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.

Gender, "deception" and the law, pt. 3

This is the third post in a series inspired by the Angie Zapata murder trial in Colorado, and in particularly by the suggestion by some people that transgender people who are victims of hate crimes by sexual partners were themselves guilty of "deception." In the first post, I sketched out the traditional narrow legal interpretation of the kind of deception that can vitiate sexual consent. In the second post, I explored possible extensions of this concept and argued against them. This post specifically considers the question of disclosure by transgender people of their sexual anatomy and/or gender history to sexual partners.

Actual gender "deception" cases. A recent article by an Israeli law professor identified five cases internationally in which transgender individuals have been prosecuted for failing to disclose their gender history to sexual partners: two cases in the U.S., one in the U.K., and two in Israel. See Aeyal Gross, Gender Outlaws Before the Law: The Courts of the Borderland, 32 Harvard Journal of Law & Gender 165 (2009).

• In the United Kingdom in 1991, Jimmy Saunders was charged with indecent assault on the basis that he concealed the fact that he was born female from two sexual partners. He was convicted, though the Court of Appeals reduced his sentence.
  
• In Colorado in 1995 - the same state where the Zapata murder took place - Sean O'Neill was charged with false impersonation and sexual assault on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to lesser charges.
• In 1997 in Washington state, Christopher Wheatley was charged with sexual assault on the basis that he concealed the fact that he was born female from two sexual partners. He plead guilty.
• In Haifa, Israel in 2003, Hen Alkobi was charged with sexual assault and "impersonation of another person" on the basis that he concealed the fact that he was born female from four sexual partners. He plead guilty to the sexual assault charge, contested the impersonation charge, and was convicted on both charges.
• In 2007, another transgender man in Israel was charged with statutory rape as well as "indecedent acts" on the basis that he fraudulently obtained consent from a sexual partner by concealing the fact that he was born female. (My only source for this case is Gross, who does not give a name and says the case was ongoing as of early this year.)

I would be very interested to find out more about these cases than is available in readily-accessible, English-language sources, particularly the U.K. and recent Israeli cases.

Notably, all of these cases involved male-identified transgender persons who had sexual relationships with underage women (and in all but one case, with multiple underage partners). It thus appears that it is peculiarly trans men who partner with women who are in danger of being prosecuted for dating without disclosing (whereas women who partner with men are in more danger of being killed by their partners). Additionally, each of these cases apparently could have been prosecuted solely on charges of statutory rape. Thus, these are not cases of individuals being singled out for prosecution based on failure to disclose, but rather cases that would have been prosecuted regardless based on the involvement of minors - though it is clear that prosecutors and/or judges in these cases did have particular reactions of disgust to these gender-variant defendants, and to their involvement of seemingly unwitting young women in what these authorities no doubt regarded as homosexuality.

As far as I can tell, in only one of these cases -- the U.K. case -- did a court rule that failure to disclose one's anatomy or gender history vitiates consent and creates liability for sexual assault. In the other cases, it appears the defendants simply decided to strike a deal, which made sense given that they were probably liable for statutory rape regardless. The latter cases provide no support for the legal theory that these circumstances negate consent. Even in the Saunders case, it's not clear from secondary sources to what extent this aspect of the prosecution was challenged, or even if the assault convictions themselves (rather than just the sentence) were appealed.

U.K. law today. In 2000, the Law Commission of the United Kingdom specifically recommended that the U.K. Sex Offences Act not be interpreted to treat a failure to disclose transgender status as deception that vitiates consent. The Commission reasoned that this would amount to "the creation of a special rule for transsexuals," and accordingly would likely violate the European Convention on Human Rights, which prohibits discrimination against trans people and guarantees the right to expression and recognition of a person's gender identity. (While the Commission stated this recommendation only in terms of individuals who had undergone sex reassignment surgery, it would probably take a different view now that, under the Gender Recognition Act, the U.K. permits change of legal gender in the absence of surgery.)

