Washington Post
By Eugene Volokh
Besides the interesting free speech and due process holdings, the federal district court’s decision in Doe v. Rector & Visitors of George Mason Univ. also discusses whether there is a constitutional right to engage in consensual BDSM sex. No, says, the court, rejecting the view that Lawrence v. Texas creates a general constitutional right to adult noncommercial sexual autonomy.
The plaintiff student was expelled for allegedly having sex with a woman without her consent, by refusing to stop a BDSM sexual act when his sexual partner said the safe word. But his claim was that, in adjudicating the case, the 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. This gave the court occasion to consider whether there is such a right; here is how the court responded:
…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 in Cruzan 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.
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.