Articles
Law Enforcement & BDSM
03-02-08
This section deals with the tension between law enforcement and consensual BDSM. It covers four equally important parts. ALL this information can be very important to YOU, enforcer of the law, and can help you to act/be even more professional in your job. All is also helpful to people from within the BDSM-community. First of all from the perspective to gain better mutual understanding. We will take you through the information in four steps:
* General overview
* First contact and response
* Managerial and prosecution information
* Information for EPE people, confronted with law enforcement
These articles are based on material, used during workshops at various Dutch police academies, material used to educate police organizations around the world on the subject of emancipation and also contains information from actual cases, from different parts of the world.
If you are a law enforcement professional, defense lawyer, district attorney or juror and have more in depth or case specific questions feel free to e-mail us.
General Overview
Erotic power exchange (BDSM) is any situation where adult partners, of their own free will and choice, actively and willfully incorporate the power element in their lovemaking (and usually for a great deal in their relationship). Erotic power exchange is best known as either BDSM, SM, D/s or sadomasochism, but these terms are all too limited, incorrect and too often confused with stereotypes and mental illnesses.
BDSM can take any shape or form within a relationship. From little things like blindfolding a partner when making love to anything like 24 hours a day, 7 days a week dedication.
The shape and form it takes totally depends upon the fantasies, situation and boundaries of the partners involved. As long as it is informed consensual, safe, sane and voluntary it is called erotic power exchange. If any or all of these four elements are missing, it is called abuse.
The following statement may sound tough: "hardly anywhere in the world legislation specifically prohibits erotic power exchange activities between consenting adults". Tough, yes, but true too. Check your instruction manuals and your law books. You will soon find it is almost impossible to find any real, explicit and clear reference.
The first problem is this: there is no legal definition of consensual erotic power exchange. There are only descriptions of the mental illnesses sadism and masochism or relevant - yet medically related - descriptions. Because most of this material is either outdated and to a large extent of no or very little legal relevance, such sources are next to useless for law enforcement purposes. Besides, because it is largely outdated scientific material that, for various reasons in many cases is also of questionable nature from both a scientific and/or a legal point of view, such descriptions and the needs of law enforcement do not match.
The second problem with sexual legislation (in the area of sexual acts between consenting adults, nonconsensual and criminal acts such as rape, sexual activities with minors and child-abuse/child-pornography are excluded here) in almost all countries is threefold: it is often vague and limited to more or less specifically mentioned and described activities, in general outdated and usually based on a morality and circumstances, that no longer fit in this day and age. And it lacks solid and workable definitions (often deliberate or the result of the fact that the activity as such is impossible to describe in clear legal terms).
As a result, in almost all countries the first determination between consensual acts and criminal activities is left to the individual police(wo)man and/or aid worker. Neither has been trained or sufficiently informed on the subject and has little else to go by but his/her own perception and information. That is a serious problem and a substantial lack in legislation as well as in training and support. Next - depending on the legal system in the area - the evaluation of any activity - brought forward as offensive, illegal or damaging - is left open for personal interpretation by prosecutors, judges and/or juries, who again have hardly any solid information to go by.
Strong statement #2: A law enforcement officer - regardless rank, position or job-description - has only TWO professional goals, derived from "upholding the law": to serve and protect. Interpreting, judging or even laying out social morality does not fit either of these goals, neither should this be left to law enforcement professionals. That is the specific task of legislators.
Next to that, in almost all cases where BDSM and law enforcement meet, there are either ulterior motives - such as in the case of divorce and custody, political motives or job-related conflicts - or various different levels of legislation are involved. Frequently criminal and civil law are mixed up in court cases, involving erotic power exchange activities, as well as confusion between protection of the weak (such as minors or women) and the interests of society. And then there are conflicts between local (city or county), regional (state) and national (federal) legislation in many countries - most significantly in the USA.
The bottom line of all this is that de facto very few criminal cases ever make it to court and when they do, even fewer will result in a conviction of any kind. We will not enter into the debate about the functionality of sexual legislation and normative regulation as such, but will try and stick to the practicalities here.
Lack of definitions
Most sexually related acts that might be considered an offense are very hard to proof. That is a direct result of the lack of definitions. For example: if pornography is illegal it may be very hard to actually proof that something is pornography, since hardly any law provides a clear definition. Convictions in this area are usually not the result of clear proof, but of defendants pleading guilty as a result of social stigma and pressure and maybe commercial interests. It is very hard and requires a lot of courage (and in some countries, such as the USA or the UK, a lot of money) to stand up against such accusations because of the social pressure and the potential implications."Prevention measures", such as the temporary removal of children from their parents, as is frequently done in the USA, will complicate the situation considerably.
In the event of BDSM that is even more difficult. Strange as it may seem, defending oneself against accusations in the event of erotic power exchange in fact is very simple in most countries and regions. The plain lack of clear definitions and the fact that almost all opinions and external (expert) advice will be based on predominantly outdated scientific material (material that in other cases would probably not be accepted by any court because of exactly that reason) make it relatively simple to build a solid defense case. However, people forced to build such a defense usually lack the courage and support to do so.
The most powerful example of exactly HOW outdated some of the information, used in erotic power exchange related cases is, is the basic definition itself. Frequently the original definitions of "sadism" and "masochism" will be used, as provided by Krafft-Ebing in the "Psychopatia Sexualis". This book - unfortunately STILL in use - was published in the late 19th (!!!!) century and has not been revised since. Other, frequently produced, definitions are the ones provided by Freud (dating from the early 20th century).