Regardless, in 2003 the U.K. revised its sexual offenses law, and narrowed the language concerning deception. Following the traditional approach of American courts, the current language covers only situations of deception about "the nature or purpose of the relevant act" or "impersonating a person known personally to the complainant." Thus, regardless of the Saunders case, it appears that UK law today would not treat failure to disclose anatomy or gender history as rape or indecent assault.

Trans people are not liars. Consider why a transgender person would hesitate disclose their sexual anatomy or gender history to an actual or potential sexual partner. Trans people are not sexual predators looking for unsuspecting victims. They live in a society where their gender identity and expression are not accepted as authentic by many, perhaps most people around them - indeed, where that identity and expression are viewed as mere pretense. They live in a society where fear and loathing of gender variance and homosexuality are intense. These fears are linked by failure to understand or accept trans identities, and manifest most strongly as fears of sexual pollution. These facts are particularly salient for trans people who are young, are just beginning or have recently made a gender transition, and who live in rural or socially conservative areas. Add to this the psychic distress, embarassment and extreme shyness many trans people experience regarding aspects of their sexual anatomy and gender history. Being rejected by a partner who does not accept their gender identity is a painful prospect - as is seeking out partners who will desire them precisely because of not accepting their gender identity.

Given this context, disclosure to potential partners is fraught on all sides for many trans people. The partner who will both accept their identity and still desire them will be rare - depending on geography and other factors, perhaps very rare. At the same time, by not disclosing they are not lying: they are simply living their lives and presenting their authentic gender, as they do in other social relationships. And once an interpersonal connection exists, the prospect of coming out can be frightening, and appear very much easier to postpone or avoid.

Trans people are no more liars when they do not disclose these matters to potential partners than they are liars by simply living their lives. This is who they are. Of course, in a long-term relationship, tiptoeing around the personal details will be difficult and probably unhealthy for the relationship. For this reason, and in response to very real fears of violence, trans people usually do disclose to sexual partners, especially when looking for a lasting romantic relationship. While I have little sympathey for other people's anxieties about being sexually polluted by a sexual partner with the "wrong" body parts, it's never desirable to risk distress to others. But I find it difficult to judge morally, and repulsive to punish criminally, the choice of some individuals, particularly in casual encounters or at the beginning of a relationship, not to come out.

Gender, "deception" and the law, pt. 1

Last week, a Colorado jury sentenced Allen Andrade to life in prison for the brutal murder of 18-year-old Angie Zapata. The jury rejected Andrade's attempt to mitigate his crime by arguing he was provoked into a crime of passion following the discovery that Zapata, with whom he'd had a sexual encounter, was a transgender woman. Queer and transgender blogs covered the story of the trial quite thoroughly (I've mentioned it previously too), and I won't recount all that here. Suffice to say that whatever my usual qualms about our criminal justice system, the Zapata verdict was reassuring in its rejection of the desperate but nonetheless vile victim-blaming defense strategy. Still, a number of commentators have predictably placed the blame on Zapata for her own gruesome death by condemning her supposed "deception" about her gender history. (The local paper covering the trial even ran the headline "Andrade: Stunned Victim or homophobe?") Some have gone so far as to suggest that such "deception" of a sexual partner could constitute criminal sexual assault.

The suggestion that transgender people who fail to disclose their gender history to sexual partners are themselves perpetrators of sexual violence owes more to horror of transgender people themselves, and of perceived "homosexual" acts, than to legal interpretation. Yes, many rape and sexual assault statutes state that deception vitiates consent. But the inherently malleable concept of deception has rightly been narrowly interpreted by courts. In this and a subsequent post I hope to sketch out some of the how and why of that interpretation, and why extending it to situations like the Zapata case would be legally untenable and morally unacceptable.

American and British courts have interpreted the concept of deception in rape and sexual assault statutes narrowly, to account for a few obvious situations in which the defendant's conduct obviously vitiates consent and fits within, or closely resembles, the common law concept of battery. See, e.g., David P. Bryden, Redefining Rape, 3 Buffalo Crim. L. Rev. 317, 457-75 (2000). This is a sensible approach, given how malleable and potentially limitless the concept of deception is.

