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Court Decides: S & M Not Consensual

Brian Doherty | March 6, 2007, 6:06pm

An interesting case exploring the limits of how much a typical jury can be expected to understand some of the curious emotional realities of the sexual worlds of bondage and sadomasochism has come to an end, with a man, Glenn Marcus, convicted in Brooklyn of actions against one of his "sex slaves" that he insists were, however peculiar to the jury, absolutely consensual at the time and only apparently regretted by the "victim" later.

Here's the New York Post on the verdict, and some earlier coverage of the case for more context from USA Today (where another of the man's "slaves" testifies to the strange but consensual nature of their relationships) and CourtTV, which writes that

The defense had argued Marcus and the victim had a "contract" to engage in a master-slave relationship that, while potentially offensive to the general public, was consensual and even pleasurable to the participants.

Marcus had turned down a plea bargain that would have guaranteed him no jail time, since on at least one of the charges, which he was acquitted of--as the NY Post put it, "an obscenity charge he faced stemming from the graphic images depicted on his slavespace.com Web site"--he saw his fight as one for the First Amendment. Slavespace.com has been shut down by the Department of Justice--see the site make its case here.

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Comments to "Court Decides: S & M Not Consensual":

Eryk Boston | March 6, 2007, 6:45pm | #

The woman may have consented at one point but she does have the right to withdraw that consent. If she did withdraw her consent and he continued to hold her against her will then he is guilty and deserves prison.

I wouldn't be surprised if the feds motive for this case was to shut down the website. However, the seriously misplaced priorities of the feds are no defense for whipping someone after they call "red."

ChicagoTom | March 6, 2007, 6:54pm | #

From the USA TOday article:

Jodi testified she built up enough courage to leave Marcus in late 2001, but also conceded she continued to have contact with him, even going camping. She decided to go to the FBI when he refused to take her photos off the Internet.

Hmm...that to me makes it seem that she was a willing participant.

I don't see what this guy did wrong. Nowhere in the articles was he accused of not stopping when asked to stop or of ignoring safe words nor did he seem to have this woman held against her will.

Based on the few details of the case given in the article this seems like a bad verdict. And a good example of why you should get contracts like this in writing

FlamingMouse | March 6, 2007, 6:55pm | #

Nice to know the NY Post is still using tried and true tabloid verbiage.

"... depraved images of her bleeding and bruised body
...
Marcus spoke to a meek-looking woman in the courtroom who sources said was one of his current "slaves." "

As somebody who has been in the "lifestyle" for years, this really pisses me off. If it was consensual, then there should not have been a problem. From the USA Today link, it sounds like the "victim" was more concerned about unauthorized use of her images than anything else:
"Jodi told the jury that after meeting Marcus over the Internet in 1998, she agreed to become one of his "slaves." Over two years, he systematically degraded her
...
Rona, 51, a longtime friend called as a defense witness, said that while living with Marcus and Jodi, the accuser was a willing participant in their sex games. She called the defendant harmless.
...
Jodi testified she built up enough courage to leave Marcus in late 2001, but also conceded she continued to have contact with him, even going camping. She decided to go to the FBI when he refused to take her photos off the Internet." (emphasis mine)

Sounds like she enjoyed it enough while living with him, and continued to do so even after moving out. She was not being held against her will.

jp | March 6, 2007, 6:56pm | #

Very interesting from a legal perspective. As Eryk B. implies, consent is normally a defense to an action for intentional tort. That's why boxers can't sue each other for getting beat-up.* If a participant withdraws her consent, then the batterer has no defense going forward. But what if they first agreed that "no" means "yes"? I guess we have juries to figure things like that out.

*from the Second Restatement of Torts: "Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages. Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill. This is true although the player knows that those with or against whom he is playing are habitual violators of such rules."

brotherben | March 6, 2007, 6:56pm | #

The jury ought to have their asses whipped

Shelby | March 6, 2007, 6:57pm | #

She certainly had the right to withdraw consent at any time, and a core tenet of the "BDSM" world* is that you always need an agreed safeword or other way of signalling "all done now". This is presumably what Eryk means by "call 'red'."

The story doesn't tell us whether she actually tried to withdraw consent "in scene" or whether "in scene" was continuous for the whole two-year period. One type of "BDSM" play involves saying No but meaning Yes. (In that case, No is not the safeword.) We also don't know what limits or guidelines they'd negotiated beforehand -- another standard "contractual" thing in such activity.

Presumably the defense had an opportunity to educate the jury on all this, but it's such a loaded and out-there situation to most people that I could easily see a jury erring on the side of "he's wierd and I don't understand this, so let's convict him." I really hope that isn't what happened here.

