Hard cases make bad laws, so they say. For details of this case, see the stories below. Whether or not this is a genuinely hard case, I cannot tell. But there are many genuinely hard questions here. Even if we do suppose that one could consent to the acts in question and that in fact there was consent in this case, it cannot be right that consent makes any act morally and legally permissible. An example I use with my students is "duel to the death." Even if both parties agree, it’s not okay. Those of who say "safe, sane, consensual" really do mean the first two conditions. Putting my academic hat on, I’d say that consent is necessary but not sufficient. Without consent even the mildest of acts, say pinching or a peck on the cheek, can be harassment or assault. Consent is required. But it’s not enough. The person doing the consenting must be in a position to genuinely choose. And then there is "safe" and a whole other can of worms.
But although these are hard questions, I’m still leery of the involvement of police, the courts and juries in the sex lives of adults. But then I remember that this was the line of argument that made marital rape not a crime. Pierre Trudeau’s famous line notwithstanding when people hurt one another the government does have a place in the bedrooms of the nation. It’s just when that same government makes sexual pleasure a crime, as in some US states where sex toys and anal sex are illegal, it’s hard to imagine them getting this case right. Thoughts?
This from the New York Post….
March 6, 2007 — A man who tortured a "sex slave" then forced her to
maintain a Web site filled with depraved images of her bleeding and
bruised body was convicted of sex trafficking and forced labor
yesterday in Brooklyn federal court.
Glenn Marcus - who sources said turned down a plea deal for no jail time - faces up to life in prison for the crimes.
A seven-man, five-woman jury deliberated for seven days before finding
Marcus, 53, guilty of the two charges. They acquitted him of an
obscenity charge he faced stemming from the graphic images depicted on
his slavespace.com Web site.
Marcus, a chubby, balding man with thick glasses, showed no emotion as the jury forewoman read the verdict.
After the jury left the courtroom, Marcus spoke to a meek-looking woman
in the courtroom who sources said was one of his current "slaves." He
told her: "It’s a victory in one sense," apparently in reference to the
acquittal on the obscenity charge. Friends say Marcus refused the plea
deal because he saw his case as a First Amendment issue.
He will remain out on $1 million bail until his sentencing.
stefanie.cohen@nypost.co
And more from USA Today
Brooklyn jury given graphic S&M lessonPosted 2/23/2007 4:16 AM ET
By Tom Hays, Associated Press
NEW
YORK — The graphic color photo, flashed on a large video-screen
stationed next to the jury, tested the decorum of a federal courtroom.
It showed a nude woman named Rona tethered to a tree trunk in the
wilderness. From the witness stand, Rona answered questions about the
bondage scene in graphic detail, casually complaining that she was
bitten up by mosquitoes.
The testimony came
during a trial in Brooklyn that has given jurors lessons on the
lifestyle of a man dubbed an "S&M Svengali" by the tabloids, the
inner-workings of a sadomasochism website and the federal government’s
crackdown on obscenity.
The jury began deliberating Thursday.
In
recent years, federal authorities have stepped up prosecutions of
purveyors of hardcore adult pornography to "protect citizens from
unwanted exposure to obscene material," Attorney General Alberto
Gonzales has said.
One pending case in
Pittsburgh — involving videos of simulated rape and murder — was
initially thrown out before being reinstated on appeal by the
Department of Justice.
Under the Bush
administration, at least 52 people or businesses have been convicted of
violating federal obscenity statutes, and more than a dozen indictments
are pending, federal officials said. By comparison, there were four
such prosecutions during the eight years of the Clinton administration,
they said.
In the Brooklyn case, Rona and the
prosecution’s star witness, named Jodi, gave conflicting accounts of an
alleged campaign of sadism by Glenn Marcus, 53, operator of a website
devoted to BDSM — shorthand for bondage, domination and sadomasochism.
A judge allowed both women to testify using only their first names.
Marcus
included Jodi and other women in thousands of photos posted on his
website — a practice that prompted the government to bring obscenity
charges along with sex trafficking and a forced labor count.
The
most serious charge — forced labor — by statute carries a potential
life sentence, although such a punishment is unlikely under federal
sentencing guidelines.
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 by shaving her head, branding the initial "G" on her buttocks and
carving "Slave" on her stomach during liaisons in homes in Maryland,
Washington, D.C., New York City and on Long Island.
When
the 39-year-old Jodi failed to properly perform tasks for the
defendant’s website in 2001, he punished her by putting a ball in her
mouth, closing it shut with surgical needles and hanging her on a wall,
she said. Other times, he tied her down and mutilated her genitals with
a smoldering cigarette as she screamed out in pain, she said.
"I felt like I was literally in hell," she said. "I felt like I was on fire and I couldn’t put it out."
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.
"I
love being around Glenn," she said, even as prosecutors displayed
photos of her breasts punctured with dozens of pins. "He’s a lot of
fun."
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.
By
law, it didn’t matter that the accuser wasn’t always under lock and
key, prosecutor Pam Chen said during closing arguments Thursday. "She
was terrified. She was made captive by the fear."
Chen
told the Brooklyn jury it must agree that Marcus’ website was "patently
offensive" to convict on the obscenity count, and argued the material
was "so misogynist and so violent, it’s offensive."
The
defense has countered by arguing that Marcus and Jodi 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.
"Cases like this test the
very capacity of this society we live in for tolerance," defense lawyer
Maurice Sercarz said in his closing argument.
Defense
experts testified that the BDSM scene follows rules that purposely blur
the line between pleasure and pain, but demand mutual consent. One said
it draws from a "vast array of people," including judges; another said
that Marcus’ website had "serious scientific value" as a tool to study
sexual behavior.
But Chen portrayed the
defendant as a sadist who violated both the standards of a civilized
society and of the S&M community.
"Glenn Marcus made his own rules," she said. "He thought he was God."
Copyright
2007 The Associated Press. All rights reserved. This material may not
be published, broadcast, rewritten or redistributed.