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Law Enforcement and Erotic Power Exchange (Part 2)

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How to act

Allow us to repeat this once more: your (police officer) initial reflex (this looks like violence, rape or something similar) is NOT the wrong reflex. You have been trained to think like that and for very good reasons. Never ever try and think otherwise. But ........ there is probably no need for immediate action, hence there is time to think.

If you have the possibility (yes we know, this is probably impossible, but we'll mention it anyway), for example in the event of complaining neighbors, plain clothes are the prefered dress. This will avoid the nasty situation for the people involved. Secondly, again if you have that possibility, a male/female police team is the absolute success formula in cases like these.

You (police officer) have been trained to distinguish violence from other - similar - behavior and to control the situation and to "downgrade". That is exactly what will help you here. Sit down and talk. You will find out soon enough if the situation is non-consensual and there will be enough time to respond to non-consensual acts if you need to. Let people talk. The normal reaction will be that the dominant partner will be the one trying to do the explanation.

However, he or she will have one other moral obligation as well, which is to protect his/her submissive partner. Allow for time to do this. It is important to both and will help both to settle down. Even better, let them know you understand this and simply tell the dominant to take care of the submissive first and - if there is no need for that - do not interfere, not even if you just want to be helpful. Let the dominant untie the ropes, unfasten the cuffs, etcetera and only assist when asked or invited to. At best, leave the couple a bit of privacy while going through this process. This includes re-assuring the submissive partner, who is the most vulnerable one in such a situation.

Depending on your area it may very well be possible some offence has been commited. Some areas, especially in the United States, have extremely weird sex laws (would you believe that some towns and states still REQUIRE women to wear corsets - at least technically - while in other states and towns the corset is illegal). We are in no position to tell you what to do - that is up to your superiors. However, you may want to think twice before booking people for something that only happened in the privacy of their home, did not involve or harm others and has little or no public relevance. Do take a bit of time - even if it only five minutes - and let the dominant explain the situation. Nine out of ten times that will save you the trouble of having to go through a lot of paperwork that will not lead to any relevant court case, but instead will only - and probably seriously upset the personal lives of people. Whatever your personal opinion may be: you are entitled to them, but these are of no legal relevance. And you will not be the first law enforcement profesional to get yourself into serious trouble because of this. There are various examples of detectives that completely lost a case AND their career because they let their personal opinions overrule their professional position.

Whatever people may say or think, the work of social workers is THEIR job. Leave it to them to decide what should be done, for example in the case of children or domestic violence. You may want to alert - or standard procedure may require you to alert - social institutions. In any case: explain such a situation to the people involved, if this is relevant.

If, after all the above, you feel you have an obligation to make a report or even book people, you will do well to explain your position as well as the position of the people involved (which is not the same as reading them their rights). And it is only decent to allow people to change clothes first. And finally, some erotic power exchange people have a weird sense of humor. Cuff them and you are VERY LIKELY to open yourself up to some of that. That is not offensive behavior, just people dealing with the stress of the situation.

Six easy steps to evaluate the situation

  1. On your way to the scene first of all try to evaluate WHY you are going there and prepare yourself accordingly (for example: if it is an illegal or just noisy party, treat it like any other illegal or noisy party and disregard the BDSM-aspects. They are of no relevance)

  2. Yes, we know it is tempting but try and AVOID the obvious jokes and remarks on your way to the scene. They will cloud your vision and judgement when you arrive

  3. Upon arrival, check according to the VICSS concept, i.e.

    • is what is happening the Voluntary choice all parties informed
    • is it Informed Consensual - in other words does it look like people know what they are doing and what they entered into
    • is what is happening Safe to the people involved
    • is it Sane - no your are not a psychiatrist, but roughly speaking, someone who has just cut off the nipples of his/her partner can hardly be considered sane (you'll catch our drift, but remember: sane is not the same as "I would never do this myself")

  4. If VICCS does not apply, act accordingly. You are NOT in a consensual erotic power exchange situation and you should deal with things the way you would normally do

  5. If the situation falls into the VICCS category, you can safely assume nobody is going to harm anyone, nobody is going to run away and you can allow partners to do what they need to do, as described above and - if no law has been broken - you probably might as well leave and forget the incident

  6. If VICCS applies and some law has been broken all you now need to do is leave it to a detective to deal with it, the way you normally would.

