Bondage and Discipline Make the Supreme Court

A curious case that both Jacob Sullum (in August 2008) and I (in March 2007) blogged about in its earlier phases reaches the Supreme Court.

It involves New York man Glenn Marcus and whether his bondage and discipline relationship with one of his voluntary "slaves" was truly voluntary. The specific issue in the appeal to the Court is more procedural, though, as summed up by the always useful ScotusBlog:

Whether the Second Circuit departed from the Court's interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an alleged ex post facto violation whether there is any possibility that the defendant could have been convicted based exclusively on conduct that took place before the enactment of the statutes in question.

The U.S. government's petition for certiorari, and Marcus' response.

It seems that the U.S. is upset because it lost an appeal of Marcus' original conviction because some of the actions before the jury in Marcus' trial happened before the law he was convicted of violating, the Victims of Trafficking and Violence Protection Act of 2000, had been passed.

The U.S. thinks that if at least some of the conduct happened after the law was passed, the conviction should stand, although the 2nd Circuit Court of Appeals (including now-Supreme Court Justice Sotomayor) thought otherwise. From the government's petition:

The Second Circuit has adopted an incorrect approach for determining when a criminal defendant may obtain relief on a forfeited claim that his conviction was based on conduct that preceded the enactment of the relevant statute. The court of appeals concluded that, "even under plain error review," reversal is mandatory "whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct."

Marcus' claim was "forfeited" because he neglected to raise it at the original trial, which meant the Second Circuit could have ignored it, but chose not to.

The heart of Marcus' reasoning why the Second Circuit's reversal of his conviction should stand, and not be knocked down by the Supreme Court as the U.S. is arguing:

The Second Circuit's decision is aligned with holdings of other circuits. For example, the
Seventh Circuit recently decided that plain error review should presume prejudice where there is "any possibility" of a different outcome in the absence of the error. Finally, this Court has always entrusted plain error review to the sound discretion of each circuit court. Thus, even if slight differences exist among the circuits in the review of such claims, further examination by this Court is not needed because uniformity is not required for a procedural rule. As a consequence, the petition for certiorari, to vacate the judgment and remand for reconsideration, should be denied.

While the Supreme Court will, I hope, stick to the procedural issues, what most people care about in this case is the naughty stuff, so yes, the original conviction involved a woman in a "slave" relationship with Marcus which had, she claimed--after the fact and without justification, says Marcus--shifted from consensual to actually abusive somewhere along the line. Here are some of the details, from Sullum's 2008 blog post:

The first time Jodi met Glenn Marcus, he whipped her and used a knife to carve the word slave on her stomach. During the next five years she kept coming back for more, engaging in BDSM sessions with him that included handcuffing, branding, whipping, and choking. Marcus posted photographs of the sessions on his website, which also featured Jodi's diary entries. In October 1999, she testified, she had "a moment of clarity," and from then on her relationship with Marcus was nonconsensual. Yet she continued to meet with him periodically for four more years, moving from the Midwest to Maryland and later to New York City at his behest. She also worked on his website. She said Marcus at one point told her he would show her pictures to her family and the news media if she left him. She also claimed that she overheard Marcus threaten to harm the family of Joanna, another BDSM partner.