Sex

Bondage and Discipline Make the Supreme Court

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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.

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64 responses to “Bondage and Discipline Make the Supreme Court

  1. Yo, you fuckers can’t even post a link to Marcus’ website? I need some tips and fresh ideas.

    1. Kyle… You seem to be reasonably capable of finding your way around the interenet. Why can’t you find Marcus’ site? Maybe you’re just lazy. For sure your mind must be as you aren’t able to express yourself without using common vulgarisms. Nevertheless, to save you a little effort, here is the site: http://www.slavespace.com/
      You’re welcome. ??Veritas

  2. If this conviction stands, no one anywhere who has any sexual relationship with anyone is safe. There will be no way to prove after the fact that the relationship was consensual.

    1. This is stupid. Obviously we don’t know the details of his trial, BUT

      In a US court he is (supposedly) presumed innocent until proven guilty. In that case it would be even harder to PROVE that this sort of relationship became non-consensual than it is for plain vanilla date rape cases.

      Unfortunately your average jury of morons, on seeing the pictures on this guy’s website, would quickly be inclined to believe anything a prosecutor says about him being the type of person to force someone into stuff. They likely ignored the presumption of innocence–which led to this article where he basically has to prove it WAS consensual. This BS even happens in less extreme cases. (remember Kobe?)

      In other words we’re ALREADY not safe from any sexual partner we’ve ever had–or more accurately any one can claim to have had sex with us. Shit.

      1. In a US court he is (supposedly) presumed innocent until proven guilty.

        The jury heard far more about this than we have, and they heard the perp and his victim both testify, and they found the victim more credible. Sucks to be the perp.

        The matter before the supreme court is technical, not a question of whether the perp committed the crime.

        -jcr

      2. I seem to remember from press coverage of the case that hte defense was able to offer “expert witnesses” on the BDSM lifestyle. Apparently, the jury found that the defendant’s threats of harm and exposure of private information rebutted the “safe, sane, consensual” defense.

        1. Agreed, and I’m wager that they violate that norms of the BDSM community too.

    2. She needs to woman up, return the collar and drop the case. She gives all subs a bad name. I can think of worse for her but will refrain.

  3. Ark—Unless I’m misconstruing–always possible when you have a half hour to absorb a bunch of legal filings–the notion of convicting him under the Victims of Trafficking and Violence Prevention Act was fine; it was just that some of the acts happened BEFORE it was passed. So the particular issue you are concerned with won’t be affected one way or another; you CAN be thus convicted at least before certain juries of BDSM activities if the “slave” decides later she was a victim.

    1. Which means you can’t afford to let the slave live.

      Laws have consequences!

      1. Almost seconding that, in this case.

    2. You’re right on the grounds for appeal. The whole conviction is shite, though, legal or not. And I don’t think this is reserved for the BDSM community, although it probably is under this law. If the slave’s rationale for continuing to meet with him, submit to him, and move to be with him after she has decided she no longer wants to participate is valid to convict him, why not a rape accusation? Sure, I lived with him for years after I say he raped me, but he had some Polaroids. Utter crap.

      1. Does this mean Polaroids are an STD?

        1. I had Polaroids once but Preparation H cured them.

        2. That’s slander!

      2. Sure, I lived with him for years after I say he raped me, but he had some Polaroids. Utter crap.

        “Capture bonding” Google it.

        -jcr

  4. “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.”

    I know peeps who do this every weekend. Wonder how long before the SWAT teams get bored.

    1. Wonder how long before the SWAT teams get bored.

      I am sure Radley has a good answer 😉

  5. So this is a needlessly sexed up procedural case? Zzzzz.

  6. During the next five years she kept coming back for more, engaging in BDSM sessions with him that included handcuffing, branding, whipping, and choking.

    Sounds like America’s relationship with MSNBC.

  7. 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.

    Oh, nurse. Does the Victims of Trafficking and Violence Protection Act of 2000 not clearly define the term “slave?” Because it sounds like that would be a great way to avoid wasting the court’s time in the future, and avoid using the court as a remedy for stupidity and regret.

    1. Are you kidding me? Can you imagine the hard-on the prosecutor got when handed this case? Marybeth Buchanan probably weeps every night that it wasn’t her case.

