Leather and Hyde: Kink and Consent in the Courtroom

Leather and Hyde

Odysseys and Observations
Kink and Consent in the Courtroom
by Debra Hyde

Armchair Lawyer

When Marv Alpert's reputed kinky proclivities first came to light, I sat back, thinking, "This is gonna be good." Not, mind you, because of the case's titillation factor. While I did find his peccadilloes rather interesting, I was actually far more curious about how the media and the court would treat the issue of consent in light of his apparent kinkiness.

America remains stuck in a rather juvenile sense of titillation when it comes to sex and sex "scandals." America needs to develop a mature attitude about sexual expression. We need to grow up and get serious.

Would the court look beyond the nature of the sex play to consider the issue of consent? How would it assess whether consent had be given? Would the DA's office pressure the case via existing sodomy laws or would it broker it down to lesser charges? Would the rape shield laws affect admissible evidence and the course of testimony?

If curiosity kills cats, then I had a pet cemetery going during this trial.

The end result was a mixed bag of outcomes. The rape shield laws did prevent the issue of prior consent from having its day in court, and the prosecution did parade previous episodes of Alpert's questionable behavior before the court in a new, lopsided version of he said/she said. Both were disappointments. Still, despite the courtroom cloudiness, I did find one ray of sunshine: some media outlets actually addressed the issue of consent quite seriously.

In the days before and during the trial, I routinely tuned into CNN's and MSNBC's legal talk shows to watch their legal beagle pundits in action.

It was refreshing. For once, the concept of consent outweighed the titillation of sex, kinky or otherwise.

Remarkably, I found them professing what us sexual minorities know: consent is the bedrock of legitimacy for sexual actions. Early in the discussions, these pundits insisted that what's shared between two adults isn't crucial; only consent is crucial. Even better, they established this one groundrule so firmly that kink largely became a moot point in their ongoing discussions. Alpert's lurid past -- the matter of kinky sex, of possible past involvement with a professional dominatrix, of cross-dressing, of any ménage à trois -- was relegated to the topical bin of "legal strategies," touching on his past only when it was used to affect the course of the trial.

It was refreshing. For once, the concept of consent outweighed the titillation of sex, kinky or otherwise, and I considered it a step forward to see legal pundits hammer home the notion that we can exercise whatever sexual expression we choose within the boundary of mutual consensual. That's worth crowing about. Sure, it wasn't a clarion call that trumpeted loud and across the land, but it was many notches above a kazoo chorus.

Unfortunately, we have a long way to go, as the recent court proceedings in the Oliver Jovanovic case showed us. Here, a doctoral student at Columbia University was accused, tried, and convicted of kidnapping and sexually abusing a Barnard College student. He received the lengthy sentence of 15 years to life behind bars. The case had all the lurid trappings that local media loves to latch onto: an eccentric genius of a socially-inept young man, a lonely hearts Internet meeting, and a first date that culminated in some twenty hours of allegedly nonconsensual SM bondage and torture. Here, too, the defense lost the case primarily because New York state rape shield laws effectively crippled its ability to argue for its client.

Measured Differences

Both Alpert's and Jovanovic's cases faced media scrutiny, but of varying degrees. Because Alpert's case drew national attention, it had the clearer shot at a more thorough discussion about consent.

I can't help but feel that had the legal pundits followed the Alpert case with the Jovanovic case, we might have witnessed a solid dent occur in the public's waffling perceptions of consent.

Certainly, plenty of television and print tabloids focused on the publicly-perceived lurid aspects of Alpert's behavior, but I remain impressed that the television legal talk shows excelled at maintaining the integrity of the consent issue while critically assessing the pitfalls of the rape shield laws.

The Jovanovic case didn't fair as well. It was a regional case, at best, and never came close to acquiring a national profile. It was scrutinized largely in the New York City print media and failed to attract much attention from the national broadcast media. Which was too bad because for every installment of American Journal, there's an installment of CNN's Burden of Proof. The major, critical dialogues over consent and rape shields laws weren't continued, and I can't help but feel that had the legal pundits followed the Alpert case with the Jovanovic case, we might have witnessed a solid dent occur in the public's waffling perceptions of consent.

As it is, America remains stuck in a rather juvenile sense of titillation when it comes to sex and sex "scandals." America needs to develop a mature attitude about sexual expression. We need to grow up and get serious.

