BDSM case goes to the Supreme Court

cross-posted from hunter of justice

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions, saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed. Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

The strip-search case: why the Supreme Court needs more women

Dahlia Lithwick has written another piece of brilliant, scathing Supreme Court reportage, on yesterday's oral arguments in Redding v. Safford Unified School District No. 1. The case illustrates why it is that Justice Ginsburg might be feeling "lonely" since the retirement of Justice Sandra Day O'Connor:

When constitutional historians sit down someday to compile the definitive Supreme Court Concordance of Not Getting It, the entry directly next to Lilly Ledbetter ("Court fails utterly to understand realities of gender pay discrimination") will be Savana Redding ("Court compares strip searches of 13-year-old girls to American Pie-style locker-room hijinks")....

Editorialists and pundits have found much to hate in what happened to Savana Redding. Yet the court today finds much to admire. And even if you were never a 13-year-old girl yourself, if you have a daughter or niece, you might see the humiliation in pulling a middle-school honor student with no history of disciplinary problems out of class, based on an uncorroborated tip that she was handing out prescription ibuprofen. You might think it traumatic that she was forced to strip down to her underclothes and pull her bra and underwear out and shake them in front of two female school employees. No drugs were found. But even those justices lacking a daughter, a niece, or a uterus had access to an amicus brief in this case documenting the fact that student strip searches "can result in serious emotional damage" and that student victims of strip searches "often cannot concentrate in school, and, in many cases, transfer or even drop out." Savana Redding, herself a data point, described the search as "the most humiliating experience" of her life. Then she dropped out of school. And five years later, at age 19, she gets to listen in on oral argument in Porky's 3: The Supreme Court Says "Panties."

...

David O'Neill from the Solicitor General's office tries to thread the needle between allowing schools to conduct daily strip searches for black sniffy markers and chilling the school district's broad power to search for dangerous contraband. He wants the court to impose a higher standard before schools may conduct a strip search but gets into trouble with Scalia, who wonders what happens after "you search the student's outer garments, and you have a reasonable suspicion that the student has drugs." Scalia's almost chortling when he exclaims, "You've searched everywhere else. By God, the drugs must be in her underpants!"

...

Adam Wolf, the ACLU lawyer who represents Redding, explains that "the Fourth Amendment does not countenance the rummaging on or around a 13-year-old girl's naked body." Wolf explains that he is arguing for a "two-step framework," wherein schools can use a lower standard to search "backpacks, pencil cases, bookbags" but a higher standard when you "require a 13-year-old girl to take off her pants, her shirt, move around her bra so she reveals her breasts, and the same thing with her underpants to reveal her pelvic area." This leads Justice Stephen Breyer to query whether this is all that different from asking Redding to "change into a swimming suit or your gym clothes," because, "why is this a major thing to say strip down to your underclothes, which children do when they change for gym?"

This leads Ginsburg to sputter—in what I have come to think of as her Lilly Ledbetter voice—"what was done in the case … it wasn't just that they were stripped to their underwear! They were asked to shake their bra out, to stretch the top of their pants and shake that out!" Nobody but Ginsburg seems to comprehend that the only locker rooms in which teenage girls strut around, bored but fabulous in their underwear, are to be found in porno movies. For the rest of us, the middle-school locker room was a place for hastily removing our bras without taking off our T-shirts.

But Breyer just isn't letting go. "In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day, we changed for gym, OK? And in my experience, too, people did sometimes stick things in my underwear."

Shocked silence, followed by explosive laughter. In fact, I have never seen Justice Clarence Thomas laugh harder. Breyer tries to recover: "Or not my underwear. Whatever. Whatever. I was the one who did it? I don't know. I mean, I don't think it's beyond human experience."

It gets weirder. Wolf claims school administrators should have known better than to suspect that "Savana was currently concealing ibuprofen pills underneath her underpants for other's oral consumption," noting "a certain ick factor to this." The Chief Justice quickly replies that the ick factor doesn't attach when you are talking about "the brassiere as well, which doesn't seem as outlandish as the underpants, right?"

Oh, ick indeed. The search for a bright line rule about the expectations of student privacy has turned into a fight between a bunch of guys who still say "brassiere."

My incisive legal analysis: ugh.

On the U.S. Supremes and the Iowa Supremes

Tomorrow I'll be going to the Supreme Court to see arguments in Ashcroft v. Iqbal and AT&T v. Hulteen. A preview of the Hulteen case by yours truly appears today at ACSblog.

The Iowa Supreme Court heard oral argument today in Varnum v. Brown, the sole marriage equality case currently pending before a state high court. Follow the link to watch the arguments, or check out Arthur Leonard's recap.

Dennis Johnson, an Iowa attorney cooperating with Lambda Legal, argued powerfully on behalf of the plaintiffs. I was particularly struck with his response to the inevitable "what about polygamy?" question. Rather than seize on the usual arguments that multiple marriage is associated with abuse and harmful to children and women, or otherwise trying to distance same-sex couples morally from polygamists, Johnson gave the response what I have always thought to be the obvious, sensible response: unlike same-sex marriage, polygamy raises numerous new, practical questions about legal rights and responsibilities that may justify different treatment by the legislature. I'm not sure that this is ultimately persuasive as a policy argument, but as a constitutional argument is suffices. The practical legal consequences of bilateral marriage are the same without regard to gender. Multilateral marriage raises new questions about consent, custody, inheritance, and a number of other matters, all of which would have to be sorted out by the legislature and/or the courts -- and in the context of litigating recognition for same-sex couples, that is all that needs to be said.