"The defendant argues that the existence of a prior consensual relationship between the defendant and Jodi in which the infliction of punishment and pain was part of their mutual sexual gratification makes it impossible to determine whether the defendant abused Jodi to compel the performance of a commercial sex act," Judge Ross wrote. "The court acknowledges that the issue of whether the government proved beyond a reasonable doubt that the defendant used non-consensual force, fraud or coercion to cause Jodi to engage in a commercial sex act is difficult and complicated. However, this was precisely the question that the jury was charged with resolving, and the evidence was adequate to support its conclusion."As you may remember, back in March of this year, Glenn Marcus was convicted of Forced Labor and Forced Sex Trafficking. The conviction was the subject of several posts on this blog, one of which was even quoted in Tristan Taormino's Village Voice article. As a bit of background, in 1998 Marcus had entered into, what all parties agreed, was a mutually consensual S/m relationship. The "victim", known only as "Jodi" at the trial, alleged that over the next few months and years, she changed her mind and wanted to leave. She alleged that Marcus responded to her desire to leave by engaging in physical non-consensual physical and mental abuse. In his defense, Marcus contended that all activities were consensual in nature. The jury didn't believe Marcus and convicted him of the Forced Labor and Forced Sex Trafficking charges. He was acquitted of the charge of distributing obscenity.
As I wrote in my earlier post, here, my initial review of the trial led me to believe that, unlike the Jovanovic case, Marcus had received a fair trial. In addition, I also felt that the conviction was a victory for the S/m community as it drew a line between the consensual S/m activity, and non-consensual abuse conducted under the guise of consensual S/m. I had opined that Marcus' defense was doomed by the fact that he attempted to argue that the victim had consented to activities which were "non-consensual." As I stated in my earlier post,
Since the passage of the 13th Amendment to the Constitution, an individual cannot waive their right to say no... It does not matter that a person says they are waiving their right to say no; it's an unwaivable right. The mainstream S/m community is based in the tenets of Safe, Sane & Consensual (SSC). Anything, that is non-consensual is not S/m, but violent abuse.Those who believe they can irrevocably waive their right to say no are simply living in an existentialistic fantasy.
In any event, following the trial, Marcus' defense team filed several post-conviction motions to set aside the verdict. On May 17, 2007, Federal District Judge Allyne Ross denied Marcus' motions. Below, I have quoted some excerpts of Judge Ross' 42-page decision in which she cites directly from the trial transcript. I am struck by 2 things in her decision: 1) Even more examples of outrageous conduct by Marcus is revealed; and 2) The court clearly articulated that consensual BDSM activity is not criminal activity and the decision took careful steps to separate consensual BDSM activity from non-consensual illegal activity.
In other words, Marcus got a fair trial.
Excerpts of the decision, below the cut. Be advised, that although this is from a published Federal Court Opinion, the text is hardly "safe for work". Read at your own discretion.
In 1998, Jodi, the complaining witness, learned about BDSM on the internet and began visiting online chatrooms to find out more information. (Trial Transcript [hereinafter "Tr."] at 70-71.) At the time, Jodi understood BDSM to be a type of relationship in which, within certain guidelines and limits, one person is dominant and the other submissive. ( Id.) After two relatively brief BDSM relationships, Jodi met the defendant online in the fall of 1998. ( Id. at 71-73.) The defendant-identified by the screen name "GMYourGod"-called himself the only true "master" and referred to the women in BDSM relationships with him as "slaves" who "served" him. ( See id. at 73, 75-76.) He explained to Jodi that, in the type of BDSM he practiced, he did not allow the use of any limits or safe words. ( Id. at 74.) By way of example, he explained that he could decide to cut off a slave's limb or order her to kill a small child. ( Id. at 74-75.) Two of the defendant's slaves involved in the online conversation-Joanna, identified by the screen name "GMsdogg," and Celia, identified by the screen name "nameless"-assured-Jodi that the defendant had never engaged in behavior of this nature previously, and Joanna told Jodi that she did not believe he would do so in the future. ( Id. at 75.) In subsequent conversations by telephone, the defendant communicated to Jodi that she belonged to him and needed to serve him. ( Id. at 75-76.) During these early encounters with the defendant, Jodi shared intimate details about her life experiences, including that she had been physically and emotionally abused by her mother and had struggled with an eating disorder. ( See id. at 76-77.)Ok... problems from Day 1. He's talking about killing children and hacking off limbs... Meanwhile, she's talking about her history of childhood physical and emotional abuse. This is not a good combination.
