Monday, March 21, 2016

The Psychotherapeutic Theories of Kink: Introduction

“History is more or less bunk!”  Henry Ford

“Those who do not learn history are doomed to repeat it.”  George Santayana

"Those who do learn history are doomed to repeat it anyway.  It's enough to give the repetition compulsion a bad name!"  Russell Stambaugh

"That hardly bears repeating!"  An anonymous wag

This section of Elephant in the Hot Tub: Kink in Context is about the many theories of kink, and some of the great contributions that past theoreticians have made to the clinical discourse on sexual variation.  This discussion requires a little setting up.

Starry Night, (1888) by Vincnet van Gogh.   
In this period, clinical research had only case-study methodology to rely on.

After Krafft-Ebing, very few clinical writers decided to stake their professional careers on sexual variation alone.  As we explore this survey, an important theme will be: why did this writer address sexual variation? And what were his professional purposes and clinical goals in so doing?  How might it have been persuasive at the time?  Sexual variation began to be seriously studied partly as a consequence of several important aspects of medical and academic sociology and illustrates how knowledge is created, disseminated and construed:

First, when medicine and psychology became professionalized, social discourse about sexuality, and particularly sexual variation, was greatly stigmatized.  Although the stigma surrounding sexuality is less today than in the past, addressing sexual variation has never been easy, particularly profitable or glamorous over the course of the last 130 years.

Second, sexual variation was primarily addressed not for its own sake, but because it illustrated some crucial point of theory or practice that was important, illustrative, or unavoidable to a theoretician’s larger argument.  For example, the Associationists weren’t especially interested in sexual variation when they borrowed the term 'fetishism' from anthropology in suggesting that attraction to strange objects was learned behavior.  They were making the argument that chance encounters could result in durable learned changes in behavior, and glamorizing their scientific theory by choosing an example that could make magic understandable.

Third, sexual variation was discussed from a detached professional point of view in order to legitimize as much as possible the professional conversation about it.  In this sense, remarks already quoted in this blog from M. Foucault remain highly relevant.

'"You want to write your dissertation on what!?"
Erotic literature and porn existed throughout this period, but only a little of it entered the clinical and academic discourse about sexual variation.  Likewise, the non-clinical variants that were known tended to involve gay men, and even that was only occasionally entered into the clinical literature.

Theoreticians often had undisclosed private agendas that contributed to their willingness to fight stigma and undergo the hazards and travails of swimming upstream against social and professional disapproval.

The professional language about sex variation itself was toxic, including terms like 'perversion', 'sexual deviation', 'abnormal', 'immorality', and the general social discourse did not offer non-judgmental alternatives.  Social unconventionality was often regarded as proof of inferiority.

Relatively few sexually variant clients came into treatment.  Most weren’t suffering, and stigma was a huge barrier.  It was not safe for a depressed or anxious sexual variant to disclose their kinks for fear of judgment.   Unlike other suffering populations like depressives, conversion hysterics, or post-traumatic stress victims, who were regarded as individual sufferers, most sexual variations were framed as moral, legal and societal problems by non-clients like law enforcement officials, educators, or journalists.  Often clinicians were offering extrapolations from what little experience they had. It should not be surprising that there was not a rich source of presenting patients and a large stream of clinical data about sex variations.

Most professional papers were written about single cases of sexual variation, often explored at considerable depth.  In instances where these clients were compellingly or even accurately described, the case study methodology that dominated the first 65 years of the history of psychotherapy provided rich ground for over-generalization.  It took the invention of data gathering methods, statistical and analytic techniques, and the de-legitimization of accepted knowledge-production standards to supplant case-study methodology as the primary means of knowing about sexual variation.

A PDP-11: computing in the age when your author began his training.
This monster lurked in the nether regions of the University of Michigan's Institute for Social Research.
It was kept in carefully air conditioned comfort, hand fed by legions of technicians in white lab coats.
The newer methods, like social surveys and controlled clinical studies were expensive and difficult to execute.  They required fundamentally different funding models and training and had methodological problems and limitations all their own, even when the theory and technology became available to conduct them.

Finally, as in most psychological research done over that period, what we know was based on research created by almost exclusively European males, mostly upper-middle class professionals, they were mostly cis-gendered and heteronormative.   At first, these are the only people who had access to the social legitimacy that clinical and academic positions conferred.  Whatever criticism you prefer to make about psychoanalysis, which could be very hidebound at times, this was one of the first places which admitted women to the discourse, even when their male colleagues had trouble listening to the insights women had to contribute.

