by Mark Fass

A Manhattan judge has ordered the New York City Police Department to shine a light on the hazy legal line separating bondage, domination and sadomasochism from prostitution.

In a decision last week, Supreme Court Justice Carol R. Edmead directed the NYPD to provide the Urban Justice Center’s Sex Workers Project with documents regarding police investigations of several Manhattan bondage, domination and sadomasochism clubs between 2006 and 2008.

The judge, however, ruled that the police department is not required to turn over a copy of a confidential Vice Enforcement Division manual, which sets forth the procedures used by undercover agents to identify, engage and arrest suspected prostitutes.

“Disclosure of this information…would ‘furnish the safecracker with the combination to the safe,’ as it would alert the potential violators of the prostitution laws to the unique factors and methods the undercover police officers are likely to use to communicate with the other members of the team,” Justice Edmead wrote in Urban Justice Center v. New York Police Department, 400988/2010 (Subscription reqd).

The Sex Workers Project, which provides legal services and policy advocacy for people who work in the sex industry—exotic dancers, dominatrices and pornography actors, among others—considers the contested documents essential to understanding how the NYPD interprets and enforces New York Penal Law 230.00, the single-sentence statute that prohibits engaging in “sexual conduct” for a fee, but fails to define “sexual conduct.”

Since NYPL 230.00 was enacted in 1969—”prostitution” had previously been treated as a form of vagrancy, according to the annotated McKinney’s Penal Law—the definition of “sexual conduct” has slowly been teased out by the courts. Homosexual intercourse is “sexual conduct,” courts have ruled, though “lap dancing” is not—so long as the person providing the lap does not touch the dancer’s naked breasts or buttocks.

The case law provides scant guidance regarding bondage, domination and “fetish for a fee” services. Only a single reported opinion, the 1994 Brooklyn Criminal Court decision People v. Georgia A., 163 Misc.2d 634, addresses whether such acts constitute prohibited “sexual conduct.”

Read more

U.S. Distrist Court website, Perry et a. v. Schwarzenegger

#728 Final Stay Order:

PERMANENT INJUNCTION. This action having come before and tried by the court and the court considered the same pursuant to FRCP 52(a), on August 4, 2010, ordered entry of judgment in favor of plaintiffs and plaintiff-intervenors and against defendants and defendant-intervenors and each of them, Doc #708, now therefore: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I,  Sec 7.5 of the California Constitution.

…That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or
enforce Proposition 8.

#716 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byEdmund G. Brown, Jr.
#717 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byMark B. Horton, Arnold Schwarzenegger
#718 Memorandum in Opposition re 705 MOTION to Stay Pending Appeal filed byCity and County of San Francisco, Paul T. Katami, Kristin M. Perry, Sandra B. Stier, Jeffrey J. Zarrillo

Perry et al. v. Schwarzenegger opinion (U.S. District Court of California, Northern District)

Washington (CNN) – The criminal conviction of a sex trafficker known as the “S&M Svengali” was reinstated by the Supreme Court on Monday.

The case gave the justices a rare visit to the shadowy world of sadomasochism and sex slavery.

The high court by a 7-1 vote allowed the original conviction of Glenn Marcus to stand. He had been sentenced to nine years in prison for the sexual abuse, physical mutilation, and psychological humiliation of a woman who had agreed to be photographed as his “sex slave.”

A federal appeals court in New York had dismissed the entire conviction, saying some of the offenses occurred before the 2000 Trafficking Victims Protection Act, which was used to prosecute Marcus.

But Justice Stephen Breyer said the procedural violations in this case were not so severe to justify throwing out the entire case, since some of the offenses clearly occurred after the law was passed.

“Given the tiny risk that the jury would have based its conviction upon those few pre-enactment days alone,” said Breyer, “a refusal to recognize such an error as a ‘plain error’; [and to set aside the verdict] is most unlikely to cast serious doubt on the fairness, integrity, or public reputation of the judicial system.”

Establishing a clear standard for “plain error” review when setting aside convictions has been a particularly tricky area of law for the Supreme Court in recent years.

Link

See also:

Second Circuit’s “plain error” standard struck down in Marcus (SCOTUSblog)

United States v. Marcus (08-1341) (Legal Information Institute)

ABA: U.S. Supreme Court Update (Criminal Law Library Blog)

Zoe Margolis, the writer behind the Girl With a One Track Mind blog and books, has won libel damages after the Independent on Sunday called her a “hooker” in a headline.Margolis launched a libel action against the newspaper after it referred to her as a “hooker” in a headline on an article on 7 March that she wrote for them, which was in the paper and online.The article, which was published with the headline “I was a hooker who became an agony aunt”, was about attitudes to women and sex.Margolis launched legal proceedings against the title's then-owner, Independent News & Media. The parties have reached an out-of-court settlement.

Congratulations, Zoe!

