Latest / The Sexology Lab / Forensic Psychology, Bias, and Criminalizing Desire | Dr David Ley | Episode 6

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Forensic Psychology, Bias, and Criminalizing Desire | Dr David Ley | Episode 6 · The Sexology Lab

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Then I started getting calls from attorneys wanting me to be
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an expert witness around cases related to claims of sex
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addiction. The link for me is that I'm
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going in and helping fact finders, judges and juries
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understand these concepts, these issues, based upon the best
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scientific evidence that we have right now, as opposed to the
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general myths that the public general holds.
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What happens when attitudes around sexuality enter the
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courtroom? What if the biggest decisions
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about sex in our legal system are being made based on myths,
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not science? That's the basis for our
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fascinating conversation with forensic psychologist Doctor
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David Lay. We talk about what happens
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inside courtrooms, how kink and non traditional relationships
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get misinterpreted, and why people's lives can be completely
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changed by misinformation about sex.
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Doctor Lay is a world renowned clinical psychologist, author,
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and expert in forensic sexuality.
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Known for being scientifically grounded, clinically sound
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perspectives to conversations about sexuality and mental
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health. He serves as an expert witness
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in complex legal cases, helping courts understand sexuality
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through evidence instead of stigma.
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If you're ready to understand how sex gets judged in court,
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why that matters, and how that impacts your work, then this one
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might shift your perspective. Let's dive in.
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Welcome to sexology lab each week we speak with the most.
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Compelling minds in modern sexology to ask the questions
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shaping the future of desire, connection, and human Wellness.
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Let's dive. In So David, what is one thing
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people would be surprised to learn about you?
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That I'm actually more of an introvert.
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People are always surprised that my idea of a good time is
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sitting and reading a book. Maybe at a bar, but reading a
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book and having a beer. I will talk and engage with
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people, but I recharge through chronic quiet time and even
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though I can do the extroverted act and do it pretty well, I
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think it is energy. It takes a lot of work for me,
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and people that get to know me are kind of surprised that I
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oftentimes been private and pretty quiet.
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That is surprising. You do the extrovert thing very
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well, but I'm also the same. But I do really love my quiet
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time. An old professor, mentor of mine
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explained that the true extrovert is energized by that
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extroversion kind of attention activity.
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The introvert that is doing it and maybe doing it very well, it
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takes energy. It can be exhausting.
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So I want to get to know you a little bit more, so let's start
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out by sharing your 32nd origin story.
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How did you first find your way into sexual health and
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specifically into the forensic sexuality space?
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Well, with the last name Lay, I didn't have a whole lot of
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options, right? I was originally trained in
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forensic psychology. I was working in Texas as a
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forensic psychology with a probation system.
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And these police officers brought me a big Manila envelope
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all wrapped up with evidence tape.
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And they said, Doctor Lay, we need you to go through this and
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tell us if there is any deviant material in here.
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And what had happened was that a teenage kid was ditched in
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school, breaking into his neighbor's house, using their
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computer and color printer to print out full page porn
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pictures off the Internet. And now this was 2530 years ago,
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right? And they wanted me to go through
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this and see if there was any deviant material.
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Well, how do you define that, right?
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And I wanted to do a good job. I'm a dedicated, committed
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professional. So, you know, I locked the door
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on my office, I turned down the lights, and I spent two or three
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days going through that material over.
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And I'm just kidding, right? But I had to testify in court as
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to whether, you know, there was deviant material.
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And as I recall, it was all fairly standard, mainstream,
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almost Playboy kind of specific, you know, nudes.
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I think the most deviant or edgy sort of thing was a nude woman
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in public kind of squatting over a orange traffic cone.
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She was having the traffic cone penetrator.
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But that was the most edgy kind of thing in there.
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Honestly, it was my first experience testifying in court
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around sexuality issues and realizing just how subjective
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and I'll defined a lot of sexuality issues are,
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particularly when they get into court.
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And also realizing that courts, because they are so ignorant and
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people generally hold so many misbeliefs and myths around
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sexuality that folks that have expertise in these areas really
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have a lot to offer to the court around sexuality.
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That has become now a really significant part of my career.
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It's a lot of what I do on the side, testifying in court around
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sexuality related issues to help the judge, attorneys and juries
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make decisions based on the best evidence that I can give them as
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opposed to their subjective bias whether they would do it or not.
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So that was like your first experience with this whole
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world. And then after that, did you
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realize like, hey, this is an interest of mine?
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Or was it more of like this is something that needs to be done
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or a little bit of? Both.
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I put forensic stuff really on hold in my career.
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I started doing a lot of other things.
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I ended up writing books about sexuality, and my second book
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was called The Myth of Sex Addiction, and I really took on
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the validity of the concept of sex addiction.
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And then I started getting calls from attorneys wanting me to be
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an expert witness around cases related to claims of sex
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addiction. So for instance, in Ohio, there
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were a couple of attorneys that had gotten in trouble for
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sexuality. One of them was kind of famously
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known as the naked photographer. He would jump out on a sidewalk
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and he would expose himself opening a trench coat and expose
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himself to female pastors by and then he would take photos of
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their faces surprised at his nude body.
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And when he got caught, it turned out he was an attorney.
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So he lost his law license as a result of this activity and
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conviction. A few years later, he was trying
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to get his law license back, and he claimed that this behavior
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had been the result of sex addiction.