With such a rich source of caveats about the sources of error and limitations of early work on sexual variation, the reader would be fully justified in demanding why this history is worth one’s time.  There are very good reasons for making this effort, and they are similar to the reasons I have provided a superficial overview of non-clinical thinking about sexual variation and deviance over the previous centuries of Western civilization:

Social constructionism emphasizes the importance of varying contexts in what is construed as knowledge.  As the social context in which clinicians work and the sexually variant present for treatment continues to change, sophistication about the role of context is crucial, and remains continuously relevant.  History is a great way to teach that.

Although the art of psychotherapy is rife with trends, fads and fashions, there remains a community of clinicians out there practicing almost every theoretical perspective and they continue to contribute to the discourse.  Old clinical communities never die, there merely fragment!  The more history and theory you know; the better critic of new thinking you will be.

The smart clinicians who made some of these mistakes are excellent reminders and role models for us, and keep us mindful that today’s insights are impermanent and will also not stand the test of time.  It is entirely possible that clinicians whose theories we currently regard as outmoded today were right about the patients they saw in their time, or that they were more right then because of context then that is different from the context now.  And the worst mistakes might teach us humility.  Many were made by the leading thinkers of their times.  We are not immune.

A richer variety of hypotheses entertained from all sources is helpful in the here and now.  That includes good ones that are viable today, and studying the problems of bad ones that are no longer viable.

If history is analogous to eating your vegetables, hopefully I have prepared them tastefully.
Bon appetit!

© Russell J Stambaugh, January 2016, Ann Arbor MI, All rights reserved

Friday, March 18, 2016

Client-Centered Therapy

Mobius offers two pills, in The Matrix (1999):  Can a cure for PTSD be achieved by MDMA?
Perhaps that is a matter of the client's choice!

After 130 years of systematic talk therapy a broad variety of psychotherapies has arisen.  Some have been shown to work well, others show little promise, and many new ones have not been rigorously tested.  A friend of mine who just returned from Boulder, Colorado, raved about his experience there using experimental MDMA-assisted psychotherapy for his Post-Traumatic Stress Disorder.  If I had been asked in advance, I would not have immediately recommended experimental therapy with professionally administered doses of the recreational drug ecstasy, especially for anyone with a strong recreational drug history.  It has only been a few weeks since he completed the protocol, but he is much relieved.  There is strong basis for thinking that massive pharmacological intervention on serotonin, norepinephrine and oxytocin systems that regulate anxiety, depression, and attachment might impact PTSD, but this is far from proven with MDMA.  So it is not as if he is looking under the wrong rock.  But with thousands of different psychotherapy techniques, how to evaluate them could be a pressing question if you might be in the market for a therapist.

Hans Eyesenk( 1916-97)  He was a famous critic of psychotherapy
Nevertheless, psychotherapy has been very extensively tested and it usually works.

The answer to that question about how to evaluate them is: vigorously and frequently, and it’s a lot harder than you might think!  Even by the 1990’s, over a thousand studies had been conducted which collectively demonstrated that psychotherapy works.  Not infallibly, or for every imaginable purpose, but for the average patient, there is a very strong probability that there will be at least moderate symptom relief.  The problems in this happy research picture are two-fold.  First, not everyone is helped, and there is only weak evidence that more therapy is better.  If 10 sessions are good, it does not follow that 100 sessions will be ten times better.  Almost all types of psychotherapy are good.  Back in the 1960’s Hans Eyesenk, an important critic of psychotherapy, was able to show that untrained counselors were as effective as seasoned professionals in brief psychotherapies! While there is an emerging consensus that cognitive behavioral therapy is best, and it has the advantage of being time limited, and therefore less expensive, it is also true that the data for its superiority are eroding, and that some clients are not helped by it at all.  So research offers a murky picture about which kind of therapy might be best, and no research has been conducted focusing specifically for therapy on kinky and polyamorous clients.

It is beyond the scope of this blog to advise readers about the best psychotherapy types.  This is just as well, most practitioners have already made that choice, or had training and marketplace determine this for them.  Although we have critical comments to make about psychoanalysis, cognitive behavioral, or sex addiction therapies here, it violates one of our core values to tell readers which psychotherapy to choose.  One of the reasons is that such advice violates the principle of being ’client-centered.’

