David Davis 39, part 2

Read Part 1.

Last week, I kicked off my series about the commodification of kink with the high-profile criminal case of Ed Buck, the white gay Democratic donor convicted in 2021 of killing two black men, Gemmel Moore and Timothy Dean. Buck’s case is certainly not the first to touch on BDSM, but the way in which it was discussed, particularly by Buck’s legal team, is a fascinating nexus of contemporary popular discourses around deviant sex and the legal history of BDSM¹ in America. (I promise I’m going somewhere with this.)

Sexual perversion’s enmeshment with queerness, gender-nonconformity, transactional sex, and other dimensions of sexual immorality means that there’s a long and storied history of what some (like Buck’s legal team) might today call the kink-shaming of BDSM in the American legal system². I figure a very quick and dirty legal history of deviant sex in the USA might be useful for context.

Before we get to consensual violence, let’s review consent vis-à-vis violence. In the 1886 case People v. Gordon—which regarded the sexual assault of a child—the California Supreme Court acknowledged America’s earliest consent defense to criminal assault charges. The court explained that an attempt to commit a violent injury on another person “must be made without the consent of the person against whom it is made. If it be made with his consent, it will not constitute an assault.” This established a precedent for consent in matters of “violent injury” and violent sexual conduct, though from what I’ve seen of the case, the decision does appear to conflate the two; it also states that “there must be some evidence that the act was committed without [the victim’s] consent,” putting the burden of proof, it seems, on the person who was allegedly harmed. For what it’s worth, the court found that the victim was incapable of extending that consent due to her age.

Let’s jump ahead to 1967, the year of what’s thought to be the first American assault case to reference sadomasochism explicitly. People v. Samuels was brought against a man who filmed himself binding and whipping his consenting partners. When Samuels sent his film to a company to process those sweet memories, it was reported to police and he was charged with aggravated assault. At trial, Samuels defended himself on the basis of his bottoms’ consent, but, in contravention with People v. Gordon, the court rejected his argument³: consent may not be a defense to battery or assault, except in the case of contact sports⁴.

But even with consent, the court went on to argue, masochists must suffer (👀) from “some form of mental aberration,” thus disqualifying both their agency and their desire⁵. 

As recently as 2015’s People v. Davidson, the California court of appeals maintained that consent is not a recognized defense to assault, “even when based on a claim of consensual sadomasochistic activity.” Here, as in earlier American court cases, “lack of consent is not an element of the offense of assault, so the presence of consent does not eliminate the crime.” But the court in this case, as in others, is clear that consent, or lack thereof, is not the only legal consideration. In State v Collier (1982), the Supreme Court of New Jersey insisted on the state’s right to criminalize consensual BDSM activity because of the danger it posed to morality, among other things: “Whatever rights the defendant may enjoy regarding private sexual activity…such rights are outweighed by the State's interest in protecting its citizens' health, safety, and moral welfare.” In the eyes of the state, private citizens not only don’t have a right to consensual sadomasochism—they don’t have a right to immorality as the state defines it, either.

Nevertheless, the early 21st century showed progress for some American sexual civil rights, which had implications for deviant sex. Lawrence v. Texas, the landmark 2003 case in which the Supreme Court held that anti-sodomy laws targeting same-sex partners were unconstitutional, made same-sex activity legal in every US state and territory. Many arguments for the decriminalization of same-sex activity, and shortly thereafter marriage, can be applied to BDSM as understood as a kind of deviant sex⁶.

You don’t really need me to walk you through these arguments—DAVID readers will anticipate them and anyone sans brain worms will find them sound—but suffice it to say that since its advent, the white supremacist United States government has cynically deployed “morality” against its citizens, its colonized, and its enslaved to take and hoard power, to engorge its empire, and to surveil and incarcerate with increasing effectiveness. The state is in no position to dictate “moral” behavior, including as it regards to the criminality of BDSM; as this brief, and I’m sure not-very-good, history demonstrates, it can’t even do so according to its own internal logic.

What does this have to do with the commodification of deviant sex? More on that next time.

David tweets at @k8bushofficial. Preorder X: A Novel, out on June 28.

I’m excited to share that we now have a cover for the UK edition, available 10/28 from Cipher Press. I’ll be in London in late October—see you then!

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1. Standing for, simultaneously and alternatively, bondage and discipline, Dominance and submission, and sadomasochism. The acronym has become an umbrella of sorts these days, interchangeably, and often problematically, encompassing terms like fetish, kink, and leather. Here, as always, I try to be intentional with the words I use.

2. Have relied heavily on this 2017 article from the Hastings Women’s Law Journal.

3. I am not a lawyer. I don’t know anything about the law. I’m just sharing some patterns with you here.

4. Not that a masochist has ever chased their high in a race.

5. Check out one of Daemonumx’s recent posts for a quick read on the “mental aberration” of sadism.

6. And as recent developments with SCOTUS and Roe v. Wade remind us, the legal connections between individual sexual, medical, and gender autonomy are such that our rights regarding them are not unlike a house of cards!