Sunday, January 1, 2012


This blog is on hiatus. Occasional postings may appear. Please peruse the blogroll.

Wednesday, October 28, 2009


This blog is on hiatus. Occasional postings may appear. Please peruse the blogroll.

BDSM case goes to the Supreme Court

cross-posted from hunter of justice

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions, saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed. Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

Wednesday, July 22, 2009

PA Supremes say prison may ban porn to prevent "objectification"

The Pennsylvania Supreme Court this week unanimously rejected a challenge to the state's broad ban on sexually explicit printed materials in prisons. The court did not state conclusively that the ban is constitutional, but held that the plaintiff prisoner had not met the heavy evidentiary burden that courts generally require in order to take a case of prisoners' First Amendment rights to trial.

Here's what Pennsylvania prohibits any prisoner to obtain:
(1) materials in which the purpose is sexual arousal or gratification; or (2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through “see through” materials is considered nudity for purposes of this definition).
Infelicitously for his case, the particular plaintiff here was serving a sentence for rape. Even more infelicitously, he represented himself. And to make matters worse, the evidence he was prepared to present consisted of affidavits from fellow prisoners asserting that viewing nudity did not have ill effects on their rehabilitation or day-to-day conduct.

Interpreting a handful of Supreme Court precedents, the court held that a prisoner faces a heavy burden to take a case of individual constitutional rights to trial. The state's burden, it said, is simply to articulate a "rational connection" between its censorship standards and any "legitimate penological interest." If the state can meet that low bar, the prisoner must then present specific facts that call that basic rationale seriously into question. The court was silent as to how a pro se prisoner is to meet this burden in a First Amendment case, where calling into question the state's rationale would seem to require access to expert witnesses, social science research, or the like. In other words, if the state can come up with any rationale that the court will "buy" in the abstract, a prisoner would seem to need substantial outside assistance to take the case to trial.

Be that as it may, the court found that the state's asserted goals were rational, and that the prisoners' affidavits did not raise any genuine question about their validity. What were those goals? The primary rationale accepted by the court was that:
the pornography ban serves to foster the rehabilitation of inmates, including sex offenders like [the plaintiff], and is consistent with inmate treatment objectives, particularly discouraging inmates from “objectifying” others, rather than treating them as individuals.
The court also accepted the state's reasoning that pornography in the prison would lead to a "hostile work environment" for prison staff. While the workplace-harassment rationale, and the idea that pornography will have a particularly dangerous effect on persons convicted of any sex offense, are not new, I believe the "objectification" rationale is not as frequently seen.

While it may seem remarkable - at least to those familiar with philosophical and feminist debates over the concept of "objectification" - that courts would accept this vague rationale at the level of abstract, unsupported logic, one must keep in mind the litigation context. As the litigation around same-sex marriage demonstrates, the ability to overcome vague government interests under a "rationality" test often depends on the ability to go toe-to-toe with the state in contesting its logic. That is to say, a pro se prisoner lacks not only the ability to gather sophisticated evidence in a case like this, but also the resources to engage in the kind of sophisticaed legal argument that may be necessary merely to ge to trial.

Tuesday, June 9, 2009

Remembering Dr. Tiller

Last night I went with my wife to the Religious Coalition for Reproduce Choice memorial service for Dr. George Tiller last night at the National City Christian Church. It was a very moving service, with Dr. Leroy Carhart delivering the euology for his colleague and friend.

Most people didn't understand Dr. Tiller's work - they didn't understand the basic facts about what late-term abortions are, who has them and why. I urge you to read this article which explains the facts and the stories of women who have had these procedures. I would also recommend visiting, which collects the stories of the people who dedicate their lives to making abortion, safe, legal and accessible.

Individuals and private organizations will keep up the important work of clinic defense, but it is now up to the U.S. Justice Department, along with state and local governments, to take meaningful steps to monitor and prevent threats and acts of terrorism against abortion providers throughout the country.

Monday, June 8, 2009

Reduced posting

This blog will see reduced posting for a short while because I am busy with actual lawyer things. As a small consolation, I leave you with this off-topic but mildly amusing snippet from a recent environmental decision in the Ninth Circuit:
We begin with the cross-appeal, which contests the dismissal of the [claims against the] Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.
I like to imagine the lawyers getting postcards of deer from their friends for months.

Friday, May 29, 2009

Not a crime to show dirty pictures of onself to a teen old enough to consent to sex

The usual Creep Caveat applies to this post.

Here's another case dealing with exhibiting harmful matter to a minor. In Salter v. State, 2009 WL 1409484 , the Indiana Court of Appeals overturned such a conviction on the ground that the statute was vague as applied to pictures sent over the Internet to a young woman of 16. The court reasoned that since the state set the age of sexual consent at 16, the "harmful matter" statute failed to provide clear notice to the defendant that he could legally have sex with the woman but could not legally send her pictures of his erect penis.
We understand Salter's argument to be that he had no way of knowing that pictures of his genitals would be considered “harmful” to M.B., given that, under Indiana law, he could have been naked in front of M.B. and had sex with her without violating any law. Again, we must agree.

By setting the legal age of consent at sixteen, the Indiana legislature has made an implied policy choice that in-person viewing of another person's genitals is “suitable matter” for a sixteen- or seventeen-year-old child. That being so, how could Salter have known that a picture of his genitals would be “harmful,” that is, not “suitable,” for M.B.? Asked another way, if such images are harmful to sixteen- and seventeen-year-old children, then why would our legislature allow those children to view the same matter in-person, in the course of sexual activity?
One judge dissented, noting that the defendant didn't have a sexual relationship with the young woman involved, and that the harmful matter statute did not depend on a minor's consent. But given that the young woman here sent the defendant semi-nude pictures of herself as well, it seems fair to say that there was some kind of consensual sexual relationship here, albeit an online one. It would be truly bizarre if it were legal for two people of whatever age to have sex, but illegal for them to have cybersex. I am aware, however, that in the eyes of many people over 35, anything involving the Internet is automatically twice as dangerous.