*quotes because the term is used differently by different people

Lowdog | March 6, 2007, 6:57pm | #

That's why I like ChicagoTom - even though I don't always agree with him, his posts are generally well thought-out and well argued.

Here, he just might happen to be right. :)

Kwix | March 6, 2007, 7:04pm | #

And a good example of why you should get contracts like this in writing.
CT,
From the CourtTV link:
Marcus and the victim had a "contract" to engage in a master-slave relationship
There are real issues with this form of "contract", even in writing. Like assisted suicide contracts it can be argued that either the persons entering into the contract were not of sound mind at the time of signing, or that they changed their minds later on and due to the gravity of the contract(torture, death) should be allowed to "break" it at any time without penalty.

That having been said, I don't think that she was being kept against her will, and indeed continued contact(camping) with the defendant even after leaving his household. As of when she left his household, I think her contract as as "slave" was broken.

person | March 6, 2007, 7:19pm | #

From CourtTV:

"Using graphic photos of the bound and beaten victim, prosecutor Pam Chen argued that Marcus crossed the boundaries of both civilized society and the S&M community by holding her against her will."

I would like to know on what basis she thinks he crossed the boundaries of the S & M community. Based on my knowledge of said community, it all sounds right and proper to me.

It appears like it came down to regretting past actions and wanting the evidence removed from a public place.

Andrew | March 6, 2007, 7:28pm | #

I'm not sure whether the issue is if she withdrew consent or not. I see the issue as whether he exceeded the scope of the consent (hence the prosecutor's comment about breaking the rules of the S&M world). Not saying whether that's true or not, but that's seemingly the reason behind the claim that it wasn't consentual.

As for the "she went back, so obviously she consented"... I don't buy it. While again, it's possible she did consent, going back is something you see, for example, in many domestic violence situations. Certainly doesn't mean those women are "asking for it" or "consenting to be beaten".

Tarl Cabot | March 6, 2007, 7:45pm | #

Foolish Earthlings! This would never have happened on Gor. The kajira would simply have been fed to the tarns.

Eryk Boston | March 6, 2007, 7:46pm | #

As a legal note, the universal BDSM safeword is "lawyer."

NoStar | March 6, 2007, 7:46pm | #

The woman may have consented at one point but she does have the right to withdraw that consent. If she did withdraw her consent and he continued to hold her against her will then he is guilty and deserves prison.

That is why it is imperative that the participants have an agreed upon code word that unequivocally means STOP.

Armegeddon!

http://www.snopes.com/risque/homosexuality/gerbil.asp#add

or click on my name.

Shelby | March 6, 2007, 7:54pm | #

As a legal note, the universal BDSM safeword is "lawyer."

Of course, this can break down if one of the participants is actually, or is pretending to be, a lawyer...

D.A. Ridgely | March 6, 2007, 7:55pm | #

...prosecutor Pam Chen argued that Marcus crossed the boundaries of both civilized society and the S&M community by holding her against her will.

No word so far whether prisoners at Abu Ghraib or Camp Delta were brought in to testify as expert witnesses regarding the boundaries of civilized society.

Franklin Harris | March 6, 2007, 7:56pm | #

How in the hell am I going to find women to beat me up if they think I'm going to sue them? This sucks!

I just said that out loud, didn't I?

Currently reading: "My Girlfriend Comes to the City and Beats Me Up."

Abdul | March 6, 2007, 7:56pm | #

There are real issues with this form of "contract", even in writing. Like assisted suicide contracts it can be argued that either the persons entering into the contract were not of sound mind at the time of signing, or that they changed their minds later on and due to the gravity of the contract(torture, death) should be allowed to "break" it at any time without penalty.

The biggest issue here is that the contract runs afoul of the Thirteenth Amendment. The issue of the contract here isn't whether it's binding, but whether it's sufficient evidence of consent. This jury found it wasn't.

I wouldn't beat up on the jury too much, they've heard a lot more evidence than a couple of journalists can relate to us in a few column inches. I've seen two defendants get guilty verdicts in two different kidnapping cases even though the victims had been allowed time alone and out of the dwelling of the kidnapper. the juries decided that even though the victim returned voluntarily in those instances, the entire period of captivity was not fully consensual. Juries in rape cases are always being asked to decide thorny issues of consent.

Franklin Harris | March 6, 2007, 7:57pm | #

Of course, this can break down if one of the participants is actually, or is pretending to be, a lawyer...

That's no fun. Now, cops and robbers... that's a good scene.

(I should really shut up now.)

Franklin Harris | March 6, 2007, 7:58pm | #

I wouldn't beat up on the jury too much,...

