text:
December 4, 2014 - Motion on behalf of the National Coalition for Sexual Freedom for leave to file a brief as amicus curiae in support of appellant's petitioin for grant of review.
Clict to open the filed motion
March 26, 2014 – Washington DC. – NCSF has filed an amicus brief in a military case involving a marine who engaged in a consensual threesome and because of that was convicted of adultery, attempted consensual sodomy and indecent conduct, a "crime" based solely on undefined sexual conduct inconsistent with "common propriety."
Click to open Subject Index, Table of Authorities & Amicus Brief
"When the Levee Breaks: A guide to dealing with and avoiding arrest and prosecution in BDSM scenes."
"When the Levee Breaks" is a companion to the NCSF publication, "The Aftermath," and is a guide to provide a perspective for those who have, through mistake, misunderstanding, or a fleeting lapse of reason, committed an act of criminally actionable sexual assault. It is not intended to provide a defense for indefensible acts. "When the Levee Breaks" also provides information on how to better protect oneself against arrest and prosecution.
Click to get a PDF of "When the Levee Breaks"
"The Aftermath: A guide for victims of sexual assault and/or intimate partner violence in the BDSM community," by Natalie Quintero
"The Aftermath" is a compilation of advice that is regularly provided to victims who ask for help through NCSF's Incident Reporting & Response project. This guide will educate anyone in the BDSM community who has been victimized on what one might expect to experience after an assault, what one's options are, things to consider when weighing options and making decisions on what to do next, what one might expect if one decides to report the experience, as well as the resources available to assist in coping with and healing from abuse.
In most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said:
"Grimm's consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…"Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980).
Click to open Massachusetts v Appleby PDF
Law citations dealing with consent, compiled by the NCSF Consent Counts Project
|New Hampshire
|New Jersey
|New Mexico
|New York
|N. Carolina
|N. Dakota
|Rhode Island
|S. Carolina
|S. Dakota
|W. Virginia
Click to download a PDF of this document
|13A-6-20 (1st degree)
|13A-6-21 (2nd degree)
|(physical injury, serious physical injury)
|13A-6-22 (3rd degree)
|11.41.200 (1st degree)
|11.81.900 (serious physical injury, reckless)
|11.41.210 (2nd degree)
|11.41.220 (3rd degree)
|11.41.250 (reckless endangerment)
|13-1203 Simple Assault
|13-12-4 Aggravated Assault
|5-13-201 1st degree battery
|5-1-102 definitions
|5-13-202 2nd degree battery
|5-13-203 3rd degree battery
|5-13-204 Aggravated assault
|5-13-205 1st degree assault
|5-13-206 2nd degree assault
|5-13-207 3rd degree assault
|Penal Code 241 Assault, Punishment
|Penal Code 7 Words and Phrases defined
|Penal Code 243 Battery, Punishment
|Penal Code 240 Assault Defined
|Penal Code 245 Assault with deadly weapon or force likely to produce great bodily injury
|Penal Code 242 Battery Defined
|18-3-202 (1st degree)
|18-3-203 (2nd degree)
|18-3-204 (3rd degree)
|18-3-208 (reckless endangerment)
|53a-59 (1st degree)
|53a-3 (serious physical injury, recklessly)
|53a-60 (2nd degree)
|53a-61 (3rd degree)
|53a-63 (reckless endangerment 1st degree)
|53a-64 (reckless endangerment 2nd degree)
|11 Del Code 611 (3rd degree)
|11 Del. Code 452 Consent of victim to inflictions of physical injury as defense
|11 Del Code 222
|11 Del Code 612 (2nd degree)
|11 Del Code 613 (1st degree)
|11 Del Code 603 (reckless endangering 2nd degree)
|11 Del Code 604 (reckless endangering 1st degree)
|22-404 (Assault)
|No definitions section in this particular subchapter – "Serious bodily injury" defined elsewhere
|22-404.01 (Aggravated Assault)
|22-407 (threats of bodily harm)
|784.011 Assault
|784.021 Aggravated Assault
|784.03 Battery, Felony battery
|784.045 Aggravated Battery
|16-5-20 Simple Assault
|Definitions contained within the statutes
|16-5-23 Simple Battery
|16-5-23.1 Battery
|707-710 Assault 1st degree
|702-734 Consent to Bodily Injury
|707-700 definitions related to offenses against the person
|707-711 Assault 2nd degree
|707-712 Assault 3rd degree
|707-713 Reckless Endangering 1st degree
|707-714 Reckless Endangering 2nd degree
|18-902 Assault
|18-101, 18-101A (both are "Definitions" sections)
|18-904 Battery
|18-901 "Assault"
|18-906 Aggravated Assault
|18-903 "Battery"
|18-908 Aggravated Battery
|18-905 "Aggravated Assault"
|18-907 "Aggravated Battery"
|720 ILCS/21-1 Assault
|720 ILCS 5/2 et seq. contains definitions – no good definitions of "serious bodily injury"
|720 ILCS/21-2 Aggravated Assault
|720 ILCS/21-3 Battery
|720 ILCS/21-4 Aggravated Battery
|720 ILCS/21-5 Reckless Conduct
|35-42-2-1 Battery
|35-41-1-4 "Bodily Injury"
|35-42-2-1.5 Aggravated battery
|35-41-1-25 "Serious bodily injury"
|35-42-2-2 Criminal recklessness
|708.1 Assault Defined
|708.1 Assault Defined
|708.2 Penalties for Assault
|21-3408 Assault
|21-3201 Criminal Intent
|21-3110 Definitions
|21-3410 Aggravated Assault
|21-3204 Guilt without criminal intent
|508.010 (1st degree)
|500.080 Definitions
|508.020 (2nd degree)
|508.025 (3rd degree)
|508.030 (4th degree)
|508.060 (wanton endangerment 1st degree)
|508.070 (wanton endangerment 2nd degree)
|14:38 Simple Assault
|14:2 definitions
|14:37 Aggravated Assault
|14:33 Battery Defined
|14:36 Assault Defined
|Tit. 17A Sec. 207 Assault
|Title 17A Sec. 2 (Bodily Injury, Serious Bodily Injury, Recklessly)
|17A sec. 208 Aggravated Assault
|17A Sec. 211 Reckless Conduct
|3-202 (1st degree)
|3-207 (dismissal possible if both victim and defendant agree)
|3-201 Definitions
|3-203 (2nd degree)
|3-209 defenses
|3-204 reckless endangerment
|Ch. 265 sec. 13A Assault or Assault and Battery
|None direct, but analogous to ch. 265 sec. 13K
|750.81 Assault
|"Serious Injury" defined in the caselaw
|750.81a w/infliction of serious injury
|609.221 (1st degree)
|609.02 Definitions
|609-222 (2nd degree)
|609-223 (3rd degree)
|609-2231 (4th degree)
|609.224 (5th degree)
|97-3-7 Simple and Aggravated Assault
|565.050 (1st degree)
|565.002 (Serious physical injury)
|565.060 (2nd degree)
|565.070 (3rd degree)
|45-5-201 Assault
|45-2-211 Consent as a Defense
|45-2-101 General definitions
|45-5-202 Aggravated Assault
|45-5-207 Criminal Endangerment
|45-5-208 Negligent Endangerment
|28-308 (1st degree)
|28-109 (Serious Bodily Injury)
|28-309 (2nd degree)
|28-310 (3rd degree)
|200.471 Assault, Definitions, Penalties
|200.481 Battery, Definitions, Penalties
|631:1 (1st degree)
|626:6 Consent (similar to MPC)
|625:11 General definitions
|631:2 (2nd degree)
|631:2-a (Simple assault)
|631:3 Reckless Conduct
|2C:12-1 (Assault)
|2C:2-10 (Lifted from the MPC)
|2C:3-11 (bodily harm, serious bodily harm)
|2C:12-2 (reckless endangerment)
|30-3-1 Assault
|30-1-12 (Great Bodily Harm)
|30-3-2 Aggravated Assault
|30-3-3 Assault with intent to commit violent felony
|30-3-4 Battery
|30-3-5 Aggravated Battery
|Penal Law 120.00 (3rd degree)
|Penal Law 10.00 (Serious Physical Injury,
|Penal Law 120.05 (2nd degree)
|Penal Law 120.10 (1st degree)
|Penal Law 120.20 (Reckless Endangerment 2nd degree)
|Penal Law 120.25 (Reckless Endangerment 1st degree)
|14-32.4 (Assault inflicting serious injury, Strangulation)
|Definitions contained in the assault statutes
|14-33 (Misdemeanor assults, batteries, affrays)
|12.1-17-01 Simple Assault
|12.1-17-08 Consent as a Defense (very similar to MPC)
|12.1-01-04 General Definitions
|12.1-17-01.1 Assault
|12.1-17-02 Aggravated Assault
|12.1-17-03 Reckless Endangering
|2903.13 Assault
|2901.21 Requirements for Criminal Liability
|2903.11 Felonious Assault
|2903.12 Aggravated Assault
|2903.14 Negligent Assault
|644 Assault and Battery
|641 Assault
|645 Assault and Battery with a Dangerous Weapon
|642 Battery
|646 Aggravated Assault and battery
|647 Punishment for Aggravated Assault and Battery
|163.160 (4th degree)
|161.015 Definitions
|163.165 (3rd degree)
|163.175 (2nd degree)
|163.185 (1st degree)
|2701 Simple Assault
|Seemingly allowed in the caselaw
|2301 Definitions
|2702 Aggravated Assault
|2705 Reckless Endangerment
|11-5-1 Assault with intent to commit felonies (incl. sodomy)
|11-5-2 Felony Assault
|11-5-3 Simple Assault, Battery
|No statute?
|22-18-1 (Simple Assault)
|22-1-2 (Serious bodily injury)
|22-18-1.1 (Aggravated Assault)
|39-13-101 Assault
|39-13-104 Consent (very much like MPC)
|39-11-106 Definitions
|39-13-102 Aggravated Assault
|39-13-103 Reckless Endangering
|Penal Code 22.01 Assault
|Penal Code 22.06 Consent as a defense to assaultive conduct
|Penal Code 1.07
|Penal Code 22.02 Aggravated Assault
|76-5-102 Assault
|76-5-104 Consensual Altercation
|76-1-601 Definitions
|76-5-103 Aggravated Assault
|13 VSA 1023 Simple Assault
|13 VSA 1021 Definitions
|13 VSA 1024 Aggravated Assault
|13 VSA 1025 Recklessly endangering
|18.2-57 Assault and Battery
|9A.36.011 (1st degree)
|9A.04.110 (Bodily Harm, Great Bodily Harm)
|9A.36.021 (2nd degree)
|9A.36.031 (3rd degree)
|9A.36.041 (4th degree)
|9A.36.050 (Reckless Endangerment)
|61-2-9 Malicious or unlawful assault; assault; battery
|940.19 Battery, Substantial Battery, Aggravated Battery
|939.22 Words and Phrases Defined
|940.23 Reckless Injury
|939.24 Criminal Recklessness
|6-2-501 Simple Assault, Battery
|6-1-104 (Bodily Injury, Serious Bodily Injury, Recklessly)
|6-2-502 Aggravated Assault, Battery
|6-2-504 Reckless Endangering
By Susan Wright
The 2008 survey saw a total of 3,058 responses collected. Of those, 2,412 respondents resided in the United States (83.4%). Of the remaining 480 respondents, a total of over 42 other countries were represented. Where appropriate, the data is compared to the 1998 Violence & Discrimination Survey Against Sexual Minorities which collected over 1,000 responses to similar questions over the course of a year. The 1998 survey did not cover business or event-related experiences of harassment, nor did it ask about Internet experiences. The 2008 survey also included more questions about sexual activity and identity.
