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Federal Court Finds No Substantive Due Process Protection for BDSM Sex

Posted on: March 7th, 2016 by Art Leonard No Comments

U.S. District Judge Thomas Selby Ellis, III, has rejected the argument that a consensual BDSM relationship is protected against government regulation by the 14th Amendment.  Ruling in a case brought by a George Mason University student who was expelled after his former girlfriend, an undergraduate at another school called Jane Roe in the opinion, charged him with violations of the student Code of Conduct including BDSM sex, Ellis rejected the claim that the school’s interpretation of its student conduct rules so as to deem improper any BDSM relationship violated the student’s constitutional rights.  Doe v. Rector and Visitors of George Mason University, 2016 WL 7757765, 2016 U.S. Dist. LEXIS 24847 (E.D. Va., Feb. 25, 2016).

The plaintiff, proceeding anonymously as John Doe, was expelled during his sophomore year, effective December 5, 2014, after university administrators overturned a decision by a hearing panel that had found him “not responsible as to each of the four charges against him concerning his ‘involvement in an incident that occurred on or around October 27, 2013,’” which was the specific incident identified in the charges of which he had been notified. Roe appealed the panel decision to administrators who reversed it without giving Doe a fair opportunity to respond to additional allegations that went beyond the subjects addressed before the hearing panel.

Doe had been charged with four violations of the student Code of Conduct based on Roe’s allegations by Jane Roe. She claimed that at times he had continued in the BDSM activities after she used the “safe word” that they had agreed upon as a signal that he should desist, and that after she broke off their relationship, he continued to try to communicate with her, at one point sending a text message that if she did not respond to him he would shoot himself.  She communicated with GMU administrators and campus police, who were already monitoring Doe because of various incidents during his freshman year that had brought him to their attention as a possible disciplinary and safety problem.  The campus police recorded a telephone conversation between Doe and Roe in which he seemed to admit that sometimes he continued despite her use of the safe word because he thought she could “handle it.”  However, at the hearing, when a panelist asked whether there were “instances” where the “red word” was used and Doe did not stop, he said that in “very rare” and “unusual circumstances” he would be “set in the routine of things” and Roe would need to say “red” again, at which point he would “stop immediately.”  He said that when hearing the safe word he “would not just blatantly ignore and then continue” with intercourse. Although the October 27 incident was the only one specifically reference in the formal charge he received, questions were asked at the hearing going beyond that one incident, and it later developed that when Roe appealed the administrators considering her appeal had ex parte communication with Roe, probing beyond the October 27 incident without giving Doe a chance to respond to her allegations.

Doe was charged with violations of the following provisions: “(1) infliction of physical harm to 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.” He asserted a variety of constitutional claims, including that his expulsion was a denial of liberty without procedural due process, that the speech code provision was unconstitutionally broad, and that application of the Code to consensual BDSM activity violated his substantive due process rights under Lawrence v. Texas, the Supreme Court’s 2003 ruling striking down criminal penalties for consensual gay sex using language that could, depending how it is interpreted, broadly protect the rights of adults to engage in consensual sexual activity.

Judge Ellis found that the Doe’s procedural due process rights had been violated, entitling him to reinstatement as a student at GMU, although leaving to further proceedings the question whether GMU could again bring disciplinary proceedings based on the same incidents. The judge identified numerous faults with the procedures followed by GMU, including a failure to comply with the University’s own rules governing appeals from panel decisions and the appearance of bias on the part of the administrators who ruled on Roe’s appeal. Alternatively, Judge Ellis agreed with Doe that imposing discipline because of his text message to Roe threatening suicide violated his First  Amendment free speech rights, because the message did not communicate a “true threat” to harm her or cause any disruption to GMU’s educational mission.  Ellis pointed out that courts have been striking down campus speech codes that impose sanctions for speech that others find upsetting or uncomfortable on grounds of freedom of speech, and cited this ground as an alternative basis to overturn Doe’s expulsion.

Ellis had previously granted a motion to dismiss Doe’s argument about substantive due process, but Doe filed a motion to reconsider that ruling and Ellis decided his reasoning deserved further explanation in this opinion. Doe argued that under Lawrence v. Texas the government (including a state university) could not “criminalize intimate sexual conduct between consenting adults.”  Doe argued that GMU’s Code constituted a “legislative enactment that treats BDSM relationships as sexual misconduct per se.”  Thus, he argued, “the appropriate analytical framework was the strict scrutiny analysis employed where a legislative enactment infringes on a constitutionally protected liberty interest.”  Ellis rejected this argument.

He found that “the Supreme Court’s cases recognizing judicially-enforceable fundamental liberty interests” ran along two lines of precedent, one focused on history and tradition and the other on animus. Looking at the historical approach, he found that 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,” so that approach would not find BDSM sex to be a fundamental right.  “Perhaps in recognition of the futility of his argument” under this historical approach, wrote Ellis, Doe “bases his fundamental liberty interest argument on Lawrence, in which the Supreme Court heavily emphasized a tradition of animus against gay people underlying the criminal sodomy statute at issue.

Ellis placed the Supreme Court’s marriage equality ruling, Obergefell, in the same category as Lawrence, observing, “Obergefell highlights that the decision to recognize an implied fundamental liberty interest as judicially enforceable turns, in part, on whether the liberty interest at issue has historically been denied on the basis of impermissible animus or, alternatively, on a legitimate basis aimed at protecting a vulnerable group.  Lawrence is not to the contrary.  There, the Supreme Court reasoned that a statute criminalizing homosexual sodomy violated a judicially enforceable implied fundamental liberty interest in sexual intimacy because of the history of animus toward homosexuals.  Indeed, the Supreme Court has since noted that Lawrence ‘acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State’ and ‘therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians.’”  In Lawrence and Obergefell, the Court said that history and tradition could “guide” and “discipline” the Court’s inquiry but “not set its outer boundaries.”  Instead, as Ellis saw it, there was a balancing of “impermissible animus” on one hand and “whether the government’s interest in limiting some liberty is a justifiable use of state power or an arbitrary use of that power” on the other hand.

Ellis asserted that 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,” he wrote.  Thus, “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.  Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.”

Judge Ellis was appointed to the federal bench in 1987 by President Ronald Reagan. He took senior status in 2007 but continues to hear cases in the federal trial courts in Virginia and has occasionally participated as a substitute judge on panels of the 4th Circuit Court of Appeals.

Doe is represented by Allison Marie Lansell, Justin Emerson Dillon, and Adam Ross Zurbriggen of Kaiser LeGrand & Dillon PLLC, Washington D.C.   The University’s Legal Department provided the defense through attorneys David Garnett Drummey and Brian Eugene Walther.