Early Confusions

But I'm well aware that's difficult to do, given the fact that the majority of sexual assault cases rarely achieve national prominence. Case in point: I'm a mere three hours from New York City and I wasn't aware of the Jovanovic trial until it was well underway. Ever aware of its proximity to the overwhelming metropolis of New York City, Connecticut media prefers to maintain its small state, New England provincialism. And inland media, in particular, struggles to maintain its local color and ignores most all tri-state news in the process. They cover national news, local news, and little else.

I learned of the Jovanovic case by virtue of belonging to the only national audience to follow the case: the leather/fetish community. Once alerted, I searched the on-line archives of major metropolitan dailies. Thanks primarily to The New York Times, the Daily News, and New York Post, I gathered a compendium of articles as thick as my small local phone book. I also gathered a raging case of personal confusion.

I had hoped to gain a clear understanding of the Jovanovic case, but my hopes were a tad too innocent, especially when looking to the media for that clarity. While all the papers did an adequate job covering the basics of the case, some really excelled at digging around for the dirt, and, as the spectacle of the case spiraled downward, these papers provided a provocative thrill ride. In particular, Steve Dunleavy, of The New York Post, went out of his way to portray the principals involved in the case as a couple whackos who, if they didn't deserve each other, certainly deserved the public's derision and scorn.

Matters didn't improve any when Judge William Wetzel used the rape shield law to exclude the email correspondence that would've outlined what Jovanovic and his accuser negotiated. The papers jumped on that legal call to paint the entire trial as a comedy of errors. And, of course, the final error came when Wetzel declared in his charge to the jury that "consent is not a defense."

To be fair, though, Steve Dunleavy did point his poison pen of outrage at the trial judge, swiftly condemning the decisions that thwarted Jovanovic's right to a fair trial, but, by then, my head was spinning so much that I couldn't clearly see the value of his message, enmeshed as it was in the near-tabloid tone. Unable to cut through the media hype to find enough of the facts to make a personal judgment call, I sat defeated for some time. Clarity had escaped me.

Consent, Denied

Clarity came to me eventuality, thanks to Susan Wright, Executive Director of the National Coalition for Sexual Freedom. Wright quickly pointed out that the shortcomings in the trial constituted substantial setbacks to the concept of consent. First, as in Marv Alpert's case, the rape shield law effectively killed much of Jovanovic's defense.

We can understand not bringing in past sexual experience, but you have to admit evidence of negotiation to see whether he violated what she wanted and asked for. If consent is not a defense, then all sex can be considered rape. - Susan Wright

"The judge wouldn't allow any information on the negotiations that Jovanovic and the woman had," Wright said. "We can understand not bringing in past sexual experience, but you have to admit evidence of negotiation to see whether he violated what she wanted and asked for."

And, just in case the corpse of consent still had a touch of life left in it, Judge Wetzel dealt an executioner's blow in a matter of seven simple words, telling the jury that "consent is not a defense to assault" as he discharged them to their deliberations.

Say what? Since when is consent not at the heart of a sexual assault case?

Clarity, for now, doesn't lie in whether Jovanovic is guilty or innocent; it lies in the fact that Judge Wetzel's actions hobbled the defendant's right to a fair trial.

Wright pointed out that Wetzel's statement effectively nullifies anything that consenting adults do. "If consent is not a defense, then all sex can be considered rape," Wright concluded.

Clarity, for now, doesn't lie in whether Jovanovic is guilty or innocent; it lies in the fact that Judge Wetzel's actions hobbled the defendant's right to a fair trial. And, in retrospect, I realize that I probably wouldn't have found clarity if not for the dramatic backdrop of injustice that Wetzel's decisions and statements created. Because he both denied access to the facts about whether consent had been given and undermined the very concept of consent, I had no trouble deciding where my sentiments rested.

Steps Forward

Good advocacy -- the kind Susan Wright and her foundation spearheads -- brings focused, basic concepts before the public. In general, The National Coalition for Sexual Freedom lobbies for all people's right to orientation, expression, and identity.

What better way to advocate for the legality of sexual practices than to examine the foibles of a case in which the very underpinning of consent was destroyed?

