In the dark world of kink, clear parameters must be agreed upon by all parties involved before entering a scenario in their sadomasochistic sex play. But what happens when something goes “very wrong” and one or more parties feel they have been injured? Can one lawfully allege in an online forum that they have been sexually assaulted without ever filing a police report? What is the responsibility of the kink community in rightly dividing fact from fiction when a charge against one of its members has been made? And when does consensual sex between adults playing out an erotic fantasy cross that knotty line and become a “consent violation”?
These are prickly questions the U. S. District Court in Baltimore may be obliged to decide if a lawsuit now in the legal system ever sees its way to trial.
The lawsuit in this unusual case was filed May 17 – not by the alleged victim of the assault – but by the man she maintains committed a consent violation. He, in response to her online accusations, is claiming defamation of character and seeking compensation to the tune of $1.5 million.
Troubling to many in the highly secretive kink community is the names of both the plaintiff (Bret Wade of Baltimore) and the defendant (Erin Chaney Foster of Albuquerque, New Mexico) are now a matter of public record. But the case also is sending shockwaves throughout the greater burlesque community as Foster’s stage name – Sophia Sunday – also has been cited as her alias in the lawsuit.
In a 12-page complaint, obtained by the Baltimore Post-Examiner, Wade vehemently maintains the alleged consent violation against Sunday never took place. Wade lays out a nearly year-long timeline, in which he says a “deep relationship” with Sunday developed. This deep relationship, he says, included “sexual activities other than intercourse.”
Wade also states in the complaint that he believes the story Sunday tells of the alleged consent violation was wholly contrived to cover an embarrassing marital infidelity.
Because of the sensitive nature surrounding sexual assault cases, the Baltimore Post-Examiner would not normally use the names of either the alleged victim(s) or alleged perpetrator(s) in a story. But because they themselves thrust their names into the public record – the Post-Examiner has lifted that cloak.
The bones of the case, as presented in the plaintiff’s complaint, are as follows:
Wade and Sunday are both active in an alternative lifestyle known as the “Kink Community.” On the evening of July 20, 2016, Sunday had dinner with Wade and his polyamorous family at a restaurant in Baltimore. After dinner, at which two to three glasses of wine were consumed by each member of the party, Sunday said she did not want to drive. Wade and his family offered to have her stay at their Baltimore home. During the course of the evening, Sunday, Wade, and his wife engaged in “rope-play.” Sunday then spent the remainder of the night with Wade and his family – sharing a bed with Wade, his wife, and Wade’s (unnamed) polyamourous partner.
Two weeks later, on or about August 5, 2016, Wade was informed by a leader in the kink community that Sunday had accused him of assault on the night of July 20, 2016. About ten days later, Sunday proceeded to post comments about Wade on FetLife under the title heading “Consent Violation”. (FetLife is a social network for the BDSM, fetish & kink community.)
Sunday wrote on FetLife that she could not have consented because of her state of intoxication during the rope-play. Both Wade and his wife maintain that all of the play that night was consensual.
At no place in the defamation complaint is the exact nature of the alleged assault ever specified.
To clarify some of the facts surrounding this case, the Post-Examiner endeavored to reach out to Wade and Sunday, and the attorneys representing them.
As of press time, the Post-Examiner was unable to reach Sunday. But her attorney spoke on her behalf.
Kaplan told the Baltimore Post-Examiner that he could not be specific at this time about the alleged violation or answer particular questions about discovery issues. Even so, Kaplan noted that Wade admits he has been accused of sexually assaulting Sunday.
“To my mind, the bigger issue here is that, setting aside the facts in this case, Mr. Wade is trying to intimidate someone from reporting a sexual assault. One of the negatives about our criminal justice system is that someone who has a lot of money to pay for legal representation can use the system to extract a cost for speaking out about something like this. Win or lose, this case will be extremely costly for my client, and frankly, she does not have a lot of money. I think other women – and even men who are victims of sexual assault – will see that cost and ask themselves, ‘Is it really worth it for me to speak out?’”
(Friends of Sunday have launched a gofundme campaign to help defray some of her legal expenses.)
Kaplan also said he could not directly respond to the question of why Sunday did not go to the police, other than say the only thing Sunday initially wanted was an apology from Wade.
Wade’s attorney, Marc Ominsky asked if he could defer comment until he had a chance to speak with his client. An hour or so later, he phoned with his response.
Omisky said that Wade did not want to be “tried in the press.”