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And the Ohio Supreme Court brought me in to testify about
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whether sex addiction was a valid kind of concept or
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diagnosis or not, and whether it was a legitimate excuse for his
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behavior. And of course, I argue that it
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was not. The court ruled in my favor,
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although a couple of years later after he continued to behave and
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follow us wrong on treatment and stuff like that, he did get his
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license back. But again, cases like that
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started popping up and I ended up being kind of good at it.
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What works in these situations is being able to communicate
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about these complicated, nuanced issues in an accessible way that
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the jury can understand. As a result of that, my name
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started kind of getting around amongst attorneys.
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I started getting asked to testify about more issues.
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There are some expert witnesses out there that will testify for
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anybody about anything, and as a result, they're not viewed as
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having a whole lot of integrity or credibility.
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I try to preserve that. And so I limit my testimony
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generally to 2 broad areas. One is around sexuality issues,
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which obviously is a fairly broad area, but because there's
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so much ignorance and lack of understanding around a
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sexuality, you know, I can talk about kink, I can talk about
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sexual consent, I can talk about non monogamy, I can talk about
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issues related to sexual assault.
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And then secondly, I testify about memory.
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And the link for me is that memory and sexuality are two
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areas where the general public holds a lot of myths, a lot of
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misunderstanding. People think that memory is like
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a video camera, that we have a hard drive in our brain that
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stores memory in a pristine, crystalline, unchanging nature.
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And the reality is completely against that.
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And so the link for me is that I'm going in and helping juries
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and fact finders, judges and juries understand these
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concepts, these issues based upon the best scientific
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evidence we have right now, as opposed to the general myths
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that the public general holds. And that's so interesting that
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you mentioned memory. I remember being in a psychology
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class, and on the first day, the professor walked in before the
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class, took some papers off the desk and left, then came back in
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and said, you know, can you all describe to me the person who
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was in here? Like, what were they wearing?
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How tall were they? And it was really hard.
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And it just kind of gave a brief simple example of, you know,
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memory and recalling, you know, being a witness to something.
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And if he had asked the question, can you guys describe
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to me that person that aggressively came in and got
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those papers, it would change everybody's memory because our
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memory is so malleable to these kinds of things.
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There's famous research around that I'm borrowing from there.
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If you ask people to describe a car accident, and if you use
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words like crashing, then all of a sudden people's memory
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increases the speed and increases the violence of the
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experience, et cetera. So memory shifts, even memories
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of things like 911 that we would think are just such a big memory
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that that would never change. Research shows actually it does
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that our memories incorporate new information and do shift
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over time from what we reported at the very beginning versus how
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our memory looks years later. And and that stuff comes in to
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court because oftentimes in a lot of the cases I'm testifying
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in, the victims memories are sometimes the only evidence.
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So then the question becomes how much can the court rely upon
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those memories as evidence? And I have to be really careful.
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My job in testifying is not to diminish credibility of
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witnesses. I don't have an opinion of
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whether an incident occurred or not, but I want the jury to make
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decisions understanding that even victims memories of sexual
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assaults can shift over time and may contain inaccurate
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information. I saw one case where a woman I
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worked with who had been sexually abused multiple times,
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and we were working through one of her memories of a sexual
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assault experience, and she stopped and she said, no, wait a
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minute, that couldn't have happened because that table in
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the kitchen, that was in a different house.
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And so she had blended and blurred these experiences and
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elements of it. And that wasn't a situation that
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was in court. But I tell that story to help
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people again, recognize that even traumatic memories, even
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memories that we feel like we're really strong, that our belief
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in the accuracy of a memory is actually not evidence that it is
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a accurate or valid memory. In fact, more times the strength
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of our belief indicates other stuff.
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I will get upset, you know, damn it, I know I left my keys on the
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table. Somebody must have moved my
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keys. Who moved my keys?
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And then I find my keys in the fridge because the night before
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I was like, Oh yeah, I need to put my keys in the fridge to
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remember to take my lunch tomorrow.
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But I was remembering all the other times I left my keys on
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the table and I didn't distinguish.
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And in that moment, I'm sure I left my keys on the table, but I
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was wrong. So that sureness is oftentimes,
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I think, an indicator that we need to be more skeptical of our
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memories and our beliefs. Yeah, it's a humbling
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experience. I've done that before, and I've
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blamed other people in my house for moving things.
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Then I realized, oh wait, Nope, that was actually me.
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Yeah, I've ended up being involved in some really
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remarkable kinds of cases, pretty good when we look at
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issues around sexuality and my role as expert witness.
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And firstly, to clarify some terms, you know, forensic
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psychology. Forensic sexuality can include a
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lot of things. It can include coming in and
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evaluating somebody and offering statements around their sexual
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health, around their mental health, around their diagnosis,
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around their competence. But it can also involve coming
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in and testifying as an expert witness.
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Sometimes I'm a blind witness where I don't know the facts of
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the case. Sometimes I am coming in and I
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am testifying about facts to the case and trying to help the fact
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finders. Again, that's kind of a term of
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art in court that my job is not find the facts.
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My job is to maybe explain the facts and in a way that the jury
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and the judge can understand. You may have heard of One Taste.
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One Taste was a group that does orgasmic meditation and teaches
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women and partners to stroke the woman's clitoris with oil and
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wearing a glove in a certain prescribed manner with the
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intent of using it as a meditation meditative practice.
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One Taste got kind of franchised.
