No Safe Words in Federal Court

Glenn Marcus, a Brooklyn man who insists that the BDSM activities for which he was convicted were consensual at the time and only regretted by his partner later, gets nine years (and the absurd codicil that he is legally forbidden to look at porn on the Internet). He plans to appeal.

A Brooklyn Daily Eagle account (complete with a very opinionated headline) of sentencing day in court. My earlier blog entry on his conviction, with links for context, and an interesting comments thread.

Comments

[wsdave]

Looks like I might be on my way to jail...

[wsdave]

Perhaps Mr. Marcus should have practiced eminent domain abuse instead...

[Legate Damar]

If only Marcus had been elected vice mayor, he could have gotten his former partner arrested for letting him do those things to her.

[Brandybuck]

After being involved with Marcus for a year, Jodi said she wanted out - but he wouldn't let her go.

How many times do we have to say this: when a woman says "no", she means "no". If the above statement is true, then this guy fully deserves his punishment.

You cannot freely sell oneself into slavery, as your unalienable rights are just that, unalienable. You can contract your time, labor, services, etc., but you will always have the right to life and liberty. A contract that stipulates transferal of any unalienable right is invalid. My employment contract does not grant my boss the right to physically detain me by force if I decide to quit.

[jtuf]

Agreed. Marcus might have had a breach of contract case against Jodi at most. He had no grounds to keep here locked up once she said she wanted out.

[x,y]

I don't know any of the facts of this case, but I don't see the libertarian objection to consentually signing away "unalienable" rights, i.e., to sell yourself into slavery.

[tk]

Wait - she wanted out of the relationship for a year, or, he actually had her locked up for a year, Gary Hydnick-style?
If the latter - well, lock him up a bit longer.
If the former, she was in a bad relationship, and "had trouble" breaking up with him... well....

[jtuf]

The right of association includes the right to leave an association or relationship. Signing a contract means you have to pay a finacial penalty for leaving, but you still can leave.

[The AntiHumanist]

Am I alone in being pleasantly surprised at how calmly and reasonably adjudicated this case appears to have been? Ordinarily, the media and politicos would exploit the example of this defendant to demonize an entire subculture and demand legislation to protect 'the children' from it. It is a relief to notice a rare moment when we can consider a case individually rather than employ it as an excuse to punish people collectively.

[Morat20]

No telling without actually listening to testimony.

It's a knotty problem. How did he prevent her from leaving? Did she safeword? Did he ignore it? What does she mean by "leaving"?

BDSM is a place where being restrained is the norm, where a LOT of people happily shout "No, No" but don't mean it -- it's why safewords exist, so that people can tell the difference between "oh no, please don't throw me into that briar patch" and "No, seriously, stop it".

The contract is a bs side issue. It's not important.

The real issue boils down to what were the agreed signals to "stop playing" and did she use them? If she did, he's guilty even if she came back for more (not an unknown behavior for abuse victims). If she didn't, things get more complicated.

Had she used it before? Did he stop? Had she never used it? Was she capable of using it?

There's a lot of responsibilty being the Top in this sort of game, and if things get that screwed up a lot of it's on him anyways, if not legally.

[John]

"Am I alone in being pleasantly surprised at how calmly and reasonably adjudicated this case appears to have been?"

That is a good point. Where the hell was Nancy Grace in all of this? Maybe being pregnant has taken away her mojo. I am surprised this story wasn't 24/7 on CNN and Fox News.

[neworleansbearcub]

