What to do in Case a Scene becomes Non-Consensual or Abusive

By Spencer Bergstedt

• Stay calm
• Call the police
• Call an attorney for yourself. The legal system can be hard to negotiate and the last thing you want is for the cops to treat you like the criminal
• Do not shower or clean up if there has been physical damage or rape. Physical evidence cuts, bruises, semen, blood, hair or skin samples, and even clothing fibers can be very important evidence. Take pictures if you can.
• Get medical assistance if you need it. This should be done before step 2 if you need immediate assistance. Plus, the hospital can help get a hold of the police.
• Tell the truth about what happened
• Contact a friend who can either stay with you or that you can stay with.

(See also, NCSF materials on Police and SM as well as materials from the NLAI Domestic Violence Project and Law Information Project)

Public Law
What we're talking about here is what happens when you leave your house in bars, at events, on the street.

The same laws that are discussed above still apply, but now we have some new things to contend with as well.

• Impersonating an officer (for you uniform enthusiasts)
• Carrying weapons
• Lewd Conduct

As to the crimes discussed above the main thing to remember is this when you are out in public, not everyone is aware of the negotiations you and your partner have engage in and therefore, what you know to be consensual may not look very consensual from the outside. That 3rd party may decide to call the cops because what you are doing doesn't look consensual.

1. UNIFORMS
   Most cities, counties and sometimes even states have laws which make it illegal for you to impersonate a police or fire official, or even emergency personnel like ambulance drivers. Basically what this means is don't wear an exact replica of a law/fire enforcement agency whose jurisdiction you are in and do not ever hold yourself out to be a police officer/fire fighter. Do not put any real or fake weapons in a gun holster if you are out and about. You might also choose to wear an overcoat/jacket when going from car to bar.

   In addition, there may be federal violations for wearing a armed forces uniform.

   (For more on this area of the law, see the article, "Uniforms and the Law", Spencer Bergstedt, Esq. and Michael Hernandez, Esq., IN UNIFORM MAGAZINE, Issue #10, Fall 1997)

2. WEAPONS
   If you carry a gun, make sure you have a concealed weapons permit and a licensed and registered weapon.

   If you carry a knife, check to see what size and types of blades your local law allows you to carry.

   There are also a number of rather esoteric laws out there about what is considered an illegal weapon. The best thing you can do is to go to your local public library and do some research about what is considered illegal in your city, county and state. Some laws include:

   Handcuffs are illegal in Boston, Numchucks are illegal in Seattle, certain stud types (that you might put on a leather jacket) are illegal in Los Angeles, brass knuckles and lead lined police gloves are illegal in a number of places, and switchblades are illegal every where in the US.

3. 3. LEWD CONDUCT
   Over the past few years, there have been an increasing number of raids on bars and clubs where SM or adult events are being held wherein the patrons have been charged with violations of lewd conduct ordinances. Such ordinances tend to be very vaguely written and are today most often used by police as a tool of harassment against certain groups of people - most often gays, lesbians, transgendered people and SM folks.

   While it is certainly obnoxious that people have been arrested, charged, and often embarrassed and outed about their activities, the overall news seems to be favoring the rights of citizens to congregate for sexually titillating purposes. For example, In early 2000, a group of 6 people were arrested for lewd conduct at a private SM event in San Diego, CA. The first defendant to be tried won at trial and the jury sent a clear message to the prosecutor’s office that they felt the charges were not only unwarranted but that it was a waste of taxpayer money to be seeking out such cases at private events. Similarly, regarding the raid of a club in the Fort Lauderdale, FL area, a judge there ruled that lewd conduct charges were unfair when no citizen had complained of being offended but where police had specifically gone to the club to seek out violations of the ordinance.

4. REGULATORY LAW
   Regulatory law refers to administrative rules promulgated by various governmental departments in relation to the areas of private and public enterprise that they govern. Examples include Health Departments, Liquor Control Boards, Fire Marshall’s and Zoning Offices. Typically the statutes that create these departments give each department broad power to create rules and regulations for how businesses governed by that department shall operate. Little, if any, of the scrutiny and public commentary that is usual in creating statutes and ordinances occurs in the promulgation of regulatory regulations. These regulations however, are most often the ones that are used to attack various segments of alternative communities, including the GLBTQ and SM communities.

HEALTH DEPARTMENT
Health Department regulations govern such things as cleanliness in a bar or sex club, the number of restrooms and shower facilities that must be present, service of food or drink in such establishments, etc.

If you are operating a club, it is imperative to get the rules and regulations of your local health department and comply with those rules at all times.

LIQUOR CONTROL BOARD
Please don't put our friendly bar owners out of business by doing something that violates the liquor control board rules in your state! These rules are much stricter than you might imagine and the penalty's for violation are stiff and may include closures and/or heavy fines. Most often, liquor control agents seem to target gay and lesbian bars as well as those that cater to the SM communities. We’ve seen closures in many cities in the past few years ranging from Boston to smaller communities in Wisconsin and Virginia.