Nature of the act. Courts have regularly said that fraud concerning the "nature of the act" vitiates consent, but by that they mean something very specific: the defendant causes the victim to believe that an otherwise unwanted sexual contact is something else entirely. The classic examples are medical professionals purporting to conduct a clinical examination or deliver a medical treatment.

Mistaken identity. Courts have also recognized identity fraud as vitiating consent, and this also means something very specific: the defendant causes the victim to believe that the defendant is actually some other person altogether. The classic example is the defendant posing as a person's spouse.

Infection, fertility and common-law battery. Several states now criminalize exposure of unwitting sexual partners to a sexually transmitted disease, but this is not classified as a species of rape. Rather, it is considered akin to common-law battery; liability is based not on whether the sexual partner would have consented given certain information, but rather on the potential physical injury. One could also imagine liability for lying about having had a vasectomy, but in this scenario, too, liability would be based not on the notion that consent to sex was vitiated as such, but that the victim would probably have insisted on using contraception. It was not the sex that was unwanted, but the consequences. These statutes are controversial, of course, both as a matter of justice and of public health.

In a follow-up post I intend to sketch the debate over extending the deception concept to other scenarios, and argue that doing so is unwise; and to discuss briefly the handful of cases in which transgender people have been prosecuted for "deception" of sexual partners.

Surfing cable is not "exhibiting harmful matter to a minor"

The California Court of Appeals recently overturned a conviction for "exhibiting harmful material to a minor," also known as "showing kids dirty pictures." The court ruled that there was insufficient evidence that the television segments involved fit the statutory definition.

Cable is not a crime. Shaun Martin at the California Appellate Report has this assessment of the case:

(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well. So if you're convicted of misdemeanor sexual battery (as David was here in Count II), that's fair.

(2) More relevant to this appeal, however -- and to most of us law-abiding citizens as well-- it's not illegal to be flipping through channels on the television and stumble across an NBC, HBO, or (even) Cinimax program. Even if a 16-year old is present. And even if you (allegedly) linger on a fake sex scene -- e.g., your typical broadcast "waist up, lots of grunting" shot) longer than you should given the audience. That's what's on television nowadays. It's not obscene. And it does not count as illegally "exhibiting harmful material to a minor," for which David was convicted in Count One. Watching regular television simply isn't a crime. Even if it's "Leaving Las Vegas," "American Beauty," or (to your eternal regret) "Showgirls"....

The court noted that there was no way to tell from the sketchy descriptions of the TV segments involved whether, under the terms of the statute, the allegedly "harmful matter" lacked "serious value":

Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare‘s Romeo and Juliet.

Should "exhibiting harmful matter to a minor" be criminal? Although overturning the conviction in this case, the appeals panel made clear that they saw no constitutional or policy problem with the law, and in fact, went out of their way to suggest that the law could and should be drafted more broadly, so as to capture cases like this one. Specifically, they noted that the legislature had narrowed the definition of "harmful matter" in 1988 so that it essentially tracked the Supreme Court's definition of obscenity. The judges suggested, though, that the First Amendment does not require a statute like this to be so narrow, because the statute also required that the exhibiting must be done "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor." The court said this was a case of "mixed speech and expression," and so it would be permissible to reach a broader category of otherwise-protected speech. The court said it "would encourage the Legislature to revisit this issue, given the potential consequences of so narrowly defining harmful matter when it is used to groom young victims for acts of molestation."

I understand the rationale here: it is not the mere exposure of minors to racy material that is punished, but the use of the material to facilitate abuse. But I'm not sure whether it is either necessary or wise as a matter of policy. Not sure whether it's necessary, because there are any number of other things a person might do to "groom young victims for acts of molestation" other than show them pornography -- engage in sexual talk with them, for example, or give them alcohol, or do any number of other things to curry affection and normalize inappropriate intimacy -- and we don't separately criminalize them. Not sure whether it's wise, because the intent factor fails to set clear, objective boundaries on when prosecution is appropriate. Public screenings are clearly exempted, but in any one-on-one interaction there exists the possibility of unintended but untoward appearances. It is at least reassuring, however, that the California Court of Appeals has previously interpreted this law to require a specific intent to entice the minor into physical sexual contact with the defendant, as opposed to encouraging the minor to, e.g., masturbate alone. People v. Jensen, 114 Cal.App. 4th 224 (App. 6 Dist. 2003).