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It generated lots of money. There was a Netflix documentary
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made about it that argued that there was a lot of exploitation,
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financial exploitation and such within this group, particularly
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by the leaders. And the FBI and Department of
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Justice ended up filing charges against the founders of One
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Taste in New York, alleging that they had engaged in conspiracy
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to engage in workplace exploitation.
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And the charges were all based on these sexuality issues and it
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included these allegations that the women were engaging in sex
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magic, that they literally, the indictment accused them almost
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of being sex witches. It really demonized female
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sexuality. There was non monogamy that was
13:43
happening within the community. It really condemned these women,
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these leaders for encouraging women to have sex with men, for
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instance, that they may not be attracted to in order to
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overcome some internal kind of sexual barriers, etcetera.
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And I was hired by the defense to testify to normalize this
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sexual practice because they were concerned, I think
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appropriately, that the jury would view these women through
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kind of a slut lens and that there would be slut shaming
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going on. Now, what's interesting is that
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I ended up not testifying. The judge excluded both me and
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the prosecution witness, arguing that our information just wasn't
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useful to the judge, useful to the court.
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And what's unfortunate is that they did end up convicting these
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two women that ran one taste of these pretty bizarre charges.
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Conspiracy to engage in exploitation of workers.
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Conspiracy is just we were planning to do it.
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They weren't actually charged with actually exploiting
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anybody, but they were convicted.
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They are in prison now and they're appealing.
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And the trial really was filled with this perception of this
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sexual practice as being aberrant and abnormal, largely
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because it was focused on female sexuality, because it was
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focused on sex outside relationship, because these
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women were stepping into a more powerful kind of female role of
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sexuality. I was planning to testify about
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relating their practices to Sensei Focus.
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Sensei Focus is a practice in sex therapy where we teach
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people to engage in non goal oriented sexual contact, which
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is very similar to this one taste practice where they were
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stroking the clitoris without the intent to achieve orgasm,
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but to use that practice to achieve mindfulness.
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There were a number of things like that that I was going to
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testify about and unfortunately didn't, but it was a good
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example. The wild thing is that that
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trial was going on almost parallel to the Diddy trial.
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P Diddy, as you know, Diddy was largely found not guilty of most
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of the charges against him as these women were condemned and
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prosecuted. And that is one of the things
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that I'm seeing right now is that there is a tremendous
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amount of social bias around sexuality and gender that is
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coming out in trials around sexuality.
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People that violate monogamy, people that are engaging in kink
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behaviors are really getting condemned and persecuted as a
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result. I'm getting involved in more and
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more of these cases because there is kind of a war on sax
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right now. Marty Klein has a lovely book
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called America's War on Sax, and he could write a new edition of
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it right now. So I'm wondering, is there a
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particular case or an experience that you've had that stands out,
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that made you realize how important this work is, how
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important forensic expertise in sexuality really is?
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Yeah. So one of the things that is
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happening right now, you may have heard me talk about this
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before. I can talk about it more
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publicly now because I'm not involved in any cases with it,
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right? But there are these stings that
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happen around the country where for many years, since really the
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inception of the Internet, there have been people that are online
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and engage in predatory behaviors in online spaces
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towards children. So as a result, since the days
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of AOL, there have been law enforcement officers that go
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into online spaces and pretend to be children.
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And then if a online predator attempts to solicit sexual
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behavior or activity with them, the officers will then arrange
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to arrest that person. And that probably is a good
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thing. There definitely are online
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people that engage in unsafe, predatory, dangerous behaviors
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towards children and that's wrong and that's a crime.
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What's happening now though is that there's been a bit of a
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shift and we're seeing these officers and sometimes they're
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local officers, sometimes they're state officers, FBI gets
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involved. I have seen, you know,
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oftentimes these are multidisciplinary sting
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activities involving multiple law enforcement agencies, but
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I'm now seeing them go into adult only sex specific online
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spaces. So Fetlife for instance, Grinder
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Tender where they are going in and now they're not pretending
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to be children. Sometimes they are pretending to
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be an adult that allegedly has a child that is available to be
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sexually abused. Or they are pretending to be
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somebody who is into age play. And then at some point, they
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arrest that person that they were interacting with, with the
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argument that that person should have known that they weren't
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just a person engaging in age play.
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They were a child pretending to be an adult pretending to be
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into age play, which gets kind of complicated, right?
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So I saw this one case where it was really a tragic kind of
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case. A woman, she was on Fetlife, she
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was kinky. She was really kind of a
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hardcore submissive. She liked consensual non
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consent. She liked rough sex.
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She liked daddy daughter kind of play, daddy Dom little girl DDLG
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kind of play. And she had been interacting
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with a guy who was into those things, according to his
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profile. He was into rough sex, he was
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into dominating females, he was into DDLG play.
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And she was flirting with him and they were maybe talking
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about arranging A hookup. She loses her phone.
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She's in the hospital visiting her dad who's there.
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She uses her dad's phone to try and help her get a ride home.
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Because of two factor authorization, she can't get
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into Facebook or her contacts or anything else.
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She can get into fed life. So she gets onto fed life and
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she connects with this guy, says, hey, could you give me a
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ride home? And he says, well sure, if you
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come over to my house and we have sex and I've got a cub that
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you can play with. So they had been talking about
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his cub for a little while. She thought that his cub was
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like her, an adult partner that was into age play.
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I was just about to ask you, what does he mean by cub?