If you are a law enforcement officer - even better if you are in the management of a law enforcement organisation: campaign for education on the subject within your organisation. In several European countries such education has already become a normal and integrated part of the standard police education and has proven to be effective in many areas. First of all it saves a lot of precious time, but more imporantly it helps apprehanding and convicting real offenders, especially abusers.

Secondly, work with specialized organisations. For example the International Maledom/femsub Guid - an organisation of responsible BDSM-related Internet sites - in co-operation with the EPEIC and the POWERotics Foundation has set up a system to help fight child pornography on the Internet (and in the process prevent a lot of false alarms). This system closely co-operates with specialized law enforcement organisations in both Europe and the United States and has already proven to be effective.

Managerial aspects

There are various reasons why erotic power exchange related incidents will eventually end up on the desk of a detective or police manager. In order to help you sort out what is and is not worth your time and effort, this article will go into the more managerial aspects or erotic power exchange and law enforcement.

In general, there are five main reasons why erotic power exchange and law enforcement meet:

Actually the number one reason is because erotic power exchange plays a role in a case that as such would not qualifiy as a "BDSM case". For example in murder cases, but much more likely in rape or extortion and - very recently and especially in the United States - fraud schemes. Sometimes kinky sex may play a role in a drug-related offense - such as parties that turned into disasters. Apart from the fraud schemes - we will get to these in a minute - history has proven that the BDSM or erotic power element in this case turned out to be a totally irrelevant factor and actually put investigating officers on the wrong track, leading to an immense waste of time and effort.

BDSM-related fraud schemes

Very recently a rather systematic fraud system is emerging within the BDSM community, based on the interpersonal relationships and the more or less common helpful attitude within the community. What happens is this. An individual member of the community will be called. The caller will make reference to other members of the community, his victim is likely to know, usually personally. Next the caller will introduce him/herself as a community member from out of town or out of state, who has been robbed or otherwise ran out of money, needs to fly back home urgently and ask for some money. Of course the caller is not who he/she pretends to be, but - based on the general helpful attitude within the community - it is not unlikely his/her trick will work. Because of the "difficult" relationship between the BDSM community and law enforcement it is unlikely a complaint will ever be filed, or charges will be pressed and that is exactly what the caller is speculating on. The scheme has emerged in the San Francisco Bay area (USA) as well as in some European countries.

Probably the most appealing example of how an entire investigation can get on the wrong track is what has been described in literature as "the fitting room murder case", a - still unresolved - murder case that occured in the seventies in The Netherlands. A young woman - shop assistant in a clothing shop - was murdered in the shop where she worked, in broad daylight. During the early stages of the investigation it became apparant the woman was into BDSM with her boyfriend, a local shopkeeper. He - on the day of the crime - was arrested because he (a) had made an appointment for a "BDSM scene" for that day and more or less around the time the woman was murdered (strangled) and (b) was caught in the vincinity of the scene of the crime with bondage equipment in the back of his car. The investigation team assumed the "BDSM scene" had gotten out of hand, leading to the death of the girl. Even after several months of investigation and intens interrogation - even using interrogation methods that would later be banned by the Dutch government - the investigation got nowhere. By the time an experienced external consultant on the subject was brought in it became very clear that by almost solely concentrating on the BDSM aspects of the case (which turned out to be the result of a combination of pre-occupation by some of the team members, excess-oriented media coverage and social stygma on the subject) the team had disregarded almost every other possibility, had made a series of "mistakes" which eventually ended in an unresolved case, because evidence that might have opened other possibilites had been neglected and could not be retrieved anymore.

The most serious problem in cases like these is media coverage.

