Crime

The Eric Schneiderman Case: When S&M Is No Excuse For A Crime

When do alleged consensual antics in the bedroom that cause injury become criminal?

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Eric Schneiderman, the former attorney general of New York, released a statement last week in reaction to revelations made by women he dated that he hurt and slapped them during sex.

According to his statement:

“In the privacy of intimate relationships, I have engaged in role-playing and other consensual sexual activity.  I have not assaulted anyone.  I have never engaged in nonconsensual sex, which is a line I would not cross.”

The allegations made by women and published in the New Yorker  were enough to cost him his job, but are they enough to get him convicted of a crime?

When do alleged consensual antics in the bedroom that cause injury become criminal?

Sadomasochism (BDSM) has been around a long time, and generally things like using whips, handcuffs, slaps, etc., are tolerated when the act is consensual, it’s not in public, there’s no profit motive, and no one reports it to police.  As you can imagine, different countries have different perspectives, so laws vary.

In Germany, the line of indecency is crossed when “under an objectively prescient consideration of all relevant circumstances the party granting consent could be brought into concrete danger of death by the act of bodily injury.”

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The Nordic countries are even more liberal, and do not characterize BDSM as a crime. England’s famous case, Regina v. Brown, involving men who performed sadistic acts on younger, consenting men, set perimeters on fetishistic sex by ruling that even where the activity is consensual, it is outlawed if it is “unpredictably dangerous and degrading to body and mind.” One of the judges wrote that consent in such cases is “dubious or worthless.”   The court further held that society needed to be protected “against a cult of violence.”

In the U.S., the most prominent court case involving BDSM happened in the late 1990s in People v. Jovanovic.  Jovanovic, a student at Columbia University, was accused of engaging in sadistic sexual acts against Barnard college student Jamie Rzucek.  Rzucek claimed she hadn’t consented to being bound, gagged, sodomized, and tortured over a 20-hour period.  Jovanovic was tried and convicted, but the case was subsequently overturned on appeal.  The trial judge had blocked the defense from presenting information about Rzucek’s predilection toward BDSM including testimony from former partners.  According to the appellate court, the jury had a right to know of Ms. Rzucek’s leanings in order to gauge her credibility.

Back to Schneiderman. Most states do not have anti-BDSM laws for a reason.  What happens behind closed doors between or among (in cases of orgies) consenting adults is their business unless the activity endangers the public at large.  Delving into the details of private, consensual sexual behavior is beyond the court’s mandate because it can lead to laws that targets certain groups — like past laws banning anal intercourse, seen largely as an excuse to criminalize homosexuality.

Because there are no per se anti-BDSM laws, states invoke their assault laws to deal with the behavior.  Those laws hold that where a person either intentionally or recklessly injures another (except in places where it’s authorized such as a boxing ring), that person is criminally liable.

The Nassau County District Attorney’s Office is presently investigating whether Schneiderman can be prosecuted.  Because he’s already admitted to the conduct (see above press statement), the issue will be whether he intended to cause the injuries and whether his partners consented. Of course, determining consent in sexual matters is tricky.  Consenting to being slapped or handcuffed in the manner of Fifty Shades of Grey is different than leaving the room with two black eyes or broken bones.

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None of the women making allegations against Schneiderman had serious injuries, thus at worst, he’s looking at misdemeanor charges.  None of them reported Schneiderman to police after the acts, and all continued dating him in spite of his sexual predilections and apparent abuse of alcohol.  The prosecutor will also likely run up against statute of limitation problems — two years from the date of offense for misdemeanor charges in New York.

In the meantime, Schneiderman’s been outed, fired, and duly shamed.  It’s doubtful, however, that any criminal prosecution will stick.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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