A look at Lawrence v. Texas and Doe v. George Mason U
By Richard O. Cunningham, Esq.
NCSF Legal Counsel
In Doe v. George Mason University, the District Court judge’s discussion of BDSM and of Lawrence v. Texas—which is an opinion, not a ruling—is yet another example of how a number of courts have twisted and turned to avoid applying Lawrence to sexual practices of which they morally disapprove. These decisions have involved BDSM, polyamory and even sodomy—which was, of course, the specific practice that was prosecuted in the Lawrence case.
The fact is that Lawrence was explicitly based on a fundamental ruling that applies broadly—but with some ambiguities—to non-injurious, non-commercial sexual conduct. The constitutional right of privacy, the Lawrence court stated, prevents criminalization of intimate sexual practices unless there is a sufficient societal interest that needs protection by a criminal statute. The court went on to hold—and this is the crucial point that the District Court judge ignores in Doe v. George Mason—that moral disapproval is not a sufficient societal interest.
But Lawrence, like most Supreme Court decisions, is a lengthy opinion that contains language which, although it in no way detracts from the basic ruling, can be twisted by the moralists to find ways to continue to prosecute the same sexual acts. Thus courts have misused the Lawrence court’s references to “public sex,” or to the exchange of money, or to physical harm—all to justify the criminalization of “private, consensual conduct,” a criminalization which Lawrence explicitly condemns.
It is important not to oversimplify the issues and frame the debate in a context favorable to the sexual bigots. For our purposes, the question is whether the right to privacy contemplated in Lawrence protects people who engage in BDSM absent non-consent or serious physical injury. We contend that it does. This approach enables us to focus the courts and public opinion on the fact that prosecutions growing out of BDSM conduct—whether for assault or trafficking or other crimes—are based on precisely what the Lawrence court found impermissible—namely, moral disapproval.
The judge in Doe v. George Mason sets up a “straw man” when he states the issue as whether there is a “constitutional right to BDSM.” Lawrence does not specifically mention BDSM, but instead establishes a broad principle that the right of privacy protects “private, consensual conduct” which includes BDSM as certainly as it includes same sex conduct.
It is also important to note that the Lawrence ruling says that conduct may be criminalized if necessary to protect a sufficient societal interest. That is why NCSF argues, and has had success arguing, that only BDSM cases involving serious physical injury warrant criminal prosecution if the activity is consensual. Such an argument is both legally sound and appeals to the public’s sense of fairness and respect for privacy and personal dignity. NCSF is working effectively on this basis with legislators, lawyer groups, prosecutors and others, and is filing amicus briefs in key appeals related to cases involving alternative sexuality practices.
Of course we should continue emphasizing the general principle of Lawrence that a right of privacy protects sexual conduct unless there is a sufficient societal interest to warrant criminalization. But the balance between that right of privacy and the alleged “societal interests” claimed by our opponents to warrant prosecution will differ from one sex practice to another. Thus, for example, this argument will be different for BDSM than for polyamory.
NCSF is making real progress by presenting these issues in the proper way. An over-broad argument that “we can perform any sex acts we want” or that “BDSM is constitutionally protected in any circumstances,” won’t win over the courts or the legislators. And an over-broad strategy plays into the hands of our opponents, who want to portray us as perverts who want no rules in any situation that would prevent people from doing anything they want to do.
This District Court’s decision is nothing new, and there is no need—and a real downside—for focusing our battle on that opinion, incorrect and illogical as it is.
Vanilla and Kink: Married Couples in Which One Partner Identifies as a Part of the BDSM Culture and the Other Partner Does Not.
Looking for a legally married couple:
·At least 18 years of age
· Married for at least 1 year (including open-marriage and other variations)
·Male and female partnered marriage
· Speak and write English language fluently
·One partner self-identifying as a part of the BDSM culture/community for at least 1 year and the other partner self-identifying as not specifically BDSM (including vanilla, kinky but not identifying as BDSM, etc. )
·Not currently pregnant or experiencing psychosis or suicidal ideation
Due to the limited time and resources, this particular study focuses the above specific population. Future research will include a variety of types of committed relationships, sexual orientations, etc.