In 1998 Los Angeles police officers were called to an extravagant private party where a young child - during the party - had drowned in a swimming pool. The officers found most of the party guests - including the hosts/parents of the child - to be intoxicated with both recreational drugs and alcohol. However, detectives and officers on the scene put a lot of effort in explaining to the local press about how they had seized several bondage crosses, whips, bondage material and a ritual coffin at the party. As a result the public opinion and police management concentrated on the kinky sex element of the incident and NOT on the fact that all attendents - including the child's parents - had been completely intoxicated and unable to take care of their young children that - of course - had no business being on such a party in the first place. The media coverage eventually resulted in an overload of work and media attention - keeping almost the entire team busy for several weeks and as a result keeping them OFF the job they were supposed to do. All in all about 1,000 manhours were wasted on topics, that had no relevance to the case whatsoever. The case itself of course was in fact a rather simple case of parental negligence, leading to the unfortunate death of a young child.

Both examples show how easily one can jump to conclusions that later turn out to be a complete waste of valuable time and resources and may even bring an entire case to a hold. Erotic power exchange (BDSM if you like) is one of these easy "jump to" subjects, especially for law enforcement professionals that have no or little experience with the subject. As a general rule of thumb - although there is of course always the possibility that the erotic power exchange element is important to a particular case - one can safely say that in most cases it is not and is best dealt with in a professional (i.e. quiet) way. Bringing in external experienced consultants will usually help to determine very quickly IF the BDSM-element has any relevance to the case.

Domestic violence

Your number two reason is domestic violence. Unfortunately, this is an area where erotic power exchange and law enforcement do NOT meet as often as they should. For very good reasons the American National Leather Association and the EPEIC in 1998 teamed up to produce basic information for erotic power exchange people, confronted with domestic violence. As such, this effort was the first time ever the subject of domestic violence was brought up in the erotic power exchange community in a structured way. Although there is no reason to believe there are MORE cases of domestic violence within the erotic power exchange community, compared to other social groups, there is also no reason to believe there are LESS. And although there are no statistics on the subject, support groups and aid workers within the community know from experience that there are cases where consensual erotic power exchange is mixed up with or turns into domestic violence.

The problem here is that it is very unlikely that the victim will ever file a report or press charges. Even less likely than it allready is in other cases of domestic violence. The reason for this is in the fact that the victim will feel extremely vulnerable, since (s)he might have - and probably will have - invited what turned out to be the abuser into acts that later turned out to be abuse and not consensual erotic power exchange. Plus, just like any other relationship, an erotic power exchange relationship may turn sour with all consequences of it and what started out as consensual may turn into abuse over the years.

Besides the rather awkward position, the victim is in, the "distrust factor" will play an important role here. Due to the social stygma erotic power exchange people are unlikely to trust police officers in cases, that have any connotation to their sexual inclination. Such distrust is not limited to police officers. It will also affect aid and social workers and even professional therapists. Again bringing in an external experienced consultant, members of local support groups or a kink-friendly therapist will greatly improve your success factor in domestic violence related cases.

The following is good example of domestic violence that is "intertwined" with erotic power exchange is the following. In 1998 the owner of a small shop in a small USA town, through the Internet, made contact with a man that introduced himself as a "dominant". The two corresponded for several months over the Internet. The woman even told others in the community about her newly found happiness and - pointed by other community members - took several safety precautions, such as checking the man's identity. Eventually, after several months of email correspondence and telephone calls, the two made an appointment ro meet. Although this is generally considered to be unwise, the woman invited the man to meet her at her shop and they also agreed the man would immediately assume his role as dominant. When the man arrived he grabbed her by the hair and dragged her to the private area in the back of the shop, told her to undress (so far all this was part of the pre-negociated BDSM-activity), but next grabbed her, beat her up seriously and raped her. That of course was NOT negociated. Despite various attempts by community members to urge the woman to press charges, she never did.

Drug related cases

There are two reasons why a combination of drug related offenses and kinky sex may end up on your desk. The first one being the fact that the drug (or alcohol) abuse as such may have triggered a need for "edgy experiences". In such cases people that otherwise would not enter into kinky activities will do so now and - as a result of their lack of knowledge and experience - may get themselves into trouble. In these cases of course the drug abuse comes first and erotic power exchange activities are the result of that, not the drug abuse trigger (the two are frequently mixed up).

