By Brian Flaherty
Over the past few decades, the number of federal criminal laws has grown dramatically. Crimes which used to be prosecuted in the states have been adopted – co-opted – by the federal code. For example, in 1994 the U.S. Congress passed the Violence against Women Act, among other things federalizing laws against domestic violence. In part the justification for passing VAWA was the perception that states were not doing enough to fight domestic violence. However, this kind of federalization of a crime which is by common law dealt with in the states is constitutionally questionable. Or to put this another way: we have local police, and we have state police. We don’t have a federal police department which should be on call to respond to domestic violence in violation of the Violence Against Women Act.
How does this play out in the world of kink and the law? Well, to begin with, the “laws against BDSM” which you’ve read so darned much about over the years – especially if you subscribe to the often.. er.. contentious (read: rife with bullying) Kink and the Law group on Fetlife – are in fact the state assault laws. The legal fact is that in many, if not most jurisdictions, you cannot legally consent to assault in the context of BDSM (or in the context of anything else that isn’t a sport). There is right now not a single legal opinion that holds that you can consent to physical assault – slapping, whipping, cutting, piercing, etc. etc. – in the context of BDSM; there are several that say you cannot. However, the practical fact is that prosecutions for consensual BDSM are extremely rare. Just to one side of non-existent, actually. So if state “laws against BDSM” are ineffective and unenforced, is there a move to federalize prosecution of BDSM? To consider this properly, you need to know about the case of United States v. Glenn Marcus.
The facts, briefly summarized *here18 USC 1591, reads in significant part: “Whoever knowingly … in or affecting interstate or foreign commerce … recruits, entices, harbors, transports, provides, or obtains by any means a person … knowing that force, fraud, or coercion … will be used to cause the person to engage in a commercial sex act [shall be guilty of a crime].” It is a law that was passed to combat the very real problem of international sex trafficking – to quote from the debates, it was passed to address the problem of women and children “forced against their will into the sex trade, transported across international borders, and left defenseless in a foreign country.” It was not passed to address issues borne of a BDSM relationship gone horribly wrong. Don’t get me wrong: I believe that as soon as the relationship between Mr. Marcus and Jodi became non-consensual, many awful crimes were committed, for which Marcus should be held criminally responsible: assault, sexual assault and false imprisonment to name a few. And certainly according to the facts and the letter of the law, Mr. Marcus could be (and was) found guilty of the federal crime of Sex Trafficking. But to allow the federal prosecution of what amounts to violations of state law sets a dangerous precedent – in criminal law generally, and in sex law especially.
The problem with the federalization of criminal law in this context is that federal criminal law is a political football. Candidates want to be seen as “tough on crime,” and so support broader and broader federal crimes, with stiffer and stiffer penalties. So the punishment for conduct in violation of a federal criminal statute can be up to 10 times the punishment for the same conduct if prosecuted under state law. Furthermore, no matter how much more tolerant of sexual identity they may try to appear, politicians – democrats and republicans alike – are increasingly conservative when it comes to punishing sexual behavior.