BDSM and the Law in California

If this blog's going to be about sex, then damnit it's going to be about sex on my terms. Thus: BDSM and what the law has to say about it.

I'm going to start by saying that this is not an issue that I've studied in law school. I was made aware of this case as an undergrad, for a sort of philosophy-and-the-law course. My current analysis is made in light of my experience thus far in law school, but I have not engaged in any specific reading or discussion on the matter for any course, and it concerns criminal law, a field I won't be studying until Spring. Therefore, feel free to take my assertions with a grain of salt.

BDSM, for those who don't know, is an abbreviation that stands simultaneously for Bondage & Discipline, Dominance & Submission, Sadism & Masochism, and Sadomasochism. There's no actual law on the books forbidding any of those activities. However, certain of the activities related to BDSM, particularly the SM parts, have been found to fit under the broad umbrella of assault. The ur-case in California is People v. Samuels.

Samuels concerned one Mr. Marvin S. Samuels, a respected ophthamologist who lived in Sunnyvale and worked in San Francisco. One evening while at a bar he met Mr. Kenneth Anger, director of several sadomasochistic films, including Scorpio Rising and Fireworks. Mr. Anger was a good friend of Alfred Kinsey, of the Kinsey Institute, and was an authorized buyer of films for the Institute. Mr. Samuels then revealed that he was, himself, possessed of sadistic proclivities, and had made several amateur films of his escapades. This interested Mr. Anger, because the Kinsey Institute was just then working on a comprehensive study of sadism and masochism, and actual films of it would be quite helpful to them. Thus began a productive relationship of several years, with Mr. Samuels producing sadomasochistic films and Mr. Anger purchasing them and sending them to the Kinsey Institute.

Mr. Samuels's legal troubles began when Mr. Anger, rather than sending one of his films to be developed by the Kinsey Institute, instead took it to a private film developer. On seeing the contents of the film, the developer called the police. The police arrested Anger, and Anger fingered Samuels as the producer of the film. Anger was released; he had no hand in the film's production, and he had an academic license to purchase and transport obscene materials for the Kinsey Institute. Samuels was not so lucky. He was charged with multiple counts of conspiracy to distribute obscene material, one count of sodomy, and two counts of aggravated assault. The conspiracy charge was based on his having produced the films (a second film was found at his house during a search) and the sodomy and assault charges were based on the acts depicted in the films themselves.

The films, nicknamed "The Horizontal Film" and "The Vertical Film" at trial, depicted naked, bound men being whipped by Mr. Samuels. By the end of the films, welts and bruises were visible on both men's bodies. At trial, Mr. Samuels did not deny his involvement in the films. He testified that he was a well-known sadist, in his own words "One of the best in the business." Both of the unidentified men in the video had approached him of their own free will. He met them at gay bars. In both cases, the men approached Samuels saying that they were "M"s looking for an "S." Both men consented to the acts performed before, during, and after, and both men consented to the filming.

The details of the trial are fuzzy, but Mr. Samuels seems to have based a large portion of his case around proving that the injuries were faked, an illusion created by makeup, and that the men were acting when they convulsed in pain. Expert witnesses were presented by both sides, and the jury found against Samuels. In the end, Samuels was convicted on all counts of conspiracy and both aggravated assault charges, but cleared on the sodomy charge.

Samuels appealed. At the appellate level he changed tactics. The thrust of his argument before the California Court of Appeals was that his actions could not be considered assault. Both men consented, and therefore no crime could have occurred.

The Court of Appeals rapidly dismissed the conspiracy charges, on grounds that he was not producing the films to be commercially shown, but rather for academic purposes (essentially extending the protection Anger received to Samuels). The only question left to them was whether Samuels's acts of sadism constituted criminal aggravated assault.

The court faced two questions: Was the assault in question consensual? And if so, does it matter? The second question is quite complex. Consent to a crime is sometimes considered a defense, other times not. Normally it's illegal to punch somebody in the face, but if the punch occurs in the context of a boxing match, it's fine. On the other hand, a fine example of a case where consent does not matter is dueling. Dueling can be looked at as a contract for mutual attempted murder; I promise to allow you to attempt to murder me at a given time and place, in exchange for which you promise to allow me to attempt to murder you. Society does not permit attempted murder, even if it is consensual, and thus dueling has been illegal for over two hundred years in this country. So the question is whether consensual sadomasochistic acts are more like dueling or more like boxing for purposes of the criminal law.

The court ruled that consent does not matter. The acts in question were illegal regardless of whether the victims consented to them. The legacy of Samuels, however, is the court's rather bizarre ruling on the first question.

The court in Samuels ruled that there was no consent to the actions committed. How on earth could this be, given that the so-called victims approached Samuels, proposed the activities, and formally consented before, during, and afterwards? The court deployed a rather novel line of reasoning ("novel" is used here as a legal term of art; in this context, it should be read as "extraordinarily bad"). The court held that normal, sane people do not consent to having themselves whipped and beaten. The fact that the victims in this case consented to be beaten is evidence on its face that they were insane. The insane cannot legally grant consent. Ergo, there was no consent. The court thereby created a nifty catch-22: the act of granting consent to be assaulted was proof that you lacked the sanity to grant consent to be assaulted.

Even more disturbingly, a cursory glance at subsequent cases reveals that, so far as California courts are concerned, the "Masochists are insane and can't grant consent" holding is the big point to be taken away from Samuels. Nobody's touched the somewhat-more-respectable "consent doesn't matter" holding and focused on "Those creepy S&M types are insane and oughta be locked up." Samuels hasn't been overturned and, unless I'm mistaken, is still good law in California.

Now, there haven't actually been a lot of cases of people being brought in on assault charges for BDSM activities, from what I can glean. It might well be that the only reason Samuels hasn't been overturned is because it hasn't been challenged lately. A court today might find that the reasoning in Samuels no longer fits the times (Samuels was decided in 1967).

Further, the fact that there haven't been a lot of challenges is probably a good indication that this is an activity that is illegal according to the letter of the law, but which you are unlikely to get prosecuted for as a practical matter. Nonetheless, even if such prosecutions are rare, the fact that they are possible is problematic. Sodomy prosecutions in Texas were rare, but when they occurred were generally used by local police officers to harass homosexuals. If you don't like the tools that law enforcement has, the best course of action is usually to take them away, rather than trusting them not to use them.

Finally, a less serious note. We were discussing this case in a philosophy-oriented class, bringing in questions of Millian Utilitarianism, Kantian autonomy, and the Dignity Principle. The Grad Student running the discussion questioned how we knew that the victims consented during the action. He suggested that screaming and such seemed to be part of the whole BDSM experience, so how would Samuels have known if consent had been withdrawn? At this point my hand shot up and, when called upon, I explained that in such situations they generally established a safe word beforehand, something unlikely to come up in the normal course of sado-masochistic activities, like "Banana" or "Fiction." The bound party could say the safe word at any time and it would mean "Seriously, stop right now, this is over." When I had finished I found that everyone was staring at me oddly and several people were snickering. The GSI looked uncomfortable and said "Ummm, well, thank you for that insight. Moving along..." I get the impression that I knew more about BDSM practices than my classmates were comfortable with. Needless to say, in that discussion section I was among very few people who found the "masochism is a sign of insanity" argument to be complete nonsense.