The second reason may be the result of the fact that kinky people use alcohol, recreational drugs or poppers during active play. The use of drugs - on top of the adrenaline and endorphines high that is usually created by erotic power exchange activities (endorphines are a natural opiate, much like morphine, produced by the human brain) - as well as alcohol or poppers may lead to over-enthousiastic experiments and may have a negative effect on people's judgement. If this ends up on your desk again this does not mean one triggered the other. What happened is that things got out of hand.

Non-criminal reasons

We have already explained how civil law and criminal law are frequently mixed up, when it comes to erotic power exchange and how alterior motives may play a part in erotic power exchange related cases. In fact all complaints by neighbors, spouses (domestic violence excluded of course), employers, co-workers and "concerned neighbors and citizens" do not belong in the police department, since they have no relation to criminal law or a more general public interest. They should be dealt with by civil lawyers, therapists or maybe social or community workers. Again, we cannot stress this enough, do check your law books. We will spare you the long list of extremely weird - and as a result unenforcable - local "sex laws", that can be found especially in local USA legislation. However, hardly anywhere will you find an article or law that explicitely prohibits consensual erotic power exchange activities between adults.

Cults

Like erotic power exchange people cults use symbols and rituals and some erotic power exchange people are very sensitive to such signals. Plus, especially some latent submissive women may mistake cults for a shelter for their unidentified emotions. It is important to point out that satanic rituals and some erotic power exchange rituals and symbols - such as crosses and whips may LOOK alike but most certainly are two entirely different things and have different meanings. When in doubt ALWAYS consult an external consultant (either a specialist on cults or on BDSM and preferably both). Some dominants in the erotic power exchange community - who are first of all in that community for all the wrong reasons - have similar psychological and rethorical abilities cult leaders have but all of that does not mean they are always one and the same.

The difficulties when it comes to bringing an erotic power exchange case to court

Since every case is different and there are very little CRIMINAL cases that ever make it to court it is almost impossible to bring up more or less common denomitors. However, the following examples will give you an idea, not only on how difficult it may be to bring a case to court succesfully, but also the personal risks for the law enforcement professional involved.

In 1997 a couple from Pittsburg PA (USA) - for the first time ever - visited a BDSM play event in their city. They entered into mild active play, unaware of the fact that neighbors had previously informed the Pittsburg police department about their activity. A detective - without liaising with his superiors - started an under cover operation, joined the event and secretly videotaped the couple's BDSM activity. Later that evening the couple was charged with illegal public sexual behavior, arrested and their two children were transferred to a foster institution immediately.

This event led to active involvement from several wellknown members of the international BDSM community, most notably the publisher of the Canadian magazine "Boudoir Noir" and to a lessser extent the EPEIC. Funds were raised, experienced lawyers were engaged and the case was brought to court. In court the judge - based on arguments brought forward by the defense - argued that first of all no offense had been commited - since no workable and legally acceptable description of BDSM could be provided - and that the detective involved had acted, based on his own personal motivation with insufficient legal basis. The case was acquited and thecustody order for the children was reversed. The detective involved was charged with unprofessional behavior and transferred.

The case is a good example of how an inexperienced detective can get both himself and citizens - and of course the entire department - in serious trouble. Besides the loss of valuable time and resources and the negative media coverage, the main disadvantage of this case is that it has had a negative impact on the already difficult and fragile relationship between police organisations and erotic power exchange support groups in general, has pushed individual people (further) back into the closet and has strengthened the general fear for and distrust towards police organisations.

In 1998 one of the judges of the Brugge (Belgium) court was charged with actively taking part in videotaped BDSM-activity with his wife and selling these tapes to others. Although technically speaking BDSM is illegal in Belgium the court argued that the description of such activity was insufficient hence could not be used as a basis for conviction. However - again based on arguments brought forward by external experts - the court also argued that on the videotapes the judge had deliberately and repeatedly ignored the use of the previously negociated safeword by his wife. The court rightfully argued that blatently ignoring the safeword was sufficient reason for assuming the activity had been non-consensual (hence implicitely and for the first time acknowlegding consensual BDSM), thus could not qualify as BDSM activity but instead should be interpreted as abuse.

