"Police Free Gay Slaves":

Some Juridico-Legal Consequences of the Discursive Distinctions Between the Sexualities

By Ben Attias
California State University, Northridge

[1] See Sigmund Freud, "Some Psychological Consequences of the Anatomical Distinction Between the Sexes," (1925) Collected Papers Volume 5, ed., James Strachey, (London: Hogarth, 1950) 186-197. I am thankful to Gayle Rubin for strong electronic encouragement concerning this project.

[2] See Clare Dyer and John Carvel, "Jailed Gays Win Right to Europe Case," The Guardian (19 January 1995) 5; "Rights Body Hears Sado-masochists' Complaint Against Britain," Agence France Presse (18 January 1995); Geoff Meade, "Jailed Sado-Masochists Get Euro-Court Appeal," Press Association Newsfile, (18 January 1995) Home News Section.

[3] Nick Cohen, "Case Redefines What Consenting Adults can Do," The Independent (20 December 1990) 8.

[4] While a comprehensive discursive history of sexuality and the law does not, to my knowledge, exist, several scholars have made inroads into this general area, collecting pieces of this history; see, for example, Sarah Chinn and Kris Franklin, "'I Am What I Am' (Or Am I: The Making and Unmaking of Lesbian and Gay Identity in High Tech Gays, " Discourse: Journal for Theoretical Studies of Media and Society 15:1 (Fall 1992) 11-26; Leslie Moran, "Buggery and the Tradition of Law," New Formations: A Journal of Culture/Theory/Politics 19 (Spring 1993) 110-124; Gayle Rubin, "Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality," in Henry Abelove, et al., eds., The Lesbian and Gay Studies Reader (London: Routledge, 1993) 3-44; Pat Califia, "The Age of Consent: The Great Kiddy-Porn Panic of '77" and "The Aftermath of the Great Kiddy-Porn Panic of '77" in Public Sex: The Culture of Radical Sex (Pittsburgh: Cleis Press, 1994) 29-70; and William B. Rubenstein, ed., Lesbians, Gay Men, and the Law (New York: New Press, 1993). While I think this line of inquiry has merit on its own in terms of its contribution to the study of the history of sexuality, it seems to me even more directly useful politically in terms of the current moral panic regarding sexuality in the United States that is perhaps best symbolized by the video The Gay Agenda, produced as part of a nationwide attack on gay rights legislation.

[5] Question to Foucault in the interview "Confession of the Flesh," trans. Alain Grosrichard, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (NY: Pantheon, 1980) 211.

[6] "Foucault makes it abundantly clear that he is not denying the existence of sexual repression so much as inscribing it within a large dynamic. Sexuality in Western societies has been structured within an extremely punitive social framework, and has been subjected to very real formal and informal controls. It is necessary to recognize repressive phenomena without resorting to the essentialist assumptions of the language of libido. It is important to hold repressive sexual practices in focus, even while situating them within a different totality and a more refined terminology," op cit., 10.

[7] Susan Fraker and John Barnes, "California: Of Human Bondage," Newsweek (26 April 1976) 35; "Mark IV Raid Receives Wide News Coverage Across Nation," NewsWest 30 April - 14 May, 1976); and "107 Officers Used in Mark IV Raid, Police Papers Reveal" NewsWest (25 June 1976).

[8] "107 Officers," 41. According to this piece, there were only 119 people in the building at the time of the raid.

[9] Olaf Odegaard, "Knights in Black Leather: Part II -- The Great Slave Auction Bust (An Interview With Val Martin)," (Autumn 1984), for The Connection (ms.)

[10] "Mark IV Raid Receives Wide Coverage," op. cit.

[11] Val Martin recalls: "The cop just freaked out. The other people had pierced tits and everything and for the cops it was like a carnival. They must have called everybody in the building to come in and take a look at us. They were taking pictures, calling us names...," interview, op. cit.

[12] Gayatri Chakravorty Spivak, "Can the Subaltern Speak?" in Lawrence Grossberg and Cary Nelson, eds., Marxism and the Interpretation of Culture (Urbana, IL: University of Illinois, 1988) 296-7.

[13] I am using the phrase "moral panic" in the sense established by Jeffery Weeks and Gayle Rubin; see Rubin, "Thinking Sex," and Weeks, Sex, Politics, and Society: The Regulation of Sexuality Since 1800 (New York: Longman, 1981).

[14] There are several statewide initiatives on upcoming ballots which declare sexuality immune from antidiscrimination statutes and attack sex education in public schools, and there is a federal bill up for consideration in the recently elected Republican Congress that is similar to this state legislation. The film The Gay Agenda, for example, which was mass-produced for popular audiences as well as for political representatives, extensively used images from the leather community and NAMBLA to demonize the gay community as perverse. See Harry Denny, ""The production of a Queer Spectacle: Reading and Reappropriating Queer Visibility in a Colorado for Family Values Amendment 2 Campaign Commercial," unpublished ms. What is striking about this appropriation is how successful it has been -- rather than insisting that these images be read in their properly historical, cultural, and political contexts, "mainstream" gay-rights activists and political representatives have gone to great lengths to dissociate themselves from such images, assisting Madison Avenue and Hollywood in the creation of an image of the assimilated gay man or lesbian that is no more threatening to middle class sensibilities than its heterosexual counterpart.

[15] cited in "Mark IV Raid Receives Wide News Coverage Across Nation."

[16] Ben Emerson, quoted in "Student Cleared in Body-Piercing Rape Case," Press Association Newsfile (30 November 1994).

[17] State v. Battista, Case Nos. CA 4815 & CA 4816, Court of Appeals of Ohio, Fifth Appellate District, Stark County, Ohio, Slip Opinion (8 November 1978).

