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On a Constitutional Right to BDSM
by J.M. Green
From the Slut: J.M. Green is a friend who very recently completed law school and was gracious enough to write a detailed explication of an extremely complicated case. Much appreciation!
Dr. Slut has asked me to weigh in on a recent case decided in Virginia. I’m both delighted and flattered to be guest blogging here. My goal is to offer a solid understanding—legally and factually—of what the case actually decided, what it means that a court made this particular decision, and what actually happens now that the decision has been made.
What follows is a very detailed explanation of the case, and for people looking for the short takeaway, here it is: a Virginia District Court made several rulings in a complicated case of college date rape which purportedly involved BDSM. The alleged rapist, who had sued the school over how the school dealt with the case, won most of what he’d asked the court for. The only thing he didn’t win was a claim that the university was required to consider the BDSM context of his relationship, but his own admissions would damn him as a rapist in most BDSM communities. Legally speaking, he argued that he has a Constitutional right to engage in BDSM and the court used easily disputable logic to claim otherwise. The court’s ruling really doesn’t mean much, and it doesn’t apply in a very generalizable way. Moreover, it is suspect in terms of its legal reasoning, its simplistic treatment of BDSM, and its treatment of sex in general.
Now. For people who want to understand everything that happened in depth, here goes.
There has been has been a bit of rumbling and a bit of bumbling in the media recently about a Federal District Court’s decision in the case Doe v. Rector & Visitors of George Mason Univ., because the court spent a handful of pages (about 4 out of 45) analyzing whether the United States Constitution protects an individual’s right to engage in BDSM sex. A shorter version of that already short analysis? “Nope.” The decision is poorly reasoned on the question of the Constitution and BDSM. Critically, however, the “BDSM as Constitutional Right” issue (mostly) didn’t change the case’s outcome in the real world, and the hullabaloo around the decision is a bit silly.
However, the court’s analysis didn’t begin with the BDSM/Constitutional question—it took 40 pages to get there—nor did the court’s answer to that question dictate what actually happened to the people involved in the case. That was decided in the first 40 pages.
Yet, in every discussion I’ve read, the fact that the plaintiff (called “John Doe,” meaning he filed the case without disclosing his name) won nearly all the relief he asked for—the same person who claimed a right to BDSM sex under the Constitution—is glossed over. And yes, you read that right: he won. Without this context, much of the discussion that has followed is nonsensical. So, let’s start here with what happened in the first 40 pages of the decision.
Here’s how we’re going to proceed. First, I’m going to talk about what a “Constitutional Right to BDSM Sex” might look like. Second, I’m going to discuss the non-BDSM holdings in the case, so we have some perspective. Then, I’m going to discuss the BDSM related Constitutional holding (the holding that there is “no Constitutional right to BDSM Sex”) in Doe’s case, and break down how things work in the relevant area of Constitutional Law. Finally, I’m going to talk about why the legal impact of the BDSM related Constitutional holding is pretty much zero.
I. (Most of) what was actually decided in the case.
John Doe was expelled from GMU after being found “responsible” for “sexual misconduct.” At issue was whether, in the course of his relationship with a woman the court calls “Jane Roe” (for her privacy), Doe had engaged in sexual activity with her, without her consent. If so, he was in violation of school policies he’d agreed to in attending the school, and thus subject to expulsion. In terms of the school procedure and relevant facts (we’ll talk about the BDSM stuff in part II, but it’s not strictly relevant here), here’s what happened:
- Roe and Doe dated.
- Roe and Doe broke up.
- Doe sent Roe a text message threatening to kill himself if she did not respond.
- Roe made a formal complaint to GMU about things various Doe did, specifically including events on October 27, 2013 and the text message.
- GMU emailed Doe informing him he was the subject of (1) an alleged violation of GMU’s sexual misconduct policy and (2) charged with four violations of the code of conduct. Specifically, (1) “infliction of physical harm on any person(s), including self;” (2) “Deliberate touching or penetration of another person without consent;” (3) “Conduct of a sexual nature” and (4) “communication that may cause injury, distress, or emotional or physical discomfort.”
