by Randall S. Frederick

Last month, U.S. District Judge T.S. Ellis, III ruled in the case of John Doe v. The Rector & Visitors of George Mason University, et al, that Americans don’t have a constitutional right to engage in “bondage, discipline, dominance, submission, sadism, and masochism” – more commonly known as BDSM – despite the U.S. Supreme Court’s rulings in Lawrence v. Texas (which recognized the right to consensual sodomy) and Obergefell v. Hodges (which recognized the right to same-sex marriage).

In the case, the pseudonymous “John Doe” was a student at George Mason Univ. and frequently engaged in BDSM activities with his then-girlfriend “Jane Roe” until, Roe claims, Doe once refused to recognize their safe word. Doe claims that Roe never said the safe word (“red”), but rather, after she pushed him away and he asked if she wished to continue sexual activity, she replied “I don’t know,” which Doe took as part of the scene they were engaging in at the time and continue to, Roe claims, sexually assault her. Roe broke up with Doe a few months later, which Doe claims should be understood as ongoing consent – if he had genuinely assaulted her, why did they continue to see each other and have sex? Conversely, Roe claims that he now-ex continued to stalk her via email and by other means until she complained to George Mason Univ. who expelled Doe. Doe sued for readmittance, forming the nature and limit of the case.

However, Judge Ellis made it a point to not only rule on the matter of John Doe’s request for readmittance but went much farther, ruling not on the case before him but on the morality and nature of BDSM. As part of his ruling, Judge Ellis stated that “the plaintiff’s [John Doe] asserted fundamental liberty interest in engaging in BDSM sexual activity is clearly not protected as judicially enforceable under the Fourteenth Amendment” because an “asserted liberty is a freedom from state regulation of consensual BDSM sexual activity. There is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

The ruling has, of course, set the BDSM community aflame. Many members of the lifestyle are not just aghast at this ruling and the Judge’s overreaching verdict but find his claims entirely laughable. BDSM is not a part of American history and tradition? How absurd.

BDSM became will fixated in the American imagination with the writings of Marquis de Sade, from whom the term “sadism” is derived. Marquis de Sade (1740-1814) was a French aristocrat, philosopher, and revolutionary who was most famous for his “libertine sexuality.” He wrote a variety of novels, short stories, and plays depicting erotic scenes that not only denigrated the Catholic Church in scenes that are all too familiar to us now – priests raping young children and using the name of God to defend their behavior – but also depicted sexual scenes that were violent and criminal. Sexual educators almost universally feel that de Sade’s depiction of BDSM constitutes rape and criminal activities, not consensual sex.

Despite his contribution to sexual dialogue, de Sade was not the first person to bring BDSM into public discourse. Examples of ritual flagellation like whipping and flogging can be found throughout history, including such 9th century relics of religious areas in Sparta. The 5th century BCE Etruscan Tomb of the Whipping has been found to have images of two men whipping a woman in a sexual situation and the Roman poet Juvenal discusses flagellation in his sixth book of Satires. Additionally, anecdotal evidence has been found of people volunteering to be bound or beaten for sexual pleasure all the way back to the 3rd-4th centuries BCE, lending more credence to the understanding of the Etruscan tomb, the religious areas of Sparta, and even the plays of the Greek writers. Meanwhile, in Pompeii, a winged Whipstress is pictured in the Villa of Mysteries, an ancient villa in which youth went through “rites of passage.” According to these records, this Whipstress used to initiate young girls into various Greek religions using techniques like flagellation or bondage. More, the Kama Sutra, considered the world’s first sexual manual, includes sexual instructions for at least four different kinds of hitting during lovemaking, areas intended for more aggressive sexual expression, and the different “cries of pain” from the one being beaten and penetrated. The Kama Sutra explicitly includes impact play, biting and pinching, and restraint but insists that these activities be consensual since only “some women consider such behavior to be enjoyable.”

The terms, however, of bondage/discipline, dominance/submission, and sadism/masochism are a modern invention. Which is about as far as Judge Ellis could be understood to be correct in his analysis. Anne Lowrey, writing for The Harvard Crimson, writes that, “The terms sadism and masochism were only coined during the rise of psychoanalysis in the 1880s, but sexual historians agree that the behaviors have existed for far longer; activity that could be classified as sadomasochistic appears often in medieval stories of courtly love, for instance.”

