[KinkForAll] Legal/Political aspects of KinkForAll Boston?

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iron rose

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Apr 22, 2009, 4:04:29 PM4/22/09
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I have been wondering about the legal/political issues with holding KfA in Boston, particularly due to the fact that kink is actually illegal in MA.  This largely doesn't stop us, but it does strongly affect what happens here and how the scene is in Boston.  What things should we be thinking about with respect to the legal/political landscape in Boston, when thinking about making KinkForAll happen?  In particular, if we are thinking of advertising this widely and to the public, we may have to be prepared for a variety of possibilities including causing some strongly negative reactions from mainstream media.  What sort of things are likely or unlikely?  Which things are actually risks, and which aren't? 

KfA is *not* a play event, which helps immeasurably (in fact, which makes it possible at all), but I don't know anything about what else we might have to think about for even non-play events.  I bet people at NELA probably know a lot about this.  Do the legal/political issues change when we think about holding it at a university vs. holding it in another space?  I assume it does, particularly given the growing trend of parents/universities treating college students as children rather adults.  If so, how?  Does anyone have any information/knowledge about this?

Maybe the answer is simply "You really don't need to worry about this".  But since I don't know, and I've never been involved in the organization of an event of this size, I thought I'd put it out there & see whether anyone else knows anything.

On Wed, Apr 22, 2009 at 10:32 AM, maymay <bitethea...@gmail.com> wrote:

On Apr 22, 2009, at 8:41 AM, Sara Eileen wrote:

> Hi Trish,
>
> Wow! That's great!

Because people don't get thanked often enough in public, I just wanted
to second the big thank you from Sara Eileen for doing this legwork at
UMB, Trish. :)

I'll also second Sara's point that KinkForAll Boston will fit whatever
space you get. The only *really* critical thing in terms of space is
that there are multiple rooms. A single large room won't do; we need a
few breakout rooms and, if we can get it, one larger room is useful,
as Sara also mentioned.

If you haven't yet, take a look at the videos from KFANYC. They show
one wall of the largest room we had (the one that fit 70 people). Not
sure if they'll be very helpful, but it's worth a shot:

http://vimeo.com/tag:kfanyc

Thanks again,
-maymay
Blog: http://maybemaimed.com
Community: http://KinkForAll.org
Volunteering: http://ConversioVirium.org/author/maymay



Emily Rutherford

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Apr 22, 2009, 4:15:56 PM4/22/09
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Hey iron rose,

Could you explain what you mean about kink being illegal in MA? What laws are on the books? Has action ever actually been taken against anyone for engaging in kinky play?

I would think that KinkForAll is covered under our 1st Amendment rights. I don't think there's anything to worry about on that score, though of course I don't know the legal technicalities. If you're concerned, why not call the ACLU? They'd be my first recourse for any issue like this and could probably give you some free legal advice.

-Emily
--
http://worthlessdrivel.net

iron rose

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Apr 22, 2009, 4:33:46 PM4/22/09
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I believe the law on the books is that you can't consent to abuse.  There was a big case where people got arrested at a kink party in Attleboro years ago (just about when I was starting to get involved in the scene).  It was known as "Paddleboro".  I don't remember exactly when it happened or what came out of that, but it was pretty shocking to many people because up until then, I guess no one thought it would be enforced?

I think KfA is totally legal.  The FFF happened in MA for years with no problems, and KfA is much less of a target than that.  But possibly there are things the FFF needed to do behind the scenes to make it so that there were no issues.  I don't really know, so I thought I'd ask.  I only brought up the legality of kink because I think it probably affects the political landscape here.

Maybe what I should really be doing is asking the FFF people directly.  I'll let you know what I find out!

Philip

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Apr 22, 2009, 4:34:07 PM4/22/09
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This is a much longer discussion than you probably want to have here.

I am not a lawyer. This is not legal advice. This is the state of
affairs as I understand them. If you want to discuss this at length
with someone who's spent more time looking into this than I have, I'd
be happy to point you to him.

Assault is illegal. Even consensual assault is illegal. (The law has
trouble distinguishing between consensual kink and domestic abuse in
which the abused is being coerced into saying it was consensual.) In
some states, even though it's technically illegal, the law is not
enforced and/or prosecuted.

A lot of the skittishness in Massachusetts stems from a case known as
"Paddleboro" (see http://www.nelaonline.org/attleboro.html ) where
local law enforcement, investigating something else, stumbled upon a
play party, made some arrests, and the subsequent prosecution made
life difficult for those involved.

