Federal Court: No Constitutional Right to Engage in Consensual BDSM

Mar 8, 2016 1:20 PM PST

ALEXANDRIA, Va. — A federal court recently ruled that there is no constitutional right to practice consensual BDSM sex.

The case at hand centers on plaintiff John Doe, a student who was expelled from George Mason University for allegedly having sex with a woman without her consent by refusing to stop a BDSM sexual act when his sexual partner uttered their safe word — “red.”

Doe sued the university when administrators expelled him after he was probed by the school’s Sexual Misconduct Board, which held a 10-hour hearing on the matter.

Jane Roe, Doe’s BDSM partner, claimed a “substantial procedural irregularity” had occurred since his first exoneration— “in Roe’s view, plaintiff confessed” after he later replied to a conversation with Roe via a taped telephone conversation made by school detectives.

According to court documents, Roe asked him “why [he] never stopped when [she] used the safe word.” Doe replied that he “felt like [she] could handle it.” 

In his lawsuit against the school, Doe contended that George Mason University administrators “disregarded” the context of his relationship with Roe and instead acted like BDSM sex was “per se sexual misconduct.”

Doe argued that the university administrators’ decision to not understand the context of the relationship between Roe and him stood in violation of the U.S. Supreme Court case Lawrence v. Texas, which struck down laws against consensual same-sex intimate activity between adults.

Last month, U.S. District Judge T.S. Ellis III dismissed the case through summary judgment, ruling that the university had violated Doe’s right to due process by not handling the appeals process properly.

However, Ellis in his ruling, said there is no constitutional right for consenting adults to engage in BDSM.

“Engaging in BDSM sexual activity is clearly not protected” under the U.S. Constitution, Ellis said. “[T]here is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

Because such activity “poses certain inherent risks to personal safety,” the court said, governments could claim a legitimate interest in regulating it for “the protection of vulnerable persons” who have chosen to enter BDSM relationships.

Ellis in his decision said that, “consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the 14th Amendment to engage in BDSM sexual activity.”

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