Bans on Bondage and Spanking During Sex Could Be OK, Says Federal Court
Think states can't criminalize consensual BDSM activity? Think again.
Uh-oh, kinksters: sex cops could be coming for you next. According to a new federal court decision, Americans have no constitutional right to engage in consensual BDSM because "sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety." Thus officials could constitutionally ban or regulate such activity in the interest of "the protection of vulnerable persons," the court held.
In striking down bans on things like sodomy and adultery, U.S. courts have repeatedly said that citizens have a right to engage in whatever sort of consensual sexual activity they choose within the privacy of their own rooms (that is, as long as money isn't involved). But federal judges now say that the Constitution "does not prohibit the regulation of BDSM conduct."
The decision, from the U.S. District Court for the Eastern District of Virginia, is rooted in an alleged case of campus sexual assault at George Mason University (GMU). Robby Soave covered the case here last week, highlighting how a male student ("John Doe") accused of sexual misconduct was expelled from GMU with little concern for due process. According to his accuser ("Jane Roe"), a female non-student with whom he had been in a relationship, Doe deliberately kept going with a sexual encounter after she tried to stop him. Doe said he didn't know she was serious, since she hadn't use the "safe word" they had chosen to stand in for "stop" when they were engaging in BDSM activity.
As the court explains, BDSM "is an acronym for the practices it entails, namely bondage, discipline, dominance, submission, sadism, and masochism. Thus, a BDSM relationship might involve … such actions as biting, choking, spanking, or the use of restraints." In the relationship in question, Roe was the submissive party.
After he was expelled, Doe filed suit against GMU. In February, the district court granted summary judgment to Doe, agreeing that his constitutional rights had been violated. But while the court's decision may be a win for campus due process, it also delves beyond the particulars of this case in a way that should scare advocates of sexual autonomy.
In his lawsuit against the school, Doe had suggested that GMU administrators "disregarded" the context of his relationship with Roe and instead acted like BDSM sex was "per se sexual misconduct." This, argues Doe, stands in violation of Lawrence v. Texas, in which the Supreme Court held that states couldn't criminalize consensual intimate activity between adults. The court, however, granted GMU's motion to dismiss this claim.
"Engaging in BDSM sexual activity is clearly not protected" under the U.S. Constitution, the court wrote. While Doe essentially asserts "a freedom from state regulation of consensual BDSM sexual activity," the court said nope: "there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation's history and traditions or implicit in the concept of ordered liberty."
Because BDSM activity "poses certain inherent risks to personal safety," the court concluded, state governments could claim a legitimate interest in regulating it for "the protection of vulnerble persons" who have chosen to enter BDSM relationships.