- Doe was given a hearing before a three-member panel of the school’s Sexual Misconduct Board, where he prevailed and was found “not responsible” as to any charge.
- That decision was appealed by Roe.
- Roe’s appeal went to an administrator named Ericson, who reversed the panel’s decision and found Doe “responsible.”
- Doe then appealed the appeal—apparently a unique event in GMU’s history—to Dean of Students Blank-Godlove (what a name!).
- Blank-Godlove affirmed Ericson’s decision and Doe was expelled.
After this series of events, Doe brought a lawsuit against the school, with a variety of claims, including the one that the school violated his Constitutional right to engage in BDSM sex.
The opinion that came down at the end of last month was a ruling on cross-motions for summary judgment. All “cross-motions” means is that both Doe and GMU are asking for summary judgment. Summary judgment is something granted by a judge where, if no relevant facts are in dispute, the law requires a particular result.
For example, let’s pretend Dr. Slut sued me for insulting her by saying “you’re stupid.” After we have each gathered some evidence, each of us looks at what we have and discover there’s no factual question of whether I said “you’re stupid:” it looks to both of us like I did say it. So, I go to the court and say “here are the facts we agree on, I think that there’s no legal reason I can’t say “you’re stupid” to Dr. Slut. Dr. Slut does the same, but in reverse, essentially saying “he admits he said ‘you’re stupid,’ and the law says I get money if he does that.” Then, the judge rules on what the law says. With me still? Cool. Let’s look at the opinion.
In this case, the court made three separate rulings. Two were about summary judgment, while the third gets a bit more complicated, so let’s start with the first two:
- Ruling: GMU violated Doe’s right to have “due process” before he was expelled.
Explanation: The “Due Process” Clause of the Constitution requires a certain amount of notice to be given to people like Doe in disciplinary hearings. Doe was given fair notice that his actions on October 27, 2013 were at issue, but not that his actions on any other day were. Because the decisions in the appeal process were based on things Doe did on other days, his Due Process Right was violated.
- Ruling: GMU violated Doe’s right to “free speech.”
Explanation: The Free Speech protections in the First Amendment protect speech in the form of text messages, but “true threats” do not have any First Amendment protections. GMU’s policy banning text messages that are “likely to…cause injury, distress or emotional or physical discomfort” bans more than just “true threats,” without justification. The court thus ruled that because Doe’s text message does not satisfy the legal definition of a “true threat,” it may not be the basis for an expulsion. The court is careful to note, however, that the issue was with the expulsion and its relationship to the policy; GMU would have been perfectly okay to have a policy that when such text messages were sent, students were sequestered and evaluated by mental health counselors.
So, there’s a lot there. Let’s break it down even further: (1) Doe wins. (2) Doe wins.
The court then addresses what remedy Doe gets. The court rules that Doe should be reinstated in the school, but the school CAN hold a new hearing on the same issues. It also rules that it will decide some related issues—like whether Blank-Godlove and Ericson are too biased to fairly run the new hearings—after more briefing and arguments.
II. A Constitutional right to BDSM sex
I think the most important thing in any discussion of a Constitutional right, especially when it is a discussion that probably involves non-area experts, is to set a clear definition of the right you’re discussing, or at least note the potential different definitions in play (I’m looking at you, Mr. Volokh). So what form does a Constitutional right to engage in BDSM sex take? What conduct does it protect? What conduct doesn’t it protect?
Constitutional rights, generally, are rights against the government. Because of the nature of government funding of universities, universities are considered government actors for a lot of purposes. So I have a right to free speech against a university, but not against an individual. If I make posts arguing that sex is morally reprehensible on Dr. Slut’s blog, she’s absolutely free to ban me without violating any right of mine. Not quite so for the government/a university. For example, the Supreme Court has ruled that the government cannot bar a protester from wearing a jacket with the slogan “Fuck the Draft” from entering a courthouse.
