“Judge Rules You Have No Right to BDSM”
 |
| Almost Bedtime for Ripley in Alien (1979) |
We all know the horror movie trope. We are nearing the end of the final reel, and the menace has finally been disposed of. Sigourney Weaver and Jones the cat are about to bed down to nice cozy cryo-sleep when, ‘She’s baaack!’ The alien uncoils from hiding and we get to sweat through a final desperate battle. And on that basis, we are treated to an unending series of prequels, sequels, and spin-offs intended to milk our tolerance for excessive self-stimulation until we are as dry as the husk of the Alien’s midnight snack. Tell me it isn’t so! Spanner isn’t back?
 |
| Miss me? |
Readers who know their kink history, or have simply have read the earlier blogpost on Elephant about Operation Spanner, know the importance of the case in the organization of BDSM in Britain and the U S. But they couldn’t have been pleased to see the Federal Court of the Eastern District of Virginia asserted “There is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, chocking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.” The argument that consent is no defense against assault was precisely at issue in Spanner, and this looks like that argument all over again. It seems we are going to have to sit through a bad sequel.
First, let’s briefly review the original horror show, which derived its title from Scotland Yard’s – the British equivalent of our FBI — investigation, ‘Operation Spanner’, of an alleged ‘snuff’ film back in 1987. Local police had found a gay kinkster’s erotica collection which included a videotape of genital torture. Never having seen anything like it before, they presumed that the scene was coercive and part of torturing someone to death and a huge and expensive investigation was launched. It culminated in Scotland Yard swooping down on a local group’s play party and 16 gay men were arrested. When the stunned authorities learned that all the action was consensual, and the original film was for private use, the prosecutors were thrown into disarray. After 21 months of hemming and hawing, the prosecutors declared that the participants had no right to consent to assault, which was criminal under British statues as it is in the US. They went ahead with the prosecution. All 16 either plead to the charges, or were tried and sentenced to several years in prison while the case wended its way through the appeals process. This culminated in a special panel appointed by the House of Lords which serves as the British Supreme Court, which ruled 3-2 that consent was indeed no defense against criminal assault charges. The case was eventually referred to the European Union’s Court of Human Rights, where member nations unanimously voted that Britain was not violating human rights principles to criminalize assault and to disallow consent as a defense. The net legal result: BDSM that involves significant sensation play remains illegal in Great Britain to this day. That is a genuinely horrific outcome to be sure!
 |
| The Virginia Tech shooting tragedy in 2007 led to George Mason University’s efforts to improve campus safety. |
Our sequel begins with a relationship gone bad between two anonymous parties, non-student Jane Roe, who entered into the problematical relationship with plaintiff and George Mason University student John Doe. In 2012, Doe came to the attention of University when a dorm resident adviser reported him for consensually carving ‘Kill Them’ into Roe’s knuckles with a pen knife in his dorm room. Referred to the Campus Assistance and Intervention Team (CAIT) designed to investigate possible threats to campus safety in the wake of the tragic Virginia Tech shooting, Doe was on George Mason University’s radar as a potential safety threat thereafter. He accumulated additional interventions for minor offenses that had nothing to do with his relationship with Roe, before he committed an alleged safeword violation and Roe decided to terminate the relationship in 2014. At this point, Doe repeatedly and non-consensually contacted Roe, who eventually complained of his behavior to campus officials following receipt of a text message threatening to shoot himself if she declined to respond.
At this point, George Mason University CAIT officials began proceedings to remove Doe from the University as a threat. Despite the CAIT eventually deciding that discipline should not include expulsion, a higher level administrator took over and ruled against Doe, committing alleged due process violations in the process of expelling him. Doe sued, complaining of the due process violations, and argued that his behavior was proper within a BDSM sub-cultural context. The university and Doe appealed for opposing summary judgements.
Enter at this point, the villain of this piece, Judge T C Ellis III of the United States District Court for the Eastern District of Virginia. Harvard and Oxford University trained, he was a naval aviator during the Vietnam War era and a Ronald Regan appointee back in 1987, and is now Senior Judge on the Eastern District bench. A clear thinker and articulate writer, he is a strict constructionist, citing jurists like Antony Scalia as his inspiration in disposing of Doe vs Rector and Visitors to George Mason University.
 |
| Justice Antonin Scalia of the Supreme Court of the United States (1936-2016). Appointed by Ronald Regan, he served from 1986-2016. An originalist and textualist conservative, he was an intellectual leader of the court’s right wing and a leader to many like Judge Ellis. |
The bulk of the Judge Ellis’s ruling focuses on the due process issues and he cogently finds plenty of fault with the George Mason University, especially after the case was removed from the hands of the CAIT after it found too little evidence of safety threat to the community to remove Mr. Doe despite his obnoxious conduct toward Ms. Roe. For example, the Judge saw clearly that penalizing Doe for complaints of suicidal ideation had no direct benefit to the safety of the community, instead acting as a deterrent to the reporting and resolution of real safety threats. But the ruling, while irrelevant to the standing of BDSM, does give uncomfortable guidance to university administrators who are charged under Title IX with trying to protect vulnerable intersectional minorities from non-consensual conduct on campus. Ill prepared to investigate rape and consent misunderstandings in the freewheeling environment surrounding the academy, administrators need to have careful procedures for ensuring the rights of the accused. Judge Ellis’s ruling is likely to set precedent and greatly inconvenience those efforts despite Doe’s record of clearly undesirable conduct.