  8. This guy is a natural for IRS Commissioner.

  9. A woman once gave a talk near me about keeping the spark alive in your BDSM relationship. She was like Dr. Phil for the leather set.
    Figure these folks must have the same problems as every other couple. He comes home with someone elses lash marks on his back, she doesn’t ratchet the genital cuff with the same ethusiasm as she used to…

    1. But enough about Olbermann and Maddow.

      1. Thanks. Now I have to bleach my brain.

    2. They’re worse off. You have a long way to progress if you start off on missionary and work your way through the book. They essentially start off the 99 yard line.

  10. Sure, I lived with him for years after I say he raped me, but he had some Polaroids.

    Which she presumably allowed him to take. And if this were the case, couldn’t they have hit him with an extortion charge too?

    I am too busy to RTFA, but I would guarantee this is just exhibit #2,318 of a prosecutor going after someone they can easily demonize to the jury to get their name in the paper and work on their career.

    I swear, prosecutors must stack cases in front of them and then look for ones where the defendant will be highly unliked by a lot of people and go “BINGO” when they find one like this.

    1. And if this were the case, couldn’t they have hit him with an extortion charge too?

      I believe this would be blackmail, not extortion, but yes they probably could have charged him, which goes to show why blackmail shouldn’t be a crime.

  11. The first time Jodi met Glenn Marcus, he whipped her and used a knife to carve the word slave on her stomach.

    Apparently “slave” was not the safe word.

    1. Of course not. That would be as much fun as using “stop” for a safe word.

    2. I certainly hope he was licensed to perform that procedure.

  12. Wendy: Mr. Slave, you are the most perverted, lewd, depraved slut I know.

    Mr. Slave: Thank you sweetie!

    (Jesus Christ!)

  13. It’s refreshing to see the reasoned (and funny) comments on here instead of “OMG, he’s a pervert, kill him!!1!”, which I expected. It’ll be interesting to hear the details of this woman’s case against him. (Did they have a safeword? Was she clearly using it?)

    In England, this guy would be automatically guilty because, by their laws, NO ONE one can legally consent to sadomasochistic activity. (I’m not sure; this law may have changed)

    1. England is fucked up and I am glad that I am in America, of what you say is true.

      So, all that British kink is illegal? I feel so radical now!

    2. It’s pretty clear he’s a pervert and she was mentally fucked up. That doesn’t automatically mean the conviction should stand, but it’s important that we not give the vast majority of Americans who think BDSM is sick stuff the impression that libertarians think it’s just another perfectly healthy form of sexual activity.

      1. Maybe you should say “I don’t think it is” rather than “libertarians don’t.” Clearly many people think it is a perfectly healthy form of sexual activity. The issue of consent is complicated in this type of relationship, but, as in any sexual relationship, central to the determination of whether it is “healthy” or not.

      2. If it is consensual, whether or not YOU or I approve of it, it can be considered a perfectly healthy form of sexual activity. Oh, and btw: not all BDSM has anything to do with *sex*.

  14. Q [Masochist to Sadist]: Beat me! Beat Me!

    A [Smirking evilly]: Noooooo ….

  15. If the govt violated the Ex Post Facto clause, then the guy should have a new trial – although the Supreme Court might be sympathetic to the prosecution’s procedural arguments. One of the Second Circuit judges suggested that the Circuit’s rules on plain error in such situations might violate Supreme Court precedent. That judge was Sotomayor (sp?), who is now on the Supreme Court herself. We’ll have to see how this works out.

    As to whether the jury made the right decision or not, I don’t know, but I didn’t see the same evidence they did, nor hear the witnesses. Not only did the jury convict the guy of violating the sex-trafficking statute, it also convicted him of violating 18 USC ? 1589, which forbids forced labor. The forced-labor law forbids people from using threats, etc., to get someone to work for you. Congress certainly has the power to pass this statute, under the Thirteenth Amendment (slavery and involuntary servitude). The law applies even if you’re forcing someone to work at something as non-sexy as a citrus farm or a factory (although there’s a sentence enhancement if there’s aggravated sexual abuse involved).

    Maybe jurors are just too dumb to tell the difference between voluntary transactions and slavery. Maybe they’re carried away by slick prosecutorial rhetoric and ignore the evidence. Or maybe jurors actually have brains as well as judges. And maybe judges aren’t all uniformly MENSA candidates, either.