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Like I'm thinking like a real life kind of like animal
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situation here, right? I didn't.
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Know what in In age play, cub is oftentimes a term that is used
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by a person describing their age play persona.
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In gay culture, gay pup culture, you know, cub is describing a
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gay adult male who likes to take a puppy persona.
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He asks her, you know, what role do you want to take?
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And she's like, well, you know, I'd like you to fist me.
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The officer later reinterprets that actually, and says, well,
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she wanted to fist my cub, which was not what she said.
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And I saw the transcripts, but she gets an Uber ride to this
20:39
guy's house and gets arrested because it was a sting.
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And they locked her up with the argument that she should have
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known that when he was describing this cub, that he was
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actually describing a child that he wanted to molest with her.
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I testified in several hearings that the language that they were
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using was all language that is consistent in age play language.
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There was no clear place where somebody that was in that age
21:09
play world would have known or been able to distinguish.
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Oh, wait, no, this is not, this is not age play.
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This is not role play. This is an actual child.
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Now to be clear, there wasn't an actual child.
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This was role play on the behalf of the officers, role-playing
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that they were role-playing. She eventually was released for
21:28
time served and the charges of attempted solicitation of a
21:32
minor, abuse of a child, and everything else were all
21:34
dropped. But most cases with stings like
21:38
that, people do go to jail. And usually role play as a
21:41
defense is not an adequate defense.
21:44
So one of the things that I am educating folks in the King
21:47
community about this now is when you're interacting with somebody
21:51
online, first you have to recognize the possibility that
21:55
this is not just somebody pretending to be somebody
21:57
they're not, but may actually be a law enforcement officer.
22:00
If somebody drives, guy drives down the street to pick up a sex
22:04
worker, most of those guys have some understanding that they run
22:07
the risk of picking up a law enforcement officer pretending
22:11
to be a sex worker. But I think most people on
22:13
Grinder or Fetlife or hookup sites, swing sites, etcetera, I
22:17
don't think they realize the the possibility that they could be
22:21
interacting with an officer that is engaging in potentially
22:24
entrapment kind of behavior. I think they need to, I
22:27
encourage folks that if they interact with somebody, don't
22:31
meet up with them without verifying the identity.
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If you're engaging in edgy kind of role play and getting
22:36
including age play, at some point you always need to state I
22:40
am not interested in engaging in illegal behavior.
22:43
I am only interested in engaging in role play, and officers that
22:46
engage in these things tell me that once somebody says
22:49
something like that, they're going to walk away, They're
22:51
going to end the sting because they're allegedly not interested
22:54
in arresting innocent people. And I think most of them are
22:56
not. But they view many of these
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folks in sexual subcultures as dangerous perverts.
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And there is a perception that if you're interested in age
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play, that you probably are also interested in actually abusing
23:11
real children. That's not true.
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There's no evidence to support that.
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But that was a case where a, it opened my eyes to how much this
23:18
is going on be it exposed me to the risk the innocent people
23:23
pose run of getting looped into these situations.
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And I now see some of this activity.
23:29
You know, I've seen in some Reddit naturist and nudist
23:34
groups that it is fairly common for people to come into these
23:38
groups and post comments about, well, I'm a teenager, I'm 12 or
23:44
13 years old, and I want to be a nudist.
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How can I convince my family to go along with this?
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Most of those are stings. Most of those are law
23:52
enforcement officers pretending because they're soliciting or
23:56
eliciting predators to come at them, and then they turn around
24:00
and prosecute them. And that's probably a good
24:02
thing. But the people that are
24:04
innocent, the naturist or nudist, they need to be aware of
24:08
the risk of who they're interacting with.
24:10
Again, there is such a righteous indignation, persecution of
24:15
people that are essentially diverse right now that we need
24:19
more people out. They're aware and we need more
24:21
people out there stepping into cases like that to educate
24:25
juries and judges about, for instance, age play, and that
24:28
there's no connection between age play and sexual abuse of
24:30
children. And I'm wondering too, like, are
24:32
these officers receiving training on kink before they go
24:36
into these spaces? What kind of education are they
24:38
getting? Absolutely known.
24:39
As far as I can tell they get trained on how to engage in
24:43
these sting behaviors but they don't get trained on these
24:47
sexual sub communities. And I have heard officers make
24:51
really gross generalizations about kink for instance, and
24:56
kink related to sexual abuse. They don't understand that
25:00
consensual kink is radically different from sexual abuse and
25:05
non consensual behavior. Yeah, absolutely.
25:07
I mean, age play is not illegal, but you know, between two
25:11
consenting adults, it's a completely legal kink activity.
25:15
And that concerns me if the officers aren't receiving the
25:17
proper training. Yeah.
25:19
And unfortunately, prosecutors are elected, District Attorney
25:23
are elected. And I've seen prosecutors go
25:26
after some of these cases because it is a way for them to
25:30
stand up and, you know, when running for election and, you
25:33
know, I defended against these perverts and I locked up these
25:37
sexual predators. Some of them are people engaging
25:40
in criminal sexual behavior. Some of them are not.
25:43
In the United Kingdom, there was a famous case where gay leather
25:48
men were engaging in consensual kink behaviors that were pretty
25:52
extreme and punching, scarification, whipping, things
25:56
like that. And they were making videos of
25:58
it. And these videos got released
26:01
into the underground and police found them and then started
26:04
looking for these individuals because they viewed this
26:08
behavior as criminal. Eventually they found some of
26:11
these guys and prosecuted them. And it went all the way to the
26:14
European Supreme Court. This is when the United Kingdom
26:17
was still part of the European Union.