What follows is from the court via http://feministlawprofs.law.sc.edu/?p=1833

In October 1999, the defendant arrived in Maryland, where he handcuffed Jodi to the wall and told her that he would punish her after he took a nap. (Tr. at 104.) While she was on the wall, Jodi testified that she had a moment of clarity and decided that she wanted to leave. (Id. at 104-5.) She told Celia, another woman serving the defendant, and Celia helped her get down. (Id. at 105.) Joanna awakened the defendant, who ordered that Jodi be returned to the wall. (Id.) When Jodi informed the defendant that she wanted to leave, he told her to shut up. (Id.) He then put a whiffle ball inside her mouth, closed her lips shut with surgical needles so that she was unable to speak, and placed a hood over her head. (Id. at 105-7.) While she was on the wall, he whipped and beat her with a cane extremely hard for an extended period of time and had sexual intercourse with her. (Id. at 106.) The defendant then took Jodi off the wall and attached her with handcuffs to a flat board, at which point he attempted to sew Jodi's vagina closed using a sewing needle and thread, only stopping when the needle broke. (Id. at 106-7.) A butt plug was inserted into her anus (Govt. Ex. 2C, at 369, 1223), and the defendant used a knife to carve his initials into the soles of her feet (Tr. at 107). While this incident was taking place, Jodi was crying and screaming. (Id. at 107.) The abuse was photographed and Jodi had to write a diary entry about it, and these were placed on the defendant's website. (See Tr. at 109; Govt. Ex. 2C at 365-74, 1217-24.) This was the most extreme punishment to which Jodi had ever been subjected. (Tr. at 123.) Prior to this experience, Jodi believed that she would be able to leave any time she wished. (Id. at 108.) However, after this episode, Jodi testified that she felt "completely beaten down," "trapped and full of terror." (Id. at 108.) She no longer wished to be involved with the defendant and remained with him only out of fear. (Id. at 170.)

In November 1999, Joanna told the defendant that she no longer wanted to serve him. (Id. at 125.) While both Jodi and Joanna were on the telephone with the defendant, he threatened to send photographs and a videotape of Joanna engaged in sexually explicit behavior to her father and to kill her godson if Joanna did not continue to serve him. (Id. at 127-29; see Govt. Ex. 12.) As a consequence, Jodi became terrified that, if she attempted to leave the defendant, he would send pictures to her family or harm one of her family members. (Tr. at 128.)

[Randolph Carter]

well it's jail time for that sick fucker if those facts are straight. Although... feministlawprofs? What's that all about?

[Jack]

There are bad eggs in the BDSM scene, and he seems like one of them. It sounds like she genuinely wanted out and he started believing his own shit. Remember fellas; no means yes, but banana means "untie me, asshole!"

[Rhywun]

well it's jail time for that sick fucker if those facts are straight.

Yes, but did her friends testify? The details to this story are frustratingly skimpy.

[ed]

There are bad eggs in the BDSM scene

That's the funniest thing I've read today.

[Lamar]

The guy could have copped a plea and done no jail time. Instead, he fought the system. It turns out, the system thought that he imprisoned that girl...and I can't say that it's a terrible decision. The fact is that Glenn Marcus thinks his own shit don't stink, or more accurately, that it stinks like sexual attractant when applied liberally.

[joe]

John,

Whaddya say, on this day, we hold hands, sing Kumbaya, and beat the snot out of Nancy Grace?

Just you and me.

[Rex Rhino]

I don't know any of the facts of this case, but I don't see the libertarian objection to consentually signing away "unalienable" rights, i.e., to sell yourself into slavery.

Because a simple case of forgery could turn you into a slave for life.

[Rex Rhino]

John,

Whaddya say, on this day, we hold hands, sing Kumbaya, and beat the snot out of Nancy Grace?

Just you and me.

You realize that if Nancy Grace read this, she would do a special on "Internet Sickos" who are "Threatening Violence" on her.

[Dan T.]

I don't know any of the facts of this case, but I don't see the libertarian objection to consentually signing away "unalienable" rights, i.e., to sell yourself into slavery.
Because a simple case of forgery could turn you into a slave for life.

Not to mention that if someone is desperate enough, they will sell themselves into slavery. Which will lead to a return to slavery. Which is generally considered an undesirable outcome that outweighs the individual's right to become a slave.

[John]

Joe not only yes, but hell yes. Rarely is one offered the chance to do something that so unambiguously is for the common good.

[J sub D]

Not to mention that if someone is desperate enough, they will sell themselves into slavery. Which will lead to a return to slavery. Which is generally considered an undesirable outcome that outweighs the individual's right to become a slave.

Goddam, Dan T. I agree. Now where is mu red pen so I can circle today on the calender?

[Dan T.]

My goal is to agree with every H&R regular...once.

