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We Asked a Law Professor Whether the Government Could Really Ban Rough Sex

A complicated case concerning a BDSM relationship between college students ended with a judge saying that kinky sex is not protected by the Constitution. Is the government about to come for your whips?

Simon Davis

Simon Davis

Photo via Wikimedia Commons

John Doe was a freshman at George Mason University when he started seeing Jane Roe, a student at a different university (both subjects have been anonymous in media accounts and court documents). The two young people formed a relationship and frequently met at Doe's GMU dorm room to have BDSM sex, with Roe as the submissive partner. One day in October 2013, Roe pushed Doe away from her and then said she didn't know whether she wanted to continue, but he kept on anyway, he says because she didn't use their agreed-upon safe word.

Later they broke up, but Doe continued texting Roe, trying to rekindle things and at one point threatening to kill himself if she didn't respond to his texts. Eventually, Roe reported the harassment to GMU and, separately, began working with the campus police to prove that he'd forced sex without her consent during the October incident. In December 2014, Doe was expelled from GMU for violating the university's sexual misconduct policy.

That's where things get complicated: Doe sued the university for violating his due process and free speech rights. This month, a district court in Virginia ruled in his favor, largely on procedural grounds. But Judge T.S. Ellis III pushed back on Doe's contention that GMU's code of conduct dismisses the complexities of BDSM relationships. The judge's decision read: "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 ruling has inspired outrage within the BDSM community, but for others, the case left a lot of unanswered questions: Didn't the Supreme Court rule in 2003 that sodomy laws are invalid? Do the same protections not apply to BDSM? Should people be worried about a clampdown on kink? I put these questions to UCLA Law Professor Eugene Volokh, who has written about the case on his Washington Post blog, to understand what the ruling means for the rest of us.

VICE: So what happened here? Did the judge say that banning BDSM practices was OK?
Eugene Volokh: The student's claim was that the university was, in effect, making consensual BDSM a basis for expulsion. I don't think the university has a rule against consensual BDSM; I think the university has a rule against nonconsensual sex, and that its claim was that this was, in fact, nonconsensual. The issue is kind of hypothetical: What would happen if the university or some other government entity banned BDSM? There's no real reason to think that it did. But based on this hypothetical scenario—what if, as alleged, the university did ban it?—the court said, "Well, that would be constitutionally permissible."

Most people are probably aware of Lawrence v. Texas, the 2003 case where the US Supreme Court that invalidated anti-sodomy laws across the country. Why wouldn't that apply here?
There are two ways of reading Lawrence v. Texas. One way of reading it is to say that a state may not ban sex in a context where it's essentially interfering with the ability of groups of people to have any realistic sexual self-expression. So the theory goes that what was wrong [with sodomy laws] was that the state was essentially making it impossible for a gay couple to have sex. At least a couple of courts I recall in which this issue has come up have read Lawrence narrowly here. I think that's what happened here as well.

What's the other way to interpret the case?
You can imagine a court reading Lawrence considerably more broadly and to say that what Lawrence recognizes is that part of basic human dignity is to choose whom to have sex with, and how. Maybe incest could be banned because there's compelling enough interest, even among consenting adult siblings. Maybe some forms of BDSM could be banned if they were sufficiently dangerous, like attempts to choke people or something like that. But other than that, even though the ban on BDSM would lead people to have other forms of sex, part of the thing about sexual autonomy is to choose what kind of sex you want to have.

But this issue has almost never come up, and may not in fact come up. I don't know of any laws that try to ban [BDSM] as such. And I don't know of any university regulations that try to ban it. So it may be quite a while before we learn the answer to this question.

Do you agree with the judge?
I'm inclined to say that the better reading of Lawrence is recognizing a general sexual autonomy right. But I agree that there are multiple ways of reading it.

Does this set a precedent? Could this decision now be cited?
Yes. It's not binding precedent—it's just a federal district court decision—but especially in an area where there's not a lot of binding precedent, it's potentially going to be quite significant. But again, in this rare set of cases where the legal issue does arise.

I saw that there was a case in California a while back, People v. Samuels, where a man was charged with assault based on films where he was seen whipping a naked man hanging from the ceiling with a riding crop.
This is a 1967 case, so there's been a lot of water under the bridge since then. There were three charges: One is obscenity, which is a separate issue. Then there's sodomy, which presumably today would not be punishable, but in any event, California has repealed that statute. The other charge, which is more interesting for our purposes, is "assault by means of force likely to cause great bodily injury." There's probably something of a difference between "great bodily injury" and kind of "lesser" forms [of BDSM].

In the People v. Samuels case, Samuels tried to introduce the victim's consent as a defense, but the court ruled that it was "immaterial to the defendant's guilt or innocence." If I understand correctly, that's saying consent stops being a defense for more serious injuries?
Consent of the victim is generally not a defense to assault or battery—except in cases involving "ordinary physical contact" or blows incidental to sports, such as football, or boxing, or wrestling. Once something becomes sufficiently severely harmful, then yes, assault and battery laws are in part aimed at preventing injury to people. Even where consent might be present. And a classic example is a fistfight. Even if people agree to a fistfight without the normal boxing protections and such, the law will punish that precisely because it thinks that people shouldn't be able to consent to serious injuries. But again, the other practical matter is that if there is consent, it's pretty rare for the police to even learn about it. And if they learn about it, it'll be rare for them to actually care about it.

What are some examples of the "ordinary physical contact" category that is less risky, legally speaking? How does consent factor into those?
The difference is, let's say, between beating and spanking. If you get a very severe beating, then that may well be a crime regardless. At the same time, as the court points out, situations involving ordinary physical contact are OK. One of the ways we determine ordinary physical contact for assault is whether it's consented to, right? So what's the difference between a massage and a punch? Some massages can involve more intense physical contact than some punches. The difference is that if it's something that is consented to, or the person at least thinks that it's consented to, that's not a crime.

So something like slapping or spanking—how do you tell the difference between somebody assaulting somebody and someone slapping someone on the back [in a friendly gesture]? It seems like a lot depends on consent and expectations of consent.

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