26:19
And the European Supreme Court ruled that you could not consent
26:23
to that level of physical harm, that even though it was kinky
26:29
and consensual, that this was still criminal.
26:32
Now I argue that if I can consent to step into an MMA ring
26:36
and potentially face life altering brain injury, why can I
26:40
consent to that? But I can't consent to being
26:42
whipped until my back or bottom bleed.
26:45
And unfortunately, there are a number of cases around the world
26:48
of juries and judges and legal systems making decisions like
26:52
that. That sex is different.
26:55
In my mind and the way I approach it, sex is a behavior.
26:58
It has unique aspects, but it is not intrinsically different from
27:02
any other human behavior. When I talk about it that way, I
27:05
want to help people make objective decisions.
27:08
Are you curious about sexology? Do you want to further integrate
27:12
sexology into your work or your life?
27:15
Well friends, then we've got something just for you.
27:18
It's called the Sexology Practice Guide and it walks you
27:21
through the ways this shows up in your work in your life and
27:25
guides you through working within your scope, incorporating
27:29
intimacy and sexual health into your work without starting over.
27:33
Download this short practical guide at sexologylab.com/guide.
27:39
That's Sexology lab.com/guide, and while you're here, make sure
27:44
to subscribe and share. And now, back to the show.
27:48
So I'm curious, because you've been doing this work for a
27:50
while, how has this changed for you in the last 10 years or so?
27:56
Like with technology, I mean, there's so many different things
28:00
that could have an impact on this work.
28:02
Well, it is certainly picked up a lot when I started doing this.
28:05
I'd be involved in one or two cases at a time.
28:08
And now I'm retained and I want to say at least 10 or 15 cases
28:11
right now. There's so many more of these.
28:13
The impact of them, I think has changed pretty significantly,
28:18
although I can't talk about the details of it.
28:20
You know, I'm involved in a case that is in Texas about Texas
28:24
pastor law requiring age verification on pornography.
28:28
And that case went before the Supreme Court last January.
28:32
And to have a case that I was involved in before the Supreme
28:36
Court, to have my reports and information as part of the case
28:39
with Supreme Court is huge, is not anything I ever anticipated.
28:43
And so that I think is the biggest thing that I'm seeing
28:45
the impact of these cases rising at a exponential level that
28:51
impact people's sexual freedom, people's freedom of speech.
28:55
And that's, that's huge. And I'm honored to have the
28:58
ability to exist in these cases, but I never anticipated them
29:04
being at this level. I'm also involved in a couple of
29:07
really significant celebrity cases involving some of these
29:10
issues and just wild experiences.
29:13
Sitting down with these worldwide renowned celebrities
29:18
and talking to them about sex and their sexuality is not
29:23
anything I ever anticipated 20 years ago when I was looking at
29:27
these porn pictures that this kid printed out on his
29:29
neighbor's printer, They had no idea where all that was going.
29:32
Yeah, it's interesting the journey that life takes us on
29:35
sometimes. So what are some of the most
29:37
interesting cases that you've either been a part of or that
29:42
you've heard of happening? You know, even if you weren't a
29:44
part of it? You know, one of the most
29:46
challenging cases for me was a case called the Mr. Double Case.
29:52
This was a case in West TX where a guy for about 14 years ran an
29:59
online website where he shared stories that people had written
30:05
about sexuality and erotica. It was a subscription site and
30:09
he allowed people to publish stories about child sexual abuse
30:13
around pedophilia, etcetera. And most sites, most of the more
30:18
public and like Literotica, won't allow stories with child
30:22
sexual abuse. Some other sites have.
30:23
He allowed those stories. And so over time, those stories
30:27
kind of took over the majority of his site.
30:30
And most of his viewers or users were there for that material.
30:34
The FBI prosecuted him. And it was a wild case because
30:40
every story that was published on the site had a statement that
30:44
this is a work of fiction. No children were actually abused
30:46
or harmed. There were also a couple of
30:49
drawings on the site, a couple of computer generation generated
30:52
anime manga images. And he was prosecuted,
30:58
prosecuted for obscenity. And I was brought in to testify
31:01
for the defense, testify that obscenity is a certain legal
31:05
kind of term of art established by various Supreme Court
31:09
precedents. And something is not judged
31:12
obscene if it has any literary, scientific or artistic merit.
31:19
I was going to testify in this case that while these stories
31:23
were gross and while these stories were frightening and not
31:26
anything that most of us would find arousing or want to read,
31:30
that they do offer some scientific and clinical insight
31:34
into the minds of people that do sexualize children.
31:38
There's some evidence that material access to material like
31:41
this may reduce risk to offend against real children.
31:45
As disgusting as some of this stuff was, that is consistent
31:49
with well known literature. And so for instance, the Marquis
31:53
Decade, when he was incarcerated in a prison in France, he wrote
31:59
a famous story called 130 Days of Sodom, I think.
32:04
And it's a fascinating story. He wrote this on like this
32:08
almost like toilet paper, parchment, and he hit it in the
32:12
walls of this prison. The Marquis Desad sadism is
32:16
named after him. He was a highly sexual libertine
32:20
in seventeen 1800s of France and engaged in statistic behaviors
32:25
and wrote about engaging in sadistic behaviors.