For example, it may be unlawful in a bar for staff and/ or patrons to expose their nipples, any portion of pubic hair, anus, cleft of the buttocks, vulva or genitals. Or to encourage or permit anyone on the premises to touch, caress or fondle the breasts, buttocks, anus or genitals or another person. Or to permit anyone in the bar to wear a device which simulates any of the areas not allowed to be exposed. Or to permit anyone to perform acts of: intercourse, masturbation, sodomy, oral copulation, flagellation (flogging), touching, caressing, etc.

Sometimes these types of rules come with a caveat, such as: "UNLESS the performance/entertainer is on a stage at least 18 inches in height and at least 6 feet from the nearest patron."

Definitely check the laws of your own state, county and city as well as administrative rules propagated by the state liquor control board to find out what's legal and not where you live.

If you are throwing an event where alcohol will be served, make sure that you get the appropriate banquet licenses.

FIRE MARSHALL This is an often overlooked area for those throwing fetish or SM events whether in bars or in other locations. All buildings get rated for occupancy and one of the easiest ways to get shut down is to have a space that is overcrowded.

Fire inspections are generally scheduled (and limited to) a few times per year. Sometimes to harass gay, lesbian and SM establishments, fire inspectors come in more often than allowed under the relevant statute or regulation. It is always useful to check on what your rights are under the fire marshall’s regulations.

ZONING Zoning violations have been in the news a great deal in the past 2 years with a number of SM related businesses being shut down, threatened with closure, and/or fined, for alleged zoning violations. Most often what has occurred is that the zoning office has charged private SM clubs by lumping them into the category of adult businesses like strip clubs, porn shops, arcades, etc. Recently, the closure of Play House Studios in Baltimore, MD led to activism by the owners and the National Coalition for Sexual Freedom to successfully educate the Baltimore Zoning Commission about why the private SM clubs are not akin to adult businesses and which resulted in a reversal of the violation citation that had been issued.

CIVIL LAW AND S/M
Civil law applies to things that are not criminal in nature. It covers everything from contracts to divorce to personal injury suits. Here we'll cover:

• Using civil law if something goes wrong
• Are S/M contracts legally binding?
• What can we do to protect ourselves?

IF SOMETHING GOES WRONG
If something goes wrong with a scene or the relationship and non consensual activity/violence/abuse happen the victim can take two courses of action:

• Talk to the police, file a report and press for criminal charges; and/or
• File a civil lawsuit for damages.

CIVIL SUITS
Civil lawsuits can be an excellent way of seeking compensation for damages inflicted by someone who misuses S/M as an excuse for violence. Damages can be had for things like: actual physical damage; emotional damage; psychological impairment; assault; false imprisonment; etc..

These cases should be handled only with the advice and assistance of an attorney.

ANTI HARASSMENT/PROTECTIVE ORDERS
These can be used if there is a threat of immediate danger/harm from another. Protective Orders are a means to keep someone away from you. They can be obtained either through superior or district court. However, they are not a guarantee that an abuser will stay away, but they generally do work as a deterrent.

CONTRACTS
Contracts are often used in SM relationships to delineate what the rules of conduct will be, what the parties have agreed to do in terms of their SM and their rights and responsibilities for one another. It is important to remember that the kinds of Master/slave contracts that one finds on the internet are NOT legally binding. Neither is any contract for sexual services legally binding.

There are however ways of structuring contracts to be enforceable as they might relate to service and/or an employment type contract. Similarly, a living together agreement may be the most appropriate form of contract in certain relationships. Such contracts can delineate what kind of work the submissive is going to do, how finances will be handled, how ownership of household items and other assets will be treated, what compensation the submissive will receive, what, if any, post-relationship support the submissive will receive, etc.. If this kind of contract is properly structured, it would be entirely legally enforceable. I strongly encourage that you consult with an attorney if you wish to create a legally enforceable contract.

Regardless of whether you require a legally enforceable contract or one that is not, written contracts are a great way to clearly communicate what it is that you've negotiated with your relationship or a scene. The contract could potentially be useful in a situation where one player steps over the line of what was negotiated and engages in non consensual abusive behavior or could be used to show that the parties did have an agreed upon SM relationship.

DISSOLUTION/CHILD CUSTODY
S/M play can impact on divorces and child custody actions as well. In the event that you are getting divorced and have children and the terms won't be mutually agreed upon, you should get the advise of an attorney if you think your spouse will use your S/M against you.

Similarly, in child custody modifications, you should hire an attorney at assist you if your ex brings up the issue of S/M as a reason to limit your access to your children.

There are resources available in terms of expert witnesses from the medical and mental health fields, as well as excellent books like Dr. Charles Moser’s "Bound to Be Free", which discuss SM in clinical and non-judgmental ways. These types of sources should definitely be used to counteract the kinds of negative claims that can be raised during family law cases.

OTHER LEGAL PROTECTIONS
As the saying goes, two things are inevitable, taxes and death. While most folks take their tax planning seriously, few take the time to plan for health problems and/or death.