The lack of clear legal and/or scientific definitions is "Damocles' Sword" in this case. On one hand the erotic power exchange community, trying to provide accountable information, often cannot do so, simply because it is not available and cannot be produced easily either. As a result, the "community" itself heavily contributes to the fear and to the uncertainty when it comes to prosecution or even investigation. The considerable amount of incomplete information or total misinformation, assumptions and "interpretations" again contributes to the darkness and in fact rubs in the stigma, even within the community. As a result, in many areas people are driven by fear and assumption, not by information and they may hide their emotions and activities, rather than being more or less open about them and confident with themselves. The lack of research and the fact that scientific research is usually limited to individual cases, therapies and prejudged assumptions by therapists (who usually are only seeking to promote their "therapy"), is at the root of all this.
Perception as a motive for prosecution
Starting at the beginning of the process (disregarding civil law for the moment): you, as an individual police officer have little other but your own perception, norms, values and experience to rely on when it comes to interfering with anything, that may look like erotic power exchange. As a result, your upbringing, education, personal background and experience and maybe even personal emotions will be at the root of your actions, not the legislation, nor your instructions or professional education. Furthermore, incidental motivations - such as the perception of your commanding officer, political motives or for example media hypes - heavily interfere when it comes to setting priorities in this area.
A good example of how political motivation can seriously interfere in this area can be found in the Netherlands (a country that does not have specific normative sexual legislation and has a general liberal attitude towards sexual behavior). As a result of reorganization the traditional "vise" departments and squads within the Dutch police force where abandoned in the the late 1980's and the police force in general was expected to deal with sexual offences and crimes. To a certain extent this was the result of "political correctness", i.e one particular form of crime should not be singled out from general crime. As a result, quite a lot of expertise was lost, as well as specific knowledge and the ability of individual officers to judge and evaluate specific situations and cases. This has proven to be a major set back, especially in the area of fighting child-abuse and child-pornography and it is expected that the "vise" departments will be reinstated soon.
Apart from lacking clear legislation and instructions, you, when confronted with anything that might be BDSM, will first of all have to judge the situation as such and usually all your instincts will be drawn to pointers you have learned to distrust: appearance, people being tied up, traces that would normally indicate abuse or a fight, kidnap or rape and possibly an atmosphere that signals danger. That is not an easy situation to deal with, especially when placed in the normal stress of every day life police work, the limited time the individual officer can spend on individual cases and the need to - generally speaking - make fast judgments and decisions. And, you may have to rely on the information of someone, who - placed in other circumstances - would be considered a victim or perpetrator. Combined with the natural inclination and mindset of every police officer to choose the side of what appears to be weak (the obligation to protect), this puts you in an awkward situation.
At the same time, you are confronted with people who will not see their act as criminal, but instead are dealing with - often intense - feelings and emotions that are also not easy to explain and certainly not in a few words. The person(s) involved will usually feel trapped in the situation, possibly betrayed and in almost all circumstances humiliated, vulnerable and victimized without reason. As such you, officer involved, are not seen as "neutral" but as an intruder in a very private situation.
A dominant, after the act for whatever reason accused of abuse or rape by a submissive who may have been disappointed, will feel just as vulnerable. A submissive, abused by what she thought was a love partner, will feel even more vulnerable since she usually actively allowed the abuser to enter into acts that turned out to be abuse and may even have been the "inviting partner". She will feel humiliated, vulnerable, foolish and naive - and will usually come to realize that she herself has neglected her own warning signals for whatever reason and self-blame and guilt feelings are certainly not unusual in a situation like this.
Bottom line: making the right judgments is difficult and in fact requires two resources you in this case have very little off: time and adequate knowledge. That is the main reason why real abuse cases, connected to erotic power exchange, seldom make it to court and unfortunately often the wrong people - the ones that merely entered into a consensual act - get prosecuted or at least will be faced with the rather humiliating and scary process of a police-investigation. Last but not least,: such investigations frequently turn out to be a complete waste of valuable time and resources (both items no law enforcement professional ever has enough of).
Ulterior motives
Leaving the area of criminal law and concentrating on civil law it becomes obvious that the vast majority of civil court cases that involve BDSM in any way, are found in the following fields: divorce cases, custody cases and (sometimes) employment-related or political cases. The problem here is predominantly in the fact that in such cases erotic power exchange is almost always brought up because either of the parties has ulterior motives: one wants the marriage to end, wants to gain sole custody, seeks a financial arrangement of any kind, tries to do as much political and media damage as possible or either wants to end or keep the employment.
The erotic power exchange related "facts" as such in these cases are usually not studied and have little or no relevance to the case, but are merely used to create a certain atmosphere to the benefit of the party bringing them up and will serve as "character arguments" (in many cases plain character assassination).
Magistrates, lawyers and juries would do wise to disregard the subject entirely in cases like these. Unfortunately that is usually not the case. Assumptions and stigma again - also often used by "external experts", such as childcare institutions and individual aid workers - play the predominant part here and again - since the motivation for the entire case is a different one - will usually not be investigated or judged on its merits and relevance to the case but will only serve as character-motives.
With respect to civil as well as criminal cases it becomes even more important to emphasize the social implications, people "accused" of entering into erotic power exchange activities or even nurturing such emotions will face. There is a substantial fear in the entire erotic power exchange community that one may lose custody over ones children - or may never see them again - and that jobs and careers are at stake. Not to mention family relations, neighborhood"popularity" and such. In many cases that fear is very real. People - especially those in high profile jobs - have lost careers and jobs if there is even a hunch of erotic power exchange activity. The same goes for people who have jobs that are in anyway related to children, such as social workers and teachers. Because the social stigma will often brand them as a potential bad influence to say the least. When investigating such cases one often finds that erotic power exchange was not the direct motive for letting people off, at least it did not say so in the letter of resignation, but that such motives and assumptions were at the root of the decision.
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