Client-centered therapy puts the welfare of the client first, but by philosophy and legal regulation, all therapies are supposed to do this, so it is a legitimate question, what behaviors and techniques differentiate client-centered therapies from others?  After all, all are supposed to benefit the client.  My argument is that client-centered therapies do not differ from others in their goals, but in crucial aspects of process.  In client-centered therapy:
It is the client, not the therapist who is, moment-to-moment in the therapy, responsible for the therapeutic goals, and
the therapy relies on the client’s insight, rather than on the therapist’s direction and advice, for its primary effects.

Socially necessary but not client-centered!

The therapist is an agent of the client, rather than other social forces.  In reality, no therapist is able to avoid some social accountability to other agencies when conducting therapy.  But accepting any more accountability than necessary risks making a therapist an agent of social control, rather than an agent of the patient.  Some therapies and some therapeutic situations force modifications in this:

Court-ordered therapy for matters like intimate partner violence or non-consensual sexual behaviors are, by definition, unable to be client-centered.  These therapies are accountable to external agencies.

Therapies with minors require the consent of parents, and may be considered accountable to those paying the fee, rather than to the child.  Most child-practitioners have careful procedures to deal with the inevitable problems that arise when the best interest of the child and parents come into conflict.

Couples and family therapies where the interventions are aimed at the dyad or family system, and no therapeutic participants’ interests can be ethically subordinated to those of any other by the therapist.  In some polyamory cases, this can become quite complicated in complex polycules, particularly where some members come in for therapy and others do not.

Client-centered therapy is an idealized case, in which no other interest interferes with the client’s welfare.  But psychotherapy is a regulated profession and child abuse and neglect reporting laws, duty-to-warn laws, institutional context, and insurance coverage can all limit the therapist’s practices in placing the client first in the therapy exclusive of all other considerations.

Finally, humans are, by evolutionary design, creatures of internal conflict.  While therapists are skilled at not getting drawn in to these conflicts, it is an idealized fiction to think that there is always a neutral middle ground when a client wars within about which conflicting interests will be primary.  Therapists are humans too and a good faith effort at engaged neutrality does admit to differing interpretations.

Despite these considerations, therapies and therapists do vary in how they place the responsibility for therapeutic change on the client.  Given the long history of therapeutic mistakes in trying to help people change their sexual variations, client-centeredness is a strong protection against therapy inadvertently becoming just one more place where the pervasive social stigmatization of sex and variation gets done.

Carl Rogers (1902-1987)  American Psychologist and father of client-centered psychotherapy technique

The original use of the term ‘client-centered therapy’ was devised by Carl Rogers. Rogers is a towering figure in the history of psychotherapy.  He pioneered university student counseling centers.  He is rightly seen as a father of humanistic psychology, the human potential movement, and self-help psychology.  Forgive for a moment the fact that the term ‘self’, which is in profligate currency today was not nearly so popular when he did his work, and its use in this blog has really not been set up and defined.  Suffice it to say that in the late 1800’s when psychology was getting formally organized as an academic discipline, there was no such term in clinical currency.  Sigmund Freud, who regarded our conscious notions of ourselves as highly suspect manifestations of internal conflicts over frightening and often immoral unconscious impulses, was at great pains to avoid using any term in his model of the mind that assigned explanatory power to the patients’ conscious ideas about themselves or their condition.  And one of the great insights to be derived from the study of modern social psychology is just how systematically distorted and unreliable our conscious self-representations tend to be.

"Mirror mirror on the wall..."  Self-image is not always very accurate!
There are countless examples:  anorexics think they are fat; fat people think they are thinner than they are. We believe we are more independently-minded than we are when we really act like a herd.  We say we will vote one way, then do something else at the polls, if we even vote at all.  We live in an internal Lake Woebegone where the pies are tastier, the kids are all above average, and our own errors look minor in comparison to the same errors committed by others.  We are fearful of and more averse to loss than we admit to ourselves, often paying excessive costs to avoid having to accept inevitable losses.  Our perception of risk is extremely distorted, we fear air travel more than extensive commutes, jihadists more than bathtubs, and think attractive sexual partners are less likely to carry STIs than less glamorous ones.   All of this until we become depressed, at which point our view of the external world becomes more realistic at the expense of self-vilification.   These insights and more await the serious student of social psychology, yet we revere Carl Rogers for his founding work in humanistic psychology --  all built on the foundation of the self.

