There’s A War On Part 4: Just Us
[Trigger Warning for the whole series, it is all about rape and abuse in BDSM communities. This post deals with the criminal justice system and its systematic inability effectively to deal with rape and sexual abuse in general, and in a BDSM context specifically.]
When issues of abuse in BDSM communities come up, the farther one is from progressive, anti-oppression commitments, the more likely it is that lots of people will assert, essentially, “police report or it didn’t happen.” The more anti-oppression the crowd, the more likely that anyone raising the justice system as a solution will be greeted with a slew of stories about how bad cops and the system are and how many people just cannot go that route. On the criminal justice system as it applies to rape and abuse, feminists are kind of all over the map. Even folks who acknowledge that the overall function of the criminal justice system in the US particularly is to maintain a prison state and impose social control on poor people, people of color and other disempowered demongraphics often want the criminal justice system to function to punish abusers. Good alternatives are hard to come by, after all: barring vigilante justice there isn’t much that can be done to punish rapists and abusers without some criminal justice system, and vigilante justice is a question of whose friends are scarier.
Given what we know from Predator Theory, that the lion’s share of the problem is the repeat offenders, it’s tempting to say that the solution is to catch them and jail them — so tempting, in fact, that I won’t say that’s wrong. Just that we’re not in a place where we have a system that can do that fairly for lots of people. But I’d be remiss if I didn’t talk about some of the ways the criminal justice system fails to do that job. The circumstances are, I think, pretty compelling, and what they amount to in my view is this: it can’t be counted on as a thoroughgoing solution, and thinking people either need to write it off entirely (I’m unwilling to do that) or to talk seriously about how it is broken and how to fix it.
The General Problems
As it works on the ground, not all people are equal in the eyes of the criminal justice system. I’m not going to spill a lot of pixels to prove this. If you don’t know this, we have nothing further to discuss.
At every level, the criminal justice system is a machine operated by people, and those people have more or less the prejudices of the wider culture, as well as the interests and biases of the institutions themselves. Just as there are plenty of people in the population who don’t like and won’t listen to women, people of color, trans folks, queer folks, sex workers, disabled people … so too there are cops and prosecutors and judges like that. Experiences with the cops vary widely. I’ve seen the NYPD deal with a stalking complaint by a sex worker, and I’ve seen a detective be wonderful and professional. But it goes the other way, too. Telling a survivor they have to report is a lot easier if you’re someone who has a lot of privilege and makes the comfortable assumption that the cops serve and protect everyone equally. But the survivor may not have the same social position and may not be able to count on the system and shouldn’t be pressured to take that chance.
But even assuming that everyone in the system was perfectly professional no matter who the victim is, in the US the criminal justice system comes down ultimately to the jury trial, even though in the vast majority of cases, no such thing ever actually happens. If the police and prosecutors and the judge are all entirely fair to victims of abuse who might be queer and/or trans and/or kinky and/or people of color and/or undocumented and/or doing sex work, it doesn’t mean a jury would. The jury is drawn from the general population, and we all know they’re always perfectly progressive, right?
That’s why in Australia, a man could basically admit on the stand that he raped a sex worker, in a jurisdiction where sex work was legal, and be acquitted. That’s why a bunch of boys in Orange County, California could rape an unconscious high school girl and videotape it and get a hung jury based on nothing but slandering the victim. That’s why trans panic defenses sometimes reduce to manslaughter what are pretty clearly cases of premeditated murder. That’s why a New York City cop can penetrate a woman who is too drunk to consent, lie about it and get caught, confess on tape, and still get a jury acquittal.
How grim is the situation for rape survivors seeking a conviction through the criminal justice system? Roughly half of rapes go unreported, the highest underreporting of any crime; when they are reported, arrests result only 25% of the time. That’s a lot lower than other major crimes. It’s not because they can’t find the rapists: about 85% of rapes are acquaintance assaults. They know where the guys are. They just don’t bring the cases. So right off the bat, knowing nothing else, if someone says, “I was raped, what are the chances that if I report, the rapist will be arrested?” the answer is, “without factoring in anything else, about one in four.” So the survivor would have to go through the process of reliving and talking about it and whatever difficulties come with that, and than in all probability, it will go nowhere.