The potential threat to BDSM comes in the opinion’s short third section, and proposes that a high bar be set to ‘ordered liberties’ that merit constitutional protection. As irritating as Judge Ellis’ opinions maybe to those of us who believe private personal conduct merits constitutional protection, the plaintiff’s claim that he faced discrimination due to failure to recognize his sub-cultural identity and values is too weak for the attack on BDSM to gain much legal traction. Doe was hardly acting on a basis of continuously communicated consent as advocated by the BDSM community. His BDSM conduct might well have been permitted and not formed the basis of any discrimination had he kept it private, and he was having difficulty adhering to other George Mason University rules besides those relating to his relationship problems that provoked institutional over-reaction.
 |
| Etruscans at play circa 700BCE. “It was a typical case of blind justice, and the judge wasn’t going to look” A. Guthrie |
Ellis’ attack on BDSM must needs be circuitous, by suggesting that BDSM does not deserve the same kinds of protections offered homosexual conduct in the United States Supreme Court’s landmark Lawrence v Texas (2003) decision. In this attempt to limit applicability, Ellis takes a strict constructionist stance following Washington v Glucksberg that in order to merit protection, an activity needs to be “deeply rooted in the nation’s history and traditions, and implicit in the concept of ordered liberty.” I suspect that, for Ellis, homosexuality, despite a long history would lack standing as a protected class under the criteria used in Washington v Glucksberg, but that BDSM definitely does not because of the risks associated with physical harm from assault. Although BDSM has a long and varied human history, Ellis is arguing here that it lacks significant standing in American cultural history for kinksters to be a protected class with a history of unjustified discrimination that requires judicial acknowledgement for possible protection or redress. This, it should be noted, is a variant of the strategy of state legislatures that are trying to re-criminalize sodomy for all citizens as a method of dodging the argument that they are discriminating against homosexuals. This is a ridiculous argument, in that homosexuals do not have access to the narrow definition of permissible acts available to heterosexuals if oral, anal, and inanimate means are barred to all. While I am certain the Judge Ellis would not be citing the Marquis de Sade or Pauline Réage, cultural history, even of an American institution like the Folsom Street Fair if he was familiar with them, they are not relevant to the kind of tradition he is referencing in his opinion here.
The National Coalition for Sexual Freedom NCSF) has issued public statement that, holding no power to set precedent, this judicial pontification constitutes dictum; the judicial equivalent of an empty gesture. On BDSM, it is an opinion, not a ruling. George Mason University might appeal the case, but can only do so on the grounds they lost, about the due process concerns. Doe who, won the summary judgment he requested, cannot appeal the part of the case he disagrees with because he won. So legal argument about the standing of BDSM is not going anywhere from this legal dead end. So the monster is disposed of, right?
From a strictly legal point of view, this is surely right, but from a social constructionist view, this is not a very reassuring discourse. This is not a real horror story like Spanner was, just a flimsy sequel. Still, it contains harmful messages that deserve some education. For example:
Interested people might decline to explore their kink desires because the behavior of Doe in this story suggests that some BDSM practitioners aren’t very safe to play with. This is true as far as it goes. It is very important to stay connected with a community and use your scene relationships to protect against a rogue practitioner like Mr. Doe. Conventional people have trouble letting go when relationships end, so this part of the story is far from unique to kink. But they might have an easier time availing themselves of conventional resources when relationships go badly.
Interested people might decline to explore their kinky desires because they have no constitutional protections, and institutional responses to kink might be discriminatory. Sexual rights aren’t well protected under the Constitution, but institutional responses are becoming less discriminatory. You are safer now than pioneers in the field were 40 years ago. And how you vote matters a great deal. The judge in this case is a great admirer of the very conservative Supreme Court Justice Antonin Scalia who just died, and the Obama administration and Republican led Senate are fighting over his replacement. Your vote might influence how this conflict gets resolved. But Lawrence v Texas, as little as strict constructionists may like it, protects against moral judgments like Judge Ellis would like to make. Kinky folk retain all the protections they had prior to this opinion.
It might be hard to expel troublesome people who do not adhere to a BDSM social organization’s rules. Look at the difficulties George Mason University faced. Maybe my local BDSM group couldn’t get rid of a bad apple very easily. That is basically false. BDSM social organizations are private clubs and have to clear a much lower bar to expel troublesome members than universities do. It is a very good idea to for groups to have a code of conduct in place and for new members to learn those rules and use them for their protection, but violators are easy to expel from private clubs.
