San Diego Leatherpeople, Police Meet to Discuss “Leather and the Law”

by Mark Gabrish Conlan/Zenger's Newsmagazine Friday, Oct. 12, 2001 at 3:35 PM (619) 688-1886 P.O. Box 50134, San Diego, CA 92165

The San Diego Gay Leathermen Only (GLO) organization met October 1 with representatives of the San Diego Police Department — vice squad head Lt. Chris Ball and Lesbian/Gay community liaison Mark Dallezotte — and attorney Andy Zmurkiewicz, who successfully defended the "San Diego Six" in 2000. The issues discussed included the distinction between "public" and "private" places to have sex (the issue at the heart of the Six case) and whether leatherpeople run the risk of being arrested and charged with domestic violence for having consensual sadomasochistic sex.

errorSan Diego Leatherpeople, Police Meet to Discuss Leather and the Law
Concerns Include Privacy and Domestic Violence Accusations

Copyright 2001 by Zengers Newsmagazine Used by permission

You may not like the law, but you should know it, said Daryl DeVaney, co-chair of San Diegos Gay Leathermen Only (GLO) organization, at the beginning of his groups October 1 meeting on Leather and the Law at the Metropolitan Community Church (MCC). Reaching out beyond his usual membership to San Diegos other leather organizations and inviting women as well as men, straights as well as Queers he presented two representatives of the San Diego Police Department, vice squad head Lt. Chris Ball and Lesbian/Gay and disabled community liaison Mark Dallezotte. Also on the panel was local attorney Andy Zmurkiewicz, who has frequently defended clients accused of crimes relating to sex.

There is a struggle going on in this country over freedom of speech, freedom of expression, and especially freedom of sexual expression, Zmurkiewicz said. You are on the front lines, and what happens to you affects the freedom of sexual expression throughout the United States. Its important for you to get active and donate to defense funds, because its only by doing so that you will continue to participate in sexual expression.

I agree with what Andy says, said Lt. Ball. Weve worked together for 20 months and in 90 percent of the conversations theres been very little disagreement. Ive been with the vice unit 19 months and I understand there were differences of opinion with the vice unit before that. Ive met with a number of people in this room on a number of topics, and if you are going to hold an event you believe will get the attention of the San Diego Police Department, I suggest you contact me and discuss it.

Virtually all Lt. Balls comments during the October 1 meeting focused on just that issue: the need for communication so someone in the police department knows in advance when an event involving so-called BDSM (bondage, discipline, sadomasochism) contact is going to happen and can rule ahead of time on whether the organizers are likely to run into legal trouble if they go ahead with what theyre planning to do. The problems, as both he and Zmurkiewicz explained, include the murkiness of the laws themselves and the extent to which vice is as Lt. Ball himself admitted the dumping ground of the police department.

Lt. Ball briefly described the wide range of responsibilities assigned to vice. We are involved in everything from animal fighting for sport to prostitution, pornography, adult entertainment, nude entertainment, public entertainment in general, gambling, pawnshops, firearms, massage and holistic health, lewd activities in parks and peepshows, he said. We regulate and issue permits for 30 separate kinds of businesses. Our major focuses are on prostitution, male and female which comes in a lot of different forms, including street prostitution, massage, holistic health practice, escorts and the Internet. Our second focus is alcohol: overservice to people whove had too much to drink and service to kids in bars or liquor stores.

The San Diego Six

One major case in which Zmurkiewicz defended members of San Diegos leather community was very much on the minds of many of the people at the October 1 meeting. Nearly two years earlier, on October 29, 1999, the co-sexual and multi-orientational Leather organization Club X was hosting one of its regular play parties at the Masonic Temple in San Diego when a team of at least 10 vice officers raided the event.

I was standing outside, talking with one of our private security officers, and we saw a car pull up in the lot and park in a place where there wasnt supposed to be parking, Madoc Pope, who wasnt at the GLO meeting but was co-chair of Club X in 1999, recalled in a recent Zengers interview. The driver got out and identified himself as a vice officer, and he and 10 plainclothes vice officers went in and started arresting people who were in the middle of S/M scenes or who were nude.

Patty Zwolinski, co-chair of Club X in 1999 and one of the six people who were arrested, vividly recounted the incident during the October 1 meeting. At the time we had a good membership and a lot of parties going on, she said. Then there was the bust. I have a home and a career, and I expect the San Diego Police Department to protect me, but I also expect to have my privacy protected.

