Home / Be The Change / Federal Court Rules You Have No Constitutional Right to Engage in 100% Consensual Rough Sex

Federal Court Rules You Have No Constitutional Right to Engage in 100% Consensual Rough Sex


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.

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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.

Matt Agorist is an honorably discharged veteran of the USMC and former intelligence operator directly tasked by the NSA. This prior experience gives him unique insight into the world of government corruption and the American police state. Agorist has been an independent journalist for over a decade and has been featured on mainstream networks around the world.
  • Chad Coulter

    It stopped being 100% consentual when she used her safe word and he ignored it.

    • Gregory Markle

      Not the point here. The plaintiff’s argument in his appeal wasn’t about whether or not he ignored the safe word, it was that the lower court’s opinion that BDSM itself was objectionable activity prejudiced their decision. Really weak appeal given that ignoring the safe word during a BDSM session is a serious violation of trust, and it forced the court to actually have an opinion about the general nature of the activity.

    • Matt Agorist

      Did you read the article? The court used the nonconsensual part of that interaction to dictate the consensual part of everyone’s private lives.

  • Silvanus Slaughter

    Some would say that Crony capitalism has turned into BDSM, or perhaps always was.

  • Patricia Stewart

    This is a district court. There is an appeals court and the Supreme Court which can overturn this at any time. This is the lowest level of court in a single district of a single state that made this decision so it isn’t exactly a constitutional ruling at this point unless I missed something. This case isn’t even binding on any other courts. As for the original case of the man who didn’t respect the safe word, well no means no, even in the middle of a sex act once someone says stop or rutabaga or whatever the safe word is you stop.

    • Richard J Riley

      Whoa… how did you know my safeword? That’s just creepy! ?

  • Linda Day

    “there is no deeply rooted history or tradition of BDSM sexual activity ” – They must have skipped the concept of RESEARCH…. Marqui De Sade leaps to mind (1740-1814, 202 YEARS of history). Perhaps these puritans should use google… or maybe watch the History Channel’s “History of Sex” documentary series. They simply used this case as an opportunity to attempt to control people’s sexual activity. Disappointing.

  • Keith McBride

    How does this not apply to boxing or MMA?

    • Rob Gaines

      consent to possibly be injured doing something they agreed to do, did you not read the article.

  • Kate O’Brien

    Correction: according to the legal documents, she *did not* use her safeword and he ignored it. She pushed him away on one occasion and he kept going and on a second occasion the same night, he asked her if she was wanted to keep going, and she said she didn’t know and he kept going, both times because she didn’t safeword.

    both times are very, very questionable judgement on his part. I can easily see how she could feel violated and he could feel he’d done nothing wrong. but it’s not as clear as she safeworded and he ignored it.

    • PhoenixM

      He alleged that on pg. 4 – and yet there was a recorded phone conversation (see middle of pg. 5) in which he is caught saying that he *didn’t* stop after hearing the safe word.

  • Susan Wright

    Clearly, little research was done by this judge who claims there’s no “deeply rooted history or tradition of BDSM sexual activity.” In fact, kinky people have been running educational groups and events for decades – at the latest count there were over 500 groups and events in America alone. There is a rich tradition of kink communities organizing around sexual orientation (Leathermen and pansexual groups) or focused on behaviors (spanking clubs and cross dressing academies). The National Coalition for Sexual Freedom, the advocacy group for kink and non-monogamy, has been in existence for almost 20 years, as have a number of venerable kinky institutions like Leather Archives & Museum and the Folsom Street Fair which started in 1984. A simple Google search would have sufficed to discover this fact.

    The judge also claims there is no “history of impermissible animus” against BDSM practitioners, when in fact significant discrimination and even violence against kinky people has been documented by National Coalition for Sexual Freedom surveys done in 1998 and 2008, and by the hundreds of people who ask NCSF for help in dealing with discrimination every year. The judge proves this point in his next sentence by claiming the nanny state must step in to intervene and protect “vulnerable persons” who are choosing to take risks. Whatever you think of the details of the case, that is not acceptable when you’re talking about consenting adults.

  • Ebenezer Tinkle

    Hi Free Thought. It is me, my computer, or your website—it is all but impossible to scroll through this article. Maybe too many ads?

  • Donald Holland

    Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. So is sex a right we already had, or one tyrannical courts can bestow?

  • Paul Lortz

    VIOLATION OF TRUST, period. De did not adhere to the safe word. I do not believe that the term “Rape” can be applied here under the law. She did give consent, then after a time said stop. That is akin to someone STARTING to repair your car, then in the middle of it saying stop and only paying to tear apart the car, but not to re-assemble it.

