When Does a 'Slave' Become a Slave?


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.

Given the nature of the relationship and Jodi's decision to continue it for years after it supposedly became nonconsensual, there seems to be plenty of room for reasonable doubt that anything Marcus did violated her rights. But as Brian Doherty noted in March 2007, a federal jury convicted Marcus of violating the "sex trafficking" and "forced labor" provisions of the Trafficking Victims Protection Act (TVPA). In September he received a nine-year prison sentence. Last week the U.S. Court of Appeals for the 2nd Circuit overturned (PDF) the convictions, noting that the TVPA was enacted in October 2000, while the actions by Marcus that prosecutors claimed violated the statute occurred between January 1999 and October 2001. The judge failed to instruct the jury that Marcus could not be held liable for violating a law that did not exist. Since it was possible that Marcus was convicted based on his conduct before the TVPA was enacted, the 2nd Circuit said, "the convictions violate the Ex Post Facto Clause."

Marcus can be tried again, based on his post-TVPA conduct. And given the difficulty that the first jury had in distinguishing between a BDSM "slave" and an actual slave, he may well be convicted again.