JUDGE UPHOLDS USE OF SEX TRAFFICKING FORCED LABOR LAWS IN ABUSE CONVICTION

NYLJ 5/24/07

4. JUDGE UPHOLDS USE OF SEX TRAFFICKING FORCED LABOR LAWS IN ABUSE CONVICTION

4. Start at the statute and it all seems dry as melba toast. The Federal Trafficking Victims Protection Act of 2000 covers forced labor and coerced behavior in what is defined by the term of art as a “commercial sex act”. And that is when the taint of some salt begins to hit the tongue. You roll it around and there’s “commercial”, which makes you think of everything from a 30-second spot to a lower-grade of product one step up from generic. Then comes the well-nigh compound noun that runs together as “sex act”, conjuring visions from old 42nd Street peeps shows to a hand job from a TV in the sordid depths of the Meat Packing District (once aptly-named) and all points in between, neither excluding nor underscoring prostitution in any form.

At this point, it reaches the state of the taste of a really interesting appetizer.

When it comes down to case, you have a defendant, non-descript as you might expect from a webmaster, expect that the ‘master’ also applies to his much softer-ware, his slaves. This is where the simple bite and tang begins to sour. How do you draw the line between a consensual relationship for mutual gratification between two adults and pimping out a stable of whores addicted to pain and low-self-esteem?

You don’t. You just add it up. The He-man makes a profit from his She-Ras by using their provocative photos to bring members to his internet site, offering them anonymous pleasures of selecting women they like, the costumes they would like to see them in, and the tortures or positions they would find most piquant. Sort of an “ala carte order of perversion” was how it was nailed in cross, imprinting the idea of “one from column A, one from column B” in a whole new manner upon the jury. Have to hand it to He-Man though. For him, as it was for her, this was a creative exercise, a craft in which they were partners. The “alternative lifestyle” which is so often bandied about would have to measured against the “work of art” argument.

Then the famous pornography definition comes into play. “I may not know how to define it, but I know it when I see it,” proves that you don’t need to be a wit to be on the Supreme Court, but it helps if you want people to remember your decisions. Looking for “transgressive material productions’ via Google may be one way of getting to the site. But, as well, page markers for “bitches brought to heel”. While one may be called “art”, the other is purely prurient interest.

Follow the testimony plain and unvarnished and it develops much as any inhuman affairs. Sherry met Herman in a B&D chat room and began an increasingly intimate correspondence, leading to a physical encounter in which she consented to the relationship as a submissive to his dominant will. This is not in dispute. At his direction, she moved to Baltimore and took up residence with another slave, with whom, as part of her duties, built and maintained his website, including answering correspondence with members as well as posting photos of herself being “abused”.

The question of abuse, at this point, was more a term of art than a felonious assault. There is no question that she derived pleasure and gratification here. That participation in the financial enterprise and the psycho-sexual gameplay which, however much it may be indistinguishable from what a reasonable person might term both “crass exploitation” and “sick, depraved and ugly”, is a choice made by an adult who is mentally competent. Any further question of whether or not she is “compos mentis” is really answered by the fact of the instant case: she tried to leave.

It was a year later when during a visit to his slave quarters in Maryland that Herman had handcuffed Sherry to a wall, preparatory to a long session of torture. As characterized by the DA on direct, the proscribed limits of sado-masochistic role-playing are when the victim and 'administrator' have a pre-arranged “safe word”: an agreed-upon non-sequitor that signals one has had enough. “Crying ‘Uncle’, as it were?” was the way to get it into the record to remember.

However, in the social contract, there existed no such exit clause. When Herman places a whiffle ball into her mouth and sews up her lips with surgical suture, any other option for protest becomes moot. Then came the hood and an extensive caning session followed by rough intercourse. This was not the culmination. That Sherry was then moved to a flat board and rechained in order to continue her brutalization on her front is what triggered her fear that she no longer had any out save flight.

It was shortly thereafter when Sherry left Baltimore and moved to New York City. Some jurors may have found it strange that she would move in with another of Herman’s slaves, in that city, but the prosecution’s expert witness on cult survivors offered a perfectly acceptable explanation. “In such cases of extreme exposure to a particular doctrine or discipline, and ex-member will seek the counsel of other disciples or ex-members, much as you or I would, after say, an extended stay under water in the deep, need time in a hyperbaric chamber. The body adjustment to sea-level pressure is similar to what the mind must overcome, the prolonged exposure to the domination of another’s physical prescence and will is better dealt with by others who know the codes; the modes of behavior, the moods, and can share their knowledge and empathy. Just because the person she went to live with is another slave does not mean she cannot aid in the victim’s recovery from her own slavery.”

Then there was the additional aspect of the control of her “intellectual property”. Herman still had distribution rights to her images, even, as if in some cheap porno stroke book, threatening to send them out to her friends and family if she did not resume her submissive role. While living with the slave in New York, Sherry made a few attempts to convince Herman that their “product” should be under her control as well, attempting to gain some degree of choice about this joint venture. However, her assertions of independent action clearly had the reverse effect, and it was at this point when she went to the authorities.

Such as it was that the judge ruled in favor of a statute more used in the prosecution of RICO-affiliated cases, in counterfeit smuggling of artificial snuggling as well as the standard import of foreign nationals to work in ethnic enclave brothels. Even the view from the bench was that this was a “Novel application,” observing “while the Congress did not expressly indicate its desire to regulate labor or services performed within this household, for that was, in essence, the situs of the continuing incidences, the legislative history provides no cause to believe Congress intended to exclude this type of labor from the statute’s reach.”

Which was exactly the basis of Herman’s attorney’s in seeking to set aside the conviction. It was their contention that insufficient evidence was presented for the jury to find a nexus between the defendant’s coercion and the commercial sex act or labor element. It should be enough to ask, “Can anyone tell me when the accrual of revenue from the photographs could be differentiated from the acts themselves—‘acts’, mind your, is the word which is used here, and while it may mean ‘actions’, it also applies to the consensual gratification of two adult individuals engaged in role-playing games, as much as movies, and one’s in which no Oscar is more rewarding of a brilliant theater piece than convincing the other that what they are experiencing is real. To that end, then, whatever props, ploys or plot devices which are employed to that end, are not only fair but expected.”

As arguments go, this is pretty good. A bit of sophistry and some rhetorical flourishes (especially the redefining of ‘acts’), but all-in-all a fair summary of what is at the back of a lot of male juror’s minds. No matter how liberated and balanced the attitude on the sexes, there is always that primitive part of which comes in a guttural utterance: She asked for it. There it is; that overwhelming conundrum at the heart of the defense case: if “no” was part of the script, when did it change to being part of the contract?

This is exactly the premise his counsel would put forth on appeal. “Unless you are a major proponent of judicial activism,” couching the issue in terms readily understood as left-wing in the preset climate of conservative retrenchment, “this calls for a narrow reading of the statute. If read as broadly as this case would present, it would subsume within it a lot of fay-to-day innocent conduct. It would be hard for me to see any federal interest being vindicated here.”

The Court stuck to its guns-&-butter issue. “The evidence entered at trial was sufficient to show that the defendant’s conduct—no matter how you read ‘act’ or ‘actions’ or ‘theater piece’ or ‘therapy’—fell within the plain language of the statutes.”

“And as for your ‘contract’, the ‘no’ part became active the moment she exercised her option on the Escape Clause. Don’t look for it in the fine print; it’s in approximately the same spot as in the Constitution of the United States. I know Jefferson didn’t make any specific reference to a 3/5ths compromise about sex slaves, his Sally Hemmings aside, but the bit about Liberty, and Freedom from tyranny, is close enough.”