A Kinkster's Guide to Dealing with Law Enforcement

April 8, 2005 - New England Dungeon Society

Introduction

The next best thing to training police to be kink-aware is to train kinky people in how to deal with police.  This not only requires a knowledge of one's rights, and of police procedures and psychology, but actual practice in communicating with police in different situations.  This last part supplements the information by giving people hands-on experience in how to best use this information.

You've probably experienced or seen "the game-show syndrome" - a person who loves to watch game shows, often calling out the answers from the comfort of his living room, achieves his dream of appearing on one of these shows, only to find himself more nervous and less responsive in front of the camera.  This is why police, firefighters and other emergency personnel are trained in realistic exercises on how to deal with real-life situations.  The structure of this workshop follows the same philosophy and approach.  While nothing is fool-proof, what is recommended here will increase your chances of avoiding arrest or prosecution.

Know your priorities

Remember that your first priority is to avoid getting arrested.  Getting arrested means being taken from your home, locked up against your will, having someone arrange for an attorney and bail, then having to deal with the judicial system either to have the charges dismissed or reduced as much as possible.  There is also the potential embarrassment of your arrest - and the circumstances behind it - becoming public knowledge.

The advice of experts is that your best strategy for avoiding arrest is:
Make preparations to reduce the chance that police will be called.
Deal with the police in a respectful manner.
Know your rights and the best way to defend them.
Prepare yourself before you play.

Keep in mind that, even if you do everything right, you can still be arrested.  Not all police respect individual rights or the rules of evidence; some are downright ignorant and even bigoted.  Then your priority is to get out of the situation as quickly and cleanly as possible by:
avoiding self-incrimination.
getting out of jail as quickly as you can.
getting the charges dropped or reduced.

Prevention and preparation

If you plan any scene to avoid drawing attention to yourselves, then you reduce the chances that the police will be called in the first place.  Things to think about when planning any scene:
Make sure that you (a) choose a location where neighbors will not hear you, or (b) be mindful to keep your noise level down.
Do everything to reduce the chance that bystanders will see what you are doing, such as keeping window shades drawn.

Even with such preventive planning, you should still be prepared in case the police come to your door for any reason:
Decide who will answer the door.  This is a matter of preference depending upon several factors:
resident is to be preferred over a guest.
female is to be preferred over male.
if the submissive partner is in such a deep state of "sub-space" that s/he has difficulty thinking or communicating, the dominant partner should answer the door.
The second partner should be prepared to come to the door if asked, especially if they can confirm any information that the first person has provided.
Each person should have a robe or coat ready to put on in case they are undressed or in leather or fetish gear, and a cell phone.  Have the number of an attorney or trusted friend (i.e., safety-call buddy) programmed into each phone.
Consider having a written and signed consent statement, or some other document indicating consent, close at hand; include a descriptions of any safewords used during the scene.  This is especially important when doing scenes that might be mistaken for crimes (i.e., abduction, ravishment, home-invasion).

Speaking to police

Whenever you talk to a police officer, you need to balance respect for the officer in question with knowledge and application of your rights.  Being polite and respectful can diffuse potential conflict both by its own calming effect and by not giving the officer in question reason to suspect you of wrongdoing.

On the other hand, a police officer can become suspicious even with the most cooperative person (indeed, they may consider someone to be too cooperative).  When you believe that an officer is unduly suspicious or intrusive, then your best defense is to demonstrate that you know and will exercise your Constitutional rights.  Often this alone is enough to deter an officer from pressing with questions or attempting an illegal entry or search.
The trick is to strike the right balance.  You want to cooperate, but you don't want to incriminate yourself or others, or have your privacy violated.  You want to answer questions honestly and straightforwardly, but you don't want to give too much information.  This is basically a judgment call, but it's good to remember that you can defend your rights while still being respectful.

Showing respect
Call the police "officer" or "sir/ma'am" (or their rank, if known).
Use common courtesy and common sense.
Maintain a calm and confident demeanor.
Maintain eye contact; keep your hands visible.
Answer questions simply and honestly.
Never physically obstruct the police, even to a nonconsensual search/entry.

Knowing & upholding your rights
You do not have to say anything, especially if you think it might incriminate yourself or your partner.
You do not have to consent to an unwarranted search or entry; talk to the officer(s) through the partly open front door.
Remember these phrases:
"I am going to remain silent."
"I do not consent to a search." (not "I'd rather you not search.")

Trick questions

Police will ask questions which are tricky to answer without unintentionally incriminating yourself or your partner.  The officer may or may not be aware of this - the point is that you should be aware of it, and of how to respond.

"Did s/he hit/shove you?"

This is obviously tricky for a sadomasochist to answer!  Say "yes" and your partner could be arrested for assault and/or domestic violence.  Say "no" and you are lying to the officer, which makes matters worse if s/he finds out that your partner was hitting you (even if consensually).

Your best shot is to address the concern behind the question by saying: "You're concerned about domestic violence; I assure you, that's not what's going on here."

The officer may press and ask further questions:
"What do you mean by that?" - The simplest and most direct response is: "I'm not being physically, sexually or emotionally abused."
"So, s/he is not hitting you?" - This is not the time to try educating the officer about the difference between consensual SM and domestic violence.  The bottom line is that the officer is trying to ascertain if you are being physically abused.  Answer: "I'm not being (physically) abused."

