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I was reading the answers to a questions I posted earlier, and I realized that my own question's assertion that BDSM activity "produces a sizeable risk" to the person doing the "S" part, is based only on "common sense" as well as "stuff I was told by others".

This assessment seems rather unsatisfactory. Risks ought to be quantified. As such, my question is,

How many people are (a) charged and (b) convicted, for actions that are integral part of their BDSM activities?

Not sure if such statistics is available for any jurisdiction, or any sort of research, but I was hoping maybe some interest groups published something on the topic.

I'll accept answers in any jurisdiction due to expected rarity of any info in most.

dsollen
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user0306
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    There are no good statistics on this issue. Statistics on criminal cases charged and on criminal convictions are not maintained with this level of detail. Media reports would be very incomplete underestimates. There might be some BDSM community oriented source that compiles anecdotal evidence, but I doubt it. Even establishing a meaningful upper or lower bound is very hard because there are lots of offenses that could be charged. For example, looking at assault, false imprisonment, or sexual assault cases involving non-strangers would be wildly too high. – ohwilleke Jan 31 '23 at 17:08
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    As said getting statistics on total folks tried or convicted is hard. Would you instead accepted a few examples of cases where BDSM related case happened and the verdict? IE. no promise that the cases are 100% representative; since that's going to be nearly impossible to provide, but instead an indication of existing precedent which would inform future cases? – dsollen Jan 31 '23 at 21:11
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    related: https://law.stackexchange.com/questions/56590/free-websites-to-help-me-find-influential-or-contentious-state-local-cases-in-th/56593#56593 – Trish Jan 31 '23 at 21:32
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    Also, to be clear, it is a legitimate question that is on topic in this forum. It is simply one that doesn't have a good answer. It's the sort of project that a professor writing an academic journal article with two or three research assistants might spend a year or two trying to answer, possibly hiring a specialty (which means extra expensive) private survey research firm to try to estimate by surveying members of the BDSM community about their experiences with the criminal justice system, or by a deep dive into news databases like Lexis/Nexis that might take a thousand person hours of work. – ohwilleke Jan 31 '23 at 23:00
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    There are somewhat decedent statistics on prosecutions for prostitution, which are certainly more common than the kind of prosecutions in question, which might get you a better upper bound, but it wouldn't be very close at all and wouldn't serve the intended purpose of quantifying legal risk very well. – ohwilleke Jan 31 '23 at 23:03
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    @dsollen - sorry but anecdotal cases won't really help the goal (which is to be able to quantify the risk. Anecdotal examples merely prove whether the risk is zero or non-zero, but not the size – user0306 Jan 31 '23 at 23:15
  • Having said that, as part of this research I ran into Wiki article on "Operation Spanner", and it seems - although I could be wrong - that the fact that this was considered the most big deal, egregious, famous thing ever, and only resulted in 16 convictions, means that this happens less frequently than "everyday". Else, that wouldn't have been such big news/deal. – user0306 Jan 31 '23 at 23:17
  • @ohwilleke - I suspect this could be automated to a great degree, given someone has access to full texts of all cases. After all, you can narrow down to just a couple thousand cases by stupidly - but probably effectively - grepping for "BDSM", "bondage", and several other terms; as a first filter. So manpower required might be leveraged down significantly using proper technology. But you are correct in other respects. – user0306 Jan 31 '23 at 23:22
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    @DVK: to the best of my knowledge, nobody (except possibly the NSA) has full text access to all cases…. – jmoreno Feb 01 '23 at 01:54
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    @DVK the main problem with access is: a) most cases don't get litigated but end in plea bargains or settled out of court. 90%-95% in the US end there. b) cases of this kind can end filed under seal simply because they are highly private in nature. c) due to b, the number of cases litigated is even smaller (see a) – Trish Feb 01 '23 at 01:59
  • Sorry if this is a dumb question, but (a) wouldn't all those cases except sealed ones be govrnment documents and thus supposedly accessible via FOIA request at the very least? Even if it's a plea bargain, it was still government involvement right? (b) Would sealed cases be possible to access in theory by a researcher, after signing appropriate NDA? – user0306 Feb 01 '23 at 02:09
  • @DVK Federal cases are all part of a national online database, but criminal cases overwhelmingly are handled at the state and local level and those records are radically decentallized, sometimes with disconnected databases for every county trial court that are not part of a larger system. – ohwilleke Feb 01 '23 at 03:18
  • @ohwilleke - I have trouble believing some large law school or law firm wouldn't just pay for a project to slurp in all that data. In the big scheme of things, this wouldn't be THAT expensive. And they can sell the data to recoup the costs, ala Lexis. – user0306 Feb 01 '23 at 03:30
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    This is far more complicated than that. While in theory technology exists to scan documents fairly quickly, you have to consider the following:

    a) Charges and convictions may not match up. It's commonplace to allow for pleas to charges that factually are not related to the original charge. For example, in WA, under In re Barr, pleas for time and points for criminal history purposes is common enough that merely looking at the plea isn't even enough. Also, there are privacy concerns for cases that are dismissed, and post-Padilla defense has every incentive to mitigate if ICE may be involved

     – Jim Zhou Feb 01 '23 at 09:28
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    Also, depending on the degree charged, you may have to deal with county, municipal, or tribal jurisdictions, all within the same state ostensibly. There's pretty poor interoperability especially when it comes to the differences from state to state. Different states call similar conduct different names as well, with different elements. I've attempted to use machine learning to categorize just cases I've handled and it still required a manual check, and I only ran 2 years of cases in 1 county public defender's office before giving up. Even PC affidavits often contain wrong/inadmissible. – Jim Zhou Feb 01 '23 at 09:37
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    One last thing: even the feds lose files for various reasons, and while they usually are older files, try FOIA-ing from the National Archives all entry records between 1979 and 1981 through Boston. Last time I did that FOIA I was told a significant number of those records were destroyed on accident in a fire. Problem is much greater in local jurisdictions. Non-digitized records - the majority of records still - can easily be improperly stored. You can do it on a single county, probably, going forward, but you won't get the full picture looking back. – Jim Zhou Feb 01 '23 at 09:46
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    @DVK I understand your desire for statistical sampling, but I just don't think you will get it. My suggestion is more then just anecdotical evidence as it sets precedent though, a precedent that can be argued to strongly impact what will happen in future cases. I would say though that I doubt many S&M encounters ever end up in court. Short of an M getting malicious, an S way overstepping consent and SSC/RACK, or accidental extreme injury no one is going to report consensual S&M and prosecutor is unlikely to persue it. Most S&M 'cases' probably don't get past prosecutorial discretion. – dsollen Feb 01 '23 at 15:26
  • @DVK Westlaw and Lexis opportunistically report select federal trial court decisions and select trial court decisions in state courts in a handful of countries with very big $$ to throw at it and usually limited to civil cases only in state courts. Electronic criminal court records often lag civil court records, because the number of users is fewer and they all regularly visit the court house in person. In many local courts, while you can request a particular case file one by one, getting a general data dump of trial court case data is not viable. – ohwilleke Feb 01 '23 at 21:13
  • Bleh. It's like the system is deliberately designed to be opaque. – user0306 Feb 02 '23 at 00:02

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