“Essentially, my client didn’t have any choice but to file this defamation case in light of the defendant’s false, misleading and damaging allegations. Looking at the complaint, you can see that we have a community who is very sensitive, and the defendant well knew this. As a result, there is no chance for someone like my client to defend himself and his reputation than by doing what he did (in filing the complaint). It’s like a Salem-type witch hunt when it comes to these things with this community.”
When asked if he had ever previously worked on a case involving online accusations, he responded:
“I’ve worked on some of these cases before, and they are never easy to deal with. But people cannot be so free to damage the reputation of others without some type of defense for people like my client.”
Ominsky also defended the $1.5 million his client is seeking.
“My client thinks it should be worth even more, because his reputation is very important. How do you price a reputation?”
The question of reputation is paramount in this case, as both Wade and Sunday have something of a following in the Mid-Atlantic area.
By his own account (as stated in the defamation complaint), Wade is well known in the kink community. Prior to Sunday’s FetLife post, Wade says he, “was a well-regarded educator in Kinbaku and Shibari (rope-play)…. demonstrating and teaching rope-play at events throughout Maryland and other jurisdictions.” He earns income from teaching rope-play, according to the lawsuit.
Sunday, who has appeared in several theatre-related stories on this news site, is one of the most recognizable faces in the Baltimore/Washington burlesque scene. Sometimes called, “The Sweet Siren of Burlesque,” Sunday employs singing as a stand-alone act and in her burlesque routines. Though now living in New Mexico, Sunday returns to Baltimore occasionally to perform in themed road shows or as a guest member of her former troupe – Gilded Lily Burlesque.
To understand the complex issues surrounding the give-and-take in the bondage scene, one must first glean a glossary of kink terminology.
A “top” is the doer in an agreed upon scenario. A “bottom” is the one to whom the action is being done. In “dom/sub” play, one person is dominant – the other person is submissive. “Rope-play,” as one would expect, encompasses the erotic art of bondage. “Safe words” are mutually understood codes for supplications like “No” or “Stop.” There is something called “rape play,” or as one writer calls it, “consensual non-consent.” And there is the “dungeon” – an area or a room with bondage, discipline and sadomasochism equipment.
The common thread in all kink-related activities is agreed-upon scenarios involving mutual consent. This is where the term “consent violation” comes into play.
The Submissive Guide – an online source for kink enthusiasts – defines consent, in the kink realm as, “an informed, non-coerced, enthusiastic, revocable permission for something to happen. Revocable means that consent can be withdrawn, by any party, at any time during the activity. Consent can only legally be given between adults of the age of consent or greater in your area.
“When an activity takes place with the consent of all participants, the activity is said to be consensual.”
The Submissive Guide continues:
“Just as there are different levels of consent, others may have different thresholds for consent violation. Violation of consent doesn’t even require touch; it can include invading someone’s personal space, using certain language with someone, or expecting someone to use certain language or obey certain etiquette. There is a huge spectrum of consent violations, from personal space invasions to rape and assault. Despite the varying degrees of perceived “severity” throughout the spectrum of consent violation, all consent violations are serious matters. Consent violation is not restricted to bottoms, as tops can and do have their consent violated as well.”
The website then cryptically notes:
“While consent violations are serious matters, not everything that is labelled (sic) as a consent violation is a consent violation as some may use this and other terms for unscrupulous purposes.”
The Defamation Complaint
As noted above, Wade’s 49-point Complaint For Defamation, runs 12-pages long. The following bullet points quote the salient allegations in the complaint:
- (11) “The parties met at a Baltimore Nawa Kai meeting on or about August 24, 2015 and, after said meeting, they went to Plaintiff’s home and participated in rope-play.”
- (12) “Subsequent to their first meeting, the Defendant (Sunday) contacted the Plaintiff (Wade) and expressed an interest in modeling for him.”
- (13) “Over the next few months, the parties spent time together….During the course of their practices, which were conducted at the Plaintiff’s house, the parties developed a deep relationship.”
- (14) “The parties deep relationship began to evolve into more involved kink activities. Originally, the Plaintive and Defendant were not sexually involved. However, as a result of the deep relationship they developed, the parties began exploring other kink activities, along with sexual activities other than intercourse. This included practice where Defendant would remove her undergarments for sexual activities.”
- (15) “Prior to her move to New Mexico, the Defendant communicated to the Plaintiff that she agreed with her husband that they would be monogamous and would no longer be involved with the (kink) community.”
- (17) “Defendant clearly intended to continue her relationship with the Plaintiff evidenced by continual texts and voice mails while she and her husband drove to New Mexico. Contrary to her claim that she had agreed with her husband to be monogamous, while she was in New Mexico she would continually communicate with Plaintiff that she missed him and desired to be with him. Further, she was sending him pictures of her alone and with other parties while engaged in sexual activity.”
