BDSM & The Law expert panel discussion

In honor of what would normally be the month of Folsom, our September event was BDSM & The Law, an expert panel discussion on the legal status of kink (and non-monogamy). 

Check out the video of the event:

Can we really, legally, hit each other with sticks?… and floggers, and canes, and paddles, and OH HOW WE MISS KINKY PARTIES.

Meet our expert panelists:

Susan Wright founded the National Coalition for Sexual Freedom in 1997, and currently serves as Spokesperson and Director of Incident Reporting & Response. Susan also serves on the advocacy and community advisory committees for AASECT, the APA’s Division 44: Task Force on Consensual Non-monogamy, Kink Clinician Guidelines, and Diverse Sexualities Research Education Institute. 

Alex Austin, founder of the Austin Law Group, is an attorney who’s been protecting queers, creatives, perverts and outliers for over two decades. The firm focuses on social justice, the arts, adult entertainment, and BDSM. Alex also co-founded the San Francisco Transgender Film Festival in 1997, and is an Academy Award nominated Executive Producer. More than one client has lovingly dubbed Alex their “compassionate Pitbull.” Alex has been part of the Leather community for more than 30 years and is a founder and 'House Dominant' at The San Francisco Leather Service Salon. 

Randy Kirton has been intimately involved in the San Francisco kink scene since 2005 and has supported all kink venues in San Francisco and the East Bay. He is a retired police captain with 30 years of law enforcement experience and service to the community. Although retired now, is well versed in the law as it relates to BDSM and alternative lifestyles.

Miriam (Mir) Green is the owner of Wicked Grounds, San Francisco’s Kink Cafe & Boutique, as well as Wicked Grounds Annex, a dedicated space for kink and sex positive education in San Francisco and beyond. Their mission is to provide coffee, kink, and community building for the SF and national kink scenes. They also co-founded the Bay Area Kinky Business Alliance (2014-2019). 

Becca Motola-Barnes, Sex-Positive Dems’ VP Internal Communications, moderated.

Below are some thoughts I had about the panel, but I recommend you watch for yourself to get the full experience.

I learned that consent is not necessarily a defense to assault. State law varies on this point. In California, the relevant statues are PCE sections 240 and 242. Neither mentions consent. After looking at the text of the law, you need to then look at case law. For most of us a relevant case is the Samuels case, decided in 2016. The court said you can't consent to abuse and anyone who would consent must be mentally ill. Which means that if you're practicing BDSM and your partner decides to accuse you of assault, legally consent is no protection. Now, these laws aren't consistently enforced. But, prosecutors can use them for child custody and other selective enforcement. 

If you believe you're being discriminated against for consensual sexual activity, report it to NCSF. Susan brought up that last year the government tried to take kinky parents' children eight times. This is down from 124 in 2008. The big difference is that the between 2008 and today the APA removed BDSM from the Diagnostic and Statistical Manual of Mental Disorders (DSM). Which means vanilla parents can't point to the DSM to claim kinky parents are crazy. 

Despite low numbers, Randy brought up that most of us might not have heard of prosecutions of kinky people due to prosecutors depriving defendants of a right to a trial. Randy also brings up that if a neighbor overhears a scene and calls the police fearing violence police have a right to enter your home without your permission using reasonable force. Randy advises kinky folks to bring everyone involved to the door and explain the situation cooperatively. 

Alex described how sometimes people accidentally injure each other in scenes sometimes and stigma around sex and BDSM lead to people to not admit to doctors how they got their injuries. According to research from NCSF, these injuries are very rare. Less than 2% of consent violations result in injury. Alex chimed in: "In 25 years practicing law around BDSM I can count on one hand the number of people who've come into my office saying they were injured in BDSM play."

Becca advised folks to go into scenes aware of your limitations, medical insurance situation, health, etc.

When Becca asked how common discrimination against kinky people is Alex brought up that it's perfectly legal to discriminate against kinky folks. It's always a risk to come out at work. Some employers believe that openly kinky employees can harm the company's reputation. "My two favorite words are paper trail," Alex said. Document everything if you're going to be out at work. You can get accused of harassment for talking about your weekend activities (Folsom, etc.). Susan said that 80% of NCSF survey respondents aren't out at work. People get fired and lose their kids for having FetLife accounts. One HOA said a homeowner's two partners couldn't live with them. 

Randy reminded us that doctors are "mandatory reporters." If you show up bruised up, Randy advised us to tell the doctor how that happened because the doctor is required to report to police if they suspect abuse. 

Alex recommended that folks set up your medical directives, who your spouse/s are, who your children are, your name and gender, anything where the legal default isn't to your liking ahead of time. 

Mir chimed in with advice to kinky business owners. Make your team kink-aware, find kinky-friendly, lawyers, accountants, insurers, etc. Beware that credit card companies are very wary of kink-related businesses. Tell all your providers the nature of your business as soon in the relationship as humanly possible to save you both time.

NCSF Kink and Poly Aware Professionals list

De-pathologizing Consensual BDSM

NCSF's Dealing with Assault for individuals

NCSF's Trauma Pamphlet

Poly Cultural Diversity Alliance Virtual Consent Summit

NCSF Members Insurance

Key Concepts for Clubs

Reminder: Membership to SFSPD is open to all CA residents who are either registered to vote as Democrats or ineligible to register. 

Follow-up message from Randy:

I was very honored to have been asked to sit on the BDSM & the Law Panel, and truly enjoyed the experience. However, I have been deeply troubled since that night. 

Towards the end of the panel I told a true story of an on-the-job experience that involved a person of color involved in a role play situation in which I was called to investigate as a possible sex crime in progress. 

Upon reflection, I have realized that the story I told, while true, was racially insensitive. I offer my sincere apology for my tone-deaf and insensitive comments.

I have learned a valuable lesson and strive to do better in the future.

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  • Catherine Reisenwitz
    published this page in SFSPD Blog 2020-10-22 11:02:25 -0700