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.

NYPD targeting gay men, pro Dommes

New York City police are being accused of targeting gay men for false and/or entrapment-based arrests for prostitution/solicitation in the city's sex shops. From The Advocate:

The Gay City News reports that at least 27 men were arrested for prostitution in eight porn shops in Manhattan in 2008. Since 2004 there have been 52 such arrests in eight difference businesses.

According to a statement by [Coalition to Stop the Arrests], the arrest is usually set up so that an attractive younger officer is sent out to approach middle-aged gay men. The officer allegedly entices the man to have sex. If the man agrees, the undercover officer says he wanted to pay the man for sexual favors, and then, before the man can accept or reject the transaction, he is surrounded by police to make an arrest.

Simultaneously, the city is being criticized for targeting the lawful work of professional dominatrices, twisting the prostitution laws to apply to non-sexually-explicit conduct. The only judicial decision on the subject, from 1994, held that NYC's prostitution law doesn't cover BDSM activities that don't involve actual genital contact. Yet in a recent meeting with reps from the National Coalition for Sexual Freedom, a prosecutor said that the city interprets the law expansively, based not on a limited set of acts but on "what is arousing to the participants." So, if spanking turns you on, paying someone to spank youis prostitution. This is questionable as a matter of the definition of "sexual conduct," not to mention policy and constitutional concerns. NCSF is currently planning a campaign to protest this policy.

I'm guessing from all this that NYC has finally run out of real crime to fight. Or maybe Bloomberg is hoping to follow in the footsteps of his predecessor and try to spin a reputation as The Man Who Ran Sex Out of NYC into a losing, but highly entertaining, presidential bid.

Starting this week, viewing porn a crime in UK

I blogged in May about the UK's newly adopted law criminalizing the possession of so-called "extreme pornography." On Monday the law went into effect. You can now be sentenced to up to three years imprisonment in the United Kingdom for viewing, on your home computer, an ill-defined category of images that includes depictions of consensual adult sadomasochism. Small consolation: law enforcement say they aren't going to go out of their way to enforce the law.

As I noted before, the law relies heavily on a decade-old British court ruling that permitted consensual sadomasochism to be charged as assault. That ruling was upheld by the European Court of Human Rights, but it was based on sensational and distorted facts and has been unevenly applied in subsequent cases. The new law raises once again the scope and validity of that ruling, as well as serious concerns about free expression. No word yet about a legal challenge to the law, but it can be expected to eventually reach the British courts, and ultimately the European Court.

Miscellaneous updates

The Pittsburgh Post-Gazette reports on the upcoming trial in U.S. v. Extreme Associates, with the headline: "Obscenity case begs question: Whose standard? Extreme Associates trial may be catalyst for change." (H/t How Appealing.)

Womanist Musings discusses the invisibility of Black LGBT people and looks at some relevant data. Notably, the post points to one survey showing that among Black LGBT folks, relationship recognition ranks third as a movement priority, after tackling HIV/AIDS and hate violence. (H/t Feministing.)

hunter of justice decries the lack of any openly LGBT federal judges at the appellate level, and reports on a gay British judge's revelation that he was subjected to veritable witch hunt when he first sought appointment in 1994.

Greta Christina asks why, under the First Amendment, we treat sex differently from, well, everything else.

Sex in the Public Square notes that Sweden's National Board of Health & Welfare has eliminated the classification of gender variance, BDSM and sexual fetishes and psychological disorders. Sweden is also set to allow same-sex couples to marry come Spring. So I'll forgive the Swedes, for the moment, their flawed approach to reforming prostitution laws.

Sentencing for sadomasochism?

Today we present another illustration of how the administration of justice is perverted by prejudice against nontraditional sexualities.

Like most of the criminal defendants discussed in this blog, Donald R. Miller is not terribly sympathetic, at least at first blush. He was convicted in 2006 of receiving child pornography. But what interests me is Miller's sentence, and specifically the district court's use of certain testimony to enhance his sentence. The district court seems to have been determined to increase Miller's punishment for possessing child pornography because of his possession of legal adult pornography with sadomasochistic content.

