Read:  BDSM Venues and Legal Status [Online]

This article is about the challenges facing establishments offering BDSM and other forms of consensual adult activity, particularly as this relates to our local community. This is an area of concern that many in the BDSM scene like to talk about at length but few really understand. We hear terms like “flying above (or below) radar”, “legal status” and “proper permits”. It is easy for us to become confused about what is legal and what is not.

First and foremost, understand that we are dealing with multiple levels of law. Part of our activities are governed to some extent by criminal law and other activities fall into the areas of zoning and licensing. All of which are influenced to some degree by our First Amendment rights to freedom of expression.

This topic is particularly difficult to define because criminal laws vary from state to state. Also zoning and licensing regulations vary between city and county laws within the same state. Still further complicating things is the reality that certain zoning and licensing requirements may be selectively or even arbitrarily enforced by individual local officials.

First, the big picture is that all states have laws against assault and battery and most states now have specific laws covering domestic violence and abuse in addition to the basic assault or assault with battery statutes. We all know that what we do is not violence, nor abuse but the law often has trouble drawing that distinction. From the site www.findlaw.com I pulled up the following working definition of Assault/Battery:

“In most states, an assault/battery is committed when one person 1) tries to or does physically strike another, or 2) acts in a threatening manner to put another in fear of immediate harm. Many states declare that a more serious or "aggravated" assault/battery occurs when one 1) tries to or does cause severe injury to another, or 2) causes injury through use of a deadly weapon. Historically, laws treated the threat of physical injury as "assault", and the completed act of physical contact or offensive touching as "battery," but many states no longer differentiate between the two.”

There are also laws against more serious offenses such as rape and kidnapping. In addition, all states, with the exception of Nevada outlaw prostitution (sex for money) and many states have varied laws restricting various forms of (consensual) sexual behavior. All of these laws govern criminal behavior (as defined by the individual state).

When we talk about being “legal” with respect to BDSM we must distinguish between law enforcements’ responsibility to investigate what might look like a crime versus subsequent steps in the process such as actually making an arrest, having the District Attorney bring a charge in court, going through a trial and actually convicting a person of a crime.

An example of how this is applicable to those of us practicing consensual BDSM: If we are doing a “play abduction” scene originating in some location where a passerby happens to see and report what appears to be a kidnapping, the police will most likely investigate, and may make an arrest based on a reasonable presumption that a crime has occurred. Where that process might end depends upon a huge number of variables that including the personal beliefs of the DA and Judge.

Be aware that just because a bottom in a given scene is happy with the scene and swears to officialdom that the kidnapping was consensual does not mean that police cannot still arrest and a District Attorney cannot still charge and prosecute the top. In the bay area this type of prosecution is mercifully rare but that does mean it can not happen even here.

This situation can occur even in a private home where a neighbor observes “something” through a window or hears “something” that he or she finds suspicious and decides to call the police.

The net result is that there is no place we can do BDSM play without running some risk of having an unpleasant encounter with law enforcement. The risk may be greater or less depending on where we choose to play. Mitigating that risk is not the subject of this article but it is something we all need to keep in the back of our minds as we discuss zoning and licensing of play spaces.

There are two approaches employed to dealing with officialdom. One approach is the so called “fly under radar approach”. Here the concept is to keep what you are doing shielded from the public eye. Generally play parties at private homes are adopting this strategy. The party in most cases will only be advertised by word of mouth and the parties host will generally want to meet all the guests prior to extending an invitation. Folks tend to choose homes for parties where it is less likely to disturb the neighbors and risk a complaint to the local Police.

This is not the tactic that most public venues use. Within smOdyssey for example, we believe in the opposite approach “flying above the radar”. In this approach local law enforcement, licensing, zoning and other cognizant public safety officials are contacted in advance and our intentions regarding our parties are openly discussed.

We enjoy this sort of relationship in both the City of San Jose through the past efforts of smOdyssey pioneers like Jerome, and in Santa Clara through the continuing efforts of Ali at Edges.

Numerous issues crop up when you attempt to do BDSM parties in commercial spaces. Fire safety regulations, zoning restrictions, local laws on adult entertainment, business licensing requirements and use permits all come into play. A common misconception is that a space needs one specific license as a BDSM club. In fact, no such single license exists. Every business needs a local business license and most will need additional licenses and permits to cover various activities. That being said, being licensed as a business is not sufficient protection if the business has not been up front with local officials about the true nature of contemplated BDSM events.

For example Edges has several different licenses and permits. They have a basic Santa Clara City Business license for photography and video production, and they have another county required permit to offer non-accredited educational courses. Additionally they have special use permits to allow use of the facility for construction and or repair of what we would call play equipment.

In addition they had to pass through the scrutiny of both the local Zoning Department and the Fire Marshall. They are housed in a building zoned for industrial use, which in Santa Clara is the least restrictive zoning possible and the ideal location for an adult Members Only BDSM club. They also routinely pass inspections by the Santa Clara City Fire Marshall.

Equally important to getting all of the above permits and licenses though was being upfront with the city and county officials issuing those permits. Recently, Edges ownership sat down with Police Department Officials in the City of Santa Clara and spoke to them more than frankly about the activities within their building. No additional permits or licenses were required for Edges. This is due to Edges’ excellent track record in their first year of operation along with their strict members only status and membership policies. Both the Police Department and Fire Department are fully aware of the type of activity the space is used for. The good news here is that if for any reason fire, EMT or law enforcement had to come to the site their superiors would know in advance about the activities within Edges. This greatly reduces the likelihood of an officer deciding to issue citations or make arrests and thus leaving it to a judge to sort it out.

None of this is a guarantee that Edges and smOdyssey will always be welcome in Santa Clara County or City. Indeed no Dungeon space or leather event has such a guarantee in any county or city within the United States. Local standards of public “morality” can change at anytime and today’s cooperative public officials might be replaced with the next season’s elections by those opposed to sexual freedom.

Neither Edges nor smOdyssey is an activist group. It is neither of our goals to create confrontation and then test our first amendment rights in court. Our goals are the same, to provide access to safe, sane, consensual; risk aware, BDSM/Leather oriented social and educational opportunities. We both work to be as open and transparent as possible with our local authorities and to be good neighbors in our communities. While we can never guarantee absolute safety in pursuing our BDSM interests we can and do offer the highest possible degree of safety to our respective memberships.

Many have expressed dismay about the inconvenience of having to go through an application and orientation process for becoming members of smOdyssey and/or Edges. These measures are necessary to distinguish our organizations from Adult Erotic Entertainment facilities that would not be nearly as welcome within the city limits of Santa Clara in the same way that we are at current. These measures also assure that a level of screening stands between sincere BDSM folks and those who are merely curious and/or potentially disruptive.

Website: www.edges.biz