32:27
And this story that he wrote 137 Days of Sodom involved gross
32:32
violence and sexualized murder and all kinds of sadistic sexual
32:37
behavior. The wild thing is that that
32:40
parchment that he hid in the wall of the prison was found, I
32:44
want to say 75 years later. It was sold at auction in
32:48
France. I think about 5 or 6 years ago
32:51
it was bought by the government of France and it is now
32:53
displayed in French museum as a French treasure, as a French
33:00
cultural treasure. I was going to testify that this
33:04
material is consistent with this other art that is identified as
33:09
a French cultural treasure. How can we say that this doesn't
33:11
hold some literary merit? I was excluded at trial.
33:16
And you have to understand that in expert witness testimony,
33:20
there are certain standards that you have to meet called Daubert
33:23
or Fry, where your testimony has to be reliable, has to be based
33:28
on some standard general industry acceptance.
33:31
It can't just be your pet theory.
33:33
There has to be some reliability, some error rate,
33:36
etcetera. So you so you can't just make
33:38
this stuff up. You can't just testify based on
33:41
your personal opinions. You have to have evidence and
33:43
scientific research to really support it.
33:45
So the judge in that case excluded me and said that my
33:49
testimony wasn't reliable, which I was at the time.
33:52
I was like devastated. I thought, wow, I'm never going
33:55
to testify in court again. What was wild was that the guy
33:58
was convicted, sentenced to prison and for a crime that had
34:03
no victims, for a crime where it was thought crime.
34:07
He was distributing stories and thoughts that we don't want
34:13
people to think about. That in and of itself is
34:15
troubling. In that trial, the defense was
34:19
not allowed to talk about the First Amendment and that this
34:22
guy had some First Amendment protections.
34:25
And that guy is still in prison. And, and he was an older guy.
34:28
And I think he will potentially die in prison for the crime of
34:31
publishing and distributing these stories of sexuality that
34:35
we don't want people to think about.
34:36
But in the appeal, they went to the Fifth Circuit Court of
34:40
Appeals, which is the most conservative Court of Appeals in
34:44
the United States. I mean, they are very, very
34:46
right wing. But they ruled that the judge
34:49
had been in error to exclude me. And they overturned that
34:53
exclusion, said I should have been allowed to testify.
34:56
And that was huge to have the most conservative court rule
35:00
that me and their, you know, quote, defending perverts should
35:04
have been allowed to testify. And that was a very formative
35:07
experience for me, both in terms of seeing how courts are dealing
35:11
with these sexuality issues, but also seeing my role and how I
35:17
have to defend my objectivity so carefully.
35:20
Yeah. And I'm curious too, from a
35:21
little behind the scenes, is there a record of all of the
35:25
cases you've been an expert witness for, ones you've been
35:28
excluded from, like that other attorneys and judges can see?
35:33
Yes, kind. I mean attorneys can search
35:35
what's called LexisNexis, which is a database of legal decisions
35:39
and cases. They can search for my name and
35:42
find out cases where I've been involved.
35:44
I maintain a list of all the cases I've been involved with,
35:48
particularly cases where I have provided sworn testimony or been
35:52
deposed. There are different courts and
35:54
federal rules and state rules are different federal rules.
35:57
I have to provide a list of all cases I've testified in in the
36:01
past 10 years. I think my kind of list goes
36:04
back many years more than that, and I just keep kind of a
36:06
running list. A lot of the cases that I get
36:10
involved with, there are criminal cases.
36:12
That was a criminal case and that there are civil cases where
36:14
people are pursuing damages. And a lot of the civil cases
36:19
that I get involved with end up settling prior to trial.
36:24
So there was a case I was involved in in the East Coast
36:27
where a male teacher engaged in really grossly sexually
36:31
inappropriate behaviors with male students, flashing them,
36:36
showing them pornography, talking about sexuality
36:38
inappropriately with them. These were adolescent males.
36:41
The teacher was eventually prosecuted and convicted for
36:45
some counts of sexual abuse against some of his students,
36:48
well, other students who had not been molested by him.
36:52
They later then filed a civil suit alleging that as a result
36:58
of that inappropriate sexual behavior, which was grossly
37:01
inappropriate, no argument, but as a result of that, the
37:03
sexually inappropriate behavior, that these young men were now
37:07
suffering symptoms of disturbed sexuality.
37:11
And so the men, these guys were all in their 20s.
37:14
Now we're identifying that some of them engaged in casual sex,
37:18
some of them engaged in bisexual behavior, Some of them watched
37:22
pornography, some of them masturbated.
37:26
No, not masturbated. And yeah, yeah, yeah.
37:29
You read between the lines there.
37:31
And they were arguing that if those behaviors hadn't occurred
37:34
to them and adolescents, they wouldn't be doing any of this.
37:37
And so I worked for the defense in terms of saying, you know, a
37:41
overwhelming majority of young men in their 20s are engaging in
37:45
all of these behaviors. That casual hookup sex is more
37:48
common in people in their 20s than it's ever been in known
37:53
history. That young men in their 20s are
37:55
the population that is watching pornography the most.
37:58
Was also pushing back against plaintiff experts that were
38:01
making these causal attributions and saying, well, these guys
38:05
would have engaged in these behaviors if that hadn't
38:07
happened and challenging the the ability to say something like
38:11
that. And as a result of my
38:13
involvement and others, not not just me.