|Table 1. Gender
|Table 2. Sexual Orientation
A total of 1,146 (37.5%) respondents indicated that they had either been discriminated against, had experienced some form of harassment or violence, or had some form of harassment or discrimination aimed at their BDSM-leather-fetish-related business. Of the respondents who reported some form of persecution,
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
Of the 1,146 respondents who indicated that they had either been discriminated against or had experienced some form of harassment or violence,
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
The sexual orientation of respondents who were discriminated against or had experienced some form of harassment or violence is compared in Table 6.1 to the total percentage of respondents who identified their orientation. It is interesting to note that Gay/lesbian, Bisexual and Other respondents have slightly higher rates of persecution than their average percentage of total respondents, while Heterosexuals are less likely to be discriminated against.
|Table 3. Sexual Orientation
and Discrimination
|Total Percent
2008 Respondents
In 1998, the survey asked: "Are you completely 'out' about your involvement in sexual minority practices? "62% stated they were not "completely out." That is statistically almost the same as the 59.5 and 59.7% of respondents in the current survey who said they weren't out to work and/or family.
11.3% (346) of the total number of respondents (3,058) reported being discriminated against by professional or personal service providers. That is 30% (346) of the respondents who were discriminated against (1,146). Those respondents could check one or more of the specific ways they were discriminated against (Table 8.), with 48.8% discriminated against by a medical doctor, and 39.3% discriminated against by a mental health practitioner.
|Table 4. Discrimination by Professionals
|Medical doctor
|Mental health practitioner
|Police or govt. employee
|Other Professional service provider
|Other Personal service provider
|Building contractor
In total, 203 (6.6%) respondents stated their business had been harassed or discriminated against.
Respondents could check one or more of the specific ways they were discriminated against
(Table 5.).
|Table 5. Business Discrimination
|Negative media coverage
|Harassment by police/author
|Harassment by neighbors
|Harassment by organizations
|Loss of lease
|Refused credit card services
|Loss of business
|Refused insurance coverage
|Loss of occupancy certificate
When asked, "Have you curtailed your use of the Internet for fear of prosecution?" More than one-third of the respondents, 1,065 (34.8%) of the 3058 respondents, said "yes". Respondents could check one or more of the specific ways they curtailed their Internet use (Table 10.).
|Table 6. Curtailed Internet Use
|Didn't post image
|Didn't visit website
|Didn't post text
|Didn't link to website
|Didn't join email group
|Posted 18-over warn
|Barred users
|Didn't add meta-text
9.3% of respondents, 285 out of the total returned surveys, reported that US 2257 had an impact on their use of the Internet. Of the 1,065 respondents who indicated that they had curtailed their use of the Internet regarding BDSM activities, 214 (20.1%) reported that US 2257 was a significant reason for that curtailment.
When respondents who experienced violence and/or harassment were asked, "Did you press charges?" 90% said no as compared to 96% of the respondents in the 1998 survey who did not press charges.
|Table 7. Reasons Declined To Press Charges
|Fear of further harassment
|Fear of family disapproval
|Fear of job safety
|Fear of legal repercussions
|Fear of losing child custody
Copyright Susan Wright, Survey of Violence & Discrimination Agaisnt Sexual Minorities (2008)
Affidavit of Susan Wright in Response to Affirmation in Opposition to Motion to File a Memorandum of Law Amicus Curiae
N.Y. Co. Ind. No 10938/96
Cal. No. 98-10474
1. I, Susan Wright, am the Executive Director of the National Coalition for Sexual Freedom (NCSF) .
2. I write this affidavit in response to the DA's Brief in Opposition to the NCSF request to file an Amicus Curia Brief. I am at a loss as to why the Appellate Division of the DA's office has labeled the NCSF a "phantom entity. In August 1998, I contacted Martha Bashford at the D.A.'s office because she had worked with one of the NCSF Board organizations, Gay Male S/M Activists (GMSMA) , on a criminal case (the so-called Dangerous Top, Michael Payte). (see Appendix A, Village Voice article by Guy Trebay.) Martha Bashford suggested I send an email proposing that: the NCSF and the DA's office have a meeting to ensure the DA's position would not harm our constituents. I received no response to my requests, and contacted Martha Bashford again in October 1998. We spoke briefly, but no arrangements were made at that point for a meeting. In late l998, the NCSF began considering the necessity of filing an Amicus Brief.
3. The NCSF was founded in 1997 and consists of 20 organizations with a combined membership of 6,500. The NCSF is an advocacy and lobbying organization that supports the understanding and tolerance of sexual minority practices. The NCSF has been noted by the New York media in this capacity (see Appendix B, article from the New York Blade which cites NCSF's activity on sexual liberation issues). NCSF is in the process of incorporating in the State of Virginia and applying for a 501(C)4 status. Our accountant is: Rob Lyons at (301) 6648204; and our filing attorney is Jeff Yablon at Shaw Pittman, 2300 N. Street N.W , Washington DC 20)37. The executive office of the NCSF is currently in my home office at 381 Manhattan Avenue, Brooklyn, NY, 11211 (718)383-3318. Additional information on NCSF can be provided upon request.
The Board of Directors of the NCSF consists of representatives from five of the largest and oldest organizations (dating back to 1971) in our coalition. Most of these organizations enjoy formal not-for-profit status in their own right. (See Appendix: one-page mission statements from each of the five organizations sitting on the Board of the NCSF.) The Board Members are:
Susan Degnan
The Eulenspiegel Society
P.O. Box 2783
New York, NY 10163-2783
(212) 388-7022
Joe Holt
The Society of Janus
P.O. Box 426794
San Francisco, CA 94142
(650) 985-7117
Athena Lyons
National Leather Association- International
3439 N.E. Sandy Boulevard #155
Portland, Oregon 97232
(614) 899-9148
Jack McGeorge
Black Rose
P.O. Box 11161
Arlington VA 22210
(202) 686-5880
Bob Zieniewicz
Gay Male S/M Activists
332 Bleecker Street, #D23
New York, NY 10014
(212) 727-9878
The other fifteen organizations that belong to the NCSF are: Boston Dungeon Society (Massachusetts), Connecticut Munches (Connecticut), Knot For Everyone (New Jersey), LATCHES (National), Ohio Leather Coalition (Ohio), People Exchanging Power - PEP (Ohio), Memphis Power Exchange (Tennessee), The Power Exchange (Maryland), The Red Chair (Alabama), The Rose Garden (Southwest), SigMa (Washington DC), SMART - Sado Masochist Alliance Real Time (Ohio), St. Louis Leather & Lace (Missouri), TALON (North Carolina), and The Tri-State Couples Club (Pennsylvania).
6. On January 7th 1993, the NCSF received a copy of the D.A.'s brief which by eliminating consent as a defense and denying the constitutionality of practicing sadomasochism, effectively criminalizes sadomasochistic activity. The NCSF retained Michael T. Fois as Counsel of Record to file an Amicus Brief on behalf of our organization. At that time, we believed oral argument was scheduled for mid-February.
7. This is the first time the NCSF has injected itself into any legal proceeding, however the NCSF has been active in both National and local sexual minority issues. we release a weekly Media Update (archived on our website at www.ncsfreedom.org) covering sexual minorities in the news media, and as part of our anti-defamation efforts, the NCSF opposed the State University of NY's condemnation of President Bowen for including sexual minority topics in a Women's Conference at SUNY New Paltz. The NCSF participated in Lobby Day in April 1997 in Washington DC, lobbying for equality in the workplace for sexual minorities. The NCSF is currently analyzing the 1,000+ returned surveys from the lst National Survey of Violence & Discrimination Against Sexual Minorities, and in the summer of 1998, I gave over 50 radio interviews around the country on the preliminary results of this survey.
8. The reaction of the D.A. after the attempts the NCSF has made to open a dialogue on this matter simply proves the need for diligent representation of sexual minority issues. Mark Dwyer states in his Opposition: "under the Penal Law, if a sadomasochist engages in conduct that falls within the assault statutes (e.g., in intentionally causing physical injury or I serious physical injury to another) , he is guilty of assault, regardless of whether the victim I consents." There are tens of thousands of practitioners of sadomasochism in New York who would be justifiably concerned with this statement, as it comes from a D.A. who has already concluded that hot candle wax is "a dangerous weapon." The NCSF contends that consent is the basis for determining if an activity is sadomasochism rather than assault. The DA has ignored our offers to educate them as to sadomasochistic practices and the nature of consent in those practices. We hope this Court is more receptive.
Susan Wright
Notary Public, State of New York
No. 0 1 PR6010126
Qualified in Kings County
Commission Expires July 13, 2003
THE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
Plaintiff-Respondent, 10938/96
Michael Thomas Fois, an attorney admitted to practice in front of this Court, affirms and states under penalty of perjury, the following:
brief section on the State Constitution, an area of law the District Attorney apparently believes not worth addressing.
Dated: New York, New York
February 1, 1999
Respectfully submitted,
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211(212) 353-8984
-against- MEMORANDUM OF LAW
Respondent, AFFIRMATION IN OPPOSITION TO MOTION TO FILE A
-against- MEMORANDUM OF LAW
N.Y. Co. Ind. No. 10938/96
Cal. No. 98-10474
MARK DWYER, an attorney duly admitted to practice before the courts of this state, affirms:
1. I am an Assistant District Attorney, of counsel to ROBERT M. MORGENTHAU, District Attorney of New York County. I submit this affirmation in response to the motion of Michael Thomas Fois in the above-captioned matter. Mr. Fois identifies himself as an attorney for the National Coalition for Sexual Freedom (NCSF), and seeks leave to file a Memorandum of Law amicus curiae on behalf of that organization (Fois Aff. 1).
2. Of course, this Court has the discretion to permit interested parties to file amicus curiae briefs that may prove helpful to the Court. However, the People respectfully submit that this Court should accept amicus briefs only from organizations with recognized reliability, and expertise in legal matters. On a practical level, there is no point in burdening the Court, or the parties, with a brief filed by a phantom entity. Furthermore, the credibility of such an organization would be suspect at best, which would raise serious doubts about the substance of any arguments it wishes to present.
