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 (See Profile) 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."
The petition sought two categories of documentation: training manuals for prostitution arrests and written records regarding investigations of bondage and domination establishments citywide.
Sex workers, the Urban Justice Center argued in subsequent filings, "have a right to know what the NYPD considers to be prostitution."
The NYPD responded to the request by producing a single document -- "Patrol Guide, Procedure No.: 208-44, Prostitution" -- in October 2009. The department withheld several other documents on the grounds that their disclosure would "impede the law enforcement process" and might endanger the safety of its officers, among others.
The NYPD also stated that the second category of documents -- all records regarding "investigations of establishments or persons who provide domination for a fee" -- was insufficiently specific, as the NYPD database cannot search for specific key words, such as "domination."
Partial Victory
In April, the Urban Justice Center filed the present Article 78 petition, seeking an order requiring the NYPD to turn over both the documents that it withheld and those relating to domination investigations.
Last week, the Urban Justice Center scored a partial victory, as Edmead ordered the NYPD to turn over some, though not all, of the contested documents.
Edmead agreed with the NYPD's justification for withholding the relevant nine-page section of its Organized Crime Control Bureau manual. After reviewing the manual in camera, the judge concluded that it depicted specific, "non-routine" investigative techniques and was thus exempt from disclosure under the Freedom of Information Law.
"[T]he highly discreet nature of the information contained in the nine pages of the Manual, instructing an undercover police officer on the specific behavior in a highly specific environment of the world of prostitution, if publicly known, could allow potential perpetrators to discern the factors and signals which could identify the officer as an undercover, thereby posing a risk of danger to his or her life or safety, or even the life or safety of 'sex workers,'" Edmead wrote.
She also agreed with the NYPD that the request for documents concerning domination investigations lacked sufficient specificity.
However, the judge concluded that the Urban Justice Center had provided sufficient information, including copies of newspaper articles, for the NYPD to perform a narrower search, limited to Manhattan investigations of bondage and discipline establishments between September 2006 and September 2008.
The Urban Justice Center made an oral application at a recent hearing to amend its application to fit those parameters. The NYPD did not oppose amendment.
By filing the amended request rather than starting anew, the Urban Justice Center lessened the possibility of another extensive delay in obtaining the documents. Justice Edmead gave the NYPD 90 days to respond to the amended petition.
Sienna Baskin, a staff attorney and co-director of the Sex Workers Project, called the decision a "victory" and an acknowledgement that there is a "substantial interest in making these documents public."
"Our desire for information is ongoing," she added.
Rebecca Chasan, who appeared on behalf of the New York City Police Department, did not return a call for comment.
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