For questions or interest in participation, contact:
Catherine Meyer, MA, LMFT #88224
Supervised by Hao-Min Chen, Ph.D.
Goal of this study is to understand how married couples communicate and negotiate the rules, roles, and expectations about their sexual relationship when one partner identifies with the BDSM culture and the other does not.
All identifying information will be kept confidential.
NCSF counsel has carefully analyzed the opinion of U.S. District Court Judge T. S. Ellis III in John Doe v. George Mason University. Contrary to what is being said by some people on the internet, the issues actually decided by the Judge had nothing to do with the constitutionality or legality of BDSM. That subject appears only in a throw-away section of the opinion in which the Judge, having already decided the case in favor of the BDSM practitioner who had been wrongfully expelled from the university, decided to give vent to his displeasure with BDSM and with Lawrence v. Texas, and to state his own totally wrong interpretation of Lawrence.
At the outset of the opinion, the Judge announced that he was going to decide two issues. First, did the University use the constitutionally-required procedures in expelling Mr. Doe? He ruled that the University did not. Second, was Mr. Doe’s right of free speech violated by taking action against him for telling his girlfriend privately that he might commit suicide? The Judge ruled that Mr. Doe’s free speech rights were violated. On these grounds, and only on these grounds, the Judge ordered Mr. Doe to be at least temporarily reinstated at George Mason
After all of this, the Judge noted that Mr. Doe had argued earlier in the case – but not for purposes of this decision – that he had a constitutional right to practice BDSM. Then, without any pretense of issuing any order on this issue, the Judge gave vent to his own views on BDSM and Lawrence v. Texas.
There is now no procedure by which the subject of BDSM will be addressed in any further court proceedings. The student, Mr. Doe, cannot appeal this decision because he won. The University might appeal, but only on the procedural unfairness and free speech issues.
NCSF regrets that Judge Ellis felt it necessary to articulate his dead-wrong view of Lawrence. This is but one more example of a judge giving expression to his own moralistic and uninformed displeasure concerning BDSM. But it is entirely what lawyers call dictum. It creates no precedent and does not even have any effect on this case.
For more information, contact NCSF at
Non-Profit Outreach Education and Research Organization
Center for Positive Sexuality
is Pleased to Partner on Journal with National Coalition for Sexual Freedom!
LOS ANGELES (March 1, 2016) – On the heels of celebrating the one-year anniversary of their Journal of Positive Sexuality,launched in February 2015, the Center for Positive Sexuality teams up with the National Coalition for Sexual Freedom, a known champion of sexual freedoms and privacy rights for all adults. With similar visions, but slightly different audiences, the two groups' messages of sex positivity, consent, education, and acceptance can be shared more broadly.
Center for Positive Sexuality Director of Research Dr. DJ Williams reports, ”With this sponsorship the Journalwill reach a wider audience and acquire more submissions to publish. This will also improve our research,as we’ll have an outlet to promote our studies and surveys. Partnering with NCSF makes sense. They have a broad audience who share similar interests.”
Established in 2007, the Center for Positive Sexualityreceived 501c3 Non-Profit status in 2013 and has been presenting educational panels to local colleges, universities, and professionals debunking myths andreplacing them with truths and lived experiences on a range of issuessuch as kink/BDSM, non-monogamy, sex and aging, sex and disability, gender spectrum, and others.
The National Coalition for Sexual Freedom (NCSF) was formed in 1997 by a small group led by Susan Wright under the auspices of the New York SM Activists. The goal was to fight for sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior. Today, NCSF has over 50 Coalition Partners made up of groups and businesses who serve BDSM, swing and polyamory practitioners. Over the years, NCSF has formed alliances with other organizations that defend sexual freedom rights: Free Speech Coalition, the ACLU, American Association of Sex Educators, Counselors and Therapists, Society for the Scientific Study of Sexuality, National Gay and Lesbian Task Force, and the Gay and Lesbian Activist Alliance, among others.