38:16
Those cases ended up settling prior to trial for some damages
38:19
that the school district paid rather than paying the long
38:23
extensive cost of trial with potential, you know, damages out
38:27
of trial. A lot of times that is my role.
38:30
I don't even end up going to trial, but help the defense and
38:33
I'm usually on defense. I've been some plaintiff in some
38:36
prosecution case, but helping the attorneys ground these
38:41
issues in some objective reality world, particularly when it
38:45
comes to sexuality. And at this point, what's like a
38:47
rough estimate of how many cases you've been a part of?
38:50
Probably between 50 and 100. If you consider only the cases
38:55
where I have been deposed, which is where you are being
38:58
interviewed by attorneys, but you are testifying under
39:01
underoath that you swear to tell the truth, or where I've
39:03
testified in trial, that's about 40 or 50 cases.
39:07
But then on top of that is easily that many or more cases
39:11
that never went to trial. You know, I learned something
39:13
new in every case. I get to learn how to translate
39:16
information around sexuality and unique issues in a way that the
39:21
attorneys understand. I've got a case in the South
39:24
right now where a couple had been engaging in hot wife
39:28
cuckold sex relationship for about four years, allegedly all
39:32
with the wife's enthusiastic permission and support.
39:35
I mean, she was picking out the guys that she was having sex
39:38
with, but then they divorce and now she argues that that
39:42
behavior was non consensual and that she had been coerced into
39:45
it. There's a whole lot of money at
39:47
stake in this divorce. And so right now I'm helping the
39:51
attorneys that are representing the husband, helping the
39:54
attorneys understand this lifestyle and think about how to
39:59
frame it to the jury so that, again, this couple isn't just
40:04
viewed as abnormal, aberrant, disturbed sluts.
40:09
By to recognize the range of consensual non monogamy, the
40:13
frequency of consensual non monogamy, because they know it
40:16
was talking with the juries, with the attorneys, and they
40:19
know for a fact that some people on the jury will have engaged in
40:23
consensual and non monogamous behaviors or fantasized about
40:25
it. But they're not going to admit
40:27
that to the other jurors. So how do we help those jurors
40:31
to push back against other jurors?
40:33
Kind of pathologizing based on ignorance.
40:36
Yeah. I mean, just the fascinating
40:37
cases. Everyone is different, everyone
40:39
is unique. And there's been such an
40:41
explosion in research and dialogue around sexuality and
40:46
aspects of sexuality that we never talked about before that I
40:49
have a wealth of information that I get to bring in and
40:52
translate to the attorneys and to the juries so that, again,
40:56
they make decisions based upon the best understanding.
41:00
And I was trained. This is the way I do it.
41:03
It's not, it's not necessarily the way other experts have to do
41:06
it, but I was trained that my job is not to invest in an
41:10
outcome, but to help the fact finders make the best decision
41:15
possible based upon the best information possible.
41:18
The jury and the judge and the attorneys, they see information
41:21
I don't, and so they're making the decision based upon that
41:24
information and my information. So I try not to invest in.
41:29
I'm arguing for this person to be found guilty and if they get
41:31
found innocent that I lose. That's not my job.
41:34
Yeah, and it gives them more objective perspective too, I
41:36
think. Yeah.
41:37
That that that is one of the ways that I approach it, yeah.
41:40
Curious what advice you would have if we have sexual health
41:44
professionals listening who want to do this type of work?
41:47
What advice you have for them? Hey, I don't think you need to
41:50
have a pH DI think pH D can help juries like Collins, you know,
41:55
hearing somebody called doctor, But it's not a have to establish
41:58
credibility and integrity. Reach out to local attorneys,
42:03
reach out to local public defenders and identify that you
42:07
have an expertise in sexuality and that you're interested in
42:10
supporting cases around sexuality related issues.
42:14
I do some public defender work at decreased rates because I
42:17
believe in it, but I also will refer cases to local clinicians.
42:23
There was a case in Oregon that I got asked to testify in where
42:27
a kinky gay guy was engaging in consensual non consent with a
42:32
partner. And the attorney knew that this
42:36
guy was going to get convicted, but wanted somebody to explain
42:39
that consensual non consent actually is a thing and
42:42
normalize it to try to decrease some of the punishment.
42:46
And I help them find a local sex therapist that could explain
42:50
what consensual consent is and isn't.
42:52
Those cases I think can help you ease in to what it's like to
42:56
explain this stuff to jurors who never hear about or think about
43:02
or talk about. They don't get the education.
43:04
They don't learn to talk about these issues without shame and
43:07
fear the way that we do. Yeah, absolutely.
43:10
All right, David, I want to close things out with a
43:13
lightning round. Oh boy, I love these.
43:16
OK, let's see what we got. What is 1 fiction book and one
43:20
nonfiction book that has impacted your sexuality the
43:23
most? So a fiction book by Tim Powers
43:26
called The Stress of Her Regard, and it's a fantasy book about
43:30
Lord Byron, Percy Shelley, Mary Shelley, and what's called The
43:33
Haunted Summer, when Mary Shelley wrote Frankenstein and
43:37
Lord Byron was writing about vampires and stuff like that.
43:40
And it is just this extremely sexy book set in romantic
43:45
poetry, and there's all this bisexuality and just really
43:51
erotic supernatural kind of stuff.
43:53
Very, very cool. Very powerful.
43:55
Oh my gosh. We need to channel that for the
43:57
SAR. Yeah, there we go.
