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March 08, 2016

U.S. District Court in Va. Rules No Constitutional Right to Do BDSM

ALEXANDRIA, Va.—According to a decision handed down by U.S. District Judge T.S. Ellis, III on February 25 in the case of John Doe v. The Rector & Visitors of George Mason University, et al, Americans don't have a constitutional right to engage in "bondage, discipline, dominance, submission, sadism, and masochism"—more commonly known as BDSM—despite the U.S. Supreme Court's rulings in Lawrence v. Texas (which recognized the right to consensual sodomy) and Obergefell v. Hodges (which recognized the right to same-sex marriage). The case at issue doesn't look, on the surface, as one that would support the well-recognized legal maxim "Bad cases make bad law," but in fact, Judge Ellis went out of his way to defame the popular sexual practice even though the case before him was only tangentially related to it. In the case, the pseudonymous "John Doe" was a student at George Mason, and frequently engaged in BDSM activities with his then-girlfriend "Jane Roe" until one day when, according to Roe, Doe refused to recognize their "safe word" (no, not "Scalia") and continued to sexually assault her. Doe claims that Roe never said their safe word ("red"), but rather, after she pushed him away and he asked if she wished to continue sexual activity, she replied "I don't know," which Doe took as an agreement to continue. Roe broke up with Doe a few months later, but continued to stalk her via email and by other means, until she complained to George Mason University, which held a hearing and eventually expelled Doe—who promptly sued for readmittance. Anyway, the resulting fracas led to the present court case, and although the question of the constitutionality of consensual BDSM was never at issue, Judge Ellis, a 76-year-old Reagan appointee, took it upon himself to comment on that anyway. "When plaintiff initiated this lawsuit, he asserted a claim for a violation of his substantive due process rights, alleging that 'Ericson [one of George Mason's staff that got Doe kicked out] "disregarded" the BDSM context of the relationship and how it affected matters like consent and related issues' and treated a BDSM relationship as 'per se sexual misconduct'," Ellis wrote. "This, plaintiff argued, constituted a violation of plaintiff's right to sexual liberty as protected under Lawrence v. Texas, which held that a state could not criminalize intimate sexual conduct between consenting adults." [Citations omitted here and below] Doe's substantive due process claim was dismissed early on at the magistrate level, but he brought it up again before Ellis, who wrote, "Although plaintiff's motion to reconsider was disposed of on other grounds, it is appropriate here to present an additional rationale as to why the Due Process Clause of the Fourteenth Amendment does not prohibit the regulation of BDSM conduct." That's "legalspeak" for the judge deciding to hold forth on his views about BDSM even though it's really not germane to the case. What Ellis then proceeded to do was to claim that Lawrence v. Texas and a couple of cases that follow from that, including Obergefell, don't really answer the question of whether various sexual activities, including BDSM, are actually "judicially-enforceable fundamental liberty interests." Ellis distinguished what he termed "two equal but distinct lines of precedent" on the issue, with Lawrence, Obergefell and a couple of others falling into the category of a "methodology [that] balances private interests against social needs by reference to, but not bound by, historical practice." Ellis, however, favored the "more restrictive and historical-focused approach" of Washington v. Glucksberg, a case involving whether a physician could assist in a person's suicide. (Spoiler alert: The Supremes said he/she couldn't.) "Under the Glucksberg mode of analysis, plaintiff's asserted fundamental liberty interest in engaging in BDSM sexual activity is clearly not protected as judicially enforceable under the Fourteenth Amendment," Ellis wrote. "Defined with specificity and cast as a negative liberty, as Glucksberg counsels, plintiff's asserted liberty is a freedom from state regulation of consensual BDSM sexual activity. 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." This, of course, is horseshit. BDSM sex play has been going on at least as long as recorded history, and several commentators on the sexual activities of early America have recorded instances of BDSM play. Moreover, over the past 25 years, several articles have been printed alleging that this or that politician has enjoyed being bound and gagged as a form of release from the stress of making political decisions. Also, plenty of entertainment personalities, including Angelina Jolie, Rihanna, Eva Longoria, Nicole Kidman, Carmen Electra, Penn Jilette and several others have publicly admitted their interest in bondage and the like. "Importantly, Obergefell explicitly establishes that the Due Process and Equal Protection Clauses are 'interlocking' and each 'leads to a stronger understanding of the other,'" Ellis continued. "In other words, Obergefell highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group." Ellis goes on to argue that the Supreme Court decided that Lawrence's claim of a right to engage in homosexual activity turned, at least in part, on the fact that gays have historically been repressed and unfairly targeted in America society—but can anything less be said of BDSM practitioners? Commentary in the media almost invariably casts dominatrixes and sadists as villains, and submissives as wimps, giving short shrift to the protestations that such activities are voluntary, consensual and a form of role-play. If that isn't "animus," we don't know what is! Nonetheless, Ellis claims that, "In this respect, the conclusion … that there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant and important to the analysis is the absence of a history of impermissible animus as the basis for the restriction at issue here. 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 not present in more traditional types of sexual activity. Thus, as in Cruzan and Glucksberg, a legislative restriction on BDSM activity is justifiable by reference to the state’s interest in the protection of vulnerable persons, i.e. sexual partners placed in situations with an elevated risk of physical harm." Of course, Ellis never bothers to explain how a consensual BDSM relationship that follows the accepted rules of BDSM play can place "sexual partners ... in situations with an elevated risk of physical harm" any more than a consensual game of football or an amateur boxing match or any number of other sports might. Add to that the fact that when considering obscenity indictments, the U.S. Department of Justice has historically targeted movies that contain at least some BDSM activities for prosecution, knowing that some jurors will be repulsed by watching men and women engage in consensual BDSM, and Ellis' rationale flies out the window ... leaving only his own prejudices in full display. "The decision in Doe v. George Mason University, et. al, should be a clarion call for advocates of sexual freedom and personal autonomy, to join together and insist on our human right to consensual sexual expression—of any kind!" wrote Ricci Levy, president and CEO of the Woodhull Freedom Foundation. "The danger in advocating only for a specific type of sexual expression is that other forms of intimate sexual expression become neglected, resulting in decisions such as the recent ruling in Virginia," Levy added. "This ruling appears to directly contradict the Supreme Court’s 2003 ruling in Lawrence v. Texas which held that states could not criminalize consensual intimate activity between adults." Woodhull plans to put together a team of attorneys to help Woodhull properly respond to Judge Ellis' decision—and likely will file an amicus brief should the case be appealed to a higher court. The case also drew the attention of legal commentator and UCLA School of Law Prof. Eugene Volokh, who wrote about it in his blog, The Volokh Conspiracy, which is published the Washington Post. However, Volokh gave no indication whether he agrees with Ellis' opinion on the subject.

 
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