3. Our research reveals that the so-called NCSF is just such a phantom entity. About all that Mr. Fois asserts concerning the NCSF is that it is a "not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere" (Fois Aff. t 2) However, a comprehensive review of listings, phone books, and databases reveals no proof that there is such an organization as the NCSF. Indeed, a thorough search of the relevant public records indicates that no organization named the "National Coalition for Sexual Freedom" has ever filed for non-profit status, nor has any such organization filed a tax return or been chartered as a business entity.
4. In his motion, Mr. Fois lists the address of the NCSF as 381 Manhattan Avenue, Brooklyn, NY 10009, and lists its phone number as (212) 353-8984 (Notice of Mot.). This appears to be a phony address. For starters, the phone number is a Manhattan phone number (area code 212), while the address is in Brooklyn. And the zip code listed (10009) is located in lower Manhattan -- not in Brooklyn. The correct zip code for 381 Manhattan Avenue in Brooklyn is 11211.
5. Moreover, no organization called the NCSF is listed at either the address or phone number provided by Mr. Fois. The address is not a business address; it is a residential apartment building. Neither Mr. Fois nor the NCSF is listed as a resident of that building. The phone number provided is a residential number, listed in the Manhattan phone book as belonging to Mr. Fois.
6. Further, there is no mention of the NCSF in any reported opinion, in any jurisdiction. As far as we can tell, this is the first attempt by the NCSF to inject itself into any legal proceeding.
7. While the NCSF does not seem to exist in the "real" world, it does appear to exist in the "virtual" world of cyberspace. The NCSF has a website (httv://www.ncsfreedom.org), which is dedicated to the discussion of various sexual practices (including, but not limited to, sadomasochism) , and which contains links to other websites of a similar nature. The website makes no mention of Michael Fois or his affiliation, if any, with the NCSF.
Court is undoubtedly aware, this case has attracted more than its share of media attention.
Yet the NCSF waited until January 22, 1999 -- merely eleven days before the scheduled oral argument date of February 2, 1999 -- to file its motion, and made the motion returnable on the day of oral argument. By filing at such a late date, the NCSF has given the parties little opportunity to respond to its contentions. This alone is a sufficient reason to deny the NCSF's application to file an amicus brief.
10. Further, the NCSF brief has nothing to offer on the merits. First, the NCSF characterizes the People's position as an argument that all sadomasochistic conduct is illegal (Mem. of Law at 2-3) That is an absurd mischaracterization. The People instead have argued that if all the statutory elements of assault are made out, that the victim allegedly consented is not a defense.
11. The NCSF's response to the People's actual position is meritless. As discussed in Point XI of the People's Brief, the plain language of the assault statutes, the structure of the legislative scheme, and the case law compel the conclusion that the Legislature did not intend for consent to be a defense to criminal assault. Nevertheless, the NCSF claims, the People have fallen "asleep at the switch" in making this argument, in that they have failed to notice "a myriad of decisions" in New York cases supposedly rejecting the People's position (Mem. of Law at 3) . Oddly, however, the NCSF cites only two New York cases that were not addressed in the People's brief. See Mercurv Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82 (lst Dept. 1989), affld, 76 N.Y.2d 256 (1990); Pillow v. Bushnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849) And neither of these cases even remotely supports the NCSF's argument that consent is a defense to criminal assault.
12. First, Mercury Bay, on which the NCSF relies heavily (Mem. of Law at 13-17), is completely inapposite. The issue in that case was whether New Zealand violated the terms of the Deed of Gift of the America's Cup by entering a catamaran in the world famous yacht race. See 150 A.D.2d at 82-101. This, obviously, has nothing to do with whether consent is a defense to criminal assault.
13. The NCSF asserts that Mercury Bay supports its position because of language in a concurring opinion by Justice Rubin, exploring, in dicta, the history of sportsmanship. See 150 A.D.2d at 101. In this discussion, which the NCSF fails to identify as coming from a concurring opinion, Justice Rubin noted that if a hockey player were charged with assault for hitting another player with his hockey stick and injuring him, the courts would be required to determine, inter alia, whether the stick "was wielded with the requisite intent to constitute an assault," and whether the "injured player may be deemed to have consented to the use of such tactics by his participation in the game." However, Justice Rubin did not opine as to whether a hockey player actually is deemed to have consented to such an injury. Rather, Justice Rubin merely made the obvious point that, in such a. case, the courts would be required to determine whether consent might be a valid defense. Ana certainly, Justice Rubin never implied that consent might be a defense to a violent sadomasochistic assault, involving the use of dangerous instruments, as occurred here.
14. The NCSFI s reliance on Pillow v. Bu-shnell, 5 Barb. 156 (Sup. Ct. , 3rd Jud. Dist. 1849), is equally unavailing. In Pillow, a woman brought a civil suit against her husband for assault and battery. on appeal, the court held that the trial court had erred by permitting the defendant to compel his wife to testify at trial. Id. at 157-61. The court also noted, in dicta that the trial court correctly charged the jury that it would be a defense to the civil suit if the husband could prove that the wife consented to the assault. Id. at 161.
15. Thus, Pillow merely restated the common law rule that a plaintiff may not recover civil damages for assault and battery if he consented to the tortious conduct. See Restatement (Second) Torts ¤ 892A. This is a far different question from whether consent is a defense in a criminal prosecution. Indeed, the Restatement specifically notes that while consent is a defense to a civil assault action, it is not a defense to a criminal prosecution, see Restatement (Second) Torts ¤ 892C, cmt. a and ill. 1, unless, of course, such a defense is provided by statute. And, as detailed in the People's brief, the New York Penal Law does not provide a consent defense to assault.
16. Finally, at bottom, the NCSF's claim is one not of law but of policy. Despite the clear legal precedent to the contrary, the NCSF believes that consensual, sadomasochistic sex should be protected by the law and the constitution, because it is healthy, "innocuous love-play" (Mem. of Law at 2) . The People take no position on the merits of this argument as a political matter; rather, we merely point out that under the Penal Law, if a sadomasochist engages in conduct that falls within the ambit of the assault statutes (e.g., intentionally causes "physical injury" or "serious physical injury" to another) , he is guilty of assault, regardless of whether the victim "consents." Of course, if the NCSF wishes to decriminalize all sadomasochistic assaults, it should take its arguments to the Legislature. After all, its website boasts that it is a lobbying organization.
WHEREFORE, the People respectfully request that the NCSF's motion to file a Memorandum of Law amicus curiae be denied.
Dated: New York, New York January 26, 1999
Assistant District Attorney
CC: Mr. Michael Thomas Fois
Attorney for Amicus Curiae
C/o National Coalition for Sexual Freedom 381 Manhattan Ave.
Brooklyn, NY 11211
Diarmuid M. White, Esq.
Attorney for Defendant
148 East 78th Street
New York, NY 10021
Respondent, -against-
N.Y. Co. Ind. No. 10938/96
Cal. No. 98-10474
District Attorney
New York County
One Hogan Place
New York, New York 10013
(212) 335-9000
Mark Dwyer
Assistant District Attorney
Of Counsel
------------------------------------------------------------------------------------------------XTHE PEOPLE OF THE STATE OF NEW YORK, Indictment No.
Plaintiff-Respondent, 10938/96-against-
This brief is filed by the National Coalition for Sexual Freedom ("NCSF") as amicus curiae. Defendant Oliver Jovanovic was convicted on April 15, 1998, of kidnaping, assault in the second and third degrees, and of sexual abuse.
NCSF is a not for profit organization, founded to defend the right of American citizens to individual autonomy and privacy in the sexual sphere. The NCSF, in serving these goals, opposes governmental regulation of adult consensual sexual interaction and discrimination based upon sexual orientation. Among the sexual practices which the NCSF seeks to protect is consensual sadomasochistic conduct; conduct which is engaged in by a significant, albeit silent, community. According to the most recent Kinsey Institute Report on Sex, 5 to 10 percent of Americans engage in sadomasochism, a figure which is conservative.(1) These consenting adults are in relationships ranging the romantic gamut from married couples and life partners to casual lovers. Certainly, as the growing mainstream status and public candor of best-selling authors, film makers and recording artists who regularly feature such themes makes clear, the themes of erotic dominance and submission intrigue a substantial portion of the body politic. See, e.g., Anne Rice, Exit to Eden (1985); Crash (David Cronenberg, dir., 1997); Madonna, Sex (1990).
NCSF voices no opinion as to the quantum of evidence below, the credibility of the witnesses or the validity of the charges as applied to appellant. However, the sweeping scope of the trial court's ruling, and the absolutist ban on sadomasochistic behavior between consenting adults urged by the District Attorney in its brief on appeal, threatens the constitutional right to privacy and the freedom of many citizens beyond Oliver Jovanovic. Therefore, NCSF files this amicus brief because the case in question resulted in rulings by the trial court judge, the Honorable William A. Wetzel, which if taken at face value, as indeed the District Attorney herein urges, criminalize this innocuous love-play, engaged in by consenting adults. What is worse, the charge did so in the absence of decisional or statutory authority and in the face of expressly governing case law holding squarely to the contrary. In fact, under the law and Constitution of the State of New York, the right of privacy protects consensual lovers engaging in sexual contact, inclusive of sadomasochistic practices. Moreover, on the statutory issue of the definition of assault, the Court below erroneously misconstrued the decisional law in its assumption that consent, as a general matter, cannot be a defense to a charge of assault.
Finally, the District Attorney for the County of New York has submitted a brief in opposition to the appeal, asserting that "no New York court decision holds that consent is a defense to assault." (District Attorney's Brief at 137). In fact, a myriad of decisions, only some of which are discussed herein, hold squarely to the contrary, suggesting that the District Attorney fell asleep at the switch -- a metaphor whose suggestions of a misdirected and out-of-control train is appropriate in the face of the minimum of 5 percent of the adult population whose right to private consensual sexual conduct of their choice will be steam rolled should the District Attorney prevail in its attempt to criminalize consensual sadomasochistic conduct. Likewise, each and every one of the out-of-jurisdiction decisions cited by the District Attorney to establish the untenable claim that consent is not a defense to assault is inapplicable as they involve holdings that "great bodily injury" or "atrocious assault and battery" are not vitiated by consent, holdings far beyond the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for.
The charge at issue was delivered over objection by the defense; therefore the objection is preserved, and ripe for this Court's review. People v. Crimmins, 36 N.Y.2d 236 (1975). However, NCSF takes no position as to whether the ruling below constituted harmless error or indeed as to the guilt or innocence of Jovanovic.
1. Whether the right to privacy guaranteed to all citizens of the State of New York under the Federal and State Constitutions protects the right of consenting adults to engage in erotic play including but not limited to sadomasochistic conduct.