However, rights are never absolute. In classic terms, my right to freely swing my fist ends where your nose begins. So, let’s pause and assume there’s a Constitutional right to BDSM sex. Where would such a right end? The most sensible place, it seems to me, would be with consent. This squares with the case Doe cites as the source of his right. Doe cites Lawrence v. Texas, a Supreme Court decision about “homosexual sodomy” as establishing that “all adults have the same fundamental liberty interests [and therefore Constitutional rights] in their private consensual sexual choices.” BDSM only becomes more interesting if you assume it includes consensual non-consent-type play.
Thus, we might see two versions of the right. In the Lawrence case, Mr. Lawrence ended up in court claiming his right because the police broke down the door to his house and arrested him when they found him having a kind of sex Texas had made illegal. Applied to this case, we could imagine a set of facts where a roommate reported Doe and Roe for their sexual practices, and the school expelled him without Roe’s complaint. In that case, we’d have a question of whether a school could—consistent with the Constitution—ban BDSM practices altogether. The other form of the right—the one Doe’s case seems to present—is a question of where Doe’s rights end and Roe’s rights begin.
III. The other part of the case.
In the 4½ pages at the end of the opinion, the court rejects an argument that the university violated his “substantive due process” rights. Before we talk about what this means, we should lay two pieces of ground work: the facts and the law. I should also note that while it’s probably important to know the facts here, the law of substantive due process is pretty technical. While writing this piece, I’ve been able to get laughs from other law people by simply stating that “I’m writing a piece that explains substantive due process to a non-law audience.” So, please feel free to skip ahead to part IV.
First, the facts (we’ll unpack them a bit more below):
- To use the court’s stilted language, Roe and Doe were in a “romantic relationship” which “included certain sexual practices known collectively as ‘BDSM.’”
- Roe and Doe agreed upon and used the safe word, “Red.” They also seem to have agreed that their sex would include consensual non-consent play (“stop” doesn’t mean STOP; “no” doesn’t mean NO).
- On October 27, 2013, Roe and Doe had a play session in Doe’s dorm room. Apparently during this session, Roe pushed Doe away, and when asked whether she wanted to continue sex, Roe said “I don’t know.” Doe then resumed activities, according to the court, “despite the equivocation, given that Roe did not use the agreed safe word ‘red.’”
- After they broke up, Roe made reports to both GMU and the GMU university police about a variety of things Doe did, including various sexual encounters where she felt he violated her consent.
- According to the facts considered at summary judgement (this only means that there was some argument about the facts—not that there was an ultimate factual determination) Roe did not use the safe word on October 27.
- However Doe has admitted he has failed to stop sex and play when Roe safe worded, and even admitted this in his GMU hearing:
- On a call that Roe and the GMU police recorded, Roe asked Doe “why [he] never stopped when [she] used the safe word,” to which he replied that he “felt like [she] could handle it.”
- At the hearing before the Sexual Misconduct Board, Doe was asked if there were instance outside of October 27 when Roe used the safe word and he refused to stop. His response was it happened in “very rare” and “unusual circumstances” because he was “set in the routine of things.” He qualified this by saying when Roe said “red” again, he would then “stop immediately.” He apparently also assured the Board that he would “not just blatantly ignore and then continue.”
- The 3-person GMU Sexual Assault Panel found Doe “not responsible” as to the October 27 incident.
- Roe appealed and (ignoring the procedural issues in part I) Ericson investigated.
- Ericson found that Doe was responsible for sexual assault, specifically violations of GMU’s ban on touching or penetration “without consent.” However, his formal announcement did not explain the facts supporting or the reasoning of the decision.
- Doe appealed the appeal, and Dean of Students Blank-Godlove investigated.
- Blank-Godlove reviewed “only those portions of the record identified by Ericson as supporting his decision.” She upheld Ericson’s determination.
- Apparently those portions were not just about October 27: later, during the lawsuit, it was revealed that Doe was “expelled for conduct other than what occurred on October 27.”.
With the facts covered, let’s dig into the law of substantive due process, and look at what it means in this case:
First, for those unacquainted with Fourteenth Amendment law, let’s start with what the words mean. Drawing some very rough lines, a “substantive” right is a right to some actual thing in the world, as opposed to a right to some kind of process. If I have a substantive right to free speech, for example, I have a right that involves actual speaking. This stands in opposition to a “procedural” right, which is a right to some kind of process. For example, if I had a procedural right to free speech, I’d have a right to have a certain amount of process take place before my speech rights were taken away.