These are basic recommended statements to make, but you may want to consider adding a "thank you for your concern."  Remember that law enforcement faces a tough job ascertaining and dealing with domestic violence, especially since real victims are often reluctant to cooperate.  Showing that you understand and appreciate this can go a long way, especially with a smile and a calm demeanor.

"Are you doing S&M?"

This is a trick question because it is not clear that consensual SM is legal; in Commonwealth v. Appleby (1980) the Massachusetts Supreme Judicial Court ruled that consensual sadomasochistic activity is still to be regarded as battery.  While this decision may change based on other judicial decisions and statutory developments, the safest bet is to be cautious in answering this question.

The most straightforward recommendation is to remain silent, based on your Fifth Amendment right not to incriminate yourself.  In this case, your answer would be: "I choose to remain silent on that question."

Another possible statement is: "All I will say is that what we are doing is safe, consensual and private."

A third and much more risky option is to act indignant at the question, without either denying or admitting anything.  How the officer reacts depends more upon their state of mind than anything else, and this is why it is such a risky move.  While one officer may be embarrassed and ashamed, another may feel provoked and take action against you.

"Do I have to arrest you?" or "Do you want to be arrested?"

Some police officers will threaten arrest, usually for "interfering with a police investigation," if they feel frustrated.  Such a charge will not stick so long as all you are doing is exercising your rights.  The threat is made to either intimidate or provoke you.  Arguing with an officer who asks this won't get you anywhere.  The best recommended response is: "All I'm doing is asserting my Fourth/Fifth Amendment rights."  (Note: remember that the Fourth Amendment protects against illegal search and seizure, and that the Fifth Amendment protects against self-incrimination.)

Entry and search

Without a warrant or probable cause, a police officer may only enter or search a dwelling with your consent; otherwise, it is illegal.  Even if the officer has a search warrant, or claims probable cause, it is wise to say: "I do not consent to a search."  This way, if it is later determined that the warrant was invalid or that there was no probable cause, the search may be deemed illegal.

If you do not consent to a search, and the officer insists on entering your residence, step aside.  It is better to not get hurt or arrested as a result of physically obstructing an officer than to "stand your ground."

Play party

It's recommended that play parties require RSVP and prepayment of any donations or admission fees.  Have one or two people standing at the entrance to clear attendees, with cell phones or walkie-talkies to communicate with the party organizer.  Should the police come to the door, explain: "This is a private party" and attempt to deal with any questions or concerns at the door.

Police are permitted - in fact, required - to enter any premises if they hear screams or other noises giving them probable cause that a crime is being committed.  Party organizers and attendees should be aware of this before allowing or considering doing any play that might be mistaken for an assault or other crime.

In a car

When driving in a car, it's best to keep your toys in the trunk.  If you are pulled over, keep your hands on the steering wheel and wait for the officer to approach.  Follow the officer's instructions, but if s/he insists that you open the trunk, inform the officer: "I do not consent to a search."

Two unusual circumstances would be:
a front passenger with a toy weapon, as in a carjacking abduction scene; only use mockups of weapons rather than the real thing!  Remove the clip or cylinder, place the gun on the dashboard and keep your hands visible; explain that you are engaged in a consensual fantasy role-play, and that the "weapon" is not real.
a submissive tied up in the back seat or trunk of the car; explain: "My partner and I are doing a consensual fantasy role-play; s/he is [location and condition] of her own free will"; the submissive should then reiterate that consensual fantasy role-play is what is involved.  Offer the names and phone numbers of any third parties who can confirm your story.

Arrest

Typically a police officer will state that you are under arrest, and the charge for which you are being arrested.  While it was required in the past that an officer read or recite the Miranda warning at the moment of arrest, that is no longer the case.  If an officer physically takes hold of you and handcuffs you, without stating explicitly whether you are under arrest, ask if this is so and the charge.

Do not physically resist!  This will only get you an additional charge of resisting arrest, not to mention the risk of being injured.  Remain calm and do as you are instructed.

Do not answer any questions!  Instead, insist that you will remain silent until your attorney is present.  Also, do not discuss your case with anyone at the station or in jail, even other inmates.  When you call, contact a friend to arrange for an attorney to meet you at the station, and for bail to be posted.

If any of your rights are violated, do not react or make threats.  Simply make a mental note of the action, time and officer, as well as any witnesses who may be present, and discuss the matter privately with your attorney.

Choose an attorney who is kink-friendly and who is knowledgeable about civil liberties.  Sources for finding such an attorney are:
American Civil Liberties Union
Kink-Aware Professionals
Sexual Freedom Legal Defense and Education Fund

Now that you know what to do?

Practice, practice, practice.  It's easier to know what to say than how to say it.  Keeping your cool requires you to feel comfortable and familiar with what you're saying.  Role-play and practice this material outside of the workshop.

Share this knowledge with other kinky people.  Knowledge is power, and the more kinksters have this knowledge, the more power we have.

We need to be prepared as a community, not just as individuals.  It is only a matter of time before another Paddleboro-type incident happens again.  Rather than wait until people are arrested to scramble together a defense group, why not form the group to be ready when it happens?