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You Do Not Have A Constitutional Right To Engage In BDSM

by bil browning March 10, 2016

FILM TITLE: FIFTY SHADES OF GREY (2015) .... HANDOUT ...

A federal judge in Virginia has ruled that Americans do not have the constitutional right to engage in BDSM sex. In Judge T.S. Ellis’ decision in John Doe v. The Rector & Visitors of George Mason University, et al, he cited and dismissed previous Supreme Court rulings on sodomy laws and same-sex marriage and instead used a case about physician assisted suicide to bolster his ruling.

“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!” Ricci Levy, president and CEO of the Woodhull Freedom Foundation, said in a statement. “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. 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.”

The case in question didn’t actually argue that there is a constitutional right to engage in BDSM, but the judge made it a large part of his ruling. Instead, the case was about a college student, using the name John Doe for privacy reasons, seeking readmission to the university after being expelled for allegedly stalking his ex-girlfriend.

Doe and his then girlfriend, listed as Jane Doe, frequently engaged in BDSM play during their relationship, but she alleges that he ignored their safe word and sexually assaulted her. He claims that she didn’t say the safe word and instead, when asked if she wanted to continue, replied with “I don’t know.” He said he took that as consent to continue.

The couple broke up a few months later, but John Doe continued to email and text his ex, leading her to complain to the university. Following a hearing, where her allegations of sexual assault were revealed, the school expelled John Doe, prompting him to immediately sue for readmission, saying the school overlooked the BDSM aspect to their relationship.

“When plaintiff initiated this lawsuit, he asserted a claim for a violation of his substantive due process rights, alleging that Ericson [a university staff member] ‘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 in his opinion. “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.”

While John Doe’s claim for relief didn’t question whether or not BDSM was a constitutionally protected right, Judge Ellis decided to tackle and condemn the practice in his ruling. Previous rulings to repeal sodomy laws and legalizing same-sex marriages were tossed aside while the judge used Washington v. Glucksberg, a previous ruling on physician assisted suicide, to explain his reasoning.

“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, plaintiff’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.”

“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,” Ellis continued. “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.”

Doe’s petition for readmission to the university was denied.

 

H/t: LGBTQ Nation




bil browning
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