Adult Film/BDSM advise


Question
I have been curious about finding out laws related to BDSM. I am not interested in any nude photography, or any content that is considered nude. i only have interest which i like to explore that is bondage. which involves restraints any type of rope, cuffs etc..
so my question is is it illegal if i view any youtube videos, or search for website.
secondly, i like to engage in bondage activity with my wife time to time. can it be considered illegal? she or i will never to to any police authority with our problems but in general is it okay if we engage in Bondage activity.
once again to remind you i am not interested in any pornography, or any nude content. when i look for bondage related topics i search for women or men fully clothed and restrained. and that is my interest. so is it illegal?

Answer
It is a federal crime to knowingly receive obscene images - through a law that is very, very rarely enforced - and when it's been used by federal prosecutors lately, it's been used against knowingly receiving drawn images appealing to under-age sex that are not technically child pornography because they don't use any actual images of children. This statute might be used against BDSM images, though I know of no instance in recent decades where anyone has been prosecuted under its provisions for content, except those depicting children. The statute itself is not limited to children, but to any "obscene" material. Whether the images you plan to download are obscene is a complex issue of law that critically depends on the actual images themselves and the values of the community in which you receive them. To learn about obscenity law in general and to find the cases that illuminate the path, see http://www.xxxlaw.com/obscenity/index.html

United States v. Whorley, 550 F.3d 326 (4th Cir., 2008), cert. den. 130 S.Ct. 1052 comes as close to answering your question as anything I know of. You can find this case on my website at http://www.xxxlaw.com/cases/whorley.html

   Mr. Whorely was sentenced to 20 years in prison, largely because of cartoons. Whorley was convicted of "knowingly receiving on a computer" 20 obscene Japanese anime cartoons in violation of 18 U.S.C. Section 1462. They happened to depict minors engaging in sexually explicit conduct (that is, they contained drawings and text, but no pictures of these things). The fact that the cartoon featured drawings of minors is not very important to the statute which mentions nothing about children. It's just about receiving - including downloading - obscene matter. Yup. There is a little-known and seldom used statute on the books establishing a five-year felony for downloading "obscene" materials. Title 18 United State Code Section 1462, buried under subsection (c) where it's not exactly up front and obvious. No, it's not by any means limited to child pornography. Just old-fashioned, plain-Jane obscenity is what it covers.

   It says, "Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) [1] of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful— Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter." In general, the DOJ keeps this statute quietly stored in the backroom annex of its arsenal, dusting it off once in awhile, and putting it into use only when somebody can't be charged or convicted of a real child pornography offense - and that's what happened to Mr. Whorley.

   The trial judge and the Fourth Circuit looked at Stanley v. Georgia [http://www.xxxlaw.com/cases/stanley.html] and held that it did not establish a right to receive obscene materials, but only the right to possess them in the home. In doing so, they cited a long line of cases subsequent to Stanley in which mainly commercial pornographers caught moving obscene or allegedly obscene materials red-handed alleged that they had standing to argue the rights of their customers to acquire; they got no sympathy from the courts; the courts would have found it difficult to resolve the issue on grounds of their standing to assert the customers' rights, and so the right was narrowed. But in the context of an individual receiving material via the Internet in his home, there was no precedent whatsoever. As the dissent points out, the result dished out to Mr. Whorely requires an entire evisceration of huge chunks of Stanley that eloquently defend the right to "receive" ideas and absorb them in the home. En banc review was futile. The Supreme Court denied certiorari.

   So long as this issue is limited to the case of people in the vicinity of pedophilia, there will be no sympathy and this law will remain in force and effect. And you can count on the fact that it will never be used outside that context, for were it to be applied to any other kind of pornography, the screams across the land would be so loud that, in short time, all of the obscenity laws would be repealed. Of course, that's what it would take to get the public agitated enough to drown out the feeble drones of the Bible-Thumpers and get the obscenity statutes repealed because of the outcry from normal American people when they see for the first time what the government is holding over the heads of red-blooded, normal Americans who access porn on the Internet. So long as it's only used against people with cartoons featuring drawings of Japanese children, the public won't be moved. But nobody wants their son or daughter to go to prison and to be afflicted with the lifelong stigma of a federal felony conviction because they were caught at their laptop downloading videos of grown-ups doing sexual things. This is a nearly secret law that would never survive the democratic process were the public to learn of its existence. As for Mr. Whorely, can you imagine spending time on the playground as a kid with that name in school? He gets my sympathy on that basis alone.