43:59
Yeah, I would love it. A nonfiction book, honestly.
44:03
I mentioned Marty Klein's book America's War on Sex.
44:05
That book helped me recognize that even consensual non
44:12
criminal sex could be pathologized and persecuted if
44:17
it was identified in the wrong setting.
44:20
And so one of the things I'm encouraging folks now is if
44:24
you're a content producer, for instance, doing online content
44:27
production, you need to look around at your neighbors because
44:31
your neighbors will be the jurors of your peers if you are
44:36
prosecuted for obscenity, for distribution of obscenity,
44:40
because obscenity is a local determination.
44:43
And so I've seen performers that were performing and producing in
44:47
Alabama, for instance, and they got convicted for stuff that
44:51
they wouldn't have gotten convicted of if they'd been
44:53
living in San Francisco. So amidst today's world, I think
44:57
we have to take those local considerations into stock around
45:02
our sexuality. I wish that sexual diversity
45:06
was, you know, was safe everywhere, but it's not.
45:10
Right, all right, my next question is a fun one.
45:12
What is a sexy place you want to travel to?
45:15
Love to go back to hedonism again.
45:16
We had an advanced SAR there a few years ago and it was an
45:21
erotic environment. I will say sex on the beach, so
45:24
long as you have a way to be out of the sand, is pretty sexy.
45:27
I love it, and it's not just a drink.
45:30
Yes, All right. What's the last thing you
45:32
learned that fascinated you? You know, I love these
45:36
historical things that pop up on social media.
45:40
Like I saw one yesterday of during World War 2A German
45:44
soldier I rigged up a little bomb on a piece of chocolate and
45:48
left it. And an American soldier found
45:51
the chocolate, disarmed the bomb, ate the chocolate and left
45:54
a note saying thank you. It was delicious.
45:57
And then the two soldiers engaged in this behavior back
46:00
and forth for several weeks, neither of them ending up
46:04
getting injured. And then darned if they didn't
46:06
meet each other, they arranged to meet 40 years later and
46:09
became friends. I thought that was.
46:12
Cool. All right, David, what's your
46:13
favorite way to relax after a long day?
46:15
Sitting in the hot tub drinking bourbon.
46:18
Yeah, perfect. What's something you think
46:20
everyone should try at least once?
46:23
Step outside your comfort zone. On their deathbed.
46:25
Nobody says gosh I'm really glad I played it safe.
46:28
Let me step outside our comfort zone and we push ourselves is
46:32
where we grow, we learn and we expand.
46:34
All right. My last lightning round
46:35
question. One myth about sexual behavior
46:38
that you would love to retire. The idea that masturbation
46:42
reduces testosterone in males. And there was the idea that, you
46:46
know, football coaches say don't masturbate or have sex before
46:48
the game because you'll deplete your testosterone and you'll
46:51
hurt your athletic performance. And there was actually finally
46:54
some really remarkable research where they, they actually had
46:58
men watch a video and then engage in athletic performance,
47:02
grip strength, things like that, versus watching porn and
47:06
masturbating and then engaging in those behaviors.
47:08
And in fact, masturbation made their testosterone go up and
47:12
increased their athletic performance.
47:14
Wow, I love it. Myth busting here.
47:16
All right now I want to quickly ask you about Shaw's annual
47:20
sexological conference. So what is it like presenting
47:24
with Shaw and why should professionals attend this in
47:28
person event? You know, the Sexual Health
47:30
Alliance is like no other group I've ever been part of.
47:33
They are radically exploring things around sexuality that are
47:41
important, elevating principles of sexual health, consent,
47:45
honesty, safety, mutuality, shared values, non exploitation,
47:49
but pushing against things that are socially challenged.
47:54
And at the Sexual Health Alliance conference, you know,
47:58
you will hear things that you never thought you would hear.
48:01
Last year, one of the presenters talking about anal sexual health
48:06
and the ways in which he medically helps people have
48:10
better anal sex was just extraordinary and really
48:12
powerful. And it's something I never
48:15
thought I'd hear. You will be educated about
48:17
things that you didn't know you desperately needed to be
48:19
educated about. And doing it in person is
48:23
extraordinary because you also in these online days, you need
48:27
friends, you need companions, you need allies.
48:32
And the Sexual Health Alliance is called the Alliance on
48:35
Purpose because it is about developing allies for sexual
48:39
health. I love that.
48:40
Thank you so much. All right, David, my closing
48:43
question for real, this is my last one.
48:45
If you could leave one message for the next generation, so our
48:49
Gen. Z's, our Gen. alphas about
48:52
sexual health, what would that message for them be and why does
48:55
it matter right now? Examine your shame.
48:58
Critically examine your sexual shame.
49:01
Most of us hold sexual shame, and when we look at it, we
49:06
realize that we're ashamed of things that we were told that we
49:10
don't believe anymore. But we haven't, because we
49:13
haven't looked at it. We haven't decided whether we,
49:17
as an adult with agency, want to let that shame in or not,
49:20
whether we want to let that shame hold power over us anymore
49:24
or not. The more I see people free
49:27
themselves from sexual shame, the more fulfilled, willing, and
49:31
healthier their sexual lives are.
49:32
That is great advice. Well, thank you so much for
49:36
being with us, Doctor David Lay. Always Michelle, happy to talk.
49:41
Don't forget to subscribe on YouTube, Spotify, Apple, or
49:46
wherever you listen. Links are in the description
49:49
below.