Substantive due process is about a set of rights that are so fundamental that they are implied in the Constitution, rather than explicitly stated. The doctrine has a storied history. For example, in 1905, the Supreme Court used substantive due process to strike down minimum wage and other labor laws because the Court saw those laws as infringing the fundamental right of individuals to freely contract (Lochner v. New York). More recently, decisions have taken a liberal turn, and notable “fundamental rights” include a woman’s right to control her own body and have an abortion (Roe v. Wade); in an individual’s right to engage in consensual “sodomy” (Lawrence v. Texas); and the freedom to marry a person of one’s choice, regardless of gender (Obergefell v. Hodges).
Doctrinally, here’s how you win a substantive due process claim. There are two kinds of review that a substantive due process claim can be given: strict scrutiny review and rational basis review. Winning cases essentially requires getting strict scrutiny review. When conducting strict scrutiny, courts use a lot of phrases like “substantially further a compelling government interest” and “least burdensome means,” which boil down to “government, if you want to restrict this right, you better have a damn good goal and no other way accomplish it.” Thus, it is exceedingly rare that a regulation can survive that test. On the other hand, courts doing rational basis review will ask if the government has a “legitimate interest” (and there doesn’t need to be a single piece of evidence that the interest identified in court was what the people passing the restriction had in mind) and whether the restriction is “rationally related” to that interest. Just as exceedingly few laws survive strict scrutiny, exceedingly few laws fail a rational basis test.
So, how do you get strict scrutiny? You must establish that the right you’ve identified is “fundamental.” The easiest way to do this is to find a case where the Supreme Court has already identified a fundamental right, and argue your right falls under that larger heading. If the right has not already been identified, or a court disagrees with you that your right should fall under a pre-existing right, there are two ways to show a right is fundamental. You can show either that your right is (1) “implicit in the concept of ordered liberty” or that it is (2) “deeply rooted in this Nation’s history and tradition.” Palko v. Connecticut, 302 U.S. 319 (1937); Moore v. City of East Cleveland 431 U.S. 494 (1977). Most arguments will cover both bases.
As you might guess, the most important fight in determining whether a right is fundamental is the fight over how—and at what level of generality—the right at issue is defined. To show you what I mean, let’s talk about the decision in the Lawrence v. Texas: the case that is the source of the fundamental liberty interest Doe claims. Lawrence was about a Texas law that banned “deviate sexual intercourse,” which was defined to mean “anal intercourse with a member of the same sex (man).” Police, responding to what was apparently a false report of a “weapons disturbance,” entered the home of John Lawrence and his partner. The police found them making the beast with two backs, and arrested them for violation of the Texas “Homosexual Conduct” law (the one I mentioned above). They were convicted, and appealed that conviction to the Supreme Court, saying the law violated their substantive due process rights.
Ultimately, the Court decided that “all adults have the same fundamental liberty interests in their private consensual sexual choices,” and that this right extended to Lawrence and his partner. However, Texas didn’t argue that all adults did not have a fundamental interest in “private consensual sexual choices.” Instead, Texas argued that there was no fundamental “right to engage in homosexual anal intercourse,” and argued vehemently that even if there was a right to engage in private consensual sexual choices,” that right didn’t help them because they could not “establish a historical tradition of exalting and protecting the conduct” (read: anal sex) “for which they were prosecuted at any level of specificity.”
In Doe’s case, the most sensible approach would have been to start from what is clear in the law; Lawrence unequivocally stated that there is a fundamental interest in “private consensual sexual choices.” The proper question left for Judge Ellis to decide was not whether there was a fundamental liberty interest in “freedom from state regulation of consensual BDSM activity,” but whether the regulation of consensual BDSM activity violates broader right to “private consensual sexual choices.” I am not suggesting that would be an easy constitutional question; but I am saying it’s the right one to ask. Instead, Judge Ellis takes a nonsensical perspective and argues that “Obergefell [(the gay marriage case)] explicitly establishes that the Due Process and Equal Protection Clauses are interlocking and each leads to a stronger understanding of the other” (quotation marks removed). While it is true that this is the case in Obergefell, the claim that Obergefell somehow ruled that all Substantive Due Process claims must have an Equal Protection element is an absurd one, and one I can’t find being made anywhere else.
