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Attention freaks, deviants, and people who like interesting sex: Do you assume it’s your right as an American to do whatever you like with a consenting partner(s) in the privacy of your own home? Well guess again, because a federal court has ruled there is no constitutional right to engage in BDSM, opening the door to all kinds of regulation of what goes on in your bedroom. Better hope Ted Cruz doesn’t get elected president!

As reported by Reason, the ruling comes as the result of a case of campus sexual assault in which the plaintiff “Jane Roe” got defendant “John Doe” expelled from George Mason University for violating their code of conduct in several ways.

According to the memorandum, Roe (the sub) and Doe (the dom) were in a BDSM relationship in which the agreed upon means of stopping sex or BDSM play was via the use of their safe word, “red.” This theoretically meant that Doe did not need to stop whatever he was doing to Roe unless she used the safe word — even if she was crying or pushing him away. (However, as any responsible dom will tell you, it was still on him to read cues of this nature and make sure his sub was okay.) On one of the nights in question (October 27, 2013), Roe signaled to Doe in all sorts of ways that she wanted him to stop their sexual activity.

When he asked if she wanted to continue, she said “I don’t know.” So he kept going because she hadn’t used the safe word.

During the expulsion hearing, Doe admitted to this as well as to several other incidents where he didn’t stop immediately when she did use the safe word. Roe worked with campus police to get him to admit this on the phone. On one of said phone calls, in response to a question on why he didn’t always stop when “red” was used, he said, “I thought you could handle it.” It was also documented that, after they broke up, he sent her a text threatening to kill himself if she wouldn’t see him, and a number of other harassing communications. Doe was found not to be at fault for the night described above, but in light of all the other information, he was expelled.

In response to his expulsion, Doe filed a lawsuit against his school alleging that he hadn’t been given due process and that he was not given adequate notice that he was on trial for incidents other than the primary one in question. Had he known, he maintained, he would have been able to mount a defense or better contextualize the incidents. (Example: He was just trying to be agreeable on those secretly recorded phone calls, in order to mend his relationship with Roe.) He also alleged that the court proceeded as if his actions were abusive from the start, merely because he was in a kinky relationship.

Via Reason:

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 [the ruling that struck down laws against same-sex relations], in which the Supreme Court held that states couldn’t criminalize consensual intimate activity between adults.

The District Court for the Eastern District of Virginia ruled that his constitutional rights to due process had been violated. However — and this is the important part — they ruled that, unlike homosexual relationships, there is no constitutional right for consenting adults to engage in BDSM play:

“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.

As for the precedent set in Lawrence v. Texas, the court said it did not apply, because that case was correcting historic injustices towards LGBT people, while the court believes there is no such history of legislative animus towards the BDSM community. (Tell that to the people who’ve had their kids taken away.)

Via the memorandum, emphasis mine:

Lawrence is not to the contrary. There, the Supreme Court reasoned that a statute criminalizing homosexual sodomy violated a judicially enforceable implied fundamental liberty interest in sexual intimacy because of the history of animus towards homosexuals. See Lawrence (noting that “powerful voices … condemn homosexual conduct as immoral” but that this does not permit “the majority [to] use the power of the State to enforce these views on the whole society through the operation of the criminal law”). Indeed, the Supreme Court has since noted [in Obergefell] that Lawrence “acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State” and “therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians.”

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.

Does this strike anyone else as a terrifying bit of judicial overreach? Whether or not you believe Jane Roe’s consent was legally violated in this case (I believe it was), it’s absurd to use this single incident as an excuse to rule that BDSM is not constitutionally protected just because it carries the risk of physical injury. You know what else involves the risk of injury? Football. When people play football, they know they could get hurt far worse than in the average BDSM scenario, but you don’t see courts trying to to outlaw America’s favorite past time. Not to mention, people once used the same arguments against the gays.

It’s essential that courts uphold an individual’s right to bring claims of sexual assault — which, yes, can include violations of trust in a BDSM scenario — without discriminating against people for their sexuality. A sexuality which, it bears mentioning, has even been removed from the slow-to-change Diagnostic and Statistical Manual of Mental Disorders. If you care at all about personal liberty in this country, you should stand up against this ignorant, bigoted, and moralistically motivated decision.

SOURCE

Federal Court Rules No Constitutional Right To Engage In Consensual BDSM

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