    That being said, NEITHER OF THEM appeared to have enough trust in one another to know where the soft and hard limits were. Shame on them.

    As for the court’s ruling on BDSM: “F*ck” the court. At what point are going to collectively stand up and tell the Government, “Enough; stay out of our lives and STAY OUT OF OUR BEDROOMS”?

    • Svb

      If someone says stop it doesn’t matter what stage you are in sex. You stop. In this instance a safe word is saying stop. It’s rape if you don’t. Sex is not comparable to fixing a car, although if someone was tinkering in your car and you asked them to stop, would it be ok for them to continue to do whatever they want to it? The issue of consent is not as difficult as people make it seem. Either someone can consent or they can’t. If they can’t, it’s rape, if they can and you say “stop” or “no” or any variation indicating they do not wish to continue (which in BDSM a safe word would constitute that) it’s rape if you continue.

      As for banning BDSM this is hardly even close considering it’s the lowest form of court. They’re taking an issue which is really about consent and making it about the sex act, instead of the violation in this instance. It’s already established that you have the right to stop sex at any point. Anyone who disagrees or is upset with that is probably a closet rapist or doesn’t want to be faced with their own questionable acts in their past.

      Bottom line is he should have stopped when she used a safe word.

  • Honor Zavatta-MacDonald

    Um, no. It doesn’t say “deemed unconstitutional”, it says legislative restriction is legally justifiable. If talking on the cell phone posed a credible risk of injury or death do to complications as simple as misremembering your password, then, yes, there would be a solid foundation for legislative restriction on that as well.

    • Kevin in Berkeley

      The conclusion of section III reads “Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.” The only reason the judge even held forth on this is because the plaintiff insisted on this path of argument.

      It’s not throwing out Lawrence, or really likely to be all that important, given that the plaintiff won the case, it’s simply stating the it’s not everything that might be done in the name of BDSM sexual activity is protected as a fundamental liberty.

      Also, ‘legislative’, in the context of this ruling, was mostly referring to the policies of George Mason University, which expelled Dom John Doe, who, if you read it carefully, is clearly an intelligent, manipulative fucker, literally and figuratively.

      • Honor Zavatta-MacDonald

        I agree about the scope and impact, I meant there’s a difference between “not specifically constitutionally protected” and “unconstitutional”.

  • Honor Zavatta-MacDonald

    You’re begging the question. The issue is how do you confirm consent in a sexual activity that regularly feigns lack of consent as part of it’s practice?

    • anonybunny

      That’s what safe words are for, dickhead.

      • Anonamouse

        Thanks for the polite, enlightened response that added so much to this conversation *eyeroll*. I think the point is that it’s difficult to prove a safe word was or was not used. As many BDSM activities would result in physical evidence typical of physical assault and/or rape, it becomes one word against the other.

        I’m all for BDSM but can see how legally handling this properly, which it decidedly was not in this case, could be tricky.

      • Anonamouse

        You’re an idiot.

      • Honor Zavatta-MacDonald

        This seems to be a difficult concept for you, but the question isn’t how do you confer consent, it’s how do you CONFIRM consent.

        Beyond a well deserved “no shit, Sherlock” on your safeword response, the point is that agreeing on a safeword between the two of you does nothing to protect either party when the other either fails to honor it, or claims it wasn’t consensual in the first place.

  • Ian Lewis

    Ok by that logic you are saying that if talking or using a cell phone was dangerous then it could be outlawed, correct. Well every year thousands of people die or are injured because they are talking or texting on the phone and walk out into traffic, or the fact that thousands are hurt or have died while taking selfies. The government needs to stay out of the American people’s bedroom. The next thing you know they will be telling us what we can and can not eat, or wear or even worse who we can marry or any number of things that the government has no business trying to stick it’s nose in. If the government want to get involved in our day to day lives like that then it should start by help the thousand upon thousands of homeless veterans that are out there, that served our country to protect our freedom to get ties or spanked or hell even wear leather bodysuits, but are treated like dirt or trash that you can just throw away.

    • Honor Zavatta-MacDonald

      It’s not about the bedroom, it’s about an activity where comment is murky at best.

  • Paul Rodrigues

    Does anyone realize what the comments here might wind up doing? Some well meaning lawmaker will wright and pass laws, rules and Regulations regarding BDSM. Government never shrinks it just grows.

  • Anon
  • Governmentprotection

    That’s right. Papikink thinks this decision is bogus and just like M. Agorist pointed out, the logic behind a lack of historical BDSM practice in the history of our country, (which I find hard to believe because I easily envision people f*ck*ng with ropes and spanking in early times), as easily & incoherently & unjustly transferring to cell phone use, piloting planes or using computers.
    This should & probably will be overturned. Does anyone know if it’s being appealed?