Federal Judge: Consensual BDSM is Not Constitutionally Protected

A federal court in Virginia ruled recently that consensual kink is not constitutionally protected,that is, that an individual has no right to engage in 100% consensual BDSM.  Judge TS Ellis, ruling on Doe vs. George Mason University et. al, stated in his analysis:

“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. In this respect, the conclusion… that there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis.”

 

The court found that banning BDSM activities is justified and further states that since there is no “deeply rooted” tradition of BDSM (defined as including “binding and gagging, or the use of physical force, such as spanking or choking,” activities “not present in traditional sex”), it is not constitutionally protected.

Although the term “BDSM” dates only to 1969, the history of BDSM activities can be traced through such ancient documents as the Kama Sutra, which specifies the use of certain kinds of hitting during sex and through art dating back thousands of years. Dating back to the 5th century BC is an Etruscan fresco depicting two men flagellating a woman. Academic historian Anne O. Nomis has found evidence dating back to 1590 of the Dominatrix as a professional.

“This is one judge’s ruling and it doesn’t create law,” said Allena Gabosch, founder and current Development Director for the Center for Sex Positive Culture. It can, however, set legal precedent. People interested in this news item might consult the Free Thought Project or the National Coalition for Sexual Freedom to inquire further.

Sources:

Author: Virginia Lore

I'm an out, kinky, bisexual, cisgender woman with a penchant for making the world a better place. One of the ways I seek to do that is through this blog; another is through my volunteer work at the Center for Sex Positive Culture in Seattle. I'm also proud to be a parent of two fantastic people who happen to be teenagers right now.

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