March 8, 2016

I’VE WARNED THAT COLLEGE SEX RULES COULD VIOLATE LAWRENCE V. TEXAS. NOW THIS: Bans on Bondage and Spanking During Sex Could Be OK, Says Federal Court: Think states can’t criminalize consensual BDSM activity? Think again.

The decision, from the U.S. District Court for the Eastern District of Virginia, is rooted in an alleged case of campus sexual assault at George Mason University (GMU). Robby Soave covered the case here last week, highlighting how a male student (“John Doe”) accused of sexual misconduct was expelled from GMU with little concern for due process. According to his accuser (“Jane Roe”), a female non-student with whom he had been in a relationship, Doe deliberately kept going with a sexual encounter after she tried to stop him. Doe said he didn’t know she was serious, since she hadn’t use the “safe word” they had chosen to stand in for “stop” when they were engaging in BDSM activity.

As the court explains, BDSM “is an acronym for the practices it entails, namely bondage, discipline, dominance, submission, sadism, and masochism. Thus, a BDSM relationship might involve … such actions as biting, choking, spanking, or the use of restraints.” In the relationship in question, Roe was the submissive party.

After he was expelled, Doe filed suit against GMU. In February, the district court granted summary judgment to Doe, agreeing that his constitutional rights had been violated. But while the court’s decision may be a win for campus due process, it also delves beyond the particulars of this case in a way that should scare advocates of sexual autonomy.

In his lawsuit against the school, Doe had suggested that GMU administrators “disregarded” the context of his relationship with Roe and instead acted like BDSM sex was “per se sexual misconduct.” This, argues Doe, stands in violation of Lawrence v. Texas, in which the Supreme Court held that states couldn’t criminalize consensual intimate activity between adults. The court, however, granted GMU’s motion to dismiss this claim.

Campus puritanism does collateral damage? Hey, it was never as if this stuff was going to just stay on campus, you know.

Here’s more from Eugene Volokh.

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