2. Whether the charge to the jury that consent could not form a defense to a charge of assault was error.
On December 5, 1996, Oliver Jovanovic ("appellant") was arrested, and charged with kidnaping, aggravated sexual abuse, sexual abuse, two counts of assault in the second degree, one count of assault in the third degree, and sodomy.
On April 15, 1998, he was acquitted of the sodomy and the aggravated sexual abuse counts, but was convicted of kidnaping, assault in the second and third degrees, and of sexual abuse. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment.
The charges stemmed from appellant's encounter on November 21, 1996, with a Barnard College student (whose name has been omitted from the published records of the case to safeguard her privacy, and in consideration of which is not employed herein). In their encounter, a date arranged after several e-mail interchanges over several occasions, appellant and the complainant dined at a mutually agreed upon place, and appellant invited the complainant to his apartment, to which it is agreed that she repaired voluntarily.
Once at appellant's apartment, the complainant stated, appellant ordered her to strip, which she did, bound her to his futon, and engaged in pain-inflicting conduct with her, involving the use of a baton and hot candle wax. The complainant maintained that she was kept by appellant at his home against her will, and that he restrained her forcibly for over 20 hours.
At trial, appellant put forward a consent defense to all charges. After the charge conference, in a letter dated April 10, 1998, attorney Frederick L. Souinsky requested that the prosecutor's request for a charge that consent is not a defense to the assault counts be denied, asserting both Constitutional and statutory grounds for the impermissibility of such a charge.
The Charge on Assault and Consent
The Court, over defense objection, nonetheless delivered charges that consent was not a defense to assault.
On the first count of assault in the second degree, the Court instructed the jury that
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim's] thighs by means of a dangerous instrument, to wit, a baton. Two, that the defendant did so with intent to cause physical injury to her.
Therefore, if you find that the defendant assaulted [the victim] under the two elements that I just instructed you about, you may not consider any claim that she consented to that assault.
The court below charged the jury in substantially similar terms with respect to the second count of assault in the second degree, except that the dangerous instrument alleged to have been used under that count was the candle wax. (R. at 3422-3423).
With respect to assault in the third degree and consent, the Court below charged as follows:
Now, in order for you to find the defendant guilty of this crime, the People must prove from all of the evidence in the case beyond a reasonable doubt both of the following two elements:
One, on or about November 22nd through November 23, 1996, in the County of New York, the defendant caused physical injury to [the victim] by biting her breasts, and two that the defendant did so with intent to cause physical injury to her.
Conviction and Sentence
On April 15, 1998, appellant was convicted of kidnaping, sex abuse and one count each of assault in the second and third degrees. On May 21, 1998, appellant was sentenced to 15 years' to life imprisonment. This appeal followed.
Sadomasochism and the Scholars
This Court is asked to take judicial notice of the fact that a burgeoning number of scholars have observed the long-term practice of sadomasochistic sexual behaviors in relationships. In addition to the examples cited in the Preliminary Statement, both male and female college students have over the past three decades been documented as evincing an interest in sadomasochism. "Coercive Sexual Fantasies of College Men as Predictors of Self-Reported Likelihood to Rape and Overt Sexual Aggression," V. Greedlinger & D. Byrne, 23 Journ. Sex Research, no. 1 (1987) (concluding that 80% of male students surveyed enjoyed the fantasy of being tied up and forced to have sex by a woman); Different Loving, supra, at 7, 14-18.
Moreover, the empiric and anecdotal studies of those who regularly practice sadomasochistic behavior all emphasize that the hallmarks of sadomasochistic practice are summed up in the tripartite motto "safe, sane, and consensual." Different Loving, supra at 49; "Safety Restrictions," Tim Woodward & Stephanie Jones, Best of Skin Two, pp. 131-141 (1993). See also S and M: Studies in Sadomasochism, T. Weinberg & G.W. Kamel (1983); "An Exploratory-Descriptive Study of a Sadomasochistically Oriented Sample," Charles Moser & Eugene Levitt, 23 Journ. Sex Research, no. 3 pp. 322-337 (1987); Erotic Power: An Exploration of Dominance and Submission, Gini Graham Scott (1983). In short, consent -- full, meaningful, voluntary and informed -- is the distinguishing factor between sadomasochism and abuse in the eyes of those who practice the former, and who eschew the latter. By its jury charge, the Court below has sweepingly obviated this distinction, in defiance both of common sense and of common (and Constitutional) law, and criminalized consensual sexual conduct.
The United States Constitution, and, independently, the Constitution of New York State, as the Court of Appeals has recognized, extends the right of privacy to strike down provisions of the Penal Law which purport to criminalize consensual private sexual conduct. People v. Onofre, 51 N.Y.2d 476 (1980) (striking statutory proscription of consensual sodomy or deviate sexual intercourse between unmarried persons). In Onofre, the Court held that the right to privacy is "a right of independence in making certain kinds of important decisions, with a concomitant right to conduct oneself in accordance with those decisions, undeterred by government restraint." 51 N.Y.2d at 485. Finding guidance in the Supreme Court of the United State's decisions, including those in Loving v. Virginia, 388 U.S. 1 (1967) (invalidating state statutory ban on inter-racial marriage), Griswold v. Connecticut, 381 U.S. 479 (1965) (striking state statute banning sale of contraceptives as impermissibly invasive of "the sacred precincts of the marriage bed"), and Stanley v. Georgia, 394 U.S. 557 (1969) (voiding prosecution for possession of obscene materials in the home), the Court in Onofre carved out a zone of personal autonomy:
In light of these decisions, protecting under the cloak of the right to privacy individual decisions as to indulgence in acts of sexual intimacy by unmarried persons and as to satisfaction of sexual desires by resort to material condemned as obscene by community standards when done in a cloistered setting, no rational basis appears from excluding from the same protection decisions such as those made by defendants before us to seek sexual gratification from what at least once was commonly referred to as "deviate" conduct so long as the decisions are voluntarily made by adults in a non-commercial private setting.
51 N.Y.2d at 488.
Under both the Federal and State Constitutions, therefore, it is clear that private consensual sexual conduct among adults is presumptively protected, in the absence of a serious public policy underlying regulation. What is further clear is that sadomasochistic practices fall within the definition of sexual practices so protected; the Court of Appeals in Onofre held that the ambit of privacy includes "deviate" sexual conduct, not merely sexual conduct enjoyed by the mainstream of citizens. Onofre, 51 N.Y.2d at 488. The Legislature has, in the general obscenity section, included sadism and masochism among the sexual subjects which, if defined in a manner pruriently appealing to the interest in sex, and depicted without redeeming social value, may be prosecuted and proscribed. Penal Law ¤ 235.00. Likewise, in specifying materials defined as "indecent" and thus unfit for dissemination for children, the Legislature included what it somewhat harshly terms "sadomasochistic abuse" (which it defines as "flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or sexually restrained on the part of one so clothed").(3) Penal Law ¤ 235.20(5). In short, the sexual nature of sadomasochism is conceded.(4) That sadomasochism is within the protections of Onofre therefore cannot be doubted. Accordingly, the Court below was in error to grant the prosecution request to charge that voluntary consent on the part of the complainant was not a defense to the charges against appellant.
The District Attorney gives short shrift to Onofre and completely ignores its progeny, choosing instead to rely on cases from other jurisdictions, cases which cannot be viewed as having even persuasive authority as to the scope of protections guaranteed by the State Constitution. In addressing Onofre, the District Attorney argues solely that the specific conduct engaged in by defendant is not protected by Onofre, conduct the District Attorney describes as non-consensual. (District Attorney's Brief at 140-1). The District Attorney never addresses whether consensual sadomasochistic conduct is covered by Onofre and protected by the State Constitution. The District Attorney's grasp on the Federal Constitution seems equally tenuous, as they incorrectly cite Mishkin v. New York, 383 U.S. 502 (1966), for the proposition that "publications depicting sadomasochism are not protected by the First Amendment." (District
Attorney's Brief at 140). To the contrary, Mishkin holds that publications depicting sadomasochism are held to the same standard as those depicting heterosexual sexual conduct. Mishkin, 383 U.S. at 508.
The defendant argued in Mishkin that his publications, which targeted fetishes and sadomasochism, could not be obscene because only a minority of the population would find them erotic and therefore could not satisfy the Prurient-Appeal requirement of the Roth test for obscenity. Rather than holding that sadomasochistic publications are de jure obscene, as the District Attorney implies, the Court disposes of the defendant's argument by holding that where a publication targets a specific audience, and not the public at large, the Prurient-Appeal requirement may be satisfied if the publication appeals to the prurient interest of its target audience. Mishkin, 398 U.S. at 508.
The District Attorney similarly mis-cites Ward v. Illinois, 431 U.S. 767 (1977). Ward did not remove sadomasochistic publications from the ambit of the First Amendment, it merely reaffirms Mishkin in light of intervening obscenity cases which the defendant argued prohibited the proscription of sadomasochistic publications. The defendant argued that in light of the intervening case of Miller v. California, 413 U.S. 15 (1973), sadomasochistic publications could not be proscribed. The explicit holding of the Ward court at issue is: "If the Mishkin publications remain unprotected [in light of Miller], surely those before us today deal with a category of sexual conduct which, if obscenely described, may be proscribed by state law. Ward, 431 U.S. at 773 (emphasis added). The emphasized section underscores that sadomasochistic publications are not automatically unprotected by the First Amendment.
Contrary to the District Attorney's presumption, sadomasochistic publications are neither de facto nor de jure obscene, but may be found to be obscene if they satisfy the requirements of the obscenity tests provided by the Supreme Court; the same tests non-sadomasochistic publications are held to. While the District Attorney may be content to ban everything from Playboy to Jean-Jacques Roseau's Confessions, the Supreme Court fortunately is not so inclined.
The District Attorney cites two out-of-jurisdiction cases for the proposition that "there is no constitutional right to engage in sadomasochistic abuse." (District Attorney's Brief at 140). The first case, State v. Collier, 372N.W.2d 303 (Iowa App. 1985), does not address Constitutional issues at all, but instead turns solely on state statutory grounds. The second case, Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass 1980), does not support the all-out ban on sadomasochistic conduct urged by the District Attorney, but rather argues for a balancing of a citizens right to sexual privacy with the State's interest in protecting its citizens' health. Finally, in both cases, the decision turned on the quantum of physical harm. Were this Court to follow these inapplicable decisions, a balancing of the respective interests would than result, rather than the judicially legislation of a blanket ban on sadomasochism called for by the District Attorney.