At trial, the government questioned Miller about his collection of pornography, and specifically whether it contained "sadomasochistic images." He replied, "Not that I'm aware of, no." The Government then sought to introduce five such pictures (all featuring adults), but the court excluded them as unduly prejudicial. Nonetheless, the district court imposed a sentencing enhancement for "perjury," because Miller lied about possessing these images.

Perjury, however, isn't just lying in court; it's lying about a "material matter." Here's the district court's rationale for why this lie was material:

There is a significant distinction to be drawn between a collection of Playboy images and a collection of pornography which includes images of women being raped and tortured. The images in a collection obviously reflect the collector's preferences and interests. A collection entirely comprised of Playboy centerfolds may be viewed as more acceptable or “mainstream.” A collection which includes sadomasochistic pornography may well reflect interests in more deviant sexual practices, or at least in other images depicting such conduct.

So, the district court viewed Miller's false testimony as perjury for the precise reason that it saw sadomasochistic images as (a) violence and an indication of violent tendencies, (b) "deviant" and an indication of "interests in more deviant sexual practices," apparently including pedophilia.

Last year the Third Circuit, 527 F.3d 54, affirmed Miller's conviction for receiving child pornography, but reversed his conviction for possession as, essentially, duplicative. It also reversed the sentencing enhancement. The appellate court said, first, that the question Miller answered was ambiguous. Even if Miller was aware the prosecution was referring to five specific images out of a collection of 1,200+, the question was somewhat ambiguous, because "the meaning of the term 'sadomasochistic' is both contested and context-dependent."

More importantly, though, the court said that the issue was simply not material:

Two appellate courts have confronted a similar question, in the context of determining the propriety of admitted evidence, and concluded that a defendant's interest in unusual adult pornography is irrelevant to whether he is guilty of a child pornography count....As the District Court did not point to any empirical or theoretical grounds for its conclusion, and we cannot identify such grounds, we follow the reasoning of the [Second and Fifth Circuits] and reject the proposition that a defendant's taste for an unusual genre of adult pornography is material to his interest in child pornography. We are therefore of the view that the District Court erred in finding that Miller gave false testimony on a material matter.

The Third Circuit clearly reached the right result here. (Yes, this issue had been litigated before, or something like it. You may be curious about the material in the Second and Fifth Circuit cases, but really you don't want to know; suffice to say it was something different. You can, however, find a more detailed summary of the Third Circuit decision here and here.)

On remand, however, District Judge Malcolm Muir (for the curious, a Nixon appointee) nevertheless used this same testimony to help justify a new sentence of a lifetime of supervised release:

Imposing such a term under the facts of this case is bolstered by the Government's discovery of sadomasochistic pornography on the zip disk containing child pornography....Miller's failure to acknowledge the sado-masochistic pornography in his collection and his consistent denials of any wrongdoing whatsoever utterly fail to explain or even recognize the facts that images of sado-masochistic and child pornography where found on zip disks next to his computer in the basement of his home.

The general risk of recidivism, coupled with Miller's failure to acknowledge the true nature of his collection of pornography and his lack of credibility, weigh in favor of the term and conditions of supervised release imposed in this case.

2008 WL 4949850 (M.D.Pa. Nov. 17, 2008). This seems to me in violation of the spirit if not the letter of the Third Circuit's ruling: possession, or denial of possession, of some form of adult pornography is simply not relevant to crimes related to child pornography. Yet the district court has once again used the possession of adult sadomasochistic material to justify the severity of Miller's sentence.

Miller is once again appealing his sentence, with the help of Penn Law Prof. Ronald Krauss. (It's case No. 08-4278 at the Third Circuit, for the curious.) I'm hoping for another smackdown.