From a legal point of view the verdict in this case was welcomed, especialy by external consultants, since - probably unintentionally - the court for the first time in Belgian history came up with at least one workable definition that will help determine what is consensual and what is not. Apparantly disregarding the concept of pre-negotiated safe words (a widely spread and heavily promoted concept within the erotic power exchange community) is one way to legally establish the activity has been non-consensual.

In 1996 Dutch police arrested a man on charges of rape and physical abuse. A woman, who claimed she had rented a room in his house, had charged him of forcing her to sex against her will and abuse. The local police contacted the EPEIC very early in this case and allowed an EPEIC consultant to evaluate the charges as well as the investigation. This consultant came to the following conclusions: (1) the woman had responded to an explicit personal ad by the man, an ad that explicitely stated any respondent was expected to enter into active BDSM activity, (2) the woman had lived in the house for nearly 6 months and fact next to the play room or "dungeon", (3) the two had entered into repeated BDSM-activity in private as well as in the presence of others and (4) the woman had never before given any indication she was held there or forced to BDSM activity against her will. Based on these facts the consultant advised the police department and the DA involved to drop the case, which advise was subsequently followed. (NOTE: consensual BDSM activity as such is not illegal in the Netherlands).

The above is a good example of how using external expertise in a very early stage saves time and effort and helps seperating the cattle from the sheep, as well as avoid putting extra strain on the already overburdened courts in many countries in the world.

In 1998 a Japanese woman, living in London (UK), pressed charges against a Japanese man, also living in London, claiming she had been raped. The couple had had a short sexual relationship which had involved BDSM-activity such as bondage, had broken up the relationship but the woman came back to the man a few months after the break up in an attempt to make up again. During that visit the couple entered into sexual and BDSM activity again. The woman claimed this was done against her will.
An EPEIC consultant was brought in on request of the defense lawyers. After studying the case and various long discussions with both the defense lawyers and the judge the EPEIC consultant advised that the BDSM-argument was to be left out of the case entirely, since previous BDSM-activity (consensual or not) was irrelevant to the current rape charges and that the only question was wether or not whatever sexual activity on the night involved had been consensual. Based on the fact that (a) the woman claimed all sexual activity had been non-consensual, (b) the woman - partially tied up - had fled the appartment in an effort to seek help from neighbors in the building and (c) was still partially tied up when police officers arrived on the scene, the consultant - and subsequently the court - argued that tieing up the woman could not qualify as consensual bondage in the sense of consensual BDSM activity, but that instead she had been tied up in an effort to force her to enter into sexual activity, hence the BDSM-argument should be ignored. The man was convicted with rape.

We have incorporated the above case because there in fact is a lot to say about it. While the original defense plan was to bring in an external consultant to try and proof this was NOT a rape case but consensual BDSM, in fact bringing in external expertise shortcutted the case quickly and brought it down to the essence: a very clear case of rape.

Education and external help

One of the things that have proven to be helpful to departments as well as teams and individual police officers in erotic power exchange related cases is the use of external consultants. Above we have provided several examples of this. Usually, this leads to a more time and effort efficient approach. Plus, let's be pratical, if you don't do it, the defense lawyers will.

Another method, with a proven track record, is personal education of law enforcement professionals, for example through articles like this.
If you are a law enforcement officer - even better if you are in the management of a law enforcement organisation: campaign for education on the subject within your organisation. In several European countries such education has already become a normal and integrated part of the standard police education. Such education has proven to be effective in many areas. First of all it saves a lot of precious time, but more imporantly it helps apprehanding and convicting real offenders,especially abusers.

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Additional Article from the Chairman of the POWERotics Foundation: Please see also Facts and Myths About BDSM Safety by Hans Meijer


 

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