(N.B. - the court's opinion makes no mention of the defendant's age.)

Though originally nabbed because of this online relationship with a teenager, Mr. Salter was also charged with something even more unsavory: possession of child pornography. This included not just the pictures of the 16-year-old created and sent by her, but also pictures of unknown, younger children apparently obtained from the Internet. Mr. Salter was clearly liable for possession of the latter (but not the former, because Indiana sets the age for defining child pornography at the age of sexual consent, 16). But the prosecutor decided to go for a bigger sentence by charging him with creating child pornography, on the basis of his downloading the images and burning them to CD. The court (again 2-1) following the reasoning of the New Jersey Supreme Court (State v. Sisler) in concluding that simply copying preexisting digital images does not fall within the ambit of a statute targeted at the actual production of child pornography. The court reasoned that copying a digital images is analogous to simple possession, not to creating a new image.

The court therefore reversed these convictions as well. It noted that the state could not prosecute Salter for simple possession as to the images of the 16 year old regardless, and might have screwed itself out of charging him with possession of the other images because of the state's Successive Prosecution Statute. Which hopefully will teach that prosecutor a lesson.

Thursday, May 14, 2009

Craigslist bows to states' pressure, axes "Erotic Services"

This week Craigslist announced that, pursuant to a deal with several state attorneys general, it will be eliminating its "Erotic Services" section. The news media have framed the pressure on Craigslist as a response to recent crimes against people who used the site. Connecticut Attorney General Richard Blumenthal, who spearheaded the effort, has pitched his campaign alternately as aimed at preventing trafficking and child exploitation, and as a plain morals campaign against "pornography, nudity, and open offers of sex for money." Craigslist initially vowed to require posters on Erotic Services to enter credit card information, but the state officials wouldn't settle for that, so the site is no replacing the section with a new "Adult" section, in which each post will be pre-screened by Craigslist employees.

A coalition of organizations advocating for sex workers released this statement:

With Craigslist’s recent announcement that its Erotic Services category will be discontinued within the week, hundreds of thousands of erotic service providers will become more vulnerable to dangerous predators. Eliminating erotic listings as Connecticut Attorney General Richard Blumenthal and others propose will only drive us further underground.

Policing the masseuses, phone workers, pro-dominants, and escorts using Craigslist fails to protect those of us who are coerced into the sex industry. Preventing the use of Craigslist advertisements also eliminates the advantage of screening clients online, which makes for a safer work experience by filtering out potentially dangerous individuals. Furthermore, keeping us offline hinders police investigations of violent crime. In the Boston murder of Julissa Brisman, it was online tracking that enabled the police to identify the suspect. One has to wonder: are the Attorneys General examining the evidence or simply enforcing their moral values?

“Removing the erotic services category from Craigslist does not help prevent violence against escorts and other sex workers. It only pushes me and people like me out of the places where advertising is available,” said Jessica Bloom, a sex worker from Sex Workers Action New York (SWANK). In the face of increasing criminalization, we insist upon respect. As mothers, daughters, brothers, and members of your community, we claim that sex work is real work, work that we are entitled to conduct in safety. As such, we must be accorded the human right of full protection under the law.
Sex work activist Miss Calico has this to say about the move:

It’s true that Craigslist is a major advertising venue, for prostitutes but also sex workers of all kinds: the largest in the nation. Its loss will have a distinct effect on the people who use it. Here’s how it works: we advertise to attract the clients we want, and screen to eliminate the clients we don’t, but the number of clients we need stays the same. Anything that hurts our methods of attracting clients, like the shutdown of Erotic Services, will affect how stringent our screening can afford to be. It’s pretty clear to me that Craigslist has just made its sex workers more marginalized and more at risk.

Now, Craigslist has no responsibility to provide an advertising venue. But if Attorney General Richard Blumenthal is trying to make sex workers safer, he’s going about it all wrong. He doesn’t need to protect us from ourselves, or from our clients. He needs to protect us from criminals.

At the Sex 2.0 conference this past weekend, Melissa Gira analogized the panic over Craigslist to New York City's "cleanup" of Times Square. Both spaces came to represent the threat of sexual corruption encroaching on "normal," "decent" places. Targeting these spaces allowed politicians to simultaneously appear to be both protecting moral purity and addressing real social problems of crime, etc., without really addressing those problems at all. As Miss Calico points out, sex work isn't going away, and the short term effects of driving online sex work advertising "underground" -- at least until some other site replicates the efficiency, anonymity and ubiquity of Craigslist -- could be harmful both for sex workers and for law enforcement.


As a side note, none of the news reports or press releases indicate what kind of legal claims the state governments might have had against Craigslist. I've previously mentioned the question of federal immunity under Section 230 of the Communications Decency Act with regard to a still-pending public-nuisance suit targeting "Erotic Services." The Ninth Circuit Court of Appeals recently held, in an egegrious case of revenge porn, that Yahoo! might have lost its 230 immunity only because its staff specifically promised the plaintiff to take the offending material down.

Here's some further analysis of Craigslist's likely legal defense under CDA from the Electronic Frontier Foundation. (More, too, from the Citizens Media Law Project which notes the site's previous efforts to ensure Erotic Services isn't use to exploit children.) Of course, settlements like this are based not only on likelihood of success but on business decisions about public relations and litigation costs. They have previously won litigation over discriminatory preferences in their housing ads, but that doesn't mean they're eager to go through the process again. Ditching Erotic Services was clearly more desirable for Craigslist than fighting several state governments in court and in the media.