I was in the middle of a scene, and I had talked to the police beforehand, Zwolinski continued. We had security guards there. I was taken out of a safe environment. The police stood me against a wall and mind-fucked me. My question is why, instead of reacting to a situation, do they not talk and discuss? I was so proud of how the leatherpeople behaved, and so embarrassed at how the police behaved and how they belittled me. How do we get on from there?

Patty was right in the middle of the scene, and if you pull somebody out of an intense emotional experience like that and stop them cold, thats bad, Pope added. If youre arrested on top of that, thats even worse, especially if the police show as much revulsion and disgust as they did in this case. Partially as a result of the arrests, and also because it was getting harder to find locations both willing and able to handle the ever-growing numbers at Club Xs annual Leatherfests, Club X moved the Leatherfest out of San Diego and now hold it in Palm Springs.

The participants at the 1999 play party singled out for prosecution five women and one man almost inevitably became known as the San Diego Six. One woman, Crickett Watkins, was given a January 20 court date and eventually tried for committing a lewd act in public. Not only was she acquitted but, according to Pope, the jurors who heard her case told both the judge and the prosecution the case had been weak and a waste of time. Afterwards charges against the other five were dropped, and the officer who had headed the San Diego Police Departments vice unit at the time was replaced by Lt. Ball, but the memory of what happened to the San Diego Six is still strong in San Diegos leather community.

Whats Private? Whats Public?

Much of sexual law enforcement hinges on the question of whether the sexual contact happens in a public or private place and, unfortunately, the law isnt very clear about the distinction between public and private. I dont think theres an easy answer to the question, Zmurkiewicz admitted. The safest way to engage in such conduct is to do it in the privacy of your own home, and even there you have to take care that its not exposed to public view (i.e., if your window shades are open and your activity is visible from outside). The farther you get away from that, the greater the risk.

The San Diego Six event was in a public place, the Masonic Temple, Lt. Ball said. What I look upon as private is your own house: a house, an apartment, a rented room. Absent exigent circumstances, the only way we can get into your house is with a search warrant. There are private clubs like the San Diego Yacht Club or the San Diego Golf Club, but I would consider these public because they are open to members of the public on the invitation of a club member. If you rent a room at the Holiday Inn and someone walks into your room uninvited, are they trespassing? If a waiter walks in, hes a member of the public and it is a public place. If you can guarantee that the only people who are going to get into your party are members of your group with invitations, I would concede it is private as long as it is not open to public view. If doors and windows are open and people can see in, its public.

The question is further complicated by the way the basic California law on this subject, section 647(a) of the Penal Code, is written. The section makes illegal engaging in or soliciting a lewd act in a public place, a place open to the public or a place open to public view. Theres a loophole through which lawyers like Zmurkiewicz has successfully won a lot of his clients cases: the activity not only has to be in a place open to public view, but the participants must be aware that theres a likelihood that there are other people present who would be offended by seeing the activity.

Private vs. public depends on the agency, the venue, the criteria and restrictions on admission, Zmurkiewicz said. The Police Department interprets that word more broadly than I do. Some sexual activity is permissible even if it occurs in public, as long as there are not people present who might be offended. Zmurkiewicz also disagreed with Lt. Balls contention that a motel room is public because a waiter might come in, since the only way a waiter would come in is if the people who rented a room actually ordered something delivered and they would hardly be likely to call waiters for service if they were planning to have sex, especially kinky sex, in the room.

Another complication with the law is the definition of lewd act. A lewd act is defined as a sexual act: touching the genitals, buttocks or female breast, done for the purpose of arousing or gratifying or annoying or offending, Zmurkiewicz explained. This leads to the rather curious fact that many of the activities BDSM devotees enjoy dont qualify as sex under the lewd-conduct law or under the laws against prostitution, which employ the same definition of what constitutes a sexual act.

Apart from buttocks, genitals and female breasts, you can do a lot of things that people would find offensive, including foot worship, said meeting attendee John OConnell. Zmurkiewicz said doing that in public wouldnt be a violation of Penal Code 647(a) but might still leave you vulnerable to arrest for being a public nuisance.

I dont know what youre doing to this persons foot, but thats not against the law, said Lt. Ball.

On that theme, meeting moderator Dave Volta Schultz asked whether it would be an act of prostitution to advertise that, for a fee, Ill let you lick my toes. No, said Dallezotte, unless its generally known in your community that lick my toes is code for genitalia.

