Are Sex Parties Legal? We Spoke to A Veteran Promoter To Find Out

In our Dancing vs. The State series, THUMP explores nightlife’s complicated relationship to law enforcement, past and present.

Over the past few years, alternative sexual culture has gone from niche to nearly mainstream. The first two films in the BDSM-themed Fifty Shades of Grey series each made over $100 million at the US box office. Polyamorous relationships are also becoming increasingly commonplace—in a 2015 study by the legal data startup Avvo, 4% of American respondents classified themselves as currently in an open relationship, and only 45% of men (and 62% of women) said they were morally opposed to them.

Sex parties—events where participants can have sexual experiences with other attendees in a safe and consenting environment—are also growing in popularity. Ben Fuller, the founder of Modern Lifestyles, a ticketing service for swinger parties, told Quartz that his business has increased by 81% over the last two years.

But just because these subcultures are becoming less taboo, doesn’t mean that the authorities see them that way. There are still laws on the books in many states that prevent kink and BDSM—an acronym for Bondage, Domination, Sadism and Masochism—from being practiced openly. Non-kink sex-positive events are also stifled by these laws, which prevent these events from openly advertising and charging for tickets.

We asked Deborah Rose, a Philadelphia-based veteran promoter of sex-positive events, to explain the regulations surrounding the industry, how promoters get around some of these barriers, and strategies for making the scene better and safer for participants.

THUMP: How would you define a “sex party”?

Deborah Rose: I think that it would be a mistake to call a sex-positive space a “sex party, because they’re usually not just sex-centering. Some of them are, but most of them aren’t. Most of the communities who go to these kinds of parties call them “play parties” more than anything else.

There are many different iterations [of what a sex-positive event can be]. They can vary largely in size. There are parties in people’s private homes that range from five to 10 people, and then there are really large-scale events that can be 150 people on a Saturday night in a warehouse or at a music venue. Largely, those parties exist in BDSM, kink, and fetish communities.

The swinger communities tend to have what are commonly called “sex parties.” But they largely don’t have those in warehouses—they have their own clubs. We see swing clubs in most major cities, and those are established, for-profit businesses that facilitate a sex-positive space in a really specific context. Those communities are largely straight, white, and heteronormative.

What are the laws surrounding these kinds of events?

The most common misunderstanding is that the laws are the same everywhere. Actually, the biggest problems that these communities face is that the laws are different everywhere you go.

In major East Coast cities, they vary wildly. Most cities do have a swingers club, which facilitates sex parties that are completely above-board. They’re licensed clubs. It’s a special licensing they seek from the zoning board or from licensing and inspection that allows them to operate as a completely confidential, private, members-only club. When people come in, they don’t buy a ticket for the night. They buy what is branded as a “membership,” so that they buy into this membership, which allows the clubs confidentiality [and therefore protection from prosecution for potentially violating vice laws].

On the East Coast, “vice laws,” sometimes called “blue laws,” are laws that govern people’s moral behavior. In Massachusetts, Pennsylvania—recently in New York, it was changed—you cannot facilitate sex or facilitate “abuse” in any way, which makes it so that it’s almost impossible for a promoter to organize a party without opening themselves up to liability. Vice laws typically regulate sex, alcohol, and drugs.

When we talk about BDSM, kink, and fetish communities, those communities have largely been relegated to spaces that are not zoned and licensed. Because in many East Coast cities and in many East Coast states, you [legally] do not have the ability to consent to “abuse”. So, facilitating these parties or participating in these communities can be illegal and can open you up to prosecution.

For swinger parties at licensed clubs, is it at all apparent in the laws or paperwork that sex will be happening at these locations?

Swingers clubs largely try to avoid explicit language on what we call the “public-facing internet” or “public-facing media.” You go to the clubs and you understand what is happening there, but they don’t advertise sex.

The other thing they don’t advertise is alcohol. One of the biggest liabilities for a promoter is to allow alcohol into their spaces, because then you are involving whatever liquor control board—whatever organization that governs alcohol within your community—into your space. Anytime you mix alcohol and sex, you’re automatically opening yourself up to a huge liability. Especially if you’re taking money at the door.

So, the way swingers clubs circumnavigate that is almost all their spaces are BYOB. They have a bar–you bring your alcohol to them and they will serve it to you–but they are not selling you alcohol.

Aside from swing communities, which do have a lot of alcohol inside their community, most of the sex-positive communities that organize play parties shy away from alcohol because of the liability that it brings [due to intoxicated people who can’t consent or who may be a danger to others or themselves], and because of the level of regulation that it brings. It shines a light on what is already a space where we don’t want too much exposure.

Could a sex-positive event be prosecuted as operating an illegal brothel?

In some states, parties that sell tickets or charge a cover at the door definitely open themselves up to prosecution for facilitating prostitution. Promoters sell tickets to events ahead of time to mitigate this issue.