Pro dommes team up to tackle recession, repression

From Gothamist:

After a number of vice squad crackdowns on Manhattan S&M clubs, some outraged dominatrices are bonding together to defend their profession, which they say has been wrongly maligned as prostitution. The Post sent a reporter over to Dungeon Alley (a cluster of S&M clubs in Midtown) and Chelsea's Le Salon De Sade, where the dominatrices "were dressed to the hilt with no one to flog. " De Sade's owner Mistress Johanna says, "It's never bee worse. Business is down 70 percent. We've had all these busts, and now the economy is out of control. The uncertainty is torturing us." Investigators say that the raided clubs were essentially prostitution houses, but a lawyer hired by over a dozen dominatrices and dungeon owners insists
"everyone was operating under the belief that what they were doing was legal." Besides retaining an attorney, the group is forming a union and even a political action committee (DomPAC!) to lobby lawmakers for legal protection.

A few observations: pro dommes (and the few pro submissives out there) have suffered from the vague wording and aggressive enforcement of prostitution and adult business laws. The "legal protection" they're seeking is clarification that what they are doing -- BDSM with no direct sexual contact -- falls on the right side of the law. Of course, some pro dommes do break the rules, and one imagines that organizing will produce more effective peer pressure to strictly obey the law for the good of all; the more it appears that prostitution is going on, the more all pro dommes will face intimidation and possible arrest. Finally, one wonders what else these pros can do to reduced demand in what - even in NYC - is a limited marketplace. A PR campaign? Whatever their plans, I wish this effort the best of luck.

On the UK's new pornography law

The UK has now passed a law to criminalize the possession of "violent" and "extreme" pornography. A mother who blamed her daughter's murder on pornography involving strangulation campaigned for the law. You can read the language of the law here, you may also find of interest this website, of a group opposing the law. The most pertinent language is this: covered material includes material that "explicitly and realistically" depicts "an which which threatens a person's life," or "an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals."

It strikes me that the terms "threatens a person's life," "likely to result," and "serious injury" make it possible to interpret this law as criminalizing large chunks of BDSM pornography, i.e., material that is produced by and for consenting adults and that (though it may technically fit the above definition) when understood in context, is not intended to be viewed as depicting and does not otherwise promote actual violence. Examples: erotic knifeplay, simulated choking, and the ever-popular CBT (not cognitive-behavioral therapy - look it up).

Particularly remarkable is that, unlike U.S. obscenity laws, but like child pornography laws, the law criminalizes not only production and distribution but possession. Having forbidden images on your hard drive could land you in jail.

This raises in my mind the applicability of the UK Human Rights Act and through it the European Convention on Human Rights. These documents have not been consistently and broadly applied in the area of sexual privacy - witness the European Court's upholding of the Spanner convictions.

Interestingly and disturbingly, the UK Government cited the Spanner case in its justification of the law:

The material to be covered by this new offence is at the most extreme end of the spectrum of pornographic material which is likely to be thought abhorrent by most people. It is not possible at law to give consent to the type of activity covered by the offence, so it is therefore likely that a criminal offence is being committed where the activity which appears to be taking place is actually taking place. The House of Lords upheld convictions for offences of causing actual and grievous bodily harm in the case of Brown [1994] 1 AC 212 which involved a group of sado-masochists who had engaged in consensual torture. The threshold that the clauses have set is very high, so while those taking part might argue that they had consented to it, such consent is not valid at law.

Once one concludes - as the House of Lords did a decade ago, that BDSM is itself a crime, criminalizing its depiction, and even possession of such depictions, becomes easy. The justification, vis a vis the right to freedom of speech, is identical to that regarding child pornography: the forbidden material is the record of a violent crime, and its dissemination furthers the harm to the victim of that crime, and feeds a market for further crimes. This is the rationale on which the US Supreme Court has upheld the child pornography laws, and without knowing the corresponding case law in the UK or the European Court of Human Rights, I would expect a similar result here when the law is, inevitably, challenged in court.

