VICE
by Neil McArthur
John Doe was a student at George Mason University (GMU) when he met Jane Roe, a woman with whom he formed a BDSM-based sexual relationship that culminated in an assault on or around October 27, 2013. Roe, who played the submissive role, alleged in court documents (where both were assigned anonymous monikers) that on that day she pushed Doe away and did not want to continue. But he did—because, he alleges, she didn’t use their safe word.
This March, the Virginia federal court in which Doe v. Rector & Visitors of George Mason University was heard made a historic leap in American case law as it relates to sex: They ruled that there is no constitutional right to engage in BDSM play in America. While no US laws currently criminalize BDSM, it’s still a crime to harm others, regardless of whether they consent. It’s a puzzle that places acts of BDSM in legal limbo—how do you legislate and define consensual, safe practices that are designed to sometimes look nonconsensual and dangerous?
It’s not a completely unfamiliar problem for state legislatures, which have all had to legislate forms of consensual harm, such as tattoos, piercings, medical treatments, and organized sports. When the political will is there, laws can be made to allow for such liberties while keeping people protected by the state. The time has come, say BDSM experts, for our nation to explicitly legalize BDSM, rather than let it wither in the legal gray area where it currently sits.
The Virginia decision, it should be noted, merely concluded that states have the constitutional right to criminalize BDSM and didn’t rule as to the morality of the practice or explicitly criminalize BDSM itself. Through the ruling, Virginia said that if a particular state or public entity (like GMU) believes it has an interest in preventing BDSM activity or passing laws that criminalize the practice, they can, and those prosecuted now have no legal recourse.
The idea that one cannot consent to harm is a basic principle of common law that has existed for centuries. Some believe we should abandon this principle in turn and enshrine consent as the guiding ideology of our legal framework instead. We let grown-ups do what they want—if a competent adult wants to be harmed, what business does the state have telling her otherwise?
It’s not so simple. The consent to harm principle stands for good reason—because the law exists to preserve the public peace, not just to protect us from one another. We all have an interest in preventing people from settling their disputes by fighting and dueling. Equally important is that laws against consensual harm provide vital protection for domestic violence victims, who often tell police that they don’t mind such abuse. Prosecutors need to be able to bring charges against abusers even when victims don’t cooperate.
This might seem like a non-issue, because people are rarely prosecuted for engaging in BDSM, and police generally enjoy a strong relationship with the kink community. “The majority of run-ins [between the BDSM community] and police have been minor and positive,” Coreen Grace, a marriage and family therapy professor at the University of Nevada, Las Vegas and 20-year BDSM scene veteran, told VICE. In general, she continued, the BDSM scene has taken it upon itself to educate law enforcement bodies as to the ins-and-outs of their subculture.
“Since 1997, we’ve really transformed the way the police department treats us,” Susan Wright, spokesperson for the National Coalition for Sexual Freedom (NCSF), told VICE. …