- (18) “The Defendant returned to Maryland on or about July 20, 2016…”
- (19) “During the Defendant’s Maryland visit she contacted the Plaintiff. The Defendant traveled to Baltimore City to have dinner with the Plaintiff and The Family. They went to a restaurant where each had 2-3 glasses of wine while dining, over the course of 2 hours…”
- (20) “During the parties’ dinner, the Defendant informed the Plaintiff and the Family that she did not want to drive. Based upon their relationship, the Plaintiff and the Family offered to have her stay at their home for the evening.”
- (21) “Defendant requested rope-play during the walk back to the Plaintiff’s house.”
- (23) “At midnight, the Defendant joined the Plaintiff and The Partner in bed, and when the Partner needed to go to sleep, subsequently joined Plaintiff and his wife in their guest room, where Defendant made numerous sexual advances to Plaintiff and his wife.”
- (24) “Plaintiff and his wife clearly informed the Defendant while rope-play was allowed, sex would not be involved as the Plaintiff’s Family would all have to discuss it first and reach agreement. Said discussion did not occur that evening. However, during the rope-play, the Defendant continually made sexual advances to the Plaintiff and his wife was uncomfortable.”
- (25) “After the rope-play, the Defendant joined the Plaintiff and the family in bed, where the Plaintiff slept in his usual spot, between his wife and Partner. The Defendant slept next to the Plaintiff’s wife.”
- (26) “The next morning, after the Defendant left, she texted the Plaintiff. She stated in her text that her husband was going to be upset that she spent the night with the Plaintiff.”
- (27) “The Defendant texts to the Plaintiff were followed by texts that evening to the Plaintiff’s wife. The Defendant stated that she was ‘more drunk than anyone realized’ and all she remembered is that she wound up in rope. She further stated that she and her husband had ‘opted out of kink’ after their move to New Mexico and she would not have agreed to rope-play if she had been sober.”
- (28) “The Plaintiff’s wife responded that she was present the entire time, that rope play was talked about, and that nothing was done without consent.”
- (29) “The Defendant communicated again via separate texts to the Plaintiff and his wife that her husband was upset and she has to break contact with the Plaintiff. She further stated she made, ‘a bad decision’ and is ‘paying the consequences’.”
- (30) “On or about August 5, 2016 the Plaintiff was informed (by a leader in the community) that (Sunday) had accused him of violating her consent on July 20, 2016.”
- (33) “The Defendant, on or about August 15, 2016, proceeded to post on the FetLife Listserve, under the headline, ‘Consent Violation’, inaccurate, disparaging, damaging and defamatory comments knowingly calculated to destroy the Plaintiff’s reputation.”
- (34) “The Defendant claimed that the Plaintiff violated her consent as she was intoxicated while rope-play was conducted by her, the Plaintiff and his wife.”
- (35) “The Defendant’s allegations included either preposterous, damaging and defamatory claims that were extremely sensitive in nature with the knowledge that such lies would inflame the community. She further stated in her posting that had she been sober, ‘I would have reminded my former rope partner (Wade) that my husband and I were not living the polyamorous lifestyle anymore’ despite her actions and communications to the contrary.”
- (36) “The Defendant further informed the community that she had given the Plaintiff a chance to publicly admit her claimed consent violation. However, as he did not, she knowingly made the aforementioned defamatory statements about the Plaintiff.”
- (37) “The Defendant knew or had reason to know that any allegations of consent violations against an individual in a group as sensitive as the community would tarnish the individual’s reputation despite the individual’s denial or the lack of any reasonable proof.”
*The suit in this case was originally filed on Dec. 16, 2016 in Howard County Circuit Court, but then moved to U.S. District Court on May 17, 2017. Sunday has until June 26, 2017 to file her response to the Court.
The Baltimore Post-Examiner will continue to follow this story. You can find the defendant’s answers and counterclaim here.)
Anthony C. Hayes is an actor, author, raconteur, rapscallion and bon vivant. A one-time newsboy for the Evening Sun and professional presence at the Washington Herald, Tony’s poetry, photography, humor, and prose have also been featured in Smile, Hon, You’re in Baltimore!, Destination Maryland, Magic Octopus Magazine, Los Angeles Post-Examiner, Voice of Baltimore, SmartCEO, Alvarez Fiction, and Tales of Blood and Roses. If you notice that his work has been purloined, please let him know. As the Good Book says, “Thou shalt not steal.”