Does the Constitution protect your right to engage in a consensual BDSM sexual relationship? One may be surprised to learn according to a new court ruling out of Virginia, Doe v. Rector and Visitors of George Mason University, the answer is NO. Ironically, Virginia often uses the tagline “Virginia is for lovers,” but apparently not for lovers of BDSM relationships.
To better understand how the Virginia court arrived at this conclusion, let’s consider a couple of big “game changing” rulings such as the recent Obergefell v. Hodges, originating out of Ohio, where same sex marriage was deemed a protected constitutional right, and the 2003 case of Lawrence v. Texas, where the court ruled same sex anal sex is protected by the Constitution. These two rulings deemed that consenting adults are protected by the Constitution when engaging in these types of relationships, perhaps leading one to believe that consensual BDSM should also be protected.
In the case of Doe v. Rector and Visitors of George Mason University, the defendant, a student, was actively engaged in a consensual BDSM but refused to stop when the partner said the safe word. The student argued that the university administration disregarded the situational idea of BDSM and instead treated the concept of BDSM as if it were sexual misconduct. After closely comparing this situation to the rights of same sex marriage and same sex anal sex, the court ruled against a person or persons having a “right” to be protected under the Constitution when engaging in a BDSM relationship.
The largely publicized and controversial issue of homosexuality and gay marriage has resulted in the courts deciding that this is “vulnerable,” legally speaking, and has a constitutional right to be protected. On the contrary, there has been little to no outcry about the basic fundamental rights for a United States citizen to be protected while engaging in BDSM activities.
BDSM engagements generally require consensual adults to create an action plan, including a safe word, in advance, to ensure the absolute safety of the willing submissive. This behavior suggests that consenting adults are of sound mind and aware of the ramifications before engaging in the act and are just as capable of making informed personal decisions as any other group of adults. Parallel to the gay rights movement, but not equal in level of outcry, BDSM participants are typically more quiet about their private sexual encounters, usually keeping them discreet, confidential. A legal battle, in some cases, could cause great strife in the lives of the participants, thus making the entire issue a bit less appealing when it comes to attention from the media.
Proponents of BDSM will argue that the Constitution is implemented to protect the citizens it serves. While groups like gays / lesbians are now protected under the law, an interesting battle likely lies ahead to see whether the Constitution will include those BDSM participants, not currently protected in the state that is allegedly for lovers.
Sources
Court’s Ruling in Doe v. Rector and Visitors of George Mason University
“No constitutional right to engage in consensual BDSM sex,” Washington Post, March 4, 2016.