Mar 132016
 

Last week, a US federal district court ruled (PDF) that there is no constitutional right to engage in BDSM.

Quoting the Washington Post:

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.

In US law, the case of Lawrence V. Texas is the foundation for the principal that adults have the general right to non-commercial sexual autonomy.

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. [Bold emphasis added]

In other words, BDSM has no history nor does it contend with any prejudice or oppression from society. Both of these claims are, as this blog and other works have shown, completely incorrect.

Slate.com adds a capsule historical overview of BDSM-like activities over time, suggesting that there is in fact a deeply rooted history and tradition to it.

This may seem to be hairsplitting, but such follicle manipulation matters in these situations.

However, don’t march on Washington just yet. The NCSF posted on the subject and said that this was not a legal ruling. In effect, it was the judge taking the opportunity to editorialize on something only loosely related to the actual case, namely BDSM and Lawrence V. Texas.

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.

[…]

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.

 

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