    1. What kind of states’ rights supporter are you, accepting the 13th amendment and such? Jeff Davis would be ashamed of you right now.

  16. I’m going to go out on a limb and suggest that maybe some of the things Marcus was doing went against the unspoken (or spoken) rules of the BDSM community.

    There’s probably something in there that forbids exchange of a slave’s favors for money, for example.

    So, I’m willing to consider the possibility here, that this guy was willing to violate a lot of other norms that are designed to keep things consentual and safe, both from a physical and a legal stabndpoint.

    I don’t know exactly what other members of the BDSM community think about this, but it would be interesting to hear their opinions.

    1. Hazel, those rules are like Libertopia contract law. If they agreed on them they are the rules. If she continued to consent, he was not in violation.

      She is a flake and she is the one who needs to be in jail for a false accusation.

      1. Hazel, I’m pretty sure people in the BDSM community would say if you choose to move to a different state to be with someone, and keep on seeing them, then you’re way off base claiming it was nonconsensual.

        I mean, think about it — if someone was really raping a woman, and then moved to a different state, would someone who did not consent to the ongoing rape pack up all your shit and follow them to their new location so they could continue raping her?

        1. Well, I don’t know if all the facts are available.

          From what I gather, she only pressed charges because he refused to take down photos of her from his website, and was blackmailing her by threatening to send them to her family.

          1. She worked on his website.

            1. Yes, and at some point she stopped doing so, ended the relationship, and asked him to take her photos down. And he refused.

      2. She is a flake

        So what if she is? The law doesn’t say you can beat up and rape someone if they’re a flake.

        -jcr

        1. That flake wasn’t raped. Being a flake does not give you license to have innocent people prosecuted.

          1. It’s entirely permitted to “flake out” on a master/slave relationship, and I don’t believe the “dominant” is permitted to retaliate against a “sub” for doing so.

  17. The first time Jodi met Glenn Marcus, he whipped her and used a knife to carve the word slave on her stomach.

    Whew, and I thought Warty was tough.

  18. Warty is Marcus, Troy. Have you noticed he never posts on court appearance days?

  19. No, no, Epi. On those days, I’m in the mountains, eating raw muskrat and building bombs, you colossal pervert.

  20. I won’t comment about the legal case here because (a) I didn’t hear the testimony at trial, and (b) I’m not versed in the technicalities under review now.

    I will however append a bit of sanity to the comments upthread that the judgement against this guy threatens everyone’s sexual relationships. The things this guy did are sickening beyond belief, and anyone who submits to such things voluntarily is ipso facto seriously fucked in the head. Having sex with a mentally incapacitated person is statutory rape, and if the state made an argument to that effect in cases like this I wouldn’t shed a tear for the poor BDSM masters. If that opinion makes me intolerant of the BDSM lifestyle, so be it. There are worse things to be.

    1. So two people who are seriously fucked in the head have sex and only one is guilty of rape? Interesting turn of logic.

      1. Only men can be guilty of rape. It’s the law.

    2. Well, I disagree with you on that. There are lots and lots of people involved in perfectly consentual BDSM relationships that involve whipping and cutting eachother.

      However, just because of the nature of it, the BDSM community has an extensive set of norms designs to prevent those relationships from degenerating into abusiveness and to ensure it all remains completely consentual and legal, as much for the protection of the “dominants” as the “submissives”.

      This guy appears to have broken all sorts of those standards, and hence exposed himself to prosecution. The woman MAY be lying about her consent, for whatever reason. But I don’t think we should assume that *just because* there are lots of consenting BDSM relationships, that automatically means that it’s impossible for one to degenerate into a non-consentual, abusive situation. Just like any other relationship. Beating your wife or extorting money from your girlfriend are illegal regardless of what kind of sex they might like in the bedroom.

      1. I should say beating your wife without her consent….

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  22. Whenever I hear about crap like this I always wonder what these people look like. Are they attractive? Or do they look standard Wal-Mart issue? In this case I could go to the website…. but I don’t really wanna.

  23. Warty, you lie. Muskrats don’t live in the mountains.

  24. how do you hurt a masochist?

    1. Ignore them.

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