And they don’t bring the cases because they can’t win. Because juries. I’ve written about how to deal with this in a mainstream context at length and I won’t repeat that discussion here. The rates across more than a decade for several countries are here (I can’t say much for the provenance of the figures and some things in there are obviously some strange artifact; if I had better ones I’d use them). The US convictions as a proportion of reports is about 12%. That is on the low side for Western Europe, though there are outliers in there. The UK rates are really out of line on the low end, though, and the England and Wales rate, about half the US, has been widely discussed, though the Scotland and Northern Ireland rates are even worse. I don’t have internals on this, but it almost has to be heavily skewed to the stranger attacks: they’re 15% of the offenses, but they are certainly disproportionally represented in the reports, maybe in the arrests, and almost certainly in the convictions. They might be one seventh of the rapes and one half of the convictions, which means what for the chances of convicting a rapist for an acquaintance assault?
By the way: I’m still looking for a case where a white man who was famous before the alleged attack was convicted of rape (or of the statute that constitites the rape statute in the jurisdiction, not some lesser offense), of an adult woman. I can think of a handful of African-American celebrities, Mike Tyson and Dave Meggett come to mind. But the closest I can come up with for white men is Marv Albert, and he pleaded at trial to a lesser offense. Can you think of one? Celebrity white man, convicted of raping an adult woman (or the state’s equivalent to rape, such as first degree sexual assault), not a lesser offense? So, if he’s famous and white, there is literally no empirical evidence that it is even possible to get a conviction.
The BDSM-Specific Problems
But that’s just the obstacles survivors face when they are not kinky. It gets much worse.
Let’s start with this: if you tell the cops in many jurisdictions that you do BDSM, you may be giving them evidence that you’ve committed a crime. I’m not being facetious or hyperbolic. It’s a very strange legal flux; anyone who tells you that there’s a simple answer in the US or the UK is either unfamiliar with the law, or is trying to sell you something.
In the UK, the highest court ruled that men who did heavy BDSM that caused actual bodily injury were engaged in crimes, even when all participants consented. There have been two legislative changes since then and there are probably cases I don’t know about so I can’t say what the law is now, but it’s not at all clear that heavy bottoms couldn’t still be prosecuted as aiders and abetters to assault in their scenes.
In the US, it’s basically also unclear. There are a number of appellate decisions in various state courts saying that in a BDSM context consent is not a defense to assault, or to battery, or to harm. There are lower court cases that add some complexity, but there’s nothing definitive anywhere that I know of that anyone could cite to say “if it’s consensual, hitting someone with a flogger isn’t a crime.” For those who really want to drill down, a much more complete review can be found at the National Coalition for Sexual Freedom’s Consent Counts project page.
I’m not concerned that the police are going to bust into private play parties and start arresting people for consensual BDSM. I’m just not. Of all the cases out there, if you leave aside ones which constitute performing surgery without a medical license (for those unfamiliar, there’s a case of people doing castrations that I don’t have the patience to get into now), there are not any cases where the victim said the conduct was consensual. The cases in the NCSF link, at least every one since 1990, were all cases where the victim said it was nonconsensual, and where the prosecution set out to prove that. So I’m not trying to make a point about the government coming to take our riding crops away. In fact, I believe prosecutors will studiously avoid prosecuting clearly consensual BDSM in the US, because they don’t want to create a test case, just as happened with sodomy laws in the 1990s up through Lawrence v. Texas — they were rarely applied because prosecutors realized that a case with sympathetic facts was likely to change the law.
The point about the legality of BDSM is that it’s still marginalized. The victim not only has to deal with the social stigma, but if the victim is a kinkster, with the possible illegality of their regular play. As the facts come out, the victim may be admitting to participating in criminal assaults regularly, for fun. That’s not good testimony for a complaining witness in a criminal case.