Educational events, such as the Flea, NELA classes, NE-DS classes, and
presumably KFA are OK. For instance, you'll notice that there is
always a police detail at the Flea.

As far as I know, the only way to change the state of affairs would be
to change the laws so that public play spaces are legal or to become a
test case to allow the courts to determine what it is that the law
says. Quite understandably, not many people are willing to become the
test case.

Again: I'm not a lawyer. This is a brief summary. There have been
discussions on this topic on various mail groups and over on FetLife.



On Wed, Apr 22, 2009 at 4:15 PM, Emily Rutherford <echom...@gmail.com> wrote:

Philip

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Apr 22, 2009, 4:34:58 PM4/22/09
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What she (Emily Rutherford <echom...@gmail.com>) said.

--P.

maymay

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Apr 22, 2009, 4:17:08 PM4/22/09
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On Apr 22, 2009, at 4:04 PM, iron rose wrote:

> I have been wondering about the legal/political issues with holding
> KfA in Boston, particularly due to the fact that kink is actually
> illegal in MA. This largely doesn't stop us, but it does strongly
> affect what happens here and how the scene is in Boston. What
> things should we be thinking about with respect to the legal/
> political landscape in Boston, when thinking about making KinkForAll
> happen? In particular, if we are thinking of advertising this
> widely and to the public, we may have to be prepared for a variety
> of possibilities including causing some strongly negative reactions
> from mainstream media. What sort of things are likely or unlikely?
> Which things are actually risks, and which aren't?

So, IANAL, however it should be noted that KinkForAll in no way
violates laws. In fact, KFA is predicated on free speech. If you are
speaking to the media or other publicity outlets it is imperative that
you stress the freedom of information aspect of KinkForAll
unconferences over any other aspect. This is one reason why I am so
staunchly vocal about not creating a BDSM-centric space.

> KfA is *not* a play event, which helps immeasurably (in fact, which
> makes it possible at all), but I don't know anything about what else
> we might have to think about for even non-play events. I bet people
> at NELA probably know a lot about this. Do the legal/political
> issues change when we think about holding it at a university vs.
> holding it in another space? I assume it does, particularly given
> the growing trend of parents/universities treating college students
> as children rather adults. If so, how? Does anyone have any
> information/knowledge about this?

There are a variety of resources to aide you in learning media skills
for discussing sexually explicit topics. Be certain to peruse the
National Coalition of Sexual Freedom's archives[0]. In particular,
take a look at the "How To Protect Your Event" guidelines:

http://www.ncsfreedom.org/index.php?option=com_keyword&id=181

However, keep in mind the differences between KinkForAll events and
the events that the NCSF guidelines are specifically trying to
protect. The no play rule is one of these notable differences, but
there are others, including the focus on public spaces, photography,
and other "treat KinkForAll like it was happening on a sidewalk" rules.

Further, Susan Wright, NCSF's founder, is an extremely accomplished
and knowledgeable person in this regard, and has been a contact of
mine and Sara Eileen's for some time now. If specific concerns arise
around KinkForAll Boston, I urge you to inform us immediately so we
can get you in touch with some professional support in this area, as
well.

> Maybe the answer is simply "You really don't need to worry about
> this". But since I don't know, and I've never been involved in the
> organization of an event of this size, I thought I'd put it out
> there & see whether anyone else knows anything.

Negative *reaction* and negative *legal action* are so completely
different from one another that I would encourage you not to worry so
much. :) Remember YAGNI[1].

Cheers,

[0] http://www.ncsfreedom.org/index.php?option=com_keyword&id=228
[1] http://kinkforall.pbwiki.com/OrganizeALocalKinkForAll#AvoidingUnnecessaryEffortYouArentGonnaNeedIt

bostonpup

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Apr 22, 2009, 5:31:27 PM4/22/09
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Just to add a little more color in here (and this is definitely and categorically not legal advice and should not be relied upon) :-)
 
*  Battery is the crime of hitting (or even touching) a person without their consent.  As Phillip indicated, this is an issue in the Commonwealth (and in many other states, including New York) because courts have ruled as a matter of common law that sadomaschism counts as battery despite consent.  I.e., the courts have held that a person is incapable of consenting to sadomasochism. 
 
*  How is sadomasochism different from people consenting to legal boxing matches or football tackles?  Both for right and for wrong there is a policy concern underlying courts' decisions here: they want to prevent a domestic batterer from being able to escape criminal sanctions by persuading the battered victim to claim they consented.  This has the side effect of making many forms of kink illegal.
 