The District Attorney argue in their opposition papers that the law in New York State supports the lower court's charge that consent does not create a defense to the offense of assault. The District Attorney supports this argument through citation to California and other jurisdiction's decisions, a gambit which is more ingenious than ingenuous in the face of the unbroken chain of decisions, from 1849 to the present day, in which the courts of this State have held precisely to the contrary. In Pillow v. Bushnell, 5 Barb. 156, 161 (Sup. Ct. 1849), the Court squarely held that "[i]f the act complained of as an assault and battery was committed by the consent and request of the wife, it formed an entire defense." A myriad of cases from Pillow to the present have reaffirmed this rule. Indeed, in 1989, this Court relied upon the doctrine, qualifying its applicability to the extent that the actor seeking to invoke the defense must act within the scope of the consent. Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 150 A.D.2d 82, 545 N.Y.S.2d 693, 705 (1st Dep't 1989) (noting distinction between customs and usages in sports and legal doctrines, employing the example of a hockey player struck by a stick in play, who "may be deemed to have consented to the use of such tactics by his participation in the game.") (citing People v. Freer, 86 Misc.2d 280, 381 N.Y.S.2d 976 (Dist. Ct. Suffolk Co. 1976) (holding that a punch thrown in course of tackle fell within implied consent to tackling in football game, but that a punch thrown afterwards, when play had stopped, did not)). See also People v. Lenti, 44 Misc.2d 118, 123-124 (Nassau Co. Ct. 1964) (where injuries inflicted upon participants in fraternity "hell night" were plainly beyond the scope of implied consent, the consent defense is not applicable).
That this unbroken line of precedent remains valid is clear from not only Mercury Bay Boating Club, Inc., supra, decided less than 10 years ago, but from the lack of contrary authority within the jurisdiction. To the extent that the District Attorney, relying on out-of jurisdiction authority, claims a new "trend" away from the consent defense among the State courts, the citations omit the most recent case, Boldt v. Boldt, 97-DR-0441, CA A99286 (Ct. App., Oregon, July 18, 1998) (slip op. attached), in which, although not reaching the issue, the Court of Appeals of the State of Oregon stated that it was "not prepared to declare that whenever competent adults agree to engage in conduct that involves inflicting pain, the behavior necessarily constitutes abuse." The Oregon Court of Appeals echoed the decision enunciated 50 years ago in People v. Steinberg, 73 N.Y.S.2d 475, 479 (City Ct. N.Y. Co. 1947): "It is true that as a rule the consent of the prosecutor, if intelligently given, is a good defense in assault. We have examples in amiable contests, in assaults arising from voluntary sexual relations, and in tumultuous frolics." See also, Van Vooren v. Cook, 273 App. Div. 88 (4th Dep't 1947) (same as to general rule; citing cases).
The out-of-jurisdiction decisions cited by the District Attorney are inapplicable as they involve holdings that conduct which "creates an unreasonable risk of severe injury," Collier, 372 N.W.2d at 307, or of "severely or mortally injuring another," People v. Samuels, 58 Cal.Rptr. 439, 447 (Cal.App. 1967), cert. denied, 390 U.S. 1024 (1968), are not vitiated by consent; they do not support the global ban of all consensual sadomasochistic love-play the District Attorney campaigns for. (District Attorney's Brief at 137-8). The decisions turned on the quantum of physical harm and lack of valid consent, not sadomasochism. See Appleby, 402 N.E.2d at 1060 (Court notes that the case history involved severe beatings, including one in which the defendant fractured the victim's kneecap); Commonwealth v. Farrell, 78 N.E.2d 697, 704 (Mass. 1948)(assault included severe, permanently disfiguring burns which required months to heal). The out-of-jurisdiction cases cited do not call for a ban on sadomasochism, but rather hold that there is a level of injury beyond which one cannot consent, implying that there is a level of injury that one can consent to without risking prosecution.
Instead of citing New York case law, the District Attorney provides an essay on statutory interpretation, relying on the "structure of the statutory scheme" to conclude -- erroneously -- that since the Legislature did not explicitly provide a consent defense to assault, there is no consent defense to assault. (District Attorney's Brief at 136). The District Attorney ignores, however, that for over a hundred years prior to the most recent reenactment of the Penal Law, which was in 1965, the Courts of the State of New York repeatedly held that consent is a defense to assault. That the Legislature choose not to address the issue when reenacting the assault statutes evinces, if anything, support for the courts' interpretation. It is not surprising, therefore, that courts since 1965 have also held that consent is a defense to assault. See Mercury Bay Boating, 545 N.Y.S.2d at 705; Freer, 381 N.Y.S.2d at 978.
The District Attorney dismisses the cases cited by the defendant for the proposition that consent is a defense to assault as "dicta in a handful of antiquated, lower-court cases" but was forced to grudgingly admit that "[i]n two very old cases, lower courts have mused in dicta that consent may be a defense to assaults arising from 'tumultuous frolics' and 'voluntary sexual relations.'" (District Attorney's Brief at 139, citing Defendant's Brief at 125-6). None of the cases cited by the defense or the NCSF, however, has been overruled and at least one of those "antiquated" cases has been favorably cited by this Court within the past decade. See Mercury Bay Boating, 543 N.Y.S.2d at 705 (favorably citing Freer which held that participants in sporting events consent to certain acts of violence). In the few New York cases cited by the District Attorney for the opposite proposition, that consent was not a defense to assault, all but one involve minors who, by definition, are not legally capable of giving valid consent. (District Attorney's Brief at 139, fn *, discussing People v. Gibson, 232 N.Y. 458, 462 (1922); People v. Malark, 283 A.D.263 (3rd Dept. 1954); Singer v. People, 13 Hun. 418, 420 (1st Dept.), aff'd, 75 N.Y. 608 (1878); Hays v. People, 1 Hill. 351, 352 (Sup. Ct. 1841)). The remaining case involved illegal street fighting and turned on the court's holding a party cannot consent to an illegal act. (District Attorney's Brief at 139, fn *, discussing People ex rel. Knight v. Eames, 115 N.Y.S.2d 248, 250 (Broome Co. 1952)).
The District Attorney ignores the far reaching effects of striking down the consent defense to assault, which include the criminalization of many sporting events, many forms of non-sadomasochistic consensual sexual contact, and such cultural choices as body piercing. The District Attorney admits that "certain sports that involve physical contact, such as boxing, wrestling, and football, are played regularly and are not regarded as being criminal 'assaults.'"(District Attorney's Brief at 138, fn **). Ignoring this Court's holding in Mercury Bay Boating, and citing no cases of its own in support, the District Attorney argues that the reason "athletes are not prosecuted for assault has nothing to do with the fact that the 'victim' consents." (District Attorney's Brief at 138, fn **). Instead, the District Attorney argues that boxers and wrestlers are not prosecuted for assault because the sports are highly regulated and therefore "sanctioned" by the Legislature. Whatever validity this argument has, it in no way invalidates the consent defense, especially considering that only a small percentage of the contact sports in New York are regulated. It also should be noted that, according to the District Attorney's own view of statutory interpretation, had the Legislature intended to exempt boxing and wrestling from the assault statutes because of the regulatory scheme, it would have explicitly done so. The District Attorney, however, fails to provide a statutory cite to this exemption.
The District Attorney attempts to distinguish football by arguing that "football players may not be convicted of assault because, while they engage in physical contact, they do not intend to cause physical injury to their opponents, and criminal intent is an element of all degrees of criminal assault." (District Attorney's Brief at 138, fn **). Such an argument applies equally well to sadomasochism, whose goal is not injury but mutual personal gratification. Participants in both sporting events and sadomasochism are aware that their conduct may create a risk of injury. But the District Attorney would exempt one from the assault statutes and not the other. The District Attorney makes no attempt to explain why other consensual assaults, such as body piercing, whose goal always involves bodily injury, are not prosecuted.
As the Court in Steinberg made clear, consensual sexual conduct, including sadomasochistic conduct, are not appropriately grist for the criminal justice system. Unless this Court, absent any argument save for the District Attorney's evident disapproval of the sadomasochistic lifestyle, is willing to abandon precedent dating back 150 years, precedent which has been recently followed, and criminalize activity ranging from contact sports to body piercing, as well as all but the tamest sexual contact - all without any legislative enactment - the charge must be declared erroneous.
The consequences of such a declaration the NCSF confidently leaves in the hands of this Court. Taking no position on the ultimate disposition of the case, the NCSF does not opine as to whether the record supports a finding that the error was harmless, or that appellant exceeded any consent obtained. The NCSF does assert that the charge delivered by the Court below effectively criminalizes consensual conduct in a manner which will expose adults practicing consensual sadomasochism to prosecution. The effect of such a ruling would be to greatly expand the discretion of prosecuting attorneys in a manner which they have shown themselves all too willing to abuse; the target of their baseless legal theory, notably, is not any one of the powerful and wealthy sports franchises engaged in contact sports such as boxing, hockey, or football, in which significant injury regularly occurs and sometimes even death takes place. Rather, the District Attorney targets a sexual minority, whose behavior is so misperceived as to be described in the body of one statute as "bizarre" (See Penal Law 235.20(5)), for what is in essence a harmless form of intimacy, behavior which rarely results in serious injury and for which knowing, voluntary consent is a prerequisite. The social stigma attached to sadomasochism, and the stigma of arrest, render those targeted especially vulnerable to prosecution; in usurping the privacy interests and eliminating the age-old consent defense patently available in such cases, the District Attorney, as was the case in Anonymous Female, merely "attempt to avoid the effects of [adverse decisional law] and to take advantage of the strong likelihood that arrested defendants -- male and female -- will, for obvious reasons, seldom go to trial, seldom test the law." 539 N.Y.S.2d at 870. The charge request in this case is nothing short of a license to bully and intimidate a sexual minority based on their private consensual conduct, and must not be allowed.
Dated: New York, New York
January __, 1999
Respectfully submitted,
Attorney for Amicus Curiae
National Coalition for Sexual Freedom
381 Manhattan Ave.
Brooklyn, New York 11211
(212) 353-8984
1. New Report on Sex, The Kinsey Institute (1990). This is nothing new; a substantial segment of the population has engaged in such behavior for as long as such data has been collected. See Sexual Behavior in the 1970's, M. Hunt (1974) (In survey of 2,000 respondents, 10.9% of men and 6.7% of women had obtained pleasure from an act of domination and submission); A Research in Marriage, G.V. Hamilton ( 1929) (survey found that 28% of men and 29% of women admitted they derived "pleasurable thrills" from the infliction of some form of pain upon themselves). See Different Loving: An Exploration of the World of Sexual Dominance and Submission, William D. Brame & Gloria Brame (1993); "Manifest Sadomasochism of Males: Results of an Empirical Study," Andreas Spengler, Archives of Sexual Behavior, vol. 6, pp. 441-56 (1977)
2. The fact that at least two of these decisions post-date the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and that the Court of Appeals has repeatedly made clear that the State Constitution provides a greater quantum of protection for privacy than does the Federal Constitution, renders it unnecessary to examine what impact, if any, Bowers has on Onofre. See People v. Scott, 79 N.Y.2d 474 (1992). Notably, the continuing validity of Onofre is conceded by the District Attorney, who merely urges that this case falls outside of the rule therein enshrined.
