On Feb. 16, Kehoe introduced SB 430, which would create new categories of violent crime—attempted strangulation and suffocation. Both felonies would be punishable by mandatory two, three or four years in prison, plus an extra two years if the perpetrator is in a relationship with the victim.
The intent is to crack down on domestic violence, but, because of the bill's wording, the National Coalition for Sexual Freedom (NCSF) says the legislation could have the unintended consequence of criminalizing a range of intense sexual activities, especially within the scope of "breath play."
SB 430 defines "strangle" as to "intentionally, knowingly, or recklessly impede the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck." The definition of "suffocate"—"intentionally, knowingly, or recklessly impede the normal breathing of a person"—could have the greatest impact on BDSM practitioners, since even milder sexual practices, such as face-sitting and the use of leashes, gags, gas masks and hoods, can impede breathing.
What makes the bill especially dangerous to sexual liberties is it specifically states prosecutors do not need to prove intent to cause harm in order to secure a conviction. However, Kehoe's office tells CityBeat that the law would only apply to perpetrators who "willfully and unlawfully" strangle or suffocate another person. This language, they say, would exempt legal activities, such as wrestling teams, from prosecution.
Susan Wright, national spokesperson for NCSF, says that doesn't go far enough and the bill should explicitly exempt consensual activities.
"We would want to them insert non-consensual,' so it wouldn't be misinterpreted by people whose standards are different from ours in terms of what they believe people do," Wright says. "Some people like intensity with their sex."
Even though Kehoe may have noble motives, Wright says, the bill could give sexually conservative prosecutors a tool to persecute those who engage in bondage, sado-masochism, domination, leather play and other kinks.
"Point taken," Kehoe told CityBeat. "We haven't heard from that community, and we'll have to deal with their concerns when we hear more about it."
The NCSF is currently evaluating laws in every state as part of its "Consent Counts" project to identify places where consent is not a defense to assault and battery. Wright points to the famous 2000 "Paddleboro" case in Attleboro, Mass., where prosecutors pursued criminal charges against individuals caught using wooden paddles at a sex party. The organization also supported the defense of the "San Diego Six," the members of the "pansexual leather / BDSM fetish group" Club X who were prosecuted for various lewd-acts-in-public charges related to a fetish party in 1999. Eventually, then-San Diego City attorney Casey Gwinn dropped the charges against five of the defendants. The other defendant won a not-guilty verdict.
Now president of the National Family Justice Center Alliance (NFJCA), Gwinn is also behind SB 430. As city attorney, he submitted his office's records for a NFJCA study. The researchers found that in 50 percent of 300 cases of domestic violence involving strangulation, there was no visible injury, and in another 35 percent, the injuries were too minor to photograph. The proposed legislation explicitly states that visual evidence is not required for a conviction.
Last year, one of Gwinn's domestic-violent clients, San Diego City College student Diana Gonzalez, was killed three weeks after filing a police-report accusing her husband of choking her. Gwinn told Channel 8 News after Gonzalez's murder, "You can't consent to strangulation."
Gwinn says the fetish aspect was not a consideration in crafting the measure. He says he will oppose NCSF's effort to refine the bill and believes that current law already allows judges and juries to decide whether an act was lawful or not based on consent.
"That's obviously a word we would oppose, because any abuser could say it was consensual," Gwinn says. "I don't think I've ever prosecuted a case where someone didn't say it was part of the relationship."
Selina Raven, a professional dominatrix and instructor at the San Francisco-based Cléo Dubois Academy of SM Arts, says this issue highlights a major flaw in both perception and law.
"So much of American law and legislation is written with the idea of protecting victims of domestic violence and abuse," Raven tells CityBeat via e-mail. "I completely understand and endorse the idea of protecting the innocent, but as American law stands, it doesn't take into account the desires of sane adults who wish to engage in BDSM activities."
But even in the fetish community, breath control is considered one of the more extreme and dangerous sexual thrills, especially erotic asphyxiation, in which air and blood is cut off from the brain. Auto-erotic asphyxiation—choking oneself—was widely theorized as the cause of Kill Bill star David Carradine's death in 2009.
"We teach how to do it safely: Don't constrict the throat, don't put a bag over somebody's head," Wright says. "You can put a hand over somebody's mouth and nose and then you are aware of how far you need to take it . If you want this rush, this is how you can do it where you're not going to kill somebody."
Gwinn expects the larger debate in Sacramento to be over the word "recklessly" and whether the police can charge someone who recklessly but perhaps unintentionally strangles or suffocates another person.
"Many statutes don't use reckless' and require willful' and unlawful,'" he says. "That's a word we included because we want to add situations where someone, in fact, says, This wasn't really assault or a domestic-violence case; this was rough sex.' In my experience, juries tend to sort that out."