Link

NEW DELHI: In a historic judgement, the Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian

The Section 377 of the IPC as far as it criminalizes gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalizes homosexuality, will continue for non-consensual and non-vaginal sex.

Any kind of discrimination is anti-thesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.

Our reporter Smriti Singh from the court sketched the rejoice of the LGBT community.

Soon after the judgement, the supporters of the LGBT rejoiced the moment of victory and called it as the “first step to a better future”. “Great moment for us, we are hoping that the court will pass an order in our favor, we have kept our finger-across,” she further added.

Link

A gay man in the US state of Georgia is disputing a child custody agreement restriction which prohibits him from “exposing his children to his homosexual partners and friends.”

Lambda Legal, a gay rights advocacy group, yesterday filed an amicus brief in support of Eric Mongerson at the Georgia Supreme Court.

The brief argues that restrictions on custody arrangements should not be determined based on sexual orientation and that no evidence exists that contact with gay acquaintances of their father is harmful.

“The court should do what it always does in divorce cases with custody issues, which is to focus on the needs of the children,” said Beth Littrell, Staff Attorney in Lambda Legal’s Southern Regional Office.

More . . ..

The Child Online Protection Act, now a decade old, appears to be permanently, completely, and otherwise absolutely dead now that the Supreme Court has rejected Bush Administration pleas to consider reviving the law one more time. According to the Associated Press, the rejection was made without comment by the justices.

More….

By Joel Stashenko
New York Law Journal

November 28, 2008

ALBANY – A transgender individual should be allowed to legally assume a new name to reflect her identity as a woman, a state appeals court ruled Wednesday.

In Matter of Earl William Golden III, 504992, the Appellate Division, Third Department, reversed the finding of Supreme Court Justice Jeffrey A. Tait of Broome County. Justice Tait had dismissed Ms. Golden’s petition in May 2008 to formally change her name to Elisabeth Whitney Golden because the change from a traditional male name to a female name “is fraught with possible confusion.”

The decision will be published Thursday.

Justice Tait said that no matter how “sensitive the Court is to petitioner’s personal goals,” he was wary of “confusing or misleading the public in its dealings with petitioner.” The justice noted that Ms. Golden was free to exercise her common-law right to take any name she chooses as long as “fraud, misrepresentation, or interference with the rights of others” is not involved.

Justice Tait also noted in his ruling that Ms. Golden had declined to present medical or psychological evidence that she is undergoing an “irreversible or permanent” gender transition – a showing that Ms. Golden argued is not required by New York Civil Rights Law in a memorandum of law before the Third Department.

Justice Tait issued an ex parte order denying Ms. Golden’s petition.

Presiding Justice Anthony V. Cardona, writing for a unanimous appeals panel, held that under common law “a person may change his or her name at will so long as there is no fraud, misrepresentation or interference with the rights of others.” In addition, Civil Rights Law §63 empowers courts to authorize name changes if satisfied that “the petition is true, and that there is no reasonable objection to the change of name proposed,” the judge noted.

In the instant case, Justice Cardona wrote that “possible confusion” was not a sufficient basis for Justice Tait’s denial of Ms. Golden’s petition since “confusion is a normal concomitant of any name change.”

“Thus, under the particular circumstances herein and in the absence of factors inferring ‘fraud, misrepresentation or interference with the rights of others’ . . . we conclude that the petition should be granted,” Justice Cardona wrote.

In sending the petition back to Justice Tait, the Third Department directed that the language in the order changing Ms. Golden’s name should specify that the “name change order cannot be used as evidence that the gender of petitioner has been changed from male to female.”

Justices Edward O. Spain, Anthony J. Carpinello, Bernard J. Malone Jr. and Leslie E. Stein joined the ruling.

According to the decision, Ms. Golden first sought the name change in October 2007 to reflect her preference to be identified as a female.

Ms. Golden, 57, has been married since 1980. In her petition, she said she has been using the name “Elisabeth” in her personal life since 2004 and professionally since 2006.

Ms. Golden was represented by Franklin H. Romeo of the Manhattan-based Sylvia Rivera Law Project, which seeks to protect the right of self-determination of transgender and other “gender non-conforming” people. Mr. Romeo did not return a call for comment.

HARTFORD, Conn. — Connecticut’s Supreme Court ruled Friday that gay couples have the right to marry, making the state the third behind Massachusetts and California to legalize such unions through the courts. The ruling comes just weeks before Californians go to the polls on a historic gay-marriage ballot question, the first time the issue will be put before voters in a state where same-sex couples are legally wed.

The 4-3 ruling is the first time that a state that had willingly offered an alternative to marriage was told by a court that civil unions aren’t enough to protect the rights of gay couples. Connecticut was the first state to voluntarily pass laws to affirm civil unions.