3. Notably, this definition would include a film clasic such as Mutiny on the Bounty while a film in which a naked person is flogged by one in a business suit would appear to be exempted.
4. Although the statutes recognize the sexual nature of sadomasochistic conduct, professional sadomasochism is not automatically proscibed by the prostitution statute, as the prostitution statute is more strict in its approach and specifically limits its scope to a few acts defined as "sexual conduct," the exclusion of sadomasochism from which has led at least one court to conclude that a professional dominatrix who did not engage in a sex act enunciated in the statute cannot be found guilty of prostitution. People v. Georgia A., 163 Misc.2d 634 (Crim. Ct. Kings Co. 1994).
Copyright 2012-2015 - National Coalition for Sexual Freedom - NCSFreedom.org
Joomla! Web Development & Hosting by Polished Geek LLC - PolishedGeek.com


text:
Contact Us
Sonesta Great Bay Beach Resort & Casino St. Maarten
19 Little Bay Road
Philipsburg, Sint Maarten
Phone: +1.721.542.2447
Email: email@example.com
For reservations, please use the online reservation form or call 1.800.SONESTA (766.3782) or call a local travel agent.
Para Español EE.UU +1.617.315.9200, o llamada EE.UU y Canada +1.866.SONESTA (766.3782).
Group Reservations
For Groups of 10 or more hotel rooms, please contact the Director of Sales at +1.721.542.2447 or submit "Book A Meeting" RFP.
Media Inquiries
Please contact Andria Mitsakos, Director of Media Relations at email@example.com
Guest Comments
Please click here to take our online Guest Survey.
Employment applications are accepted Monday - Friday 9 a.m. - 4 p.m. See Current Employment Opportunities. Please apply in person at address above or call +1.721.542.2447.
The following error(s) were found when processing your submission:
Please scroll down to correct the problems and submit the form again.

subset: commoncrawl


text:
Kdenlive is at the crossroads of several free software libraries providing multimedia services. Therefore, the compilation process is rather long. It makes sense to at least get the development version of MLT and ffmpeg as well since these projects (especially MLT) are closely connected. If you need some new effects from frei0r, SoX, or another resource, you may want to compile it as well.
Make sure to install the components in the right order (as listed here), and to complete each step before starting with the next one.
Please report any compilation problem on our Forum: Installing from source.
Below, you will find some outdated infos for the previous Kdenlive 0.9.x versions, based on Qt4/KDE4:
Installing from source is not recommended for basic users. If you don't understand how to compile and install a program, you might break things on your system, use at your own risks. This is a 5 steps procedure:
1 - Installing the required dependencies
2 - Installing FFmpeg (the multimedia library doing all hardcore processing)
3 - Installing Frei0r (a video library providing many of Kdenlive's effects)
4 - Installing MLT (the multimedia framework that does everything behind Kdenlive's interface)
5 - Installing Kdenlive
As an easier alternative to this manual procedure, there is a build script that gets the latest version of Kdenlive and many of its multimedia dependencies including x264, libvpx, FFmpeg, frei0r, MLT. Then, it builds them into an isolated folder in your home directory and does not require installation. Rather, when you run it with the provided launch script, it uses the more recent libraries and plugins instead of those from packages.
Version numbers of the libraries may change. If you cannot find the exact name of a library, e.g. libpango1.0-dev, try searching for a different package starting with
libpango and ending with
-dev. Also sometimes a version number is necessary although it is not written here (e.g. the list below says
libpango-dev, but the package is called
libpango1.0-dev) — or also the other way round.
When installing packages in the terminal, e.g. with
apt-get install package1 package2 …
, the Tabulator key will be a great help: Type
libpango and press Tab twice to see all possible packages.
For easier installing, this is the list of the required libraries. They are explained below.
subversion git cmake build-essential yasm libqt4-dev kdelibs5-dev libsdl1.2-dev libsdl-image1.2-dev libxml2-dev libx264-dev libtheora-dev libxvidcore-dev libogg-dev libvorbis-dev libschroedinger-dev libmp3lame-dev libfaac-dev libfaad-dev libgsm1-dev libopencore-amrnb-dev libopencore-amrwb-dev libsamplerate0-dev libjack-dev libsox-dev ladspa-sdk swh-plugins libmad0-dev libpango1.0-dev libvpx-dev
To download the source code you will need to install Subversion and git.
Additionally required for compiling stuff:
MLT relies on FFmpeg compilation parameters. If your distribution ships with an outdated FFmpeg version, it may not be able to use the audio and video codecs like H.264 or AVCHD. In this case, recompile FFmpeg with all needed options or ask FFmpeg packager to upgrade.
Please inform us of additional dependencies that we may have forgotten.
Most distributions provide packages for FFmpeg. The required packages for MLT compilation are:
After installation, type ffmpeg to view ffmpeg compilation parameter, which must match our parameters (read below).
If your distribution does not provide a recent version of FFmpeg, it is recommended to compile FFmpeg from git. However you must be very careful to remove your distribution packages before installing the compiled ones, or you may be in trouble. Also remove any file from the Kdenlive installation wizard if you used it.
Install the needed libraries and make sure yasm assemby code compiler is installed.
Note on Ubuntu 10.10: ffmpeg requires libx264 of at least version 1.0 which is not in the repositories yet as of Jan 2011. Please follow this guide instead to install ffmpeg with H.264 support.
Check out the ffmpeg source code from git into a new directory (called
git clone git://source.ffmpeg.org/ffmpeg.git ffmpeg
cd ffmpeg
(If you get an error message that git cannot be found, you need to install the package
Alternatively, you can use the new Libav:
git clone git://git.libav.org/libav.git
cd libav
To configure ffmpeg with the recommended compilation flags (determine which formats can be encoded etc.):
./configure --prefix=/usr --enable-shared --enable-libmp3lame --enable-gpl --enable-libfaac --enable-libvorbis --enable-pthreads --enable-libfaac --enable-libxvid --enable-x11grab --enable-libgsm --enable-libx264 --enable-libtheora --enable-libdc1394 --enable-nonfree --disable-stripping --enable-avfilter --enable-libschroedinger --enable-libopencore-amrnb --enable-libopencore-amrwb --enable-version3 --enable-libvpx
It is possible that you get some error messages here, like ERROR: libopencore_amrwb not found. In this case check whether the according library is really installed. If you cannot install it, delete the flag (in this case it would be
--enable-libopencore-amrwb) from the above command and execute it again.
To compile and install ffmpeg, execute the following commands (still from the same directory):
make -j3
sudo make install
Compiling will take some time (possibly several minutes). After ffmpeg is installed you are ready to continue with MLT or, if desired, frei0r.
After some days/weeks you want to update your self-compiled copy of ffmpeg. To do so, first update the source code by running:
cd ffmpeg
git pull
Then run
make clean
to get rid of previously compiled files and continue with steps 2 and 3.
To compile the development version of frei0r, if you want to use an effect that is not available in a package. Make sure to first uninstall frei0r (
frei0r-plugins, frei0r-plugins-dev, frei0r-plugins-doc for example) before installing the compiled version.
Some additional libraries are required for frei0r.
in a line libcv-dev libgavl-dev libhighgui-dev libcvaux-dev
In the terminal, check out the frei0r source code from the git repository:
git clone git://git.dyne.org/frei0r.git
Then change to the frei0r directory and compile/install it:
cd frei0r
mkdir build
cd build && cmake .. -DCMAKE_INSTALL_PREFIX=/usr && make -j3
sudo make install
To update frei0r to the current version, type:
cd frei0r
git pull
rm -rf build && mkdir build
cd build && cmake .. -DCMAKE_INSTALL_PREFIX=/usr && make -j3
sudo make install
You can download the latests official release of MLT from http://mltframework.org.
But it is recommended to use the latest development version which contains bug fixes. This page explain how to compile and install this version from the source code. If you just want to use the latest MLT component but keep an official Kdenlive released, please read this: http://kevin.deldycke.com/2010/11/latest-stable-kdenlive-development-ver...
You should uninstall previous versions of MLT very carefully. Warning: to remove MLT, you will need to connect under
root account. There is a risk to destroy your operating system if you remove the wrong files.
mlt* and
libmlt* packages.
/usr/local/lib and
/usr/lib directories and look for
mlt* and
libmlt*. Remove files and directories if any.
mlt-miracle.pc and
mlt-valerie.pc). Remove the following files:
Make sure you have the following packages installed:
frei0r-plugins-dev (must notbe installed you compiled frei0r from source)
We also recommand that you install:
Git is used to track MLT code. You can checkout the latest version with the following command:
git clone git://github.com/mltframework/mlt.git
cd mlt
To update your MLT copy later, you need to go into your mlt folder and run the following code to fetch the newest source code:
cd mlt
git pull
Before compiling, MLT needs to be configured (searches for libraries etc.):
./configure --prefix=/usr --enable-gpl
Or, if
qimage module fails to configure, try:
./configure --prefix=/usr --enable-gpl --qimage-libdir=/usr/lib/ --qimage-includedir=/usr/include/qt4
Read configuration output and make sure all shared libraries are found.
The last step. Compiling will take a long time.
make clean
make -j3
sudo make install
If you are not on Ubuntu, then use
su -c 'make install' instead of
sudo make install.
This is only necessary when you experience problems with the most recent MLT version. To list the available tags and select one (e.g. v0.4.6) do:
git tag -l
git checkout tag
To switch back to the most up-to-date version use
master as tag. After checking out the tag you need to do a
git pull again.
Kdenlive latest stable release can be downloaded from the KDE servers. (release before 0.9 are still available on our SourceForge page).
Alternatively, you can checkout the development of Kdenlive from the git server:
git clone git://anongit.kde.org/kdenlive.git
You can also browse source code online (Projects.kde.org | Quickgit).
If you want to build the current stable branch (0.9):
git checkout v0.9
Or to build the current development code:
git checkout master
Then, in the kdenlive directory, where the files have been downloaded to, type:
mkdir build; cd build; cmake .. -DCMAKE_INSTALL_PREFIX=/usr; make
sudo make install
To later update to latest version of the source code:
git pull
Then make and make install and previously described.


text:
Event Information
Ann Baddeley Keister and Patricia Nelson Checkerboard, 2011 Mixed media 12" x 12" Loan courtesy of the artists
Contemporary, mixed-media textile collage and jewelry collaborations by artists Ann Baddeley Keister and Patricia Nelson will be showcased. The exhibition will also include written work by Patricia Clark, Grand Valley State University Poet-in-Residence and Professor of Writing. Keister is Associate Professor of Art at Grand Valley State University and Nelson is Professor of Art in Metalwork at Ball State University in Indiana.
This exhibit will be on display until September 21. An opening reception will be held on Thursday, September 6 from 5-7 PM. Free and open to the public.
Art Gallery, 616-331-2563


text:
(CNN) – New Hampshire's four electoral votes are turning into one of the presidential election's most fiercely fought-for prizes, with both candidates headed to the state next week and top surrogates streaming in to try and sway the notoriously independent voters there.
