Dildos and Domination — The Legalities of Domme Strap-On Play
Pegging has come a long way since the 1970s. When pegging (a woman anally penetrating a man with a strap-on dildo) was included in the 1976 adult film favorite “The Opening of Misty Beethoven,” that scene was controversial even in the adult entertainment industry. But these days, pegging isn’t nearly as underground as it once was. Mainstream websites like Salon.com have published articles on the subject, strap-on porn is plentiful, and the activity is discussed so openly that in 2001, the popular sex columnist Dan Savage even held a contest to come up with a name for it (which was how the term pegging achieved prominence). Pegging is widespread in BDSM, and being pegged by a dominant woman (either a dominant girlfriend or a professional dominatrix) is a common fantasy among submissive men. But what are the legal implications for a pro-domme should she peg a male customer during a session? The answer to that question has a lot to do with where she works.
Typically, pro-dommes do not take their clothes off during sessions or engage in traditional penis/vagina intercourse with clients. But some pro-dommes do peg submissives during sessions, while other pro-dommes refrain from doing so because they are fearful of a prostitution charge.
Prostitution is legal in many countries, but in the U.S., it is illegal except for certain counties in Nevada — although prostitution laws can differ from state to state. “The problem with prostitution laws is that they can be interpreted very broadly,” asserted Susan Wright, president of the National Coalition for Sexual Freedom (an organization that promotes BDSM rights). “So in some jurisdictions, any kind of insertion with fingers or dildos in a pay-for-play scenario can be considered prostitution. There are also states like New Jersey which specifically include sadomasochism if done for pay. No one is willing to fight these laws — it’s much easier for people to plead to lesser charges and be done with it rather than go through a trial.”
There have been many incidents of pro-dommes being charged with prostitution in the U.S. even though they made it clear to undercover police officers that they wouldn’t be having traditional sex with them. Florida-based First Amendment attorney Lawrence G. Walters, who has represented numerous clients in the adult entertainment industry, pointed out that for pro-dommes, the use of a strap-on might be legally riskier in some places than it is in others.
“Pro-dommes are in a tough spot sometimes when they try to figure out what they can and can’t do,” Walters observed. “The prostitution laws do vary from state to state. I can tell you, for example, that in Florida — where I practice — the prostitution statute is very broad and includes references to the insertion of an object in the anus or vagina for purposes of sexual gratification. And that would clearly contemplate the use of a strap-on dildo on a submissive if the submissive were paying for that activity. So in Florida and other states, frankly, the domme would have reason for concern about being in violation of prostitution laws.”
Further complicating matters is the fact that some pro-dommes work in more than one state. Walters said that if a pro-domme is working in two or three different states, she needs to know the differences between the prostitution laws in those states.
One Supreme Court decision that has been applauded by people in the adult entertainment industry, including pro-dommes, is the Court’s landmark 2003 ruling in Lawrence v. Texas, which declared a Texas sodomy law to be unconstitutional and in effect invalidated sodomy laws in 13 other states. Lawrence v. Texas is not only protective of gay men — it is also protective of heterosexual couples who play with strap-on dildos. But Walters observed that so far, the courts have not interpreted Lawrence v. Texas as being unfavorable to prostitution laws.
“There was some concern by the dissenters in Lawrence v. Texas, particular Justice Scalia, that the ruling would ultimately be used to invalidate laws having to do with bigamy, prostitution and all these moral crimes in the United States,” Walters explained. “Scalia was worried that the floodgates would be opened. I think Scalia was right that Lawrence v. Texas could be used to invalidate other statutes, but that’s not how it has played out. So far, it has not been used to invalidate other moral prohibitions. The states still have the basis on which to decide that consenting individuals cannot engage in activity for pay such as strap-on dildo play.”
Before a BDSM session takes place, pro-dommes typically interview clients to determine what kinky activities will and won’t be occurring during the session. Experienced pro-dommes are careful what they say during that interview process in case a “new client” is actually an undercover police officer.
“You don’t have a lot of law enforcement agents pretending to be submissive and getting to the point where a strap-on dildo is whipped out and money has been paid,” Walters noted.
“Could it happen? Certainly. Obviously, law enforcement officers are not going to be engaging in sexual activity in order to pursue a prostitution charge or solicitation charge; they just need to show that the intent was there and that there was some agreement made to engage in sexual activity for hire. Where you get into problems is where there are potential defenses of entrapment. If the officer was saying, ‘Well, I’d really like you to use that strap-on dildo’ and the domme says, ‘Well, I typically don’t do that as part of my services’ and the officer says, ‘Oh, just try it this one time. I’ll give you an extra $100,’ that might be evidence of entrapment. But there are questions of whether or not the domme might have been predisposed to doing that activity.
As you can see, it gets complicated from a legal standpoint. But there is a high degree of risk from an academic standpoint of violating various state prostitution laws when strap-on dildos are used in any professional dominatrix activity.”