You mentioned that because of some of these laws, it is difficult to throw any parties with a kink or fetish element. How do people get around that?

In the states where it is illegal to “facilitate abuse,” they largely don’t. Massachusetts is a really good example of this. Massachusetts has a very large kink community that does not participate in that culture within Massachusetts. They travel to Rhode Island, Vermont, and Connecticut, where events are more easily facilitated, and where the laws are slightly more friendly to these spaces. On the East Coast, the most active kink and fetish communities are in Baltimore and DC; because spaces are able to exist there legally, they’re able to license themselves, and exist above board. Maryland and the District, as well as Pennsylvania, benefit from more relaxed laws in this regard.

What’s different about the laws there?

Ironically enough, the law that makes it so that you cannot consent to or facilitate abuse is the Violence Against Women Act, which is an incredible law written to protect domestic violence victims. But what it also does is make it so that the police can prosecute somebody without the consent of the victim. So, in states where that doesn’t exist, we’re more able to provide spaces for kink and fetish communities to flourish. But in states where it does exist, [the kink community] is largely stifled, for fear of prosecution.

You mentioned that the laws are also a little more relaxed on the West Coast.

Absolutely. States on the West Coast have more progressive ideas about sex and sexuality in general. Maybe not pervasively within the culture, but definitely within the laws. Because that exists, the best centers for sex-positivity and for sex-positive culture exist on the West Coast.

In San Francisco, The Armory [building in the Mission, owned and operated by BDSM-focused porn production company] Kink.com provides one of the best sex-positive spaces in the country. The other best space in the country for sex-positive culture is in Seattle. Both of these spaces exist above board and have both for profit and non-profit entities that serve communities. The laws that exist allow them to participate in communities that facilitate discussions about sex-positivity and provide spaces for these communities to grow in a way that is not available to us on the East Coast.

Are there any organizations out there trying to advocate for sexual freedom and sex-positive spaces as a First Amendment right?

Free expression is really what we’re talking about. There’s an incredible organization that exists within kink communities called the National Coalition for Sexual Freedom, or NCSF, which exists to help all alternative sexual communities. Their goal is to raise awareness about alternative sexual practices and the way these communities govern themselves, and to add resources for people to explore their sexuality in safe ways.

They’ve created consent workshops and incident response structures; they advocate for sexual practices to be removed from the DSM, and they are lobbying Massachusetts, Virginia, and Kentucky to see BDSM and kink as a sexual practice rather than a paraphilia. They’re an organization that has stood up for kink and sex-positive communities all over the country.

Many promoters of sex-positive events use FetLife, an online social network for people in the fetish and kink communities, to publicize their events. FetLife has struggled recently as credit card companies have threatened to stop processing payments made by users to access premium features on the website. Can you explain why this is a problem for kink and fetish communities?

FetLife is facing a lot of legal trouble right now because of the access they give kinksters to talk about their kinks [including discussion of simulated non-consensual sex]. FetLife in general is struggling really hard to try to find a balance between providing people an opportunity to engage in safe and consensual play while sustaining a business model that allows them to process credit cards. [It’s] really problematic to tie a business’ money to the microphone they’re giving people to engage in free speech.

One of the biggest challenges promoters, organizations, sex workers, and porn stars all face in providing these spaces and providing these services is that credit card processors [do not want to] process anything involving sex-positivity. We’ve seen it in the way that PayPal [and Square] will not take professional dominatrix money, will not process kink money, will not process [sex-positive] vendor money. So there are now alternative third-party credit card processors that we can use, but one by one, they are being targeted to stop processing money that funds sex-positivity.

Aside from swingers parties and underground kink and BDSM parties, it seems like there’s a third category of party that’s more “mainstream”—parties, for example, like Killing Kittens, which sell tickets, rent out hotels or other spaces, and are very open about what they do. What is the legality around those kinds of parties?

You can never underestimate how much a hotel can protect you. You sell tickets to a hotel event and then people buy hotel rooms, and [the facilitators] rent out ballroom space. If people have sex at those events, you’re not facilitating that sex. You’re just facilitating the space. Those events are definitely above board. They’re organized LLCs, and they have insurance to protect them against their liability.

As the culture becomes more mainstream, do you or others in the community have any concerns about people coming into the culture and using it as a profit-making enterprise?

I think it would be a mistake to believe that there aren’t people who are genuinely invested in growing these communities but who are also invested in making some money off of kink. There are many people out there running wonderful events who deserve to make some money for having provided those spaces. But there is a lot of concern that as these communities grow, the wrong people are going to come in—people who only see the community as a walking line of dollar signs—and who are not going to provide the kind of spaces that are desperately needed, which are safe, intentional, and consent-driven play spaces. As long as promoters are providing the kind of safe, consenual spaces that we need, I think that we’re going in the right direction.