Perception as a motive for prosecution

Starting at the beginning of the process (disregarding civil law for the moment): you, as an individual police officer have little other but your own perception, norms, values and experience to rely on when it comes to interfering with anything, that may look like erotic power exchange. As a result, your upbringing, education, personal background and experience and maybe even personal emotions will be at the root of your actions, not the legislation, nor your instructions or professional education. Furthermore, incidental motivations – such as the perception of your commanding officer, political motives or for example media hypes – heavily interfere when it comes to setting priorities in this area.

A good example of how political motivation can seriously interfere in this area can be found in the Netherlands (a country that does not have specific normative sexual legislation and has a general liberal attitude towards sexual behavior). As a result of reorganization the traditional “vise” departments and squads within the Dutch police agency where abandoned in the the late 1980′s and the police department in general was expected to deal with sexual offences and crimes. To a certain extent this was the result of “political correctness”, i.e one particular form of crime should not be singled out from general crime. As a result, quite a lot of expertise was lost, as well as specific knowledge and the ability of individual officers to judge and evaluate specific situations and cases. This has proven to be a major set back.

Apart from lacking clear legislation and instructions, you, when confronted with anything that might be BDSM, will first of all have to judge the situation as such and usually all your instincts will be drawn to pointers you have learned to distrust: appearance, people being tied up, traces that would normally indicate a figh and possibly an atmosphere that signals danger. That is not an easy situation to deal with, especially when placed in the normal stress of every day life police work, the limited time the individual officer can spend on individual cases and the need to – generally speaking – make fast judgments and decisions. And, you may have to rely on the information of someone, who – placed in other circumstances – would be considered a victim or perpetrator. Combined with the natural inclination and mindset of every police officer to choose the side of what appears to be weak (the obligation to protect), this puts you in an awkward situation.

At the same time, you are confronted with people who will not see their act as criminal, but instead are dealing with – often intense – feelings and emotions that are also not easy to explain and certainly not in a few words. The person(s) involved will usually feel trapped in the situation, possibly betrayed and in almost all circumstances humiliated, vulnerable and victimized without reason. As such you, officer involved, are not seen as “neutral” but as an intruder in a very private situation.

A dominant, after the act for whatever reason accused of criminal misconduct by a submissive who may have been disappointed, will feel just as vulnerable. A submissive, tormented by what she thought was a love partner, will feel even more vulnerable since she usually actively allowed the antagonist to enter into acts that turned out to be misconduct and may even have been the “inviting partner”. She will feel humiliated, vulnerable, foolish and naive – and will usually come to realize that she herself has neglected her own warning signals for whatever reason and self-blame and guilt feelings are certainly not unusual in a situation like this.

Bottom line: making the right judgments is difficult and in fact requires two resources you in this case have very little off: time and adequate knowledge. That is the main reason why real misconduct cases, connected to erotic power exchange, seldom make it to court and unfortunately often the wrong people – the ones that merely entered into a consensual act – get prosecuted or at least will be faced with the rather humiliating and scary process of a police-investigation. Last but not least,: such investigations frequently turn out to be a complete waste of valuable time and resources (both items no law agency professional ever has enough of).

Ulterior motives

Leaving the area of criminal law and concentrating on civil law it becomes obvious that the vast majority of civil court cases that involve BDSM in any way, are found in the following fields: divorce cases, custody cases and (sometimes) employment-related or political cases. The problem here is predominantly in the fact that in such cases erotic power exchange is almost always brought up because either of the parties has ulterior motives: one wants the marriage to end, wants to gain sole custody, seeks a financial arrangement of any kind, tries to do as much political and media damage as possible or either wants to end or keep the employment.

The erotic power exchange related “facts” as such in these cases are usually not studied and have little or no relevance to the case, but are merely used to create a certain atmosphere to the benefit of the party bringing them up and will serve as “character arguments” (in many cases plain character assassination).

Magistrates, lawyers and juries would do wise to disregard the subject entirely in cases like these. Unfortunately that is usually not the case. Assumptions and stigma again – also often used by “external experts”, such as childcare institutions and individual aid workers – play the predominant part here and again – since the motivation for the entire case is a different one – will usually not be investigated or judged on its merits and relevance to the case but will only serve as character-motives.

With respect to civil as well as criminal cases it becomes even more important to emphasize the social implications, people “accused” of entering into erotic power exchange activities or even nurturing such emotions will face. There is a substantial fear in the entire erotic power exchange community that one may lose custody over ones children – or may never see them again – and that jobs and careers are at stake. Not to mention family relations, neighborhood”popularity” and such. In many cases that fear is very real. People – especially those in high profile jobs – have lost careers and jobs if there is even a hunch of erotic power exchange activity. The same goes for people who have jobs that are in anyway related to children, such as social workers and teachers. Because the social stigma will often brand them as a potential bad influence to say the least. When investigating such cases one often finds that erotic power exchange was not the direct motive for letting people off, at least it did not say so in the letter of resignation, but that such motives and assumptions were at the root of the decision.

The above article is a reprint from our information/educational site Kink Culture.
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