I'm marking you off the list, j sub. 🙂

[guy in the back row]

Goodness, gracious, golly gee!

And I thought I was living on the edge reading Hit n Run!!!

[Morat20]

Jesus, that's some over the top shit.

Let me echo the "Damn, the jury and system were remarkably calm about all this" comment.

I know people that consider themselves pretty hard-core about that sort of play, who would consider most of that so far over the horizon that there's no coming back.

[Brandybuck]

I don't know any of the facts of this case, but I don't see the libertarian objection to consentually signing away "unalienable" rights, i.e., to sell yourself into slavery.

If you don't see the objections, it's because you haven't been looking. I know of no credible modern theory of contracts, libertarian or otherwise, that allows one to sign away their basic rights to life and liberty.

[Stevo Darkly]

1) This is pretty rough stuff and, as far as I know, considered rather extreme within the BDSM scene even if there were no doubt that the "submissive" is fully consenting.

2) BDSM-type "slavery" is in the context of mutually satisfying sexual kinks. The "slave" or "submissive" is ultimately supposed to be just as satisfied and happy with the situation as the "master" or "dominant." The "submissive" retains the right to withdraw from the relationship at any time; he/she is "owned" only for as long as she/he consents to be.

People can have a fight over this kind of "slavery" is "for real" or really just some kind of extended roleplaying, but clearly it's not quite slavery in the sense that people normally think of it, with no consensual element to it at all.

At least, according to stuff I've read on the Internet.

The issue in the court case at hand was whether Marcus crossed the line from practicing consentual "slavery" to slavery for real, the latter being illegal. (Sounds like he did to me.)

3) A discussion of whether a self-owning person has the right to sell himself/herself to another, just like any other freely arranged transfer of property, is discussed from a libertarian perspective here.

The writer is Roderick Long, whom I believe has cotributed to REASON in the past. He is an extreme libertarian, an anarcho-capitalist in fact. Long argues that certain rights or qualities that are "unalienable" are just that -- "unalienable," or incapable of being transferred.

Other people can influence you or harm you or limit you or kill you, but in the end only you can make yourself undertake positive action. It is impossible to transfer control of your own self -- your volition. Therefore any attempt to actually sell your control of yourself to another is, in fact, fraudulent, and therefore invalid.

Therefore: no, even in a free society that recognizes that you fully own yourself, you still cannot sell yourself into slavery. Not for realz. It's a logical contradiction.

I haven't decided yet whether Long's argument is fully convincing. As he lays it out, it gets a little abstract and complicated. I personally want it to be correct, very badly -- I don't want a world where people can sell themselves into slavery for real. But I'm wary that my own biases here may be coloring my ability to evaluate his argument.

[Dave B.]

Brandybuck - don't plea bargains often involve a contract of some sort?

[daniel k]

How do you hurt a masochist? No, really?

[Brandybuck]

Brandybuck - don't plea bargains often involve a contract of some sort?

Such "contracts" (which they aren't) are made under duress, and are an attempt to reduce the deprivation of rights. But in any case, plea bargains have nothing whatsoever to do with "slave" contracts.

[crimethink]

Stevo,

Looks like you've been doing your, um, homework on this subject!

The argument you reference is quite tortured. Of course you can't "sell" your volition to someone else, since there's no way they can directly control it. That doesn't preclude the possibility of an agreement not to hold another person responsible for harm they cause you in the pursuit of this relationship, or an agreement not to resist such treatment.

Oh yeah, and if you think that you can't sign your life and liberty away on a dotted line in the good ol' USA, go talk to your local Army recruiter.

[crimethink]

Also, Stevo, a contract can only be voided due to fraud if the defrauded party wishes to do so. In other words, if I agree to give you a unicorn and $100,000 in exchange for a bag of sunflower seeds, I can't run to the courts demanding that I get my money back because I defrauded you.

[Rhywun]

This is pretty rough stuff and, as far as I know, considered rather extreme within the BDSM scene even if there were no doubt that the "submissive" is fully consenting.

Yes, if she's telling the truth. I've seen nothing here that allows me to draw a conclusion either way.