So, in theory, a federal grand jury could indict you for knowingly receiving obscene images, if it concluded that the images showing BDSM as you describe are criminally obscene. A trial could follow at which you might try to defend the images as being nonobscene.

You ask about prosecution for consensual adult conduct with a wife that involves BDSM, presumably in private. My best guess is that such conduct is absolutely protected from prosecution under the doctrine announced in Lawrence v. Texas, which protected private homosexual conduct from criminal prosecution. Be aware however that a line of cases exist in some jurisdictions that hold that, as a matter of public policy, people are actually incapable of giving effective consent to assaults. Not sure about Texas or other jurisdictions, and the interplay with Lawrence has not yet been thrashed out in the courts. Your biggest worry is that trouble forments in your conjugal relationship and your wife goes to court claiming that this was all forced on her and that she never rally consented. Some of the famous cases involving oral sex and anal sex with wives (against various state sodomy laws, now of questionable survival in light of Lawrence) that resulted in guys going to prison, sometimes for decades, arose out of precisely this scenario.  

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J. D. Obenberger

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Numerous trials, including jury trials, criminal and civil since 1979. Obscenity. Section 2257. Copyright. Trademark. Communications Decency Act Section 230. Right of Privacy/Right of Publicity. Defamation/Libel/Slander. Warning Pages. Adult Internet Sites. Strip Clubs/Gentlemen's clubs. Massage Parlors. Prostitution. I am the author and operator of http://www.xxxlaw.com, the most comprehensive online legal resource concerning the law of adult entertainment online.

Experience

I've been an attorney for 34 years, nearly 20 years as an attorney concentrating in adult entertainment law. Have spoken at 72 adult webmaster show legal seminars and forums in six nations, seven American states, and three provinces of Canada, have appeared on the O'Reilly factor concerning obscenity, have been published by Thompson-Gale. Full qualifications at xxxlaw.com. My firm, J.D. Obenberger and Associates has provided representation in both criminal and civil matters for adult content producers, the operators of adult online businesses, as well as brick and mortar adult operations for nearly twenty years. We provide legal strategy, forms, protocols, and guidance for every kind of adult operation. Our clients find us available 24/7/365 in every emergency. My background includes numerous jury trials including the defense of major drug case in federal court on the Mexican border at Brownsville, forgery, sexual assaults, gun offenses, aggravated kidnapping, and such civil matters as pharmaceutical malpractice, premises and construction liability, and personal injury. I have prosecuted cases in the name of the United States while serving as a Captain in the United States Army Judge Advocate General's Corps. I have represented and advised clients in every part of the United States and from Hong Kong to Budapest. I am a regular columnist for XBIZ World and have published numerous articles in AVN and AVN Online and for YNOT.

Organizations
First Amendment Lawyers' Association, Free Speech Coalition, National Rifle Association, American Legion.

Publications
AVN, XBIZ, YNOT, Online Pornography, published by Thompson-Gale.

Education/Credentials
Doctor of Law, 1979, University of Wisconsin Law School. Dean's List. Graduate, National Institute of Trial Advocacy. Guest Lecturer, John Marshall Law School. I have presented Continuing Legal Education for practicing attorneys. Undergrad BA, the University of Wisconsin, double major in Political Science and History. Graduate, 90th Basic Judge Advocate General's Course on the campus of the University of Virginia.

Awards and Honors
Army Commendation Medal awarded as a Captain, US Army Judge Advocate General's Corps, as the most requested criminal defense lawyer in the US Army, Europe.

Past/Present Clients
No legal issue too great or too hot to handle, no client too small to deserve zealous and effective representation.

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