Link

Opinion: Kerrigan v. Commissioner of Public Health

Dissenting opinions here, here and here.

From the Associated Press:

A former Army Special Forces commander passed over for a job as a terrorism analyst at the Library of Congress because he was changing genders won a discrimination lawsuit. Judge James Robinson of Federal District Court ruled that the Library of Congress had engaged in sex discrimination against Diane Schroer of Alexandria, Va., formerly known as David Schroer. The library was initially enthusiastic about the hire, Judge Robinson said in his decision, adding, “The library revoked the offer when it learned that a man named David intended to become, legally, culturally and physically, a woman named Diane.” Ms. Schroer sued in 2005 alleging sex discrimination under the Civil Rights Act. Judge Robinson will decide on the penalties in the case later. The Justice Department is reviewing the judge’s ruling, a spokesman said.

The ACLU has a case profile with the the legal documents.

Not long after I announced that my ex had discovered my blog and made an emergency application to the court seeking sole custody of our children, I was contacted by numerous parents who had been though similar court challenges of their custody based upon their particular sexual lifestyles.

A father wrote to share his sympathies, offering to do anything he could to help. He told me his ex had won custody of their children on the basis of his involvement with BDSM. I was contacted by another parent, a woman who had retained custody of her children despite her ex’s efforts to prove her unfit because she is transgendered. I heard from many other parents whose suitability as custodial parents was called into question based on their sexuality or lifestyle. Some had lost custody, some had won custody, but all knew how harrowing the court process is —not only for the parents, but for the children as well.

Those of us who choose to blog our lives do so at some risk, particularly those of us with readers who may seek to use our words against us. As it happens, parents like myself who do so enter into a gray area in the rights to free speech. In child custody cases, the basic standard is the best interests of the child. The definition of “best interests” may differ according to each specific child in each specific situation. First Amendment concerns in relationship to child custody issues remains largely undefined and untested. It is uncertain how a court will decide when faced with an author, such as myself, who blogs and has also been published in respected and “legitimate” publications over the years. Free speech is a real concern in this case: will the court decide that I am no longer allowed to write about the coexistence of my life as a joint custodial parent and as a sexually active adult?

Each of these child custody/sexual lifestyle cases truly matter to our community. As Anita Wagner, polyamory skills educator and advocate, recently wrote to me, “Child custody is by far the greatest legal challenge to people who are engaged in alternative forms of sexuality. As polyamorous parents go, fortunately we are seeing more and more interest from researchers, and we hope that before too long there will be enough scientific verification to support poly parents. Valerie White is a big part of that effort, and I was glad to see that she is supporting your cause.”

I’m deeply appreciative of the support of Valerie White, Executive Director of the Sexual Freedom Legal Defense and Education Fund, for her advice and encouragement, and for her creation of a legal defense fund to assist in this case. I’m also profoundly grateful for the assistance offered by Lambda Legal and by the National Coalition for Sexual Freedom. These organizations are on the frontlines for our community. If you are unfamiliar with their work, please visit their websites and search the web for examples of the very real impact they have made in the lives of individuals and families.

As for my custody case, it continues apace. The next step is expected to be a psychiatric evaluation of each parent. In my case, this may be ordered to determine if my involvement in BDSM and polyamory is due to some type of psychopathology.

Many of you may gnash your teeth to read this. You know that study after study has shown that people involved in safe, sane and consensual BDSM and polyamory are no more likely than anyone else to suffer from mental illness. And yet the popular perception remains that submissive types are masochists reenacting child abuse or are victims of abuse at the hands of their dominant partner. Similarly, there is the lingering perception that the dominant type is in truth a sadistic abuser. And so it goes, on and on, until the end of pop psychology.

While the activist in me wants to shout out that these are unfair characterizations and wrong-minded assumptions, the parent in me is glad that courts, in these cases, are careful to protect in the best interests of the children involved. Of course I’ll submit to psychiatric evaluation if it is ordered by the court, confident that my engagements with BDSM and polyamory are not born of pathology.

This evaluation will add even more costs to my legal case, as the court will order that that I pay the fee of the psychiatrist. When this case began, I was told that I should expect to spend approximately twenty thousand dollars, and that due to the way the case was filed by emergency order to show cause, that it was best to have the money on hand immediately. (As it happens, that estimate is proving to have been entirely accurate. To put it in perspective, that amount of money might have bought a new car or contributed to a freshman year at Harvard—and this is in addition to the tens of thousands spent by my ex in bringing this motion.) Fortunately, I’ve been able to pay legal and other fees in phases. The next phase will be to finish paying the law guardian and the psychiatrist as well as any further fees of my own lawyer.

Thanks to all of you who have contributed, and are now contributing, to my legal defense fund.