[Lamar]

"Yes, if she's telling the truth. I've seen nothing here that allows me to draw a conclusion either way."

The jury believed her.

[wsdave]

daniel k,
"How do you hurt a masochist? No, really?"

The masochist says "hurt me, hurt me", and the sadist says "no".

[jeff roth]

I'm a twenty year friend of Mr. Marcus (No I'm not one of his "girls." I'm a guy, with a fiancee, etc.. I found most of his "extreme" s&m pix boring). I was at the trial and sentencing. (I'm also a long time Reason reader). These are some of the facts that all good Reason readers should know. 1. Juries are many times not a "jury of peers." At Glenn's trial,half of the jury trying this case had never used a computer or had minimal knowledge of them.Anyone who admitted knowing about "BDS&M" was not selected.2. If you understand that in our 21st century digital age, pictures- photo-shopped can lie, well some of those extreme pix that were supposed to be real were staged and believe me, at the end of the day, those outrageous pix convicted him- even though he was acquitted of obscenity. Why wasn't that addressed during the trial? That's between God and Glenn's lawyer.3.All First Amendment fans know the name, Herald Price Fahringer. Herald was Larry Flynt, Al Goldstein, Leslie Fiedler's and many other stellar characters attorney.That's Glenn's new lawyer. Mr Fahringer is presently working on Mr. Marcus' appeal. Fahringer is the best- the Lawyer's Lawyer.

This was probably (reporters at the trial were convinced) a DOJ/Gonzalez Porn case that was to be a test for the internet. The press at the trial (after watching the jury deliberate for 7 days) believed Mr. Marcus would walk on the two major counts, sex trafficking and forced labor and be convicted on the obscenity charge.The jury even asked, "what constitutes "forced labor?" The prosecution said - and that's how the judge kept it, "anything, even tapping a computer key." Face it, those laws are for illegal Chinese or Mexican girls forced into prostitution with no compensation. Not a 30+ year old woman from our heartland who leaves the relationship, has her own porn web site, goes on camping trips with him and his daughter and her husband- after the alleged abuse and waits four years till some "battered women's organization" (Safe Harbours) convinces her that she has ptsd/=Stockholm Syndrome on and on. As my wife and two other women who don't like him (they think he's a creep) note, "it's just some bitch who got pissed off, Glenn, gimme a break." And that's the truth from three INDEPENDENT minded women. So he's a jerk, so he's a creep, so he's uncivil, when did that become a problem for our Justice System and Libertarians? The whole consensual, "no means yes," it's a mess. But it's not a federal case. Remember, they offered him a NO JAIL TIME plea because they knew the case was unique and tough, but once you start no one can back down, least of all an innocent man.
(PS., I'm away for a few days so if I don't reply right away, my apologies.)

[Meesekite]

Hello to all,
I have known Mr. Marcus since 1998, and was in a consensual BDSM relationship with Mr. Marcus since 2003. I, to, was at the sentencing. I know for a fact Mr. Marcus is innocent of these charges because not only do I know him well, but I spoke to Jodi a few times, and in 1998, 1999 and 2003 she never seemed anything but bright eyed and bushy tailed.

Changing ones mind YEARS AFTER the fact does NOT mean the events WERE non consensual.

I believe the non BDSM jury saw the images, and as THEY would never do THAT, they felt then she would never either. I believe Glenn's conviction was based on bias.

From all I know and have experienced with Glenn, Glenn Marcus never would act in a non consensual manner.
-meesekite

[Salvador Aihara]

Hmm, I have to agree with some things said above.

Really, even following the links, the details are too iffy.

For example, there was mention of a contract. Did this give up the plaintiff's right to refusal/choice? Now sure, you can argue that it is impossible to do so, however, this would show a commitment to that goal, that could only be broken when circumstances forced the contract to break (or it broke of it's own accord...). Now, if she wanted to leave, and he refused her, that's not so marvelous in itself if he had that in the contract. BUT, threatening her, and her family, with serious and permanent damage, that is something different. This goes into death threats, which completely negates the contract and move into criminal issues.

It's a really thorny case. I'm glad the judge was reasonable.