We Asked a Law Professor Whether the Government Could Really Ban Rough Sex

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John Doe was a freshman at George Mason University when he started seeing Jane Roe, a student at a different university (both subjects have been anonymous in media accounts and court documents). The two young people formed a relationship and frequently met at Doe's GMU dorm room to have BDSM sex, with Roe as the submissive partner. One day in October 2013, Roe pushed Doe away from her and then said she didn't know whether she wanted to continue, but he kept on anyway, he says because she didn't use their agreed-upon safe word

Later they broke up, but Doe continued texting Roe, trying to rekindle things and at one point threatening kill himself if she didn't respond to his text. Eventually, Roe reported the harassment to GMU and, separately, began working with the campus police to prove that he'd forced sex without her consent during the October incident. In December 2014, Doe was expelled from GMU for violating the university's sexual misconduct policy.

That's where things get complicated: Doe sued the university for violating his due process and free speech rights. This month, a district court in Virginia ruled in his favor, largely on procedural grounds. But Judge T.S. Ellis III pushed back on Doe's contention that GMU's code of conduct dismisses the complexities of BDSM relationships. The judge's decision read: "Plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity."

The ruling has inspired outrage within the BDSM community, but for others, the case left a lot of unanswered questions: Didn't the Supreme Court rule in 2003 that sodomy laws are invalid? Do the same protections not apply to BDSM? Should people be worried about a clampdown on kink? I put these questions to UCLA law professor Eugene Volokh, who has written about the case on his Washington Post blog, to understand what the ruling means for the rest of us.

VICE: So what happened here? Did the judge say that banning BDSM practices was OK?
Eugene Volokh: The student's claim was that the university was, in effect, making consensual BDSM a basis for expulsion. I don't think the university has a rule against consensual BDSM; I think the university has a rule against nonconsensual sex, and that its claim was that this was, in fact, nonconsensual. The issue is kind of hypothetical: What would happen if the university or some other government entity banned BDSM? There's no real reason to think that it did. But based on this hypothetical scenario—what if, as alleged, the university did ban it?—the court said, "Well, that would be constitutionally permissible."

Most people are probably aware of Lawrence v. Texas, the 2003 case where the US Supreme Court that invalidated anti-sodomy laws across the country. Why wouldn't that apply here?
There are two ways of reading Lawrence v. Texas. One way of reading it is to say that a state may not ban sex in a context where it's essentially interfering with the ability of groups of people to have any realistic sexual self-expression. So, the theory goes that what was wrong ? It seems like a lot depends on consent and expectations of consent.

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