Why the George Mason University Case Ruling on BDSM Was Correct

gavel01-lgI’m going to preface this with one simple statement, so that no one gets confused. Yes, I am still an activist for sexual freedom, including the protection of rights of people who choose to engage in BDSM activities.

Now that I’ve gotten that out of the way, I’m going to say a few things that won’t be highly popular in the BDSM community, in spite of the fact that they are generally true. Obviously, more than a few people have been a little upset about the fact that the federal district court ruled on Doe v. Rector & Visitors of George Mason Univ. that people do not have a constitutional right to practice consensual BDSM. The ruling is based in part on history, along with the state’s interest in protecting individuals who could be victimized. On both counts, this ruling was absolutely correct, whether we like it or not.

On the first, it is important to clarify that “history” is not a reference to cultural history, or psychology, or anything else like that. It is a reference to the law, as in historical precedence in the courts or lawmaking bodies of this country. Yes, it is true that BDSM has a long and storied history in the U.S., but that has occurred outside of the world of law, for the most part. The vast majority of cases involving BDSM at this point have been purely criminal cases, and arguably didn’t really involve the lifestyle at all – they were non-consensual sex acts, and acts of violence that the media, defense attorneys, or both have characterized as being “BDSM” for the sake of headlines in the former, and a last ditch defense in the latter. For the most part, people in the BDSM community tend to speak out against such situations being defined as BDSM in the first place anyway.

This case is very close to being no different from the rest of those, because “John Doe” arguably did make a few major missteps when it comes to responsible behavior in the BDSM lifestyle. No, we don’t say that it is ever okay to engage in stalking behaviors, and we certainly don’t encourage it to the point where the person being stalked starts making complaints to authorities, which landed this case in the courts in the first place. So, this still isn’t a clear cut case of the courts going out of their way to infringe on the rights of any person to engage in consensual BDSM, because there are underlying issues of stalking, and other various misdeeds that were committed by Doe, and could have been justifications on their own for removing him from the George Mason Univ. campus anyway. That means that even in this case, BDSM per se was not the only issue guiding this ruling, in spite of the fact that the judge specifically stated that there is no constitutional protection for people choosing to engage in these activities. The reason the judge chose to make this ruling also wasn’t to target BDSM, because Doe was using the lifestyle as part of his defense – the ruling was all about saying that the court would not recognize BDSM as a defense, not that the court was out to put an end to all BDSM activities. People engage in many activities that are not constitutionally protected all the time, of course.

As for legislative actions taken against BDSM specifically, that has not occurred either. Cases involving BDSM are prosecuted under other portions of the criminal code, including laws restricting assault and rape. The only major actions taken against BDSM practitioners by lawmakers on any level of government tend to involve municipal governments seeking to prevent BDSM clubs and organizations from being in the public eye within their borders. While this is very common, it is not as virulent as actions that have been taken against other sexual communities, such as the gay community. This is what the judge left this ruling on, along with the history of laws written against blacks after the Civil War. That was because there were no specific laws against BDSM to call on, proving the point of the court in the first place.

Finally, there is the state’s interest in protecting potential victims, which should be fairly obvious. Anyone in the BDSM community who denies the fact that there are people who are victimized by bad actors under the excuse of calling it BDSM is lying to himself. As it stands right now, one only needs to roam through forums on BDSM in general to find threads discussing the demerits of taking degradation too far. If I had a dime for every “slave” I’ve seen talking about totally surrendering to the will of a “Master” or “Mistress” to the point where I question whether or not the person is actually consenting, I would be a very rich woman. The fact is that there are people who literally crave attention, and will take any kind of it as opposed to none at all. Predators can smell that kind from a mile away, and search for them in the world of BDSM quite successfully. Then people like me tend to end up picking up the pieces when it all goes to hell. So, I definitely agree that for the moment, the state definitely does have an interest in protecting people who do not have the ability to do so for themselves, including in the BDSM community. Taking advantage of people like that really should be considered a crime.

Like it or not, for right now this ruling is correct. The BDSM community has not been specifically targeted by government on a large scale to this date, there is no significant body of cases out there to prove that is the case, and there are not piles of laws out there specifically targeting BDSM lifestylers. The legal issues members of this community face are in a gray area, which is what makes the jobs of advocates very difficult. Yes, what I’m saying here implies that we might be better off if we were targeted. However, that’s not the only route to seeing consensual BDSM activity protected by the law. That route is through legislative action, that would specifically affirm the rights of adults to engage in BDSM activities if they so choose. Personally, I see that as a far easier battle, especially given the nature of pop culture at this point, and the fact that the doors have been opened to demystify the lifestyle for the sake of the vanilla masses. That means we need to focus on education on a mass scale, as opposed to drawing fire so that we can become a protected class.

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