Fifty Shades and Fifty States: Is Bdsm a Fundamental Right? a Test for Sexual Privacy

By Mincer, Elizabeth | The William and Mary Bill of Rights Journal, March 2018 | Go to article overview

Fifty Shades and Fifty States: Is Bdsm a Fundamental Right? a Test for Sexual Privacy


Mincer, Elizabeth, The William and Mary Bill of Rights Journal


INTRODUCTION

In 2012, the Fifty Shades of Grey trilogy took the literary world by storm, selling over 100 million copies worldwide, resulting in a film adaptation that has grossed over $500 million internationally at the box office.1 The books, which chronicled the erotic love story between two characters, were featured at the top of the Times Bestseller List2 and have forged their way into popular culture.3 However, it was not the literary scholarship that caused the books to become so popular, but the subject matter.4 Fifty Shades of Grey went beyond the classic romance novel, and delved into the secret world of domination and submission, exposing the masses to what had long been taboo.5

Bondage/Domination/Sado-Masochism (BDSM) can be defined as "a range of sexual preferences that generally relate to enj oyment of physical control, psychological control, and / or pain."6 Studies have shown that up to 36% of all Americans incorporate some form of BDSM during sexual activity,7 and yet it still remains highly stigmatized in society.8 Given this stigma, many people choose to engage in BDSM secretly, keeping a distinction between their public life and their private life.9 Similar to other marginalized groups, there are entire communities devoted to providing help and support to people who identify with the BDSM lifestyle.10 These communities have created their own culture of self-policing and safety protocols, designed to help carefully navigate the legal reality that the justice system has not developed in a way that recognizes and incorporates BDSM.11

This manifests itself in several ways. First, many states have laws that indirectly ban different types of BDSM practices, which has contributed to the creation of an underground culture.12 Old laws that are on the books regulate the morality of sexual activity, putting people at risk of arrest or prosecution.13 There is nothing that legally protects people who engage in BDSM from having their activities revealed and used against them during other legal matters, such as divorce14 and child custody,15 which makes them vulnerable both within the legal system and to blackmail from others.16 Furthermore, laws that strictly define domestic violence, sexual assault, and prostitution can be ill-designed for application to situations in which BDSM is involved.17

Cases that have alleged an unfair application of the law given the context of a BDSM dynamic have made their way to the courts, both at the state and the federal level.18 In general, at the state level, BDSM has been used as a defense to alleged sexual assaults and misconduct, but has almost universally been rejected on appeal.19 In 2016, in a case about a university's investigation of sexual misconduct, a federal district court in the Eastern District of Virginia wrote that there was no right to engage in BDSM activities, and went so far as to suggest that public universities could consider BDSM to be per se sexual misconduct.20 If BDSM is unprotected as a fundamental right, and as such can be banned or regulated by state universities, does that also mean that states can ban or regulate BDSM as they see fit? Or does the right to privacy, particularly the right to sexual privacy, extend to the rights of consenting adults to engage in BDSM? Furthermore, how should the justice system adapt to provide for the best outcomes in legal scenarios where BDSM is involved?

Given the wide variety of practices, analyzing BDSM through a constitutional lens becomes complicated quickly. For example, if unprotected, the state could regulate the sexual activities of consenting adults, which seemingly goes against the right to sexual privacy.21 However, on the opposite end, if protected as a fundamental right, states could lose their ability to protect people from activities that involve a risk of injury or even death.22 In order to balance both the privacy rights of individuals as well as the state's interest, practitioners of BDSM should be given quasi-rights protection. …

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