Whether the Bill of Rights protects against criminalizing BDSM activity

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Mar 18, 2016 Whether the Bill of Rights protects against criminalizing BDSM activity

When I entered law school in 1986, I was seething that a Supreme Court majority had only two months earlier affirmed the constitutionality of criminalizing consensual adult oral and anal sexual intercourse, Bowers v. Hardwick478 U.S. 186 (1986) in a day and age that oral sex had become commonplace, at least after Deep Throat had been released fourteen years earlier in 1972. Then I celebrated when seventeen years later, the Supreme Court reversed the Bowers abomination, via Lawrence v. Texas539 U.S. 558 (2003).

Not having exhaustively researched where courts have placed limits on Lawrence’s limiting effect on consensual adult sexual activity, I nevertheless expect that courts will and have rejected any arguments that Lawrence permits bigamy and polygamy, permits prostitution, or waters down the Supreme Court’s pronouncement on obscenity prosecutions in Miller v. California

In that vein, I have not researched, other than reviewing the below-addressed recent Doe opinion, what the courts have said about Lawrence‘s effect on protecting against the criminalization of consensual adult BDSM, an acronym for bondage, domination, sado-masochism. Those who have no interest in BDSM, might at first ask why to spend much effort protecting the right consensually to engage in such activity. However, when we allow government to prohibit one group’s individual liberty rights, the tide comes closer to enabling the government to prohibit our own individual liberty rights.

For whatever it is worth, I have provided legal counsel to a few groups of people wanting to assure their ability to engage in BDSM gatherings, as a natural extension of my years of defending the rights of the adult entertainment industry. Many people engaging in such activity at first blush come across as ordinary people, often so ordinary that in their daily work lives some of them might seem more likely to attend bingo games and knitting gatherings in their free time rather than BDSM get-togethers. Of course, the same can be said for those engaging in regular sexual activity of any flavor, whether through serial monogamy, non-monogamy, and even group activity.

I have heard motivations behind BDSM activity to include “play”, role playing, and exchange of power. Quite frankly, having visited a client’s BDSM/swinging club before hours, when only the management was present, I am not particularly interested in gaining in-depth knowledge of the motivations for BDSM activity except to the extent I need that information to well-represent my clients.

Today’s blog entry was motivated by a curious recent Slate-reported Virginia federal trial court opinion in ongoing local federal litigation over a student’s challenge to being expelled from public college George Mason University, which is a mile from my office. In the expelled student’s original civil complaint — later followed by a more expanded amended complaint — he argued that the expulsion violated his rights under Lawrence to engage in BDSM activity, where one ground for expelling him seemed to have arisen from his ex-girlfriend’s claim that he continued engaging in sexual intercourse with her in his dormroom, after she had said “no”, in that she had not used their always-agreed BDSM codeword of “red” to stop ongoing sexual activity, where “no” had been previously agreed not to mean “stop.” Doe v. George Mason University, E.D.Va. No. 1:15-cv-00209-TSE/TRJ.

The trial court in the last few pages of its Doe opinion rejected that Lawrence limited George Mason’s university’s power to discipline Does over BDSM activity. However, my view is that the law is more permissive to public college’s regulation of personal choice than in the criminal law context, where I view Lawrence to provide protection to anyone prosecuted for engaging in consensual adult BDSM activity. I suppose an opposing argument could be made that Lawrence should be confined to its facts of consensual adult oral intercourse, but such an argument would overlook that Lawrence clearly also prohibits criminalizing consensual adult anal intercourse as well. Lawrence underscores the Bill of Rights’ protection of mutually consensual adult sexual activity, thus preventing the criminal law from banning designated consensual adult sexual activity in and of itself, and instead allowing the criminal law to deal with whether the sexual activity is consensual and only with adults in the first place.

Here are some of the essential documents in Doe: the amended complaint, the trial court’s February 25, 2016, opinion, the case docket, and the plaintiff’s and defendants’ subsequent briefs.

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