Who cares? Prof. Shaun had these closing thoughts on People v. Dyke:

The fact that the trial court let this count go forward, and that the jury convicted on it, says some pretty damning stuff about the judicial system here. I get the keen sense that this happens not because of some neutral assessment of whether it's in fact illegal to watch television alongside a 16-year old, but rather because we don't like what the defendant allegedly did here and are eager to punish him however we can.

This blog frequently addresses criminal cases in which the defendant clearly committed one or more serious crimes. In such cases, prosecutors regularly reach out for anything in the book to increase the sentence, increase their plea-bargaining leverage, and/or provide a fall-back charge. Not infrequently, they find a statute, or (as here) advance an interpretation of a statute, that could also apply to a significant swath of innocent conduct. I blog on these cases for three reasons: 1) such prosecutorial practices are a misuse of law and the justice system, in violation of the spirit (if not the letter) of the Double Jeopardy Clause; 2) criminal cases involving obvious "bad guys" are one of, if not the most common context in which courts consider potentially inflammatory sex-related topics, such as pornography and BDSM, and provide a window into judges' thinking (and prejudices) about these issues; and 3) the American experience with sodomy laws teaches us that the fact that a law is only ever used to prosecute truly culpable persons doesn't mean that it can't have other harmful effects.

"Lying" about sexual orientation in a rape trial

The Tennessee Court of Criminal Appeals held this month that a defendant on trial for rape had no right to introduce testimony relating to the alleged victim's sexual orientation. State v. Boutchiche 2009 WL 102949 (Jan. 12, 2009). The victim here testified at the defendant's first trial that, when in the course of attempting to sell magazines to the defendant he made sexual advances, she told him she was a lesbian. At his retrial, defendant sought to introduce testimony that she had had sex with a man two weeks before the crime. The court said that this evidence was not relevant for a number of reasons - including, notably, that having sex with a man is not inconsistent with being a lesbian.

Sometimes I give Southern state court judges too little credit. The defendant was clearly trying to play with semantics and exploit ignorance and prejudice. The judges didn't buy it, and to boot, we get a clear judicial recognition that sexual orientation is not simply a categorical fact litigants can attempt to prove or disprove to their advantage, but rather an aspect of personal identity defined by the individual.

Nowadays courts typically exclude evidence of an alleged victim's sexual behavior in rape trials, but there are exceptions. One generally acknowledged exception is when such evidence might explain physical evidence such as bruises or semen. Another recognized by some courts is when apparent false statements about sexual behavior by an alleged victim may undermine his or her credibility. Here, the defendant argued that (a) the victim lied about about a lesbian, and that was relevant to credibility, and (b) the fact that, seemingly contrary to her earlier statement, she did have sex with men would help to explain the presence of semen in her body.

When queried by the court about this, the victim said that she "considered herself a lesbian regardless of having had sexual intercourse with a man, adding that she knew 'lots of lesbians that have slept with men.'" When asked by the court if she was in fact bisexual rather than lesbian, she said:

Well, I suppose if that's what it means, then yes, I guess I'm bisexual but-I mean, I really don't know what to say to that. I mean, I didn't lie about it. So, I mean, if that's what I said [that she was a lesbian], then that's what I said, and that's what I meant.

The trial judge excluded the evidence, saying (among other things):

I don't think that that testimony indicates that she was lying about her sexual orientation. She's just saying, “I told him I was a lesbian,” and she was a lesbian, and she did it so that he wouldn't get the idea she was there for some purpose other than to sell him magazines. So I don't think that that's ... a misrepresentation of her sexual orientation. I mean, she was a lesbian, even if she had-on prior occasions had sexual relationships with a man.

