The United States District Court for the Eastern District of Virginia released its decision in the case of Doe v. George Mason University et al. and, for some reason, they felt compelled to weigh in on whether there is a constitutional right to engage in consensual BDSM sex. Their answer is, ‘no.’
In the case of Doe v. George Mason University et al., a George Mason student was expelled for allegedly having sex with a woman without her consent because he failed to stop their BDSM sex after his partner said the ‘safe word.’
The plaintiff alleged that the George Mason University administration “‘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,’” and thus violated his right to engage in consensual sexual activity as well.
There is no question, forcing sex on an unwilling partner is rape and is reprehensible in any capacity. However, the court’s ruling went on to address consent as well.
In their decision, the court addressed the entire practice known collectively as “BDSM,” which is an acronym for the acts it entails, namely bondage, discipline, dominance, submission, sadism, and masochism.
The court found that banning or outlawing consensual BDSM is justified as it will ‘protect’ any future participants who may be harmed by their decision to engage in such acts.
“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,” stated the ruling.
The slippery logic used by the court for their justification, in this case, is dangerous. The court claims since there is no deeply rooted history in BDSM, then the federal government has every right to ban it, in spite of the act being entirely consensual.
“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 inCruzan 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.”
By this logic, talking on the cellphone is can be deemed unconstitutional, as there is no historical use of cellphones.
Furthermore, the vague and overly-broad ruling on what is considered BDSM leaves room for additional state intervention into the bedrooms of consenting adults. By this definition, the act of spanking your spouse on the behind during sex could warrant a criminal investigation.
In their ruling, the court rejects the landmark view that Lawrence v. Texas creates a general constitutional right to adult noncommercial sexual autonomy and will undoubtedly be used as fodder by the militant religious sect attempting to outlaw gay sex.
At what points do Americans say enough is enough? If there is consent, there is no reason for government to be involved.
The purpose of government is to assist in the protection of rights, not to hinder them. If one consents to waive their rights of physical protection, within the rules of a certain context, ie. MMA Fighting, Boxing, Wrestling, BDSM, et al., the government is violating their right to consent.
This violation is a direct infringement upon personal liberty known as Deprivation of rights under the color of law, and it’s a crime.
It’s time Americans begin to understand what ‘freedom’ actually means. Merely repeating that word, ad nauseam, does nothing to protect it from those who are hell-bent on removing it.