Note, however, that the threshold for application of the new UK law is a) that a "reasonable person would think" the material depicted an actual person, and b) the depiction of violence is "realistic." Thus, there need not be actual violence to an actual person. Here the similarity to US child pornography laws ends. Our Supreme Court has clearly said that "virtual child pornography" is protected by the First Amendment - criminal laws can only cover the depiction of actual sexual activity with actual minors. This ruling has been criticized on the ground that, given the "beyond a reasonable doubt" standard and the fast-evolving state of imaging technology, it simply makes prosecutions too hard to procure. And this was undoubtedly in the minds of the Parliament here. In any event, this provides an significant distinction between both the child pornography and Spanner cases and this new law.

It will be very interesting to see what becomes of this law. One thing, however, is clear: it will not prevent a single violent crime.

BDSM discrimination case - BC, Canada

Following a ruling Tuesday by British Columbia's highest provincial court, the British Columbia Human Rights Tribunal will be permitted to proceed with a case in which a man claims he suffered discrimination because of being a BDSM practitioner. The Court of Appeal did not reach the question of whether the prohibition on discrimination because of sexual orientation in the Human Rights Code covers allegations like this. Instead, it agreed with a preliminary ruling in which the Tribunal said it "could not say that BDSM was clearly not within the scope of the meaning of sexual orientation." It therefore returned the case to the Tribunal to engage in factfinding about BDSM and then decide the applicability of the Code. Obviously, this case is one to watch -- I know of no other case in which courts have seriously considered this question.

The complaint was brought by Peter Hayes, who said the Vancouver Police Department denied him a chauffer's license due to his pagan religious beliefs and his BDSM orientation. The Tribunal decided to accept both the religion and sexual orientation complaints as a preliminary matter, and the City of Vancouver brought an interlocutory appeal seeking to have the sexual orientation claim rejected outright.

Several things are remarkable about this case. First, I submit that a claim like Hayes's would be dismissed out of hand in virtually any American jurisdiction prohibiting "sexual orientation" discrimination. This is because it is almost always defined to mean "heterosexuality, homosexuality, or bisexuality." (Sometimes other things such as "sadomasochism" are expressly excluded, but this seems redundant. It also, rather awkwardly, sometimes has the "gender identity and expression" shoehorned into it rather than enumerated separately.)

By contrast, the BC Human Rights Code contains no definition for the term. In the absence of a definition, Hayes would seem to have plain semantics on his side; the term "sexual orientation" could conceivably refer to a wide range of things. Vancouver is relying on the argument that (even without a definition), "sexual orientation" is a term of art that everybody knows only refers to homo-, hetero- and bisexuality. But according to the Court of Appeal, this is not utterly, patently obvious.

Remarkably, the British Columbia Civil Liberties Association filed a brief in support of Hayes, saying the Tribunal should seriously consider whether Code applies to BDSM, including whether a restrictive interpretation of the Code would infringe rights under the Canadian Charter and human rights treaties. The BCCLA lauded Tuesday's decision. It has also written a position paper arguing that "individuals should be free to engage in BDSM and any other consensual sexual practice without fear of government reprisal." This clear support for the rights of BDSM practitioners by a group describing itself as "the oldest and most active civil liberties group in Canada" is quite striking. In the U.S., one doesn't see state ACLU chapters, or other mainstream civil rights/civil liberties organizations, defending the rights of the BDSM community; this is left to much lower-profile groups like the National Coalition for Sexual Freedom.

The BCCLA brief - called a "factum" - is an interesting read. It discusses a line of Canadian jurisprudence saying that human rights legislation is subject to special canons of interpretation, and should be read in a broad, purpose-based way rather than in a narrow, technical way. Although the Court of Appeal didn't rely on this reasoning - because, after all, the scope of the Code wasn't squarely before them - it suggests an approach to statutes that is strikingly different from that of American courts today, and particularly our federal courts.