Lt. Ball said that he met with members of Club X seven to eight months ago to work out rules by which they can have play parties in locations like the Masonic Temple without falling afoul of the law. Lets put up a plaque to the San Diego Six, but lets move on, he said. If you have a play party and call us in advance, nothing will happen. When I was talking about a hotel or motel I was talking about a banquet hall, not a room. Dont get hung up in the past. But, while Lt. Ball said Club Xs current strategies for holding play parties dont pose any legal problems as far as hes concerned, he warned, Moving forward does not mean Im going to let you break the law.

I cant tell you how much meetings like this mean, Zmurkiewicz said at the close of the October 1 event. These things are the way to go about changing peoples perceptions, prejudices and the law. The San Diego Six case helped open the eyes of the San Diego Police Department and the city attorneys office to say that thats not a crime.

Consensual S/M or Domestic Violence?

Another concern of many of the people at the October 1 GLO meeting was whether, in a semi-public event or even in their own homes, they run the risk of being arrested for domestic violence if neighbors hear sounds of screaming or hitting and call the police. Officer Dallezotte, who worked in the domestic violence unit before his current assignment as police liaison to the Queer and disabled communities, said in his two years in domestic violence hed never heard of such a case but with the department and the courts increasingly committed to a zero-tolerance policy on domestic abuse cases, many people at the meeting were still afraid it might happen.

If the neighbors hear screaming and shouting, the black-and-whites are going to show up, Lt. Ball admitted. In the case of a play party at a controlled but still public location, where the organizers and the vice unit have negotiated the details beforehand, you can tell them to call us and sort it out, because there can be misunderstandings. We get calls all the time, and 5 to 10 percent may be legitimate. The rest are misunderstandings and miscommunications.

Lets say we have a couple of friends over to our home and have a play party, a man named Dave asked. You cant keep the neighbors from overhearing everything. If the police are called, what are our rights?

On one of the flyers there was a question of should you let the police in, Lt. Ball replied. The police are there and theyve obviously responded. This is a check-the-welfare call. The officer has information that someone is in trouble and will want to come in. You want them to. Lt. Ball said that if its a play party and everyone is laughing and joking, the police are probably going to conclude that there isnt an issue, but if someone is hurt, or if theyre bruised and bleeding, then theres an issue.

Dave then asked what he should do if someone is on the cross and is in the process of being flogged when the police arrive.

You definitely untie him first, then answer the door and explain to the cops what is going on, Lt. Ball replied. My advice to my officers is to conduct an investigation and find out whats going on. A lot of guys have bruises on their bodies, and that doesnt mean theyre being battered against their will. I would take the person supposedly being injured aside, and if he told me it was O.K., it was a play party and he was being flogged, I would want some other assurance that everything is O.K. and he hasnt been kidnapped by 10 people and hes only saying its O.K. because his buddy is still being held in the back room.

In 1992, all the police chiefs in San Diego County came together and came up with a pro-arrest policy for domestic violence, Dallezotte added. That means that once there is an investigation, the person who inflicted the injuries will be arrested.

I understand that domestic violence is generally considered the most dangerous call police can get, said OConnell, but what youre looking for is context in addition to bruises or marks, or a certain degree of consent.

There has to be more, Dallezotte acknowledged. In domestic violence were looking for the intimate relationship between the couple and the violence thats in there. Were looking for the violence between the two where they really want to hurt the other person and cause physical abuse. A few months ago I had a man beat the shit out of his wife because she didnt put cheese on his Top Ramen. We dont care what they do to have sex unless she says Stop! and he doesnt.

If youve got two people there and theyre both comfortable talking to you, then you usually dont have domestic violence, Lt. Ball added. Were talking about police work and the law. Were talking about a situation it may take a psychiatrist ten years to figure out, and in 45 minutes a cop has to determine whos the assailant and whos the victim, and write a report that will convince a judge that domestic violence is going on.

Lt. Balls advice to anyone who might be caught in this situation a neighbor overhears the screams and blows of consensual S/M, thinks theyre hearing domestic violence and calls the police is to give as much information to those officers as possible, and dont wait for the cop to ask you the right questions. You tell them. Were in uniform, were cops, were intimidating, but you have to be assertive. If you are engaged in lawful activity, you need to communicate that. The officers will still write a report, but that will be the end of it.