*  Massachusetts is different than other states with the same common law rule (such as New York) because we have fairly recent history of prosecutors going after kinksters for clearly consensual activities.  The "Paddleboro" case mentioned earlier is the biggest example.  Therefore we do not have strong comfort that our public servants will exercise their discretion and only target cases where the likelihood of nonconsensual conduct is significant.
 
With the qualifier that this is not legal advice and should not be relied upon, if no one gets hit at KFA Boston, there is no legal issue.  We can talk about it all we want.  Se we're set :-)
 
When you move into demonstrations (e.g. hitting), which for several reasons I do not think we should permit at KFA Boston, it's still probably protected as freedom of expression.  I doubt there are any cases on point but between the educational and performance arguments, the bottom line is that no judge is going to worry that by dismissing the case s/he is setting a rule that in the future will let a batterer escape prosecution.  This is why no one worries about demos at the summer flea.  I believe the police are there because MA also has a statute about events where money is collected for admission; police attendance is the easiest solution for most one-off events.  If you had a free FFF, the police would not be needed just because you were doing a demo.  (Although, it certainly does make it all the more improbable that a prosecutor would attempt anything).


 
 
On Wed, Apr 22, 2009 at 4:17 PM, maymay <bitethea...@gmail.com> wrote:

So, IANAL, however it should be noted that KinkForAll in no way
violates laws. In fact, KFA is predicated on free speech. If you are
speaking to the media or other publicity outlets it is imperative that
you stress the freedom of information aspect of KinkForAll
unconferences over any other aspect. This is one reason why I am so
staunchly vocal about not creating a BDSM-centric space.

 
This is definitely not imperative from a legal perspective.  We could call the event "BDSM or Bust - Only BDSM Allowed Here!" and we would be every bit as protected by the first amendment.  The thing that puts us clearly in the protected category is not the manner in which we talk about it to media or our topics but the the way in which we are doing it: in a relatively public space, with a group of people, in an educational setting.  From a political/PR perspective I'm sure May's advice above is good stuff.
 
I think we should have a rule that kink-type hitting is not permitted at KFA Boston, but not for legal reasons or because I think we need to change any sort of flavor of the event.  I just think it will make things smoother when dealing before/during/after with host locations, who may share some of the same attitudes as the MA courts.  The queer community, for example, has been battling very hard and seriously nationwide to gain legal recognition for same-sex domestic violence, an effort that has involved not only pushing courts but also pushing police and prosecutors.  We are lucky that MA's attorney general is an outspoken crusader against same-sex domestic violence.  Whatever we lose by asking people not to do hitting demonstrations is pretty small compared to the good will we'd be risking otherwise.
 
Mike

maymay

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Apr 22, 2009, 5:45:48 PM4/22/09
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On Apr 22, 2009, at 5:31 PM, bostonpup wrote:
> I think we should have a rule that kink-type hitting is not
> permitted at KFA Boston, but not for legal reasons or because I
> think we need to change any sort of flavor of the event. […]
> Whatever we lose by asking people not to do hitting demonstrations
> is pretty small compared to the good will we'd be risking otherwise.
>
> Mike
>

I don't actually think this needs to be a "rule," but I wholeheartedly
agree with Mike's point, above.

In fact, one of the motivations behind the whole 20-minute
presentations thing is to actively *discourage* demos[0], especially
the typical "here's how to hit someone" ones I see all over the place.
KinkForAll as a venue can be utilized to much greater effect than most
(if not all) demos can dream of doing by engaging participants
cerebrally, with discussion or multimedia presentations on a variety
of other, broader topics.

I encourage all KinkForAll participants regardless of locale to think
outside the very narrow we-like-to-hit-people-with-stuff box, which is
frankly always incredibly boring for me (personally) to sit through
presentations about. If you need some inspiration, take a look at some
of the presentations from KinkForAll New York City[1] that had nothing
to do with hitting people:

* Gender & Technology:
http://vimeo.com/3553527

* The Politicization of the Closet:
http://worthlessdrivel.net/2009/03/18/kink-for-all-new-york-city/
http://www.princeton.edu/~erutherf/emilyKFANYC.mp3

* How To Be A Public Sex Intellectual Without Getting Hurt:
http://media.kinkforall.org/KinkForAllNewYorkCity/Audacia.mp3

* Youth in Leadership:
http://media.kinkforall.org/KinkForAllNewYorkCity/Evan.mp3

EXTERNAL REFERENCES:

[0] http://kinkforall.pbwiki.com/FrequentlyAskedQuestions#Whyarepresentationslotslimitedto20minutes
[1] http://kinkforall.pbwiki.com/KinkForAllNewYorkCitySchedule

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