The difference between the cases of rape that get brought and those that don’t are “bad facts,” which means facts that will make the jury judge the victim instead of the perpetrator. And in almost all BDSM abuse cases, there are going to be “bad facts.” The first bad fact is that none of them are going to fit the profile of the stranger rape, the only scenario where juries can apparently be counted on to convict. In BDSM cases, the victim will almost always have gone to a club or a party, or met up with the perpetrator, with the express intention of playing. The victim probably will have said something to that effect by email or PM or text, or said it around witnesses. The defense lawyer can always point to that and say, “see? The so-called victim consented!” You and I know that consent isn’t a lightswitch, consent to being tied up isn’t consent to be fucked and all that. We know that, but do juries know that? Your boss is on the jury pool. Your mail carrier, your mom, your high school principal, and the yenta in the bookkeeping department are on the jury pool: do juries know that? (Actually, my mom was awesome. And I was out to her in college. And she understood that consent was not a lightswitch. But she’s dead and can’t serve on any juries anymore. My mail carrier … I’m not so sure.)
All the things that make acquaintance rape cases unprosecutable in front of shitty mainstream juries — they knew each other, they had a prior relationship, there were messy personal dynamics, they intended to get together for sex, alcohol was involved — will make an appearance in a disproportionate number of BDSM rape and abuse cases. They’re all the kind of cases that don’t get prosecuted. (Yes, even alcohol. We all know that alcohol and BDSM go badly together. And yet people do it alllll theeeeee tiiiiiiiime. As a teetotaler, I try to recognize that my decision not to use any alcohol is a personal standard and not a standard for everyone’s life or sexual conduct. But when it comes to BDSM I’m not willing to be charitable. Don’t play under the influence. I judge you if you do.)
You might be thinking that you’ve seen — I’ve posted about — prosecutions in BDSM abuse cases. And I have. But the set of cases that have been prosecuted is very small, and looking at what does and doesn’t produce convictions is actually really illustrative. I’ll review briefly. Two that led to convictions and long sentences, and one that I believe is virtually certain to:
Bagley. The victim ended up in cardiac arrest, near death, hospitalized. The physical acts were very extreme, and there were video records. The victim has some sort of mental or learning disability, and was likely underage when the conduct started. There are allegations of death threats and killing her pets to intimidate her. The actual charges involve sex trafficking, i.e. coerced sex work. (The trial is on for September; but there are cooperating witnesses and I’m really sure of a conviction.)
Marcus. She asked to leave, and he punished her. When she left, he stalked her. The physical acts were extreme, and there were video records. The actual conviction was for trafficking.
Longoria. Ended in a hospital visit, with burns. The physical acts were extreme. Longoria had a violent criminal record. The victim testified ostensibly for the defense, but what she actually said was that he went way too far.
Two that ended in pleas to lesser offenses:
Jetton. She reported that she had a safeword but he drugged her and she was unconscious and unable to use it. He plead to a misdemeanor and got probation.
Karlson-Martini. The victim went to the hospital. She had a concussion. He gave an incredible excuse. The physical acts were high-risk; you can’t safely hit a person hard with a rigid dowel the diameter of a closet pole except in a few spots. Certainly not anywhere near the head. I’m told he had priors. He pleaded to a lesser degree of assault and got time served.
One that ended in an acquittal, which is sort of a very plain-vanilla BDSM rape scenario:
Senter. The victim met Senter to play, they had played before, maybe a dozen times over several years. She said she safeworded and he ignored it. She said he admitted it and apologized. The jury acquitted.