They might like it. You never know.

jf | March 6, 2007, 8:14pm | #

That's why I like ChicagoTom - even though I don't always agree with him, his posts are generally well thought-out and well argued.

Here, he just might happen to be right. :)
I fully concur with all sentiments expressed. I'll go further and say I'm stunned to see that I 100% agree with ChicagoTom on this.

Heh | March 6, 2007, 8:21pm | #

The issue of the contract here isn't whether it's binding

Pauline (she of the Perils) | March 6, 2007, 8:24pm | #

Camping? Oh, no! Anything but camping!

Marv Albert | March 6, 2007, 8:25pm | #

This bites.

Joan Armatrading | March 6, 2007, 8:41pm | #

I just wanna see you at night
Don't come round my house in the day
I love it when we start up a fight
And I love it when the fight ends your way
I love it when you call me names
I can't wait to see you again
I know you're gonna slap my face
you beat me up then beat me again
and over and over and over and over
And over and over
I love it when you call me names
Big woman
And a short short man
And he loves it
When she beats his brains out
He's pecked to death
But he loves the pain
And he loves it
When she calls him names
She's wearing heavy leather with lace
He dresses up in cowboy taste
They punish then they think up a crime
It's their way of loving not mine
I love it when you call me names

ChicagoTom | March 6, 2007, 8:43pm | #

Thanks for kind words LowDog and jf. :)

Marcus and the victim had a "contract" to engage in a master-slave relationshipMarcus and the victim had a "contract" to engage in a master-slave relationship

I assume the fact that they keep using scare quotes around contract that there was nothing in writing and was some kind of oral understanding.

The linked articles did a pretty poor job of giving many relevant facts about this case.

van | March 6, 2007, 8:48pm | #

RE: master-slave contracts -- there are people out there who want the government to uphold contracts permitting the master to kill his or her slave. Doubtful that they'll ever get their wish.

Given the info presented in these articles, I say "not guilty." But there wasn't much info given.

Guy Montag | March 6, 2007, 9:26pm | #

I read some of the responses, hope this is not redundant.

It reminds me of that Manhattan case around 10 years ago, where some gal met a guy on AOL to have similar play as this story.

She called the cops several days later, the jury saw all of the e-mail and IMs of the couple, she arrived willingly at his place, they played and she left, they continued to chat until she called the cops.

Man guilty.

Makes no sense at all, other than men are always guilty for some reason.

juris imprudent | March 6, 2007, 9:40pm | #

Of course, this can break down if one of the participants is actually, or is pretending to be, a lawyer...

Bzzzt - being, or pretending to be a lawyer violates the parameters of "safe, sane & consensual".

juris imprudent | March 6, 2007, 9:52pm | #

I assume the fact that they keep using scare quotes around contract that there was nothing in writing and was some kind of oral understanding.

Actually there are written BDSM contracts. But you will note this was not a tort action but a prosecution by the U.S. govt.

The money quote [from U$A Today]: She decided to go to the FBI when he refused to take her photos off the Internet.

Which certainly could've been a tortious claim (particularly without a signed model release) but she quite literally decided to make a federal case of it. And the feds were only too happy to oblige. One can only imagine the wood being sported by (AG)2 over this.

SIV | March 6, 2007, 9:57pm | #

First time I agree with Chicago Tom too.

Based on the thin details he was offered a no jail plea deal which suggests the case was "weak" at best. The statement that she only instigated a complaint over the continued display of pictures
is telling.As for no written contract, what about a model release.
Not much detail about the situation. I wonder
what facts were ruled inadmissable in the case as well.

Franklin Harris | March 6, 2007, 10:31pm | #

Joan, that's the most romantic song ever.

Man, I really just don't know when to stop talking.

Warren | March 6, 2007, 11:15pm | #

Shit like this is how you know how judgmental most people are. Not just as individuals, but to the point of criminalizing anything they find personally repugnant.

van | March 6, 2007, 11:29pm | #

Guy Montag:

>Man guilty.
>Makes no sense at all, other than men are always guilty for some reason.

Warren:

>to the point of criminalizing anything they find personally repugnant.

Yes, and yes.

The Wine Commonsewer | March 7, 2007, 12:00am | #

Masochist: Hurt Me, Hurt Me

Sadist: No

grumpy realist | March 7, 2007, 12:22am | #

Hmm. Given that the guy involved didn't take the plea bargain when it was offered....I'd say really, really stupid. No matter how sympathetic an jury, unless it was composed totally of BSDMers, I guarantee that at least one person was squicked out by what was going on.

Also, when you live a lifestyle that cuts across what most of the population thinks of as proper and normal behavior, you do NOT want to go around carrying out any activities that could possibly bring yourself to the attention of the authorities. (I readily admit that not taking down posted pictures upon request is a very tiny splinter in the eye, but it did give the authorities an excuse to jump in.)

