on Professional Dominatrices in New York
February 25th, 2009Thanks to everyone who has forwarded this to me today from various newsgroups. It’s the news we were waiting for, but the news we were hoping not to get.
I’ve been working on this since September when a number of pro-Dommes and concerned community members contacted NCSF about the arrests of pro-Dommes for prostitution. It’s taken months of dealing with the Manhattan DA’s office to find out that they consider many of the activities that pro-Dommes are doing DO fall under the prostitution statute. Here’s the statement we created for the NYC community to educate pro-Dommes on what we discovered.
It would take a defendant willing to take their case to the appellate level to pin this down for certain. Unfortunately, it’s an ad hoc case-by-case adjudication approach in NYC. This sets up the possibility of a void for vagueness constitutionality challenge against the prostitution law, but who is willing to fight it?
To raise awareness about this issue, NCSF is also participating in the Stop the Arrests coalition in NYC that includes the Anti-Violence Project, Queer Justice League, the Urban Justice League’s Sex Worker Project and others to protest the crack down on consensual sex and false arrests for prostitution.
Susan
NCSF Statement on Professional Dominatrices in New York
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 [1972].)”
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 genitorture, 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 is currently exploring ways to cooperate with other sex-positive activist groups in New York City to protest these arrests, as well as the alleged entrapment and arrests of gay men for prostitution. If you have been arrested for prostitution for doing BDSM activities, or if you would like more information, please contact: susanw@ncsfreedom.org
February 11, 2009
February 25th, 2009 at 1:17 am
That blows chunks, how nice of them to randomly redefine the rules for no other reason than to play moralists. Why don’t they go out and catch crooks instead
February 25th, 2009 at 7:16 am
Awful!
“what is arousing to the participants, not what is arousing to the outside “vanilla” observer”
That means that “they” could just arrest anyone for just about any reason.
Why stop at BDSM? Who’s next? People giving chair massage for $15 for 15 min? I was getting pretty aroused the other day while getting one…
February 25th, 2009 at 7:49 am
Therefore, activities such as flogging, CBT or genitorture, 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.
So in other words, it’s prostitution if a DA thinks someone’s having fun? The law is an ass, apparently. I can’t wait to see how they intend to go about proving arousal, except I expect it will be via the circular logic of assuming the client wouldn’t pay for it otherwise.
February 25th, 2009 at 9:40 am
Ironically, I’d applaud this statement in another context Ms. Friel opined … that “sexual conduct” should be defined as what is arousing to the participants, not what is arousing to the outside “vanilla” observer.” but since prostitution laws should, in a reasonable universe, be motivated primarily by a concern for the public health, it doesn’t make sense in this context. (And, as we discussed, sex workers tend to be better about condom use, etc. than many other sexually active individuals… but at least that’s something you can make a public interest case for)
February 25th, 2009 at 10:31 am
Friels interpretation is that otherwise-legal conduct becomes criminal if you have a certain orientation. It is a thought crime. Could they make it a misdemeanor for a gay man to shower at a public gym?
The fact that Block isn’t being used to justify shutting down strip clubs (for-pay contact with a clothed or unclothed breast?), show the degree of arbitrary power the DA is claiming here.
February 25th, 2009 at 1:30 pm
I can’t say I’m surprised.
Disappointed, but not surprised.
I’m curious how/if this effects porn….
February 25th, 2009 at 3:02 pm
Well now, SOMEONE is apparently going to make a run for some office on a conservative tough on vice campaign.
*grumble*
February 26th, 2009 at 1:37 pm
“Could they make it a misdemeanor for a gay man to shower at a public gym?”
Just think of the possibilities!
*bangs head on desk* For a nation supposedly built on the idea of individual freedom, we still have a long way to go.
February 27th, 2009 at 12:31 am
Where was this originally posted? Origin link, please?
February 28th, 2009 at 5:36 pm
@maymay: I received it on several different mailing lists. Do you need to know them?
March 1st, 2009 at 5:52 am
Of course it’s prostitution. Here in Sydney prostitution is perfectly legal, and bondage parlours don’t have to pretend what they are doing is not sexual. And if it is sex, and if someone is paying, then it is prostitution. Simple really.
Perhaps you should be fighting for legal prostitution, rather than trying to maintain an absurd distinction between sexual and non-sexual bdsm.
March 1st, 2009 at 6:08 am
@Calico: Ah, nevermind then. No, I don’t need to know the mailing lists, I’m just surprised that there isn’t a “permalink” associated with this statement. For technical reasons, not using URI (universal resource identifier) for a single resource—especially something like this—seems odd to me.
March 1st, 2009 at 1:44 pm
@G: I would love to see prostitution decriminalized. In the meantime, I want to see what IS criminalized for prostitution to be as limited and clearly defined as possible. I also want to see an end to police entrapment, sexual harassment, targeting, and patently false arrests. You know, like in any law and any situation.
It does suck that prostitution is illegal. But there are a lot more problems in the system than that, and sitting on my hands isn’t really going to help.
March 12th, 2009 at 1:32 am
[...] The last line in the Gothamist article kills me. Since when does our government leave protecting us from criminals out of the budget? Maybe they’ve been distracted coming after us. [...]