The legalities of sex work – N.Y. Records May Help to Answer the Question: When Is Bondage Prostitution?

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, New York County 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,” Edmead wrote in Urban Justice Center v. New York Police Department, 400988/2010.

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.”

In Georgia, Judge Laura L. Jacobson dismissed the prostitution charges against a dominatrix, ruling that “foot licking, spanking, domination and submission do not appear to fit within the category of sexual conduct referred to in the statute.”

In the present Freedom of Information Law action, the Urban Justice Center’s Sex Workers Project hoped to discern whether the NYPD itself considers bondage and domination to be “sexual conduct.”

(emphasis mine)

On the one hand, the less restrictive the laws for sex work, the better, right? On the other hand, I can only suspect that this narrow definition of what constitutes “sexual conduct” is based in the heteronormative notion that any kind of activity that doesn’t involve P in V is not really sex. Lesbians do not really have sex; a dominatrix who engages in foot worship is not really having sex; frottage (as is the case with a lap dance) is not really sex; etc. I could go on, but this interpretation of what constitutes sex is the very engine that shapes, models and perpetuates the cycle of oppression (and repression) that permeates every instance of our social models. We define, by law, what is acceptable, what constitutes proper sex and we either punish what falls outside these boundaries or negate its very existence (depending on which of the two approaches is more convenient).

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