Nobuyoshi Araki is one of many artists who normalized BDSM through their work.

World

8.11.2016

WTF: Since When Is BDSM Technically Against The Law?

By now, everyone knows of society’s beef with BDSM culture and those who employ its practices. The notion of inflicting pain on a loved one to emit sexual pleasures sounds bonkers (and straight-out contradictory) to an a lot of people. Misconceptions surrounding BDSM have only complicated society’s relationship with it—which must have been at least part of the reason a federal judge in Virginia ruled that Americans do not have the constitutional right to engage in BDSM.

This biased ruling was the result of a case concerning a college couple (whose names are anonymous, but on court records read as John Doe and Jane Roe) at George Mason University. The 20-somethings were in a BDSM-based sexual relationship wherein Doe played dominant and Roe was the submissive. Their courtship ended when Roe accused Doe of having assaulted her during intercourse. Doe refuted this claim, and stated that the events Roe spoke of were, in fact, consensual, because Roe allegedly failed to use their safe word: red.

The case is tricky, to say the least. Doe v. Rector & Visitors of George Mason University is a highbrow case; the ruling is arguably ranked among monumental, sex-based Supreme Court cases including Lawrence v. Texas and Bowers v. Hardwick—both of which have helped redefine the limits of a person’s sexual freedoms under government law.

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Is the federal government trying to police your sexual actions too? Yikes!

Nonetheless, kinksters don’t have to worry about hiding their paddles: even after this ruling, there have been no laws enacted that criminalize or ban BDSM. However, under United States law, it’s illegal to cause harm to another person—even if it is consensual. There’s a gray area surrounding BDSM: it’s nearly impossible for legislators to determine if sex that toys with the idea of pushing boundaries and pretend non-consensual, dangerous practices can actually be consensual.

What did result from Doe v. Rector, however, was the ability for states to personally outlaw BDSM if they so happen to think there is a great deal of personal gain or interest in the matter.

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Americans have “no constitutional right” to engage in BDSM relations. It’s time to hide the paddle.

“The decision in Doe v. George Mason University should be a clarion call for advocates of sexual freedom and personal autonomy, to join together and insist on our human right to consensual sexual expression—of any kind!” Ricci Levy, president and CEO of the Woodhull Freedom Foundation, said in a statement.

Levy continued, “The danger in advocating only for a specific type of sexual expression is that other forms of intimate sexual expression become neglected, resulting in decisions such as the recent ruling in Virginia. This ruling appears to directly contradict the Supreme Court’s 2003 ruling in Lawrence v. Texas which held that states could not criminalize consensual intimate activity between adults.”

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It’s so exhausting dealing with prudes

As times change, so do our laws. It took many years—almost  20, in fact—for the United States to overturn its sodomy laws that subsequently criminalized homosexuality. Sex is an inherent, intimate, and private matter that Americans should not have to fight to obtain. Only when we’re able to get rid of wrongful and abusive depictions of BDSM—cough, Fifty Shades of Grey, cough—will we see the normalization of a type of sex that is, eh, pretty normal.

Images via. Sex Toy How, Tumblr, Robert Mapplethorpe, and Nobuyoshi Araki.

Stay tuned to Milk for more on bondage, sex and government subversion. 

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