[18] I am thinking here of Derrida's playful deconstruction of these categories in Limited Inc.

[19] The relevant portion of the law states as follows: "No person without privilege to do so [it is unclear who has this privilege] shall insert any instrument, apparatus, or object into the vaginal or anal cavity of another, not the spouse of the offender, when any of the following apply: (1) The offender purposely compels the other person to submit by force or threat of force..."

[20] Leitner v. State (1983) 631 So. 2d 278-9.

[21] I have left out many significant cases in this analysis for the sake of brevity, but a few of these should be mentioned in order to more fully outline the historical context of the development of the "consent" defense in such cases. Of course, many differences between these cases problematize an overly simplistic interpretation of the discursive history of common law in relation to "sadomasochism" and "sexual perversion." I have chosen the cases above in order to make a few limited claims about how they might be read; the project of laying out a more complete description of the discursive apparatuses at work here is beyond the scope of this paper. In People v. Samuels in 1967, a California appellate court convicted Samuels on the basis of a film of him whipping another man. Here the court held that "consent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling." The court continued, "It is a matter of common knowledge that a normal person in full possession of his mental faculties does not freely consent to the use, upon himself, of force likely to produce great bodily injury," (250 Cal. App. 2d 501, 513-14; 58 Cal. Rptr.439, 447). Rubin points out the implications of this logic: "anyone who would consent to a whipping would be presumed non compos mentis and legally incapable of consenting. S/M sex generally involves a much lower level of force than the average football game, an results in far fewer injuries than most sports. But the court ruled that football players are sane, whereas masochists are not," (31). The 1980 case Commonwealth v. Appleby held likewise, although a crucial difference between Appleby and Samuels is that in Appleby, unlike Samuels, there was a complaining victim. On December 29, 1994, however, a Colorado court determined that the prior sexual history of a gay male prosecution witness was relevant to a decision about whether the victim consented to sexual assault (1994 Colo. App. LEXIS 399, 1). Another interesting sphere of this discursive apparatus are cases in which the accused is a female dominant or a clubowner whose targeted customers are female dominants and their friends. On May 28, 1993, "Mistress Ayesha" was convicted of "running a disorderly house" in Hennepin County, Missouri, when it was discovered that she had been paid by a man to strap him to a sawhorse and attach clothespins to his naked body. In 1994, an undercover police officer made an appointment with "Georgia A.," a professional female dominant who was suspected of prostitution. Upon arriving at her home, he was ordered to strip and get on his knees, while Georgia A. went to the bathroom to change into her leather corset and spiked heels in order to prepare to give Officer Fisher the spanking he no doubt deserved. She was arrested by the vice squad while she was fiddling with her laces. Judge Jacobson ruled, essentially, that offering to spank Officer Fisher was not an act of prostitution. NY Lawyers Journal (27 Oct 1994) 25; 1994 N.Y. Misc. LEXIS 606. However, another New York court had ruled ten years earlier regarding Club O, a club that catered to a mixed S/M crowd with a large clientele of female dominants, ""The respondent's witnesses repeatedly described their spankings, whippings, bondage, and the like, to be sensual, erotic or foreplay forms of behavior as opposed to explicit sexual conduct. However, the testimony supports the conclusion that the sadomasochistic conduct at Club O did not occur in isolation, but rather was so necessarily intertwined with sexual conduct (such as exposure and fondling of the genital areas, and although disputed, sodomy, sexual intercourse and the use of dildos) as to render the sadomasochism inseparable from the sexual conduct. Under the circumstances of this case, it is impossible to delineate when the sadism and <masochism> ended and when the sex began. Nor is that necessary because I hold that, at least at Club O, there is little if any difference between sex and sadomasochism." ( 31 West 21st St. Assocs. v. Evening of the Unusual, Inc., 125 Misc. 2d 661; 480 N.Y.S. 2d 816).

[22] I am implicitly arguing here for the similarities between Spanner and the Mark IV raid; however, there are important distinctions to be made between the Mark IV and Spanner. In particular, the Mark IV defendants were never charged with assault; the outrageous charge of "slavery" was quickly changed to a felony charge of "pandering." This charge too was dropped against all but four of the 40 defendants, who plea-bargained to misdemeanor pandering charges. So "consent" was in fact never an issue in the Mark IV case. But the issue of "consent" was certainly implicated by the characterization of the benefit's participants as "gay slaves."

[23] This was of course the status of the court's reasoning in Leitner v. State that the victim had been murdered as a result of a sadomasochistic fantasy carried to its "logical extreme." Additionally, the Mark IV raid was later rationalized by Deputy Assistant Attorney Robert N. Jorgensen as part of a murder investigation: "This slave auction appeared to be associated, in the opinion of some police officers, with certain murders in which there were dismemberments," in "Orange County Torso Murders Reportedly Reason for LAPD Raid," NewsWest (11-25 June 1976) 6. Of course, no such "associations" were ever precisely spelled out by LAPD spokespersons.

[24] Homographesis: Essays in Gay Literary and Cultural Theory (New York: Routledge, 1994) xv.

[25] "Modern Primitives, Latex Shamans, and Ritual S/M," Public Sex, 233.

[26] "Feminism and Sadomasochism," Public Sex, 174.

[27] Michel Foucault, The History of Sexuality: An Introduction trans. Robert Hurley (New York: Vintage, 1978) 96.

[28] There were six letters to the Los Angeles Times protesting the raid (16 April 1976), and the coverage the raid received nationally was generally unsympathetic to the LAPD.

[29] (Interview with Val Martin, op. cit.)

[30] Joseph Bean, personal communication (22 January 1995).

[31] "Another Slave Auction Bust," NewsWest (1 October 1976).

[32] Jeff Clark, "New Sex Club Raids," Vanguard (6 March 1992).