In America, BDSM has long been a part of the collective understanding. Dr. Robert V. Bienvenu, PhD., studied the origins of fetishism and sadomasochism and published his findings in 1998 for the Univ. of Indiana (home of the Kinsey Institute). In his report, he attributes the rise of modern day BDSM to three sources – “European Fetish” (1928), “American Fetish” (1934) and “Gay Leather” (1950), and claims that it was during the pre-and-post wars periods in both Europe and America evolved into how it is known today with leather, whips, and chains. This was a new development on an ancient form of sexual expression, he reasoned, and pointed to the 1950’s when Irving Klaw published black and white photography and film with famous pin-up girl, Bettie Page and artists like John Willie and Eric Stanton published bondage comics as the period when BDSM truly became “American.”

1785 – Comte Donatien Alphonse Francois de Sade, better known as the Marquis de Sade, publishes Les 120 Journes de Sodome (The 120 Days of Sodom). His fantasy novel, along with the works Justine and Juliette, depicts graphic sexual violence. In his time, the Comte de Sade was better known as a philosopher and revolutionary; but today he’s forever entangled with fetish.

1869 – Austrian noble Leopold von Sacher-Masoch (1836-95) publishes “Venus im Pelz” (Venus in Furs), a semi-autobiographical work about a man who convinces a woman to make him her slave. The beautiful woman, the Venus in furs of the title, becomes cruel and abusive while trying to sexually please. The Romantic era work caused an outrage in Sacher-Masoch’s home city of Lemburg and has been subject to frequent bans ever since.

1885 – German psychologist Richard von Krafft-Ebing publishes Psychopathia Sexualis, which coins the terms “sadism” and “masochism” and describes sexual disorders in which acts of cruelty and bodily punishment become sexually pleasurable. At this time, the two “sexual anomalies” are understood as distinct: sadism involves finding sexual pleasure in inflicting pain on another person; masochism involves ceding control of a sexual situation to another person.

1889 – The founder of psychoanalysis, Sigmund Freud, analyzes sadomasochism as part of a number of disorders arising from the repression of the subconscious. Freud describes masochism as a perversion common in women and sadism as a perversion common in men, arising from pent-up violent energy.

1929 – British psychologist and founder of sexology Havelock Ellis finishes his seven-volume polemic Studies in the Psychology of Sex. Ellis refutes Freud and Krafft-Ebing by arguing that there is little distinction between sadism and masochism as the two are complementary emotional states. Ellis creates the modern conception of SM, noting that sadomasochists use pain to create pleasure and violence to express love. Ellis also refutes Freud and Krafft-Ebing’s claims that sadism is a stereotypical male sexual response and masochism a stereotypical female sexual response.

1947 – Alfred C. Kinsey, a former Harvard professor of zoology, founds the Institute for Sex Research at Indiana University in Bloomington (now called the Kinsey Institute for Research in Sex, Gender and Reproduction).One year later he publishes the infamous Kinsey Report, in which 12 percent of female and 22 percent of male respondents say they experience an erotic response to a sadomasochistic story, and 55 percent of females and 50 percent of males report having responded sexually to being bitten.

1954 – French author Pauline Rage publishes L’Histoire d’O (The Story of O), a fantasy of female submission to unknown sexual dominators. The work wins the French literary prize Le Prix des Deux Magots and spurs a revival of popular sadomasochistic fiction common (in weaker forms) in the early 1800s.  

1972 – BDSM (Bondage, Domination, Sadism and Masochism) arises as part of larger gay male culture. Affiliated with the leather and biker subcultures, the BDSM practitioners described by Larry Townsend in the popular book “The Leatherman’s Handbook” create an “old guard” culture with formal rules and fixed playable roles. Sadomasochism becomes increasingly affiliated with the American gay community.

1978 – Lesbian feminists in San Francisco, including writer Pat Califia, found Samois, an organization that garners national attention for its sexually explicit manual on BDSM. Samois becomes the torchbearer for a number of BDSM organizations that gain popularity in the 1970s and 80s.

1981 – Scientists identify AIDS, sparking widespread fear in the gay community and increased homophobia among Americans. The rise of BDSM coincides with the spread of AIDS. Activists suggest that BDSM reduces the risk of disease by providing an alternative to actual intercourse.

1990 – The Internet allows people with specialized sexual interests to explore otherwise taboo activities and to connect anonymously. This brings an explosion of interest in and knowledge about SM, dramatically changing the culture to become more inclusive and less secretive.

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