Warren | March 7, 2007, 1:30am | #

grumpy,
I want to live in a world where what consenting adults do, never involves the authorities (unless of course everyone consents to it).

Franklin Harris | March 7, 2007, 2:45am | #

Warren,

I want to live in a world where there are no "authorities."

Mr. Steven Crane | March 7, 2007, 3:38am | #

written contract or not, it's not the sort of thing that can be treated as at all enforceable.

until the government passes a runaway slave act for sexual submissives, a withdrawing of consent is exactly that, no matter what one may or may not have signed in the past. i suppose contract-geeks of both the libertarian and heavy D/s player varieties (gotta wonder what the venn diagram of those sets looks like) would disagree with me; but hey, both those groups of folks creep me out.

this is probably also an argument for heavy tops to be very wise about who they play with. branding your initials on someone's ass doesn't come off with soap and water, after all.

Dieting Top | March 7, 2007, 5:54am | #

branding your initials on someone's ass doesn't come off with soap and water, after all

Which is why H&R was invented.

Abdul | March 7, 2007, 7:41am | #

Jury: That guy is such a sadist. why did you stay with him?

Victim: Beats me.

biologist | March 7, 2007, 9:11am | #

I love the way you look at me
I feel the pain you place inside
lock me up inside ya dirty cage
while I'm alone inside my mind

I like to teach you all the rules
I'd get to see them set in stone
I like it when you chain me to the bed
there ya secrets never shone

[Chorus]
I need to feel you
You need to feel me
I can't control you
You're not the one for me, no

I can't control you
You can't control me
I need to feel you
So why's it involve

I love the way you rape my skin
I feel the hate you place inside
I need to get your voice out of my head
Cause I'm the guy you'll never find

I'm faking all of the rules
there's no expressions on your face
I'm hoping some day you will let me go
Release me from my dirty cage

[Chorus]
I need to feel you
You need to feel me
I can't control you
You're not the one for me, no

I can't control you
You can't control me
I need to feel you
So why's it involve...you and me..

[Repeat 4x]
I love the way you look at me
I love the way you smack my ass
I love the dirty things you do
I have control of you

[Chorus]
I need to feel you
You need to feel me
I can't control you
You're not the one for me, no

I can't control you
You can't control me
I need to feel you
So why's it involve you and me..

[Repeat 4x]
You're not the one for me, no

fyi | March 7, 2007, 9:48am | #

It reminds me of that Manhattan case around 10 years ago

Guy Montag:

That conviction was later reversed, not that it makes a tremendous difference.

LarryA | March 7, 2007, 10:17am | #

until the government passes a runaway slave act for sexual submissives, a withdrawing of consent is exactly that, no matter what one may or may not have signed in the past.

The key, of course, is when she withdrew consent. You can't say "no" the morning after, then protest that the other person didn't stop the night before.

Given that the guy involved didn't take the plea bargain when it was offered....I'd say really, really stupid.

This particular response is getting way too common. We used to have a rule about innocent until proven guilty.

Think! In this case it's a "no jail time but you spend the rest of your life registered as a sex offender" plea.

[Barf]

Brian Carnell | March 7, 2007, 11:50pm | #

Guy Montag wrote:

"It reminds me of that Manhattan case around 10 years ago, where some gal met a guy on AOL to have similar play as this story.

She called the cops several days later, the jury saw all of the e-mail and IMs of the couple, she arrived willingly at his place, they played and she left, they continued to chat until she called the cops.

Man guilty.

Makes no sense at all, other than men are always guilty for some reason."


No, not quite. You're referring to the Jovanovic trial which, like this case, involved the defendant claiming that the sex was consensual s&m.

The difference is the point you misremember -- in the Jovanovic case, e-mails and IMs that the victim sent which made it clear she viewed the actions as consensual were suppressed and not allowed into evidence due to a misinterpretation of New York's rape shield law by the judge in the case.

For example, the victim testified at trial that she had never given Jovanovic any indication that she was interested in bondage. But, in fact, e-mails she sent him were quite explicit on her desire to have a bondage experience. But the judge ruled the e-mails inadmissable because the e-mails contained descriptions of the accusers past sexual relationships (she describes how she enjoyed acts of bondage/S&M with previous boyfriends).

Jovanovic spent 20 months in jail before his conviction was overturned due to the improper exclusion of the e-mails. The accuser did not want to participate in a second trial, and charges against Jovanovic were dropped.

Heavy Handed | March 8, 2007, 6:52am | #

Top: Wait... Red Means Stop?

Bottom: It's called "code-switching."