No constitutional right to consensual BDSM acts?

[Wyrd of Gawd]

Buy stock in robot sex doll manufacturers. The market is going to explode.

[Thumpalumpacus]

The article states that the plaintiff in the case failed to end the BDSM sex when the "safe word" was used by his partner - but that does not give the Federal government the leeway to come in and declare that engaging in consensual BDSM sex now violates a person's constitutional rights - like wuuuut??

Using the same logic the court used, having passengers in your car should be deemed unconstitutional because driving cars carries the inherent risk of getting into a serious accident, whether or not that passenger consented to get into your car or not.

WTF America?

When the safe word is not honored, does not the sex act lose its consensual status and become a form of rape?

Of course I don't favor banning outré sex (at least until I've tried it to see if I like it ... a few times). The court shouldn't be recommending anything anyway.

But anyone who violates a safe-word compact should have to worry about legal ramifications, I think.

[robvalue]

I agree Thump.

Thanks very much Joe for your analysis, that's most interesting

Based on that, it does seem mostly reasonable until the end. I can understand that a foregone conclusions especially is not acceptable, even if his reasoning sounds good on paper. It's a bit over my head in terms of legal complexity (the last bit) but I agree with you that it seems a very strange and narrow way of approaching the subject. What exactly they are ruling, I'm not quite sure. "You don't have the fundamental right to do consensual BSDM" seems a bizarre statement. Could you explain how this would work as a precedent in further cases please, if such a thing is apparent?

I don't understand how the courts are ever going to hear about a case of BDSM that didn't involve breach of consent, unless it's an extremely severe case (such as inflicting irreversible damage or something). At this point, maybe you can make a case that you shouldn't legally be able to give away your rights by verbal consent. But to lump this is in with general BDSM that anyone who isn't repressed and bigoted would probably consider fine is really stupid.

Such harmful situations hardly seem unique to BDSM. It's almost implied that people won't be able to control themselves or something, and there's too much of a risk of it getting out of hand... if I'm reading it at all right. That amounts to nannying.

LadyForCamus asked about pornography, and I've been thinking on that. The advantage of this setting is that two actors can work together to make it seem "worse" than it is, for viewing pleasure. So I'm personally fine with it as long as all actors are fully consensual, and know exactly what they are getting themselves into. I would feel that any actual pain or physical damage should be minimised as much as possible for the actors, and that it would be on a case by case basis to decide if they have been pushed too far. It's not the kind of thing I like to watch personally, but as long as everyone involved is treated decently, I don't see a problem.

[FebruaryOfReason]

Maybe the Federal Court realised that BDSM wouldn't be half as enjoyable if they approved of it?

Maybe the judges who reached this judgement disappeared to a gay brothel soon afterwards, to inform the rent boys that they were very naughty and deserved a good spanking?

Don't stop there you fucking tease !!

Should we agree on a safeword before I go any further?

How about "Father, Son and Holy Fuck"?

[ignoramus]

or otherwise known as "Jesus fucking Christ!"

[Pitsligo]

Where's the line between BDSM and 'kink' ??

As with the definition of obscene, it's when it gives a judge an erection.

[TheRealJoeFish]

In terms of how this will be applied going forward, I doubt the direct pronouncement on the status of BDSM will have much direct applicability. Essentially, if they *had* ruled this a fundamental freedom, the government would not be allowed to interfere with it unless it 1) had a *compelling* interest and 2) the interference was the least obstructive way to accomplish the goal. As it is, if the government wants to interfere with BDSM, they need to only show 1) a *legitimate* interest and 2) the interference is merely rationally related to accomplishing the interest.

I still don't believe a government could constitutionally outlaw BDSM or the like. Since 2000 or so, the courts have explicitly said that a government's interest in preventing homosexual sex is not legitimate or rational. If, say, some county wanted to pass an ordinance banning using whips during sex, say, they still couldn't do it; the applicable line of cases is Romer, I think. I wouldn't put it past someone trying to use this to do some morality policing, but I don't think it would fly.

What it more likely means in practice, I think, is that a not-sexual prohibition need not be invalidated because it could restrict BDSM behavior. For instance, if a public school prohibits cutting other people with a knife, and you get in trouble for cutting a (willing) sexual partner with a knife, you can't defend by saying "I have a constitutional right to cut someone with a knife during sex," even if it's what you both wanted.

That's a bad example of what I'm trying to get across, which is that generally a law which has broad applicability does not need to be altered just because it would make it harder to engage in BDSM. In the case at hand, it seems like JD was essentially saying "you have to take the rules you have about consent and alter them in the BDSM context", and the court disagreed. What this means in practice, well, I don't know exactly.

[FebruaryOfReason]

... In the case at hand, it seems like JD was essentially saying "you have to take the rules you have about consent and alter them in the BDSM context", and the court disagreed. What this means in practice, well, I don't know exactly.

You're bringing a very informative and interesting perspective here, TRJF.

I have a question: When it comes to this case, haven't the two parties agreed in advance a modified - but still fundamentally conventional - idea of what constitutes consent? (Because they agreed that JD's partner was consenting in all cases except where she used the safe-word).

If that is the case, the court wouldn't need to alter its idea of consent fundamentally. A good analogy might be if the two partners agreed only to speak in Russian. The word "no" would not have any meaning in this context, but the word "neyt" would. This applies especially if they had both explicitly agreed that "no" and "stop" did not mean "no" and "stop".

Of course that wouldn't alter the burden of criminal responsibility in this case, if JD's partner clearly withdrew implicit consent by using the agreed safe-word.

[robvalue]

Yeah, that's the puzzling thing. Consent was withdrawn. So whether or not what happened before or after that was a "right" or whatever seems to be irrelevant.

Thanks for the further explanation Joe

It would make more sense to me to say you can't legally give verbal consent for [certain really harsh things], just like there are certain rights you can't sign away even if you sign a document saying you are doing just that. But again, in this case, it was the continuation after clear withdrawal of consent that was the problem.

All a bit balmy.