You can never plan too early - only too late. Yet every day, I see people in my practice who wait until a health issue arises or until they are elderly to take care of their estate planning needs. A well drawn estate plan will save you money and stress in the long run. It will make things much easier for your friends and family to assist you in the case of an illness or accident and will help them move forward in the event of your death.

In the case of the S/M community, planning can be even more important given the familial relationships we are creating and each of us wanting recognition for those family ties. Further, many leatherfolk have strained relationships with blood relations and don't want interference from those people. And no matter how great your relationship may be with friends and family, you may not be out to them about your involvement in S/M and you'll want to ensure that your toys and equipment are dealt with discretely.

Estate planning should be done before signing a Master-Mistress/slave contract to help avoid charges/challenges by blood relations after death that the slave was "coerced" or "unduly influenced" to sign the documents and that therefore they should be considered invalid.

PLANNING AHEAD
When a client comes in to see me about their estate planning, I generally recommend the following documents to them:

• Will
• Directive to Physicians
• Future Durable Power of Attorney for Health Care
• Future Durable Power of Attorney
• Hospital Visitation Authorization Form

You can prepare any of these documents by yourself. However, I recommend that you DON'T. Each state has different rules related to estate planning which can relate to appropriate language, how to sign and have the documents witnessed as well as estate tax issues of which you should be aware. A competent attorney can help you with all of these aspects of planning your estate.

WHY YOU NEED A WILL
Most people need a thoughtfully prepared will. You will need a will regardless of your age, health, marital status or the amount of property you own. A will can provide peace of mind that your wishes will be carried out upon your death.

Gays, Lesbians, Unmarried Transsexuals/transgenders and Unmarried Het's in particular should take the precaution of explicitly stating our wishes in a will. A will is one of the ways to ensure that our values and desires will be perpetuated after our death, and that the people and causes we care about will receive our property.

A validly executed Will can prevent people that you don't want receiving all or part of your property, like estranged parents or other family members, from getting it and ensure that the folks you want to get your things, will. It is a terrific way to make sure that your leather heritage is passed on as well, by making donations of your belongings, real estate or cash donations to places like THE LEATHER ARCHIVES & MUSEUM. Without stating your desires in a Will, it is likely that your things won’t go where you wanted them.

In addition, a Will is the place for you to designate who will act as your executor; whether you wish to be buried or cremated; if you desire funeral services; establish certain types of trusts; and establish a guardian for your child(ren).

If you die without a Will your estate will be divided according to the statute related to descent and distribution. What this statute says is that the first person in priority is your surviving legal spouse, then your children. If you have neither, then it goes to your parents, brothers and sisters, grandparents, etc.. Unless they can't find anybody, in which case it goes to the state.

The only way you can designate where your property goes is by doing estate planning. A Will, joint property agreement, payable on death accounts, beneficiary designations in life insurance policies, and/or a trust are all ways that you can leave your estate. HOWEVER, a Will should almost always be used in conjunction with any of the other types of estate planning methods to ensure that certain details are handled.

LIVING WILLS
These are technically referred to as Directives to Physicians. This document sets forth your desires to not be kept on life support systems if you are terminally ill. Provision can also be made for specific types of medical treatments and, although a right to die law currently only exists in Oregon, you can make your philosophy known in the document that assisted death might be an option for you once it becomes legally viable.

POWERS OF ATTORNEY
A Power of Attorney is a document in which you designate someone else to act on your behalf. They can be for specific acts like selling a house or more general. In terms of estate planning, we generally talk about 2 different but similar types.

FUTURE DURABLE POWER OF ATTORNEY
This POA goes into effect when the person executing the document (the principal) becomes either incapacitated or incompetent and last during the period of incapacitation or incompetency.

The POA gives the attorney in fact the ability to handle business and financial affairs for the principal and can include making medical decisions.

The POA also nominates the attorney in fact to act as guardian if a guardianship should become necessary.

FUTURE DURABLE POWER OF ATTORNEY FOR HEALTH CARE
This is similar to the document above except that it is directed specifically toward health care and authorizes health care professionals to give information about you to your attorney in fact and authorizes your attorney in fact to make medical decisions for you.

AUTHORIZATION FOR HOSPITAL VISITS
This document ensures that the person you designate can visit you in the hospital and allows you to designate those persons whom you don’t want visiting you.

INSTRUCTIONS FOR WHAT TO DO WITH MY TOYS AND LEATHERS
This becomes critical if you are not out to your biological family about your S/M. Include in your Will a provision that a locked trunk (of a particular description) is to be given to a person. Give that trusted friend or family member instructions on what to do with the contents of that trunk - which may include your toys, books, writings, leathers, etc. - in the event of a medical emergency or death.

The other way to handle these issues if you are out or you don't care what your family thinks is to include instructions for disposition of these items in your Will.

CONCLUSION
This article serves simply as an overview to the main areas of law that may affect the SM player during his or her lifetime. As in all legal matters, when in doubt, or when you have a specific question, consult with a lawyer in your area.

Should you have any questions not answered in this article, you can contact me at:

A. Spencer Bergstedt
2133 Third Avenue #106
Seattle WA 98121
206 269-0657
MstrSpence@aol.com