In its first year of publication, the open-access Journal of Positive Sexualitypublishedthree issues with a total of 12 articles, reaching over 30 countries worldwide.
The Journal of Positive Sexualityis free to access and download, andis multi-disciplinary, peer-reviewed and easy to read (articles are no longer than 8 pages) all from a sex positive lens.
Sponsored by the Seattle Erotic Arts Festival and the Foundation and Center for Sex-Positive Culture
Tristan Taormino will give the Keynote at the Luncheon from noon to 1 pm. Tristan Taormino is an award-winning writer, sex educator, speaker, filmmaker, and radio host. She is the editor of 25 anthologies and author of eight books, including The Ultimate Guide to Kink and The Feminist Porn Book: The Politics of Producing Pleasure. As the head of Smart Ass Productions, she has directed and produced twenty-four sex educational and erotic films. She is the host of Sex Out Loud, a weekly radio show on the VoiceAmerica Network.
Along with Tristan, other experts including Judge Rudy Serra, consent activist Kitty Stryker, Riddhi Mukhopadhyay, Brett Houghton, Sar Surmick, Jim Duvall, Judy Guerin, Kevin Carlson, Susan Wright and more will headline the Panel Discussions and Workshops:
* Consent & the Law * Consent Activism: Past, Present and Future * Affirmative Consent and College Campuses * Negotiation & Consent * Consent in Power Exchange Relationships * Train the Trainers: How to educate about consent
$50 - All day event with luncheon ticket for Keynote $40 - All day event without luncheon $35 - All day reduced price and students $30 - Luncheon and Keynote ticket $75 – All day event with luncheon ticket and pay it forward*
*Pay it forward allows those who are economically advantaged to assist people who aren't. It's a reminder to all of us that money can create barriers between us. If you need a scholarship to attend, please contact NCSF to find out more -
All tickets include Seattle Erotic Arts Festival admission on Sunday and 15% off the Weekend Pass for the Seattle Erotic Arts Festival.
As with every type of relationship, intimate partner violence (IPV) can occur in relationships that include consensual BDSM. Now NCSF can educate your local victim service providers about the difference between kink and abuse.
The National Coalition for Sexual Freedom is offering a free, half-day training on how to work effectively with these clients. After completing this interactive workshop, participants will leave with the cultural competency to serve clients who incorporate BDSM into their intimate relationships.
Topics will include:
•BDSM-affirming language to use during intake
•Research about BDSM participants and why they may be reluctant to reach out to service providers
•Composite case studies of situations handled by the NCSF and trained IPV service providers.
On-site training is available for locations in, or within an hour from, the metropolitan Washington, D.C area. Otherwise, training will take place over an online platform like Google Hangouts or Skype. (If on-site training is desired outside the Washington, D.C. metropolitan area, requesting agency will be responsible for travel and lodging costs.)
Ashley Haymond brings experience in training development and group facilitation to her work. She has extensive knowledge of the BDSM community and an understanding of the latest research in violence prevention. Ashley is working towards her PhD at the Widener University Center for Human Sexuality Studies.
The National Coalition for Sexual Freedom is committed to creating a political, legal, and social environment in the United States that advances the equal rights of consenting adults who practice forms of alternative sexual and relationship expression. NCSF advances the rights and advocates for consenting adults in the BDSM-Leather-Fetish, swing, and polyamory communities. We pursue our vision through direct services, education, advocacy, and outreach in conjunction with our partner organizations to directly benefit these communities. www.ncsfreedom.org
Pease contact: Susan Wright – 917.848.6544 or email
National Consent Month is proudly brought to you by the National Coalition for Sexual Freedom and the Arizona Power Exchange. Please join us for Consent Month in September 2016 and we will list your event and help publicize it.
Bootblack and artist Leslie Anderson opens NAKED LEATHER exhibit during the National Coalition for Sexual Freedom and Leather Archives & Museum Sexual Freedom Reception. 1/22/16 8p at LA&M. Free shuttle to and from Creating Change host hotel.