BDSM isn’t very safe and yet neither is it possible to get much protection under the law if I try things conventional people think are risky. This is also partly true. But your protection in matters sexual is not primarily a matter of law, but comes from communication. Relative to conventional behaviors, you do need to educate, inform, protect yourself and take primary responsibility for your kinky decisions. But because of the diversity of interests in kink and the importance of continuous and on-going consent, there is much stronger support for communication in kink than many conventional relationships. Kink is stigmatized, and the worst part of this court decision is that it isn’t helping to make kink seem safer or more acceptable, but it doesn’t make it more dangerous.
The court makes people think they have no right to private sexual conduct that is outside some narrow set of conventional norms. Right on! The Constitution does not actually directly protect any sexual behavior, conventional or not, but public perception does matter. Your best protections are to keep your private behavior private. Doe did not do this here. Additional protection can come from acting collectively to show that conventional thinking about BDSM is incorrect.
If I try to get help for my problems, instead of assistance, I might be subject to discrimination like Doe was. We don’t know that much about Doe from this very sketchy summary of his case, but it is impossible to rule out the possibility that prejudice against kink contributed to this messy story of well-intentioned administrators mistreating a troubled kinkster. NCSF maintains a list of Kink Aware Professionals to help you find sophisticated and non-judgmental professionals if you need help to protect yourself from these kinds of misunderstandings. Kink Aware Professionals are not readily available in all areas of the country, nor equally represented across all professions, however.
These observations are my poor substitute for a dramatic final confrontation with the Spanner menace. They are the equivalent of those internet rules about how not to behave in a horror movie if you want to last to the final reel. But the legacy of Spanner is still with us. Some of that legacy is bad, like the media over-reaction to this case, but Spanner’s legacy is more complex.
Not long after the 1997 Human Rights Court decision in Strasbourg cementing Britain’s ruling that consent was no defense, Scotland Yard recognized that their relationship with the British kinky gay community was in shambles. They began programs to cooperate with the community so that the community would not shun them when Scotland Yard had serious crimes that needed investigation and they needed community help to protect community people. While BDSM is still unnecessarily risky in Britain today, the police are much more culturally competent than 30 years ago.
Another part of Spanner’s legacy is that kinksters, gay and heterosexuals alike, realized that they needed to get much better organized to protect against this kind of discrimination. The Spanner Trust was started, and money goes to kink charities and organizing from events like Folsom Street Fair, The NELA Flee, and Southwest Leather. You can fight decisions like this by giving to those organizations and to NCSF! Although leather activism did not begin with NCSF, it formally launched in 1997 as part of the increase in social organization caused in part by Spanner.
 |
| Cute, but it takes serious educational efforts to teach authorities the different signs of kink vs abuse. Unfortunately, there are some relationships that are both kinky and abusive. |
Part of the British legal argument against consent was valid: it is impossible to prosecute domestic violence cases on either side of the Atlantic if authorities must rely exclusively on victims’ willingness to prosecute abusers. Victims withdraw consent in large numbers and cases would collapse if the state did not retain an interest in and the legal authority to continue prosecutions. Kink cases are a trivial percentage of police matters relative to domestic violence calls. Yet BDSM practices and domestic violence do not present to the authorities in the same way, and, taught to differentiate consensual BDSM from domestic violence, police can discern the difference in many instances. Since 1997, NCSF has spent lots of time and energy supporting programs for educating police on just these points.
Like any proper horror franchise, the struggle isn’t over when the final credits roll. While we are not very entertained by this court decision, it is not nearly as scary as it looks, and there are lots of things you can do to protect yourself and the BDSM communities, until next time. Until we have more substantive protections for personal and sexual expression in this country, there will surely be a next time….
Select Links:
NCSF’s press release:
A good legal analysis of the implications:
http://kinksanity.com/2016/03/12/why-the-george-mason-university-case-ruling-on-bdsm-was-correct/
Woodhull Foundations Press release:
Judge Ellis’ opinion can be found here:
A cute defense of BDSM history from Jill Keenan in Slate, but not relevant to the use of ‘tradition’ in the court opinion:
Jill Keenan on BDSM history
Jill Keenan on BDSM history
Richard Cunningham’s post on Lawrence v Texas and Doe v George Mason University
NCSF Legal Opinion on Doe v George Mason University
© Russell J Stambaugh, January 2016, Ann Arbor MI, All rights reserved
Richard Cunningham Esq, NCSF's legal counsel has made it clear how limited the impact of the opinion in Doe vs George Mason University can be, but I don't agree that the press and social media frenzy should be ignored even though kinksters gain nothing from arguing about the ruling itself. That is why I penned this post. You may prefer to form your own opinion, and even to leave it here.
To read Richard's opinion directly, here is the link!
https://ncsfreedom.org/press/blog/frontpage.html
Because the link doesn't work in the comment box, it has been added to the bottom of the links in the main post!