At some point, the defendant instructed Jodi to convince her younger sister to travel to Maryland to visit and, when she arrived, to drug her with "ruffies" so the defendant could rape her. ( See id. at 103-04.) Jodi was also directed to use the internet to recruit a new slave to join them in Maryland. ( Id. at 104.) Because Jodi refused to complete the first task and was unsuccessful with the second, the defendant told her that, the next time he visited, she would be so severely punished that she might not be able to work for some time afterwards. ( Id. at 104, 207; Govt. Ex. 31.)Wow... Planning the abduction and rape of an unsuspecting party? Frankly, I'm shocked this fact was not revealed by the media during the trial.
In November 1999, Joanna told the defendant that she no longer wanted to serve him. ( Id. at 125.) While both Jodi and Joanna were on the telephone with the defendant, he threatened to send photographs and a videotape of Joanna engaged in sexually explicit behavior to her father and to kill her godson if Joanna did not continue to serve him. ( Id. at 127-29; see Govt. Ex. 12.) As a consequence, Jodi became terrified that, if she attempted to leave the defendant, he would send pictures to her family or harm one of her family members. (Tr. at 128.)For those who argue that an abuse victim who is not physically restrained can "leave anytime they wish", very often, the abuser will make threats similar to these in order to prevent the victim from simply "walking away". In addition, even when an abuse victim does finally get the courage to walk away, the abuser will often use personal information of the victim to continue to inflict abuse and maintain control after the person has left. In any event, making such threats is clearly unlawful.
When Jodi obtained her own apartment, her interactions with the defendant became less frequent and less extreme. ( Id. at 173.) However, she continued to stay involved with the defendant in order to maintain a semblance of control over his use of her pictures on the website. ( Id. at 173, 175.) During this time period, the defendant posted diary entries on the website exposing personal information that Jodi had told him about her family. ( Id. at 174; Govt Ex. 2C, at 703-05.) He also posted a "Find Pooch" contest on his website, offering a free membership to any person who photographed her on the street, and he provided information as to Jodi's whereabouts and the location of her apartment. (Tr. at 175, 186; Govt. Ex. 2C, at 3907, 3909.)Again, we see more examples where Marcus attempted to maintain control over the victim, even after she left.
Ok... from all the evidence above, it could be possible that the court would be so disgusted by the activities engaged in by Marcus that the Judge could have prevented the defendant from arguing that all these activities were consented to, thus preventing Marcus from raising consent as a defense. This is exactly what happened in the Jovanovic case.
However, that is not what happened in this case. Marcus not only was allowed to call witnesses who testified that all activities were consented to, but also that if the jury believed there was consent, he would not have been guilty of violating the law. In regards to the Forced Labor Charge, Judge Ross gave the following jury instruction:
Throughout the trial, you have heard evidence about sexual practices called Bondage, Discipline/Domination, Submission/Sadism, Masochism, or "BDSM," that may involve actual physical restraint, such as being tied up or placed in a cage. The mere fact that a person was physically restrained during the course of such acts does not necessarily mean that the statute was violated. For example, if the physical restraint was consensual, then it would not constitute a violation of the statute. It is for you to decide, based on a careful consideration of all the facts and surrounding circumstances, whether the acts of physical restraint violated the statute.Again, when reviewing the Sex Trafficking charge, Judge Ross also made it clear that consensual BDSM activity was not unlawful.
With respect to the sex trafficking statute, the defendant similarly contends that the terms "force" and "coercion," when given their ordinary meaning, may encompass consensual BDSM conduct. (Def.'s Mem. 17.) Again, the court agrees with the defendant that it is appropriate to construe these terms narrowly to avoid criminalizing consensual conduct.
The court also notes that, in the course of defining the elements of aggravated sexual abuse, a statutory aggravating factor of the forced labor statute, the court instructed the jury that "the application of force with the consent of the recipient in the context of BDSM activities would not violate the statute." (Jury Chg. 24.)
Throughout the decision, Judge Ross exhibits a clear and articulate attempt to understand the differences between consensual BDSM and non-consensual criminal activity. She has numerous opportunities where she can take cheap shots at the S/m community by castigating them as freaks. But she does not. In fact, on several occasions, she endorses the rights of adults to legally engage in such activities, so long as there is consent. In this case, however, one of the parties argued that there was no consent. As a result, Judge Ross takes a careful analysis of the claims made by both Marcus and the victim. The judge indicates that the jury also carefully weighed the evidence and thus affirmed the findings of the jury.
Overall, this decision is actually a positive result for activists who support the right to engage in consensual S/m.
Hat tip to viviane212 for advising me that the court had rendered a decision.