If you thought that consenting adults has the freedom to do whatever they wanted in the privacy of their homes…well, we have some news for you.

This week, a federal court ruled that Americans do not have a constitutional right to practice consensual BDSM. Of course, should be illegal to cause bodily harm or pain to someone, tie someone up, or force someone to do things without their consent. But, if everyone involved agrees to the parameters of the situation and wants to experience these things as part of a consensual situation, how could it be illegal in the US?

What is BDSM?

What is BDSM?

We’re not lawyers, but we’ll try to explain. If you’re interested in reading the full summary of the lawsuit and ruling, here’s the link. 

The short story is, two students at different universities had a BDSM relationship. There were instances where one student (“John Doe”) did not stop sexual or BDSM activities when the other student (“Jane Roe”) used their agreed-upon safeword. Ultimately, Doe was expelled from his university on a charge of sexual misconduct.

Then, Doe sued his university, alleging that he wasn’t given due process, that the charges against him weren’t clear, and that school authorities categorized their consensual BDSM as “sexual misconduct,” not just the incident where the safeword was used. After all, isn’t sex between two consenting adults legal, as long as there’s no money involved?

Some background: A landmark Supreme Court case from 2003, Lawrence v Texas, established that a state cannot criminalize intimate sexual contact between consenting adults. This case struck down laws against sodomy in Texas and invalidated sodomy laws in 13 other states; it made same-sex sexual activity legal across the US. This ruling influenced a 2005 decision in Virginia, Martin v. Ziherl, wherein sex between unmarried adults was made legal in the state.

The United States’ puritanical history lingers in our legal system as traditional, sexually conservative laws remain on the books. Many  people don’t even know these laws exist as they’re so rarely enforced. And, as the court works in the US, these things aren’t called into question until there’s a court case about them.

So, here we are, with a federal court ruling on BDSM activities. The court stated, “there 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.”

Wait, what? Since tying people up isn’t rooted in the nation’s (puritanical, suexually repressed) history, it’s not considered a liberty? How old does a freedom have to be for it to be considered implicit in the concept of ordered liberty, anyway? (And how do we know the Puritans weren’t actually getting off on their religious self-flagellation?)

Fresco from the Tomb of the Whipping near modern-day Tarquinia, Italy showing two men and one woman in what would now be defined as a BDSM situation.

Fresco from the Tomb of the Whipping near modern-day Tarquinia, Italy showing two men and one woman in what would now be defined as a BDSM situation.

As a writer at the Huffington Post pointed out, BDSM practices have been around for a loooong time.  Longer than the terms “sadism” (late 1700s) and “masochism” (1886!) have been around. There’s even an Etruscan fresco from 490 BC that features two men whipping a woman in an erotic context!

In addition, the court stated, “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.”

Death and Taxes magazine characterized the ruling as judicial overreach and we have to agree.  Sex without consent is illegal and rightfully so. BDSM activities without consent should also be illegal and those who are subject to unwanted BDSM conduct should have the right to seek legal recourse. However, that doesn’t mean that all BDSM is inherently harmful or that submissive or masochistic people should be characterized as “vulnerable persons.” What next, a list of specific sex acts that are legal between consenting adults and those that are not? Will every couple engaging in a little spanking require a Christian-Grey-esque contract to protect parties from judicial overreach?

As BDSM becomes more and more mainstream (thanks, 50 Shades of Grey) it’s likely we will see more legal cases around BDSM practices. We hope that soon courts will not look at BDSM as de facto “sexual misconduct” but merely another way of expressing the spectrum of human sexuality. The more we talk about consensual BDSM and normalize its practices, the better our chances that it be considered an implicit sexual liberty.

If you practice BDSM/sensation play and want to be part of a scientific study which could help to normalize those practices, participate in this survey.

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