President Barack Obama heads to New Hampshire Saturday for a rally in Nashua, while his GOP rival Mitt Romney will be in the state next week for an event in Manchester. Joe Biden will also travel north for a rally Monday.
On Friday, the president's campaign announced first lady Michelle Obama would travel to the Granite State next week for a rally at the University of New Hampshire, where she'll be joined by Caroline Kennedy. Michelle Obama's event in New Hampshire was canceled Friday as the East Cost prepared for Hurricane Sandy.
Polls, which showed New Hampshire leaning toward Obama in the summer and early fall, have recently tightened. An American Research Group survey taken October 9-11 showed Romney with a two point edge over Obama, 49%-47%. But a UNH poll taken October 17-21 showed Obama with the edge, leading Romney 49%-41%. Both polls were taken ahead of the final presidential debate.
Obama's team, looking to boost voter turnout in the state, has been airing an ad in New Hampshire and other battlegrounds harking back to the razor thin 2000 Florida presidential vote, using the 537-vote deficit in Florida that ultimately put George W. Bush in the White House to encourage Democrats to get out and vote.
The ad is also a vivid reminder to Granite Staters that their four electoral votes can sway a presidential outcome. Bush won 48% of the vote there in 2000, compared to 46% who went for Gore, but the result was buffered by 4% who went for third party candidate Ralph Nader. The four electoral votes that went for Bush were the lynchpin in the 271-266 Electoral College result.
Obama won the state by ten points in 2008, but Republicans were resurgent in the 2010 midterm elections, winning a seat in the U.S. Senate and the state's two House seats, which were previously held by Democrats.
New Hampshire will also be a key battleground in the fight for women voters. The first lady's trip to the state's largest university will underscore the Obama campaign's attempt to paint Romney as extreme on contraception and reproductive rights. New Hampshire Republicans have long been more conservative fiscally and more middle-of-the-road socially, making the push for social moderates all the more important for Obama's team.
One of Romney's top surrogates in New Hampshire, Sen. Kelly Ayotte, steered clear of any social issue controversy this week when she canceled campaign events for Indiana Senate candidate Richard Mourdock.
The push for women voters in New Hampshire also carries ramifications beyond the presidential ballots. Female Democrats are vying for seats in three of the down-ballot races in the state as well. If they're all successful on November 6, New Hampshire would be the first state with a female governor, and an all-female Congressional delegation.


text:
- 21 January 2013 11:02
- Posted by @dclayton_MCFC
City's Ivorian trio begin their bid for Africa Cup of Nations glory on Tuesday afternoon as The Elephants take on unfancied Togo at the Royal Bafokeng Stadium, Rustenburg.
Yaya and Kolo Toure plus Abdul Razak could line up against former City striker and Togolese skipper Emmanuel Adebayor in the opening Group D fixture, with the Ivory Coast hoping to go one better than their shock final defeat against Zambia last year.
Tunisia and Algeria, both more than capable of sustaining a strong challenge to progress from the group themselves make up the group quartet, but Ivory Coast will expect to qualify for the knock-out stages with players such as Didier Drogba and Gervinho to call upon as well as the Blues' talented stars.
Kolo Toure, a veteran of six AFCONs, has dismissed The Elephants' tag as favourites, instead suggesting Ghana will be the team to beat in this year's competition.
"I think it is the Black Stars who head the list," he said.
Look at the Egyptians. They don't have a team of superstars but they won three consecutive titles in this competition so it could happen again
...Kolo Toure...
"Although we beat Egypt 4-2, I think we still have some serious problems, especially in defence. We have to correct our lapses and play very deep right from the defence to stop the opposition from getting too close.
"We also need to stop conceding dangerous corner kicks and throw-ins and then engage the midfield to play high and hard and form the first defensive line.
"In official competitions there are mistakes you mustn't make or you will pay for it dearly. I'm not too satisfied with our performances so far but since we have more time to fine tune, I hope we'll be able to correct that."
Ivory Coast v Togo kicks off at 3pm GMT on 22 January. They will face Tunisia on 26 January and Algeria on 30 January before the knock-out phase begins.
Keep up to date with all the AFCON news on mcfc.co.uk.


text:
I think it is good for math students to have a cognitive psychology course. Foreign languages are often required. If a student knows how his mind works he would use it more efficiently. Insight, for example, occurs after a burst of gamma waves followed by alpha waves. In layman terms this means that a person stuck on a math problem usually gets an aha moment when he is relaxing. Opinions?
Edit. For example, I see many students now live-TeXing notes. That is a very inefficient way of learning.


text:
How do I install my Brother machine using Windows Update drivers in Windows
the initial installation of Windows 8, not all available printer drivers are
listed. Clicking the Windows Update button will cause the operating system to
query Microsoft's servers and download the remaining available drivers. See
below to learn how to update the printer list using Windows Update.
NOTE: For
USB users, connect the interface cable to the Brother device while your PC is
connected to the internet and the operating system will automatically download
and install the drivers for your device.
1. Open the Control
a. Move
your mouse to the lower left corner of the Desktop or Start screen.
b. Right-click
the screen and then left-click Control Panel.
c. Click
Devices and
Click ADD A PRINTER
Select your Brother printer from the list and click NEXT
When the Install Printer Driver screen appears, click Windows Update.
This will take a few minutes to contact the Microsoft server and download the
additional drivers.
Once the drivers list has been updated, please select your Brother printer from
the list and click NEXT.
NOTE: If you are installing a network machine,
but you only find a driver labeled: Brother XXX-XXXX USB Printer, please select
this driver. The driver's name will
not affect the printing capability.
Follow the remaining prompts to complete the installation.
Click NEXT to accept the default name of the printer.
You will be asked if you want to print a test page and set the printer as the
default printer. Select YES or NO. Click FINISH.
you don't have internet connection at home and have a laptop with Wi-Fi
capability, you can visit a free Wi-Fi hotspot and perform the Windows 8 update
and download the driver.
Seventh Annual Survey Confirms Small Business Owners Seek Success by Integrating the ...
Brother virtually solves the top print challenges facing millions of Small Office / H...
Brother Machines Sparks Creativity for new Brother Dealer


text:
I would like to see special offers for my region
Travel to Europe´s most exciting cities, all inclusive: Lufthansa quality, catering on board, one piece of luggage up to 23 kg, online check-in as well as valuable award miles Miles & More.
Please use the calendar to choose the respective flight dates.
Fares may vary according to date, seat availability, routing and airport of departure.
On lufthansa.com you will find the best flight offers to your preferred travel destination. You can book flights to cities all over the world for business travel as well as for longer holidays or city breaks. We offer you the best fares for flights from Lisbon and Oporto: Enjoy our exclusive online offers at attractive prices, amazing fares for flights to Germany as well as for flights to Europe and great fares for intercontinental flights. Consult our timetables now, book your ticket and have a comfortable flight with Lufthansa.
Don't miss any offers - subscribe to our Top Offers now
Click here to subscribe
Feel at home - with Lufthansa and HRS
You can find your hotel here
Be mobile at your destination - with Lufthansa and our car rental partners Avis and Sixt
Book your rental car here
Earn miles on Lufthansa and all Star Alliance carriers with your Caixa credit card.
Read more about this card


text:
Source: The Atlantic
quote: I would be simple for Apple to go to x86 for iOS, since it is just a subset of OS X.
quote: You don't think i7's TODAY get sold into markets that used to be exclusively Xeon?
quote: You don't think, for example, HTPCs could switch to Atom in a heartbeat?
quote: What about all those turnkey systems used to control medical and industrial equipment?What about all those cash registers?
quote: Everybody who might have considered AMD or VIA before, but wanted an Intel guarantee or whatever now gets the Intel brand name --- and at prices lower than AMD and VIA were considering.
quote: People USED to buy i3,i5,i7 for two reasons- performance- compatibility.
quote: 1) Software stops advancing and no longer needs advanced hardware.2) People stop reacting positively to software improvements and refuse to upgrade their systems.3) Performance hardware stops advancing while low-power hardware catches up.
quote: Well I spent my time at Apple writing low-level high performance codec code (including plenty of assembly, based on a careful understanding of CPU µarchitecture), ...
quote: What are your credentials?
quote: Name the last software advance in CONSUMER software that REALLY required advanced HW.
quote: HAS already happened. Look at the damn HW sales numbers.
quote: HAS ALSO already happened.
quote: As for your claim that i7s are NOT sold into previous Xeon markets
quote: (1) HAS largely happened. Name the last software advance in CONSUMER software that REALLY required advanced HW.


text:
Permanently attached to my monopod.It would be very handy to have a bubble level somewhere near the photographer's eyes. It can be detachable or mounted permanently...
Permanently attached to my monopod.It would be very handy to have a bubble level somewhere near the photographer's eyes. It can be detachable or mounted permanently...
Manfrotto sell a simple strap on bubble level, probably their cheapest item at about 16 suitable for many pole diameters try here http://harrysproshop.com/Tripods/aut...autopoles.html of course a nice one from Nodal Ninja would look better!
Having the pole balanced while raised also insures level - not sure having an external level is really needed - maybe more so for shorter lengths. Wonder what Wim's thought on this would be.
I think the need for an external level is a matter of how much you want to be in control of the NPP of the lens.
When you balance the camera+lens on top of the pole in the gravity center then, if you have a good feeling for small variations in forces and if there is no wind, then each shot will be in approx. the same off set NPP position of the lens (*).
(*) Because the gravity point of the camera+lens is not in the NPP of the lens the pole will lean a bit forwards when the gear is balanced, hence the NPP of the lens is always off set.
To get the best possible control I prefer to have an external level attached to the pole, then if there is some wind, or if I don't want to fully depend on my feeling for small forces, keeping the lens in the proper position (**) is much more faster and accurate.
(**) For a monopod it is better not to shift the lens forwards out of NPP to avoid stitching errors caused by parallax but on a high pole, when objects or surfaces are not close by, it is possible to shift the lens 1-2 cm forwards to get a very small footprint in nadir, hence often there is no need to shoot a nadir patch and some cloning in Photoshop can fill the footprint.
As a side effect of the forward shift of the lens the gear is a little better balanced but still the pole will lean forward, hence the out of NPP position of the lens is more then neccesary to avoid the need of a nadir patch. This is another reason why I always use a external level attached to the pole.
Perhaps the next stage is to set a gyro at the top of the pole.
Well, I can experiment your idea when I have more time.
We listen. We try harder.
I am very interested in this design - how would one go about taking the Nadir shot and the Zenith shot?
zenith is easy. just clone the sky or use the new content aware fill in PS CS5. You can use a neg tilt and shift the lens forward of the NPP by 10-20mm. This will make the nadir very small and easy to patch.