The wildcard is an unresolved Seattle case:
Hauff. The docket seems to reflect a trial date that keeps getting kicked down the road, and I don’t know what will happen. Media reports are that he negotiated and topped entirely consensual scenes with women other than the victim and acted ethically as a BDSMer on some occasions. He knew how to negotiate limits, he know what a safeword was and agreed to respect safewords with some partners. The victim wasn’t someone he met through the BDSM community, though, she was a sex worker that he allegedly didn’t know before he picked her up. Her account is that he threatened to kill her — fake death threats are the sort of thing you can’t just spring on people IMO, you have to specifically negotiate that. She says he filled her bladder through a catheter — risky under perfect circumstances, and again, not something you spring without asking medical background questions. Improvising with medical play is a bit like improvising with high explosives — just because it might be fun doesn’t mean it’s ethical. Folks in the Seattle community who have talked to the press have, as far as I’ve seen, been uniform in condemning at least part of the alleged conduct, and I think if the victim’s testimony is consistent with the media reports he belongs in jail. But I don’t know that the jury will do that, and I’m afraid that they won’t.
If you look at the commonalities, the strong cases are the ones with not only allegations of nonconsensual sex and torture, but also nonconsensual sex work, and the ones where the torture was documented on video. That may be for a variety of reasons: that those cases produce more evidence, that they attract federal authorities who have more resources and higher conviction rates, that people who see heavy pain are shocked, or maybe that people are just more willing to see sex work as coerced. Some of those factors are bad things. Or maybe the stronger cases are just the clearer abuse cases, where the perpetrator’s refusal to let the victim go looks abusive and not consensual the whole time. But (fortunately!) few kinky folks are going to find themselves victimized in these scenarios, tortured on video for subscription websites.
The most common situations are a very mixed bag. People who negotiate to play together where one partner seriously and willfully violates boundaries can produce convictions, but in in Jetton and Karlson-Martini, even though the allegations if believed were pretty slam-dunk, the defendants pleaded to substantially reduced charges. Longoria was convicted, probably because of the fireplay and the burns, even though it appears to me that it was undisputed that it started as consensual play – the victim said the top “went way too far” and the jury accepted that as true. It’s a huge win, even though the victim herself actually seemed to want an acquittal. But the one that appears to me to be the most garden-variety, top-ignores-safeword scenario, was Senter, which resulted in an acquittal.
This isn’t a complete data set — there are other cases. Erwin in Ohio about ten years ago, which ended in an acquittal; Eddie Ball and his two accomplices who kidnapped and nonconsensually tortured Japanese students in Spokane and then tried to blackmail them into silence were all sentenced to long prison terms; Van, a men-on-man abuse case, produced an opinion that appears through the NCSF link. People have cobbled together lists over the years but there isn’t really any central clearinghouse of trial-level BDSM criminal cases that I’m aware of. Mostly they hit the news and then start to fade and sink down the memory hole.
There are all kinds of theoretical questions about creating an obligation to report, and I’ll leave those all aside. Let’s just look at it practically. Is reporting a sexual assault in a BDSM context likely to work? No, absent serious injuries or hospitalization, or video evidence, it’s hard to conclude that it’s likely to work. It’s hard to conclude that it will work even for relatively privileged people within BDSM communities, let alone the sorts of folks who can’t count on the cops for other reasons. So if it’s not all that likely to actually produce a conviction, the notion that we should pressure victims in the the criminal justice system is busted. It’s a derail, a way of throwing up a hurdle and washing hands of the allegation. Until it’s fixed (if it can be), it cannot be a mandatory part of any solution and we can’t count on it to save us from having to figure out how to deal with rape and abuse in BDSM communities ourselves.
 Longaria’s victim has a child with him. Some people may think that her wishes should control, but that’s not how the criminal justice system works. The criminal process is the public’s representative against the defendant. Civil cases are [person] v. [person]; criminal cases are The People, or in federal court The United States, versus the defendant. Whether Longoria’s victim wanted him acquitted because he’s her child’s father, or because she was terrified to testify against him, or for some other reason … it’s not her choice. In the view of the criminal justice system, and in mine, crimes are not private matters but breaches of the social contract that we’re all parties to, and I don’t think that the victim should be able to just stop a prosecution. I just don’t.