Make an ANONYMOUS, TAX-DEDUCTIBLE contribution to Jefferson’s legal defense by visiting the Sexual Freedom Defense and Education Fund at:

Sexual Freedom Legal Defense and Education Fund

Please remember to specify that your donation is earmarked for the Jefferson Legal Defense Fund. The Sexual Freedom Legal Defense and Education Fund affirms that these earmarked donations are tax deductible.

by Glenn Sacks

…LGBT activists believe courts haven’t adequately protected the rights of lesbian social mothers because of the tenuous legal status of gay marriages and relationships, and they’re partly correct. But much of the problem lies in the way courts treat noncustodial parents, regardless of sexual orientation.

According to the Children’s Rights Council, a Washington, DC-based children’s advocacy group, more than five million American children each year have their access to their noncustodial parents interfered with or blocked by custodial parents. Numerous academic studies document this problem.

Link

Here’s a note from Jefferson about last night’s fundraiser. Thank you to all those who contributed, volunteered or attended! -Viviane

Last night’s Friends of Jefferson event was a great success. Thanks to everyone who attended and contributed. Thanks especially to those who donated items to the raffle—which included, my gosh, an original drawing by Nayland Blake!—and also to the hard-working Friends of Jefferson steering committee, which made it all happen.

A very nice chunk of change is now on its way to the legal defense fund administered by the Sexual Freedom Legal Defense and Education Fund.

I hear the event was a real hootenanny. I didn’t actually attend, as, I am happy to report, I had prior commitments. I prepared a statement that Lolita was good enough to read to those who attended. You can read it here—you just have to imagine my words spoken in Lolita’s gorgeous Queens accent.

Thanks to everyone for coming to tonight’s event. I’m sorry I can’t be there with you, but see, the thing is: I’m home with my children.

And that’s your doing! Thanks to your support of the legal fund established by the Sexual Freedom Legal Defense and Education Fund, I’ve been able to retain an extraordinary attorney, as well as a court-ordered law guardian for the children. Based on the law guardian’s observations, the judge ordered a return to joint custody as this case proceeds. This was a great step toward resolving the case with joint custody permanently restored.

However, there are still hurdles to be faced. The case is not resolved and could stretch out for months. While I’m unable to speak directly about the case, I can say that my ex filed in such a way as to make this as expensive a process as possible, counting on her great financial advantage over me.

She knew I didn’t have much money. What she didn’t anticipate is how many friends I have, or how supportive our communities can be. She certainly didn’t expect that I would find such a fine lawyer—which I did, thanks to the Kink Aware Professionals list maintained by the National Coalition for Sexual Freedom and available on their website.

Should I be successful in having the case dismissed or obtaining an order permanently reinstating joint custody, it will be a lesson to all that neither a person’s sexuality nor his writing should adversely affect his suitability as a good and custodial parent. It is entirely possible to be a parent and “pervert.”

Have fun tonight. Enjoy your Mister Gingers and the company of some of the finest perverts I know. And thanks!

You can help by making an ANONYMOUS, TAX-DEDUCTIBLE contribution to Jefferson’s legal defense at

Sexual Freedom Legal Defense and Education Fund

Please remember to specify that your donation is earmarked for the Jefferson Legal Defense Fund. The Sexual Freedom Legal Defense and Education Fund affirms that these earmarked donations are tax deductible.

I wasn’t going to comment on the Second Circuit’s decision reversing Glenn Marcus’ conviction until it was published, and I had read it–which I have now. What strikes me first and foremost is how close a call it was for Marcus–two of the three judges who voted to reverse his conviction did so on the basis of precedent which they admitted was binding on them, because only the full Second Circuit sitting en banc can reverse a decision by a three-judge panel. Judge Sotomayor and Judge Wesley agreed that Marcus should receive the benefit of that precedent–but ended their opinion with a call to “reexamine” it, which, translates to reverse it.

. . .

Thanks to the rules of the Second Circuit, Marcus will, however, have a new trial on both charges (if the Government decides to retry him, as is, I think, highly likely). He is again cloaked in the presumption of innocence. It is notable, however, that but for the rules’ requirement that the entire Court, and not just a three-judge panel, is needed to overrule a prior panel decision, his conviction on the forced labor charge would have been upheld, and Marcus’s retrial would have been on only the trafficking theory. The majority of the court ordered a reversal because they believed they had no power to affirm, due to a prior incorrect decision which they alone could not alter.

Whatever opinion one has of the facts of the case–and, without reading the transcript or better still viewing the trial, I have none–it is clear that for Marcus this was a damned close-run thing. It is, I think the narrowest win Ive seen as an appellate attorney.

Link

A federal appeals court has overturned the conviction of a man dubbed the “S&M Svengali” and ordered a retrial in a sensational case that involved mutilation and extreme humiliation.

Glenn Marcus, 55, was convicted of breaking a law that wasn’t in place when some of the offenses happened, which amounted to a violation of the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals said in a decision issued Thursday.

Link