For perfectionists, they can use R1 and tilt the camera up to take the zenith shot.
We listen. We try harder.
Hi Nick,
I know your are trying very hard to serve the customers wishes and I know you are the "one" who likes to fill gaps. Discussions on other forums about how to take a pano inside cars. "Use a tripod outside, go through the window with a horizontal arm, and off you go"
An additional use of the small pole to your new "champion" like adaptor might be a "horizontal converter", 90° vertical to 90° horizontal, adapting to your "champignon" and using the pole to get inside the car through the window. At the end of the pole an extra plate being able to turn to zenith nadir and horizontal. I know you are tricky Nick and a question like this will ask your possibilities to proof you are trying harder.
Thx for setting up a new factory to serve your clients at its best.
Any update on when the new poles will be available for purchase, please?
French Nodal Ninja Distributor
Blog: http://www.skivr.com
Online shop: http://magasin.skivr.com
Photo gallery: http://flickr.com/skivr
Support website: http://support.skivr.com


text:
LITTLE ROCK — Gov. Mike Beebe says the fate of newly approved tax cuts is linked to survival of the state's private option for Medicaid expansion, but key lawmakers view the two as separate issues as they prepare for next year's fiscal session.
When the Legislature in April approved 11 separate tax cuts totalling about $140 million over a three-year period, legislative leaders and the governor said they were being phased in to take advantage of savings anticipated from the plan legislators narrowly approved to use Medicaid dollars to subsidize private insurance for thousands of Arkansas' working poor.
The plan was the Legislature's alternative to expanding the state's Medicaid rolls under the federal Affordable Care Act.
Since then, some lawmakers have suggested repealing or defunding the private option in the budget session that convenes in February. Pushing back, Beebe has warned in numerous venues that any change in the private option would cause major budget problems.
"This isn't an alarm folks. This is … arithmetic," the governor said recently. "If you don't continue it … you are either going to have to do away with the tax cuts … or you're going to have to take away from somebody else, or you're going to underfund Medicaid."
However, legislators said last week they view the tax cuts as permanent, regardless of what happens with the private option in the fiscal session.
"To me, they are two independent issues," said Sen. Jake Files, R-Fort Smith, chairman of the Senate Revenue and Taxation Committee.
Files, who voted for the private option in this year's regular session and expects the Legislature to support it again next year, nevertheless said the tax cuts will last if the health care expansion plan doesn't.
"I don't see repealing the tax cuts as a response to that as being a viable option, nor a threat to get us to support it," Files said.
Rep. Charlie Collins, R-Fayetteville, who as sponsor of tax cut legislation also voted for the private option, said he will not support any proposal to repeal the reductions.
"In terms of increasing taxes, which is what reversing tax cuts means to me, I see virtually zero probability that will happen," said Collins, whose tax cut bill reduced the state income tax in all tax brackets by one-tenth percent.
Sen. Eddie Cheatham, D-Crossett, said he thinks the governor is correct but it would be difficult for the Republican-majority in the Legislature to repeal the tax cuts.
"I know what the governor is saying, and I agree," Cheatham said. "In a sense, they are related because I think some of these tax cuts were passed with the thought we were going to save money with the private option, and it would take up some of the slack, those tax cuts."
Cheatham and other lawmakers said next year's legislative elections will play a role in whether the private option is reauthorized. All 100 House seats and 18 of the 35 Senate seats are on the ballot next year.
Many of the lawmakers who supported the private option in April could face opposition next year because of their vote from challengers who equate the plan to the federal health care law that critics have dubbed Obamacare. Also, Cheatham noted, anyone who supports rolling back tax cuts most likely would have a difficult time getting re-elected.
Sen. Bart Hester, R-Cave Springs, who opposed the private option from the start, said he expects the program to play a key role in many Republican primaries next year.
"I think some people who voted for it are probably … going to have a tough time getting re-elected if they come back here and vote for (the private option) again," Hester said.
House Speaker Davy Carter, R-Cabot, said despite the political pressure on some lawmakers, he expects the Legislature to reauthorize the private option, which he contrasted with the "debacle" of the national health care reform roll out.
"Here in Arkansas … we're doing what's right and we need to keep doing it. We ought to be proud of what we're doing," Carter said.
As of Dec. 2, nearly 60,000 Arkansans have enrolled in the private option, according to the state Department of Human Services.
Carter acknowledged there was a balance during the regular session between tax cuts and Medicaid savings with the private option.
"That was part of the discussion when all of that was debated," he said. "So, I'm not going to say they aren't connected, but at the same time, everything up there is connected when it comes to money. I think talking about not funding the private option and tax cuts and all these things is a little premature."
Sen. Larry Teague, D-Nashville, co-chair of the Joint Budget Committee, said he's not sure what will happen in the fiscal session.
"When we negotiated the budget … there is no question that savings from the private option was part of the reason that tax cuts were affordable," Teague said. "Now, whether it's still a combined issue or a separate issues, the tax cuts are done, the private option is done and whether they are divisible or not, I guess the body will decide."
Teague said it might be more difficult to get the private option through the Senate since Democrat Paul Bookout, a supporter of the proposal, resigned his seat in August amid an ethics investigation into improper use of campaign funds.
A Jan. 14 special election for Bookout's seat pits Republican John Cooper against Democrat Steve Rockwell, both of Jonesboro.
"I don't know who replaces (Bookout) or what their positions are, but I think without question it's going to be tight either way," Teague said.
The budget reauthorization requires a three-fourths majority in both chambers. In the regular session, the measure passed with just one vote to spare in the Senate and two votes to spare in the House.
Senate President Pro Tem Michael Lamoureux, R-Russellville, said he expects the private option to be considered on its merits and "we won't be discussing any tax cuts during the fiscal session."
Tax cuts "have always been a platform many of us have run on regardless of what other issues are on the table," said Rep. Kim Hammer, R-Benton.


text:
5 Shockingly Creative Ways Animals Are Using Our Garbage
Humanity is pretty good at subjugating nature. In just a few short millennia, we inbred one of the most powerful apex predators evolution could muster, the gray wolf, into the Chihuahua, a hairless rat that couldn't win a fight with a strong breeze. And that's just what we did on purpose. Our little "accidents" have been such a fierce torrent of environmental nut shots that you'd expect nature to be nothing but a quivering mass of weeping extinction by now. But somehow, the natural world keeps finding a way ...
#5. Birds Use Cigarette Butts to Fight Off Parasites
Jupiterimages/Photos.com/Getty Images
Cigarettes are bad news, and not just for us: Animals that live near humans are stuck with billions of pounds of non-biodegradable butts to deal with. Now, normally we'd make a joke here about your mom's ass, but this is just too sad:
pileouface/iStock/Getty Images
Plus their tiny little feet are way too weak to get a Zippo going.
Except that it's not, really.
It turns out that not all animals mind: Some birds are purposefully seeking out cigarette butts to line their nests because the nicotine that cigarette butts absorb while you're smoking them is pretty effective at combating the kinds of mites that plague bird nests. Researchers discovered this after planting heat traps lined with both smoked and unsmoked cigarettes butts in the nests of common house finches and sparrows. After a mere 20 minutes, the scientists found that traps with unsmoked butts had caught roughly twice as many mites as the traps with smoked butts. So, if anything, rather than disposing of your cigarettes properly, just toss that bird a fresh smoke every once in a while.
Photos.com/Photos.com/Getty Images
You've come a long way, birdy.
Of course, being a general bummer, the scientists also pointed out that, while protective and beneficial in this one very specific instance, nicotine is still generally poisonous as all hell, so ashing your American Spirits into a baby bird's mouth doesn't count as your good deed for the day. What you can take away from these findings, however, is that even parasitic bird mites are turned off by smokers.
#4. Nuclear Fallout Helps Thwart Poachers
Anup Shah/Digital Vision/Getty Images
Rivaled only by fast food and masturbation, nuclear weapons are the premier symbol of man's ability to screw itself on a species-wide scale. Not everyone realizes quite how broad the repercussions are: The bombings of Hiroshima and Nagasaki and the more than 2,000 nuclear weapon tests conducted thereafter (not to mention the nonviolent nuclear catastrophes at Chernobyl and Fukushima) have contaminated soil, water, air, and even the very cells of living organisms with measurable levels of carbon-14. If radiation worked the way it does in comic books, we'd all be comic book characters by now. But it turns out that having cancer isn't a superpower, so we guess all these decoder rings were for nothing.
Just once couldn't industrial waste give us X-ray vision instead of just tumors?
Oddly enough, the deadly footprint left by nuclear fallout has become an unexpected ally in the fight against the illegal ivory trade, which kills tens of thousands of elephants every year. By measuring the amount of carbon-14 in a given piece of ivory against the "bomb curve" (the shorthand for leftover carbon-14 floating around our atmosphere), scientists can figure out when an animal died. They then can use that information to figure out if it was killed illegally and in some cases track down the poachers responsible. In short, scientists are deducing crimes via radiation like a post-nuclear Sherlock Holmes. It's not a permanent solution (the technique will only last for another 15 years or so, when background levels will stop being measurable), but in the meantime, helping to save endangered species from human-driven extinction is at least a bit of a silver lining in that ominous, mushroom-shaped cloud.
Anup Shah/Photodisc/Getty Images
"I've been a lot happier since I stopped worrying and learned to love the bomb."
#3. Turtles Love Some Golf Courses
Jupiterimages/Photos.com/Getty Images
Pretty much the entire sport of golf is one deep-swinging ecological crotch punch, with everything from the building of the course to the balls themselves having massively harmful side effects. And yet golf courses can also be an environmental wonderland for a number of different animals. Some research suggests that properly managed golf courses are incredibly beneficial for a plethora of birds, beetles, and especially turtles. So what accounts for the difference?
Jupiterimages/Photos.com/Getty Images
Not being hunted by a varmint-hating Bill Murray?
It's all in how you build it. On some courses, only a small fraction of the landscape is used for the actual swinging of sticks while wearing stupid pants; the rest is just scenic surroundings that you only experience firsthand if you hook a shot into the rough. So barring the rare crash from an exceptionally shitty golfer, it's a sweet hangout pad for nature in the middle of the city. Some of the more flattened courses -- the ones that usually replace delicate and rare marshlands -- end up having a more negative impact, but in the end, it seems like an even split. About half of all golf courses are hate crimes against Mother Earth, but the other half actually manage to cultivate a greater ecological value than farmlands or nature reserves.
Jupiterimages/liquidlibrary/Getty Images
A third subset protects vital cement and plywood ecosystems.
So loving nature and enjoying a shockingly expensive walk with occasional club-swinging breaks aren't always mutually exclusive pastimes. If we just put a little effort into not actively ruining the habitat, we can still enjoy "hockey for people who hate teamwork and excitement" to our heart's content.
Polka Dot Images/Polka Dot/Getty Images
Although we must admit that golf smokes hockey on the Grecian columns front.