I should also mention that at least some BDSM communities would recoil in horror at Doe’s attitude towards safewords, and thus it’s far from clear that the BDSM context wasn’t (or couldn’t have been) taken into account. Recall that Doe admitted at the hearing he did not always immediately respond to safewords, sometimes because he was “set in the routine of things.” Clarisse Thorn wrote a fantastic piece on safe words several years ago, and has cited approvingly to Thomas MacAulay Millar’s annotated version of it. In the annotations, Millar writes that it “can’t be emphasized enough” that “Tops Can Never Be On Cruise Control!” (emphasis and capitalization from the original). Along a similar line, one major online resource for submissive partners in BDSM relationships (the “Submissive Guide” by lunaKM) instructs that “[i]f used, the ‘stop’ safeword should be respected unconditionally. After the bottom uses the safeword, the activity or entire scene is over, inflicting pain or any physical forcing should be stopped and all restraints should be removed immediately. Ignoring safewords is considered dishonorable and a deeply immoral practice in the BDSM community” (emphasis added). While this by no means speaks for everyone in the community, Doe’s admissions about his behavior regarding safe words would be plenty in at least some BDSM communities to—with the BDSM context he asks for!—determine he had violated consent; he failed to stop “immediately” because, as he describes it, he was “set in the routine of things” (in other words, he was “on cruise control”).
IV. What is the impact of this decision?
Of course, none of the above may really matter; the impact of the BDSM portion of decision is (next to) zero. To explain this, I want to start with what will happen to John Doe now.
John Doe has a right to a new hearing because the appeal process for the original hearing was found to be Constitutionally inadequate. Let’s talk about what that means in light of what we know Doe did. Doe claims that Ericson and Blank-Godlove did not take account of the BDSM context of his relationship in his appeal. However, if that was strictly true, it’s hard to see why they would have needed to rely on events OTHER THAN the October 27 incident. On October 27, we know that Roe physically pushed Doe away and expressed disinterest in continuing sex, which Doe responded to by continuing sex. Without a BDSM context, that is a pretty clear violation of consent.
Even with a BDSM context, we know that Doe admitted he did not stop activity when Roe used her safe word, and we know that he did this more than once. This is legally relevant because it means that the court’s decision on the Due Process right is a decision on a question that was not appropriately before it; on the undisputed facts, Doe’s right to private consensual sexual choices was not violated when the school enforced a consent policy against him. Moreover, as far as I can tell, his argument that BDSM community norms would compel a different result on a consent determination is simply wrong about community norms.
I should also explain a little bit about what it means that this case was decided in a Virginia District Court. The court is in the federal system, which is structured as follows:
- United States Supreme Court (top)
- Federal Appellate Courts
- Federal District Courts (bottom)
In this system, decisions by a higher (closer to the top) court must be followed by that court, and any courts below them. Additionally, a judge at the same level as another may explicitly overrule the decision of that judge, though such decisions are less common. So, the Virginia district court’s (the bottom rung on that ladder) decision only requires another court in that same district to follow its results, and even then, it is not exactly required so much as strongly suggested. Furthermore, because as I mentioned above, it was not necessary to decide the Constitutional question to reach the result in this case, another district court might call the decision “dicta.” What that means is that the court was expressing an opinion on an issue it didn’t need to decide, and therefore that opinion is just that: an opinion, and not a binding judicial decision.