The appeals court held that the exclusion was proper. It reasoned as follows: (1) Since an expert testified that semen can only stick around for a few days inside the vagina, a two-week-old liaison had no relevance to the physical evidence in the case. Clearly, defendant couldn't use this two-week-old incident to suggest the mere possibility that she might have had sex with some man more recently. (2) During the retrial the victim did not mention her sexual orientation at all, and the defendant couldn't seek to undermine testimony that hadn't been presented. (3) The victim simply did not lie about her sexual orientation at the first trial; one can identify as a lesbian even if one has sex with men.

Increased sentence for targeting trans prisoner

In White v. U.S., the D.C. Court of Appeals affirmed a sentencing enhancement for a prison guard who physically and sexually assaulted a transgender prisoner. The sentencing judge reasoned that the prisoner's trangender status constituted a "reduced physical capacity" under the D.C. sentencing guidelines, thereby meriting the tougher sentence. The appeals court said it would not decide whether trangender status is actually a form of "reduced physical capacity," because the D.C. guidelines are purely advisory, and it doesn't really matter whether judges interpret them correctly in a given case. The court nevertheless upheld the enhancement:

As the trial judge explained, White's sentence was intended to reflect his victim's particular vulnerability as a transgender inmate in an all-male prison unit and, we are satisfied, appropriately reflects what the government's evidence showed was the non-consensual nature of the encounter.

While I'm generally predisposed to favor more lenient sentencing, this strikes me as appropriate. "Reduced physical capacity" is a real stretch, since trans people aren't physically impaired in any way by virtue of being trans. But trans people are certainly especially vulnerable to abuse in prisons, especially given the dominant practice in the U.S. of housing inmates on the basis of their birth sex. And when a prison guard exploits that vulnerability, a sentencing enhancement may serve to deter such exploitation in the future.

Calif. court finds for abused trans prisoner

Abuse of trans people in jails and prisons - either by prison staff, or by other inmates because of the neglect of prison staff - is rampant, and yet courts typically rejects suits by trans prisoners. Arthur Leonard reports on a happy exception in a very unhappy case. The plaintiff, a trans woman placed in a male prison, suffered repeated threats, assaults, and rapes - including by her cellmate - before prison officials finally responded to her complaints. A California appeals court rejected a claim based on her constitutional right to be free from cruel and unusual punishment - the standard for such claims based on neglect is very high, and notably it was originally set out by the Supreme Court in rejecting similar claims by an incarcerated trans woman. But, the court here said that the plaintiff could sue under the basic state law of negligence.

In this case, [the judge] noted with some surprise that California courts had never previously addressed the question whether the state’s tort law recognized a "special relationship" between inmates and jailers on which to ground a duty to protect. Generally, tort law imposes no duty on an individual to protect another individual from harm, but such a duty can be found if there is a special relationship such that the law will impose responsibility on an individual for the protection of another. Such a special relationship can be found if an individual has control over the environment of the other, and the other is particularly vulnerable to harm.

The court found that the situation of an inmate fit squarely within this description, which can be found in decisions by the courts of many other states and has been described in leading torts treatises by respected scholars. An inmate has no control over his environment, which is controlled by the jailer, and is vulnerable because he is not allowed to have weapons or any lawful means to protect himself against attack within the prison.

As Leonard notes, the state would be very wise to settle this case.

More on the stripping-for-legal-services case

The reports of the disciplinary hearing board and review board confirm that the lawyer in question was sanctioned primarily on the basis of extensive findings regarding his abuse of the lawyer-client relationship and criminal acts of sexual assault, as well as lying to the police.

While I wrote before the Illinois does not have a codified per se rule against lawyer-client sexual conduct, it turns out that like some other states, Illinois nevertheless has a judicially-crafted per se rule. The board had no need to decide whether receive exotic dances alone constituted a sexual relationship, because the lawyer engaged in much more direct, and unwanted, sexual contact. Accordingly, he was sanctioned more severely than lawyers who had sex with consenting clients.