For the leather/fetish community that means continuing the call for safe, sane and consensual, not as a means to tame ourselves down for the vanilla world, but as a means to eventually decriminalize alternative forms of sexual expression. And what better way to advocate for the legality of sexual practices than to examine the foibles of a case in which the very underpining of consent was destroyed?

It would seem that, at least for now, our best hope lies in the outrage of court proceedings gone wrong. And that seems to be the case because, finally, the Jovanovic case is receiving national attention, bit by bit, namely in current issues of Psychology Today and Rolling Stone magazine. With little hype, much insight, and a certain amount of honest sympathy for Jovanovic, Psychology Today examined modern cyber courtship gone awry and looked closely at the accuser's role in portraying herself as a knowledgeable, willing SMer. Author Joan Ullman deserves a leather-clad round of applause for her efforts in writing this sensitive piece.

Likewise, the Rolling Stone article looked closely at the cyber courtship, but author Paul Alexander deserves kudos for producing the most thorough account of events that I've seen to date. He produced some facts and tidbits I hadn't seen elsewhere and, to his credit, even evaluated where the defense went wrong and compromised their own chances. If you've read little or nothing about this case, I suggest you grab Rolling Stone's October 15th issue.

Baby steps are happening in other court cases. Recently, the Court of Appeals in Oregon denied a restraining order to a woman whose marriage had, at one point and for a number of years, included a Master/slave relationship. The court ruled that the conditions for granting a restraining order had not been met... and it went one step further and commented on the issue of "pain-inflicting activity engaged in by competent, consenting adults." Its view? "We are not prepared to declare that whenever competent adults agree to engage in conduct that involves inflicting pain, the behavior necessarily constitutes abuse."

On other words, SM does not automatically equal abuse.

Steps, Tripped Up

Still, for every sound court rendering, at least one other case gets prosecuted to the hilt. Just ask Michelene Nelson, a pro domme from Levittown, PA. Outed to the police by a grudge-bearing tenant, she was arrested on a number of misdemeanor and felony charges. To avoid the overwhelming personal costs of defense and an ensuing court spectacle, Nelson chose to accept a plea bargain in which all felony charges were dropped and a guilty plea towards the misdemeanor charge of prostitution. It was easier to accept a $2,500 fine and a year's probation than to fight.

Today, the Jovanovic appeal itself challenges the willing steps of our community. Jovanovic's legal team continues to distance itself and its defendant as far from the organized SM community as possible, and it's unlikely that knowledgeable community experts will ever have a presence in the case. Indeed, NCSF's sole tactic will consist of filling an Amicus Brief to reaffirm that the legal standards which apply to private consensual conduct do not prohibit SM activities. Further, NCSF will not file the brief on behalf of either the defendant or the prosecution; instead, it will file, according to Wright, "as a group representing outside interests (our constituents in the SM community), addressing a point of law that SM is legal under NY State law." NCSF, true to its focus, will only deal with the judge's charge to the jury that "consent is not a defense to assault."

Let's hope the Amicus Brief reaches a more enlightened court.

Of course, it's easy to know we must advocate in the face of injustice. It's easy to design strategies, easy to write insightfully, easy to lambaste courtroom idiocy. Injustice energizes us and makes our positions clear. All of us who speak out know that.

The real challenge will come when need for advocacy has passed, when our sexual practices are decriminalized across the country and, if not fully accepted by society, at least legally integrated into the fabric of consent. Because when that happens, then we'll finally struggle to answer the basic but difficult questions of whether and how consent was given. "Over what" won't matter anymore.

But, first things first.

About the Author

Debra Hyde is a mostly submissive switch who lives in New England with her husband, two children, three cats, and a dog. She says she is "well-owned and well-loved" by a very special Master, and shares a unique triangle with him and her somewhat submissive husband.

"When England Calls," one of Debra's short stories, graces the pages of the recently published Mammoth Book of Historical Erotica. She is currently working on a number of others, as well as the Great American Leather Novel. Her BDSM work has been previously published on the Internet by Leather Online and Section 12, but Leather and Hyde was her first regular column, originally hosted by About.com's BDSM site and relocated here with her kind permission.

Debra also maintains a personal Weblog called Pursed Lips and can be reached at 75222.2150@compuserve.com... but no junk mail or "Wannas," please.