Finally, I want to express one last opinion. Because this case is a district court case, its influence is only as great as its reasoning is convincing. Judge Ellis’s reasoning is not convincing, and here’s why: it is entirely consistent with both Lawrence and the result in this case to say that (1) Doe should lose on the Constitutional issue, and (2) there is a Constitutional right that protects BDSM sex. Recall that Lawrence was about a legislative ban on a victimless crime. By contrast, Doe had a victim. The facts of a case that would actually require a court to decide whether Lawrence’s right to consensual sex includes BDSM would look more like this:
- Doe and Roe are in a BDSM relationship.
- They are having a consensual non-consent type scene in Doe’s dorm room.
- Doe’s roommate walks in, and immediately calls the GMU police.
- Doe is brought before a Sexual Misconduct Board, where Doe’s roommate testifies to what he saw Doe doing to Roe.
- Roe either testifies that she had negotiated with Doe, or is for some reason unavailable to testify.
Whether that case would come out differently is perhaps underscored by the fact that Doe was found “not responsible” by the Misconduct Board, even when he explicitly admitted he didn’t always follow safe word practices appropriately.
So what does all this mean? Doe is now a student at GMU again. He’s going to have another hearing. However, there is no reason that he needs to be found “not responsible” in that hearing. Based on what appear to be uncontested facts, in that hearing, a panel could take into account BDSM context and still find him “responsible” for sexual assault. Doe clearly won the battle here, but it may be something of a pyrrhic victory. But none of that should make us worry deeply about the Constitutional status of BDSM. This case has no binding effect decisions by future courts in cases where an actual ban on BDSM practices is enacted, nor does it have any binding effect on cases where there is no victim. It is unfortunate that even in the legal field, sometimes very important complexity is lost in translation, and that has certainly happened in reporting on Doe’s case.
I also want to take one last moment to focus on the impact of this decision on Roe. Tragically, the University’s handling of this case probably forces her to make the horrible choice of going through a hellish proceeding again or knowing that Doe will go unpunished. It seems clear to me that a little less squeamishness around the BDSM element of the case would have gone a long way: if the administrators had looked up BDSM community standards on safewords, Doe’s testimony would have damned him, and they could explicitly say “we took into account the BDSM context, and in that context, you were responsible for sexual assault.” Perhaps we can hope this case teaches universities that lesson.
 A big thank you to my dear friend Maya (mayashakti) for help in trying to make this understandable to non-lawyers.
 For those familiar with some parts of Constitutional law playing along at home, you may notice that it’s kind of weird that a University can violate Constitutional rights. That’s a complicated story, but it can be reduced to “Universities are basically government/state actors in some cases.” It’s also worth noting that the court mentions that its second holding may be moot—that is, not relevant anymore—because it rules in Doe’s favor on the first, and the relief Doe requested is the same for each violation.
 For those keeping score at home, this actually isn’t the first time this was addressed in this case. Doe’s substantive due process right to BDSM sex claim was actually dismissed back in September. See 2015 U.S. Dist. LEXIS 125230. Doe raised the issue again with a motion to reconsider. The analysis is substantially different, so I’m going to talk exclusively about the February decision.
 The court is not particularly clear on whether Roe explicitly agreed to consensual non-consent, though it notes that “according to [Doe,] the ground rules for his BDSM relationship with Roe included that [Doe] should not stop sexual activity unless or until Roe used the safeword.”
 The court treats this like it was a surprise to Doe, but at least one charge—the charge related to his text message—was clearly about a non-October 27 event. That said, it does seem reasonable to say that, with regard to the allegations of consent violations, this may have come as a surprise to Doe.
 I am only treating the kind of substantive due process claim made by Doe. There are some other modes of analysis out there that I’m not mentioning because this is already way too complicated. See, for example, Justice Souter’s dissent, proposing sliding scale-type analysis in Washington v. Glucksberg (a case about assisted suicide case), suggesting that the test should be comparing the importance of the right asserted with the importance of the state interest.
 There is a variance in terminology, and the opinion in Doe’s case uses both. Just know that “implied fundamental right,” a “fundamental right,” and an “implied fundamental liberty interest” mean exactly the same thing.
 Yes, they made super-duper clear they were only going after homosexual dudes. Heterosexuals and lesbians could apparently have all the anal sex they wanted.
 There is also an equal protection story here, but let’s put that aside.