In other words, this was really a case about straightforward abuse and misconduct, not about the use of exotic dance as in-kind payment. However, the hearing board did say this:

[Lawyer] admitted [client] performed nude dances for him in his office in exchange for a reduction of his bill. This admission alone is sufficient to support a finding of misconduct. However, because of our other findings, we need not, and do not, base our recommendation on this finding alone.

The review board agreed that this conduct "is reprehensible in and of itself." But because this case involved additional and much more serious conduct, neither body made clear its reasoning on this point.

The reports I've linked to are lengthy, and boil down to "don't assault your clients (and by the way also don't play games with the definition of 'sexual relationship' either)." But I can't help pointing out this icky-squicky moment, from a tape of a conversation between the parties:

[Client]: It's been more than that. I know it has. But every time I'm here, there's been touching and groping and stuff like that, every time.

[Lawyer]: Not every time you've been in my office, no....

[Client]: If it was dancing, I have no problem with dancing. I love dancing and I love - that's my job, but you took it a lot further than that, I mean -

[Lawyer]: Well, only because you let me.

Gah. Which is why even exotic dancers who want to trade their services for legal help will be glad this guy isn't practicing law for awhile.

Exotic dance and the lawyer-client relationship

A Chicago-area lawyer has been suspended following complaints by a client, who happens to be an exotic dancer. The Chicago Tribune provides this lead for the story:

A DeKalb lawyer was suspended for 15 months Thursday for arranging to have a female client perform nude dances for him in exchange for credit on her legal fees, a state commission said.

Puzzlingly, only in the latter half of the article is it mentioned that this same client also made allegations of sexual assault against the lawyer. (A grand jury failed to indict him.) It is not at all clear from the article to what extent the disciplinary action was taken on the basis of the assault allegations vs. the exchange of dances for legal services. Sexually assaulting or even sexually harassing a client would certainly be sufficient grounds for discipline, in and of itself.

Whether the exchange of exotic dance - including, here, nudity and at times the privacy of the attorney's office - for legal services is itself grounds for discipline is an interesting question. Nothing in the Illinois Rules of Professional Conduct prohibits in-kind payment, of which this is one kind; clients pay lawyers with services like plumbing. Interestingly, unlike the ABA's Model Rules, Illinois does not have a rule prohibiting sexual relations with current clients. If Illinois had such a rule, it would raise the question whether private nude dances constitute "sexual relations."

Since Illinois doesn't have a sexual-relations rule, this conduct would have to fall under either Rule 1.7(b) (personal conflict of interest interfering with competent representation) or Rule 8.4(a)(5) (conduct prejudicial to the administration of justice). I really don't think receiving exotic dances is prejudicial to the administration of justice, and if it is the legal profession has some serious culling to do. However, it is not hard to imagine this situation presenting a conflict of interest. Although on one level the transaction between exotic dancer and patron is one of fee-for-service, it is also a kind of service that is not unlikely to generate strong feelings (of lust, romantic interest, etc.) on the part of the patron- particularly the regular patron. The professional boundaries typically maintained by dancers would also be eroded by giving dances in a private setting. It is not hard to imagine the lawyer developing an attachment of one kind or another to the client that could interfere with competent representation.

This is not unique to exotic dancing, or other kinds of sexually-charged entertainment. There are other kinds of services that would probably be inappropriate between lawyer and client for the same reason - say, for instance, psychotherapy. (Many sex workers will tell you that their job can be a bit like being a shrink!) At least, they would be inappropriate as an ongoing method of payment. The story here indicates that the dance transaction began inadvertently when lawyer and client ran into one another at the client's workplace, after speaking about legal representation on the phone. I don't think this by itself would create a conflict, even if they realized it after the lawyer received a dance or two. Similarly, a lawyer could probably represent a therapist whom she saw for a few brief sessions in the recent past.

So a situation like this could present an interesting question and possibly a serious ethics problem, even in the absence of more clear-cut misconduct. Unfortunately, the Tribune decided to go for the titillation factor rather than provide the whole story.

H/t to How Appealing.