Otto Rank (1884-1939)  A psychoanalyst who worked closely with Freud, but later broke with him over how emotions were handled in Freud's theories.  He was an important influence on Carl Rogers.

Rogers studied under Otto Rank, who for 20 pivotal years between the 1900’s and mid-twenties, served as Sigmund Freud’s right-hand man and as secretary to the newly founded International Psychoanalytic Association.  In 1924, Rank wrote “Trauma of Birth” to address two perceived weaknesses in Freud’s theories.  The first, was over-emphasis on the explanatory power of the Oedipus complex, and the other was the lack of a here-and-now language for emotions.  Rank thought Freud’s theory was too abstract and not grounded enough in the language of clients.  Rogers was especially concerned about this latter weakness in psychoanalysis, and compensated for the highly elaborate theory of psychoanalysis with being grounded in the present in consultation with his patients.

Despite all the examples I provided about the flaws in our self-conceptions, the idea of self was at the center of Rogers’s theory.  After Freud, he was among the most influential clinicians of the twentieth century, and his approach was much more grounded in the American cultural experience than Freud’s.  Roger’s felt that whatever misconceptions clients might have acquired about themselves, the clinician could gain enough insight to be helpful by staying empathetically grounded in the session, by being supportive, striving to accurately reflect back the emotionality of what the patient was saying.
Rogers also came to believe that unconditional positive regard for the client was an essential part of the healing experience.  While Freud argued that neutrality was important in therapy, and spoke of positive and negative transference feelings as grist for the mill of therapeutic work, Rogers insisted that the counter-transference be kept positive.  There has been great intellectual debate about whether such positive feelings are curative in and of themselves, or whether they are even realistically possible at all. One can practice in a client-centered way without suspending all judgment about the client. But Freud would have seen this as a dangerous loophole in the therapeutic contract when the analyst’s feelings were in danger of biasing the clinical conception of the client.

An Emerald Tree Boa.  Nothing to be afraid of!
The benefits of unconditional positive regard, rather than excessive identification with or sympathy for the client, or of too much neutrality, is that it promotes an emotional state with the fewest possible barriers to empathizing with the client’s experience of their narrative in treatment.  If Rogers was correct that this is crucial for effective therapeutic interventions, the therapist’s theoretical sophistication, training, accountability to professional peers, and such must not serve as barriers to understanding the client’s emotional world.  One does not need a snake phobia to treat a client with a fear of snakes, but not only must the therapists not be too afraid of snakes to sit still listening to the client’s hair-raising tales of snake horror, but so too must not take flight into the very reasonable scientific insight that non-poisonous snakes are rarely harmful and that poisonous ones are rarely encountered.  Anyone who has treated a phobic client knows how unhelpful it is to make the cognitive behaviorally accurate observation that such feared objects are rarely genuinely dangerous, and certainly not proportionately dangerous to phobic levels of terror.  Indeed, such clients have repeatedly been told that snakes can’t hurt them, and present for treatment with their phobia’s undiminished despite all the good advice.

Alas, this classic Gary Larson cartoon is not just characteristic of canines.
It applies all too well to us.

These problems of fighting off the client’s difficult feelings are particularly serious when treating kink because one of the distinguishing characteristics of kink ethos is to embrace the very feelings that conventional people fear.  Ugliness, aggression, apparent violence, pain, power imbalance, bondage, slavery, anxiety, gender role blurring and reversal, sexual objectification, even ‘evil’ are sometimes ‘played’ with in kink, and they often do not have the same meanings in kink that they have in the larger society.  For example, with a kinky client might talk about undergoing a sundance ritual in which they are painfully partially suspended by hooks inserted in their pectorals.  Just listening to their description would require tolerance for fears of such intense feeling.  But while you can imagine what intense feeling you would have in that situation, you might find the feelings your client has are very different indeed.  Even another person who went through that ritual – even one who is kinky in a different way, may find they have fundamentally different reasons than those driving your client!   In client-centered therapy, it will be important for you to identify and empathize with their meaning over your own. (Indeed, this is one of my reasons for arguing that a therapist need not be kinky to treat kinky clients.  Not only is kink so diverse, a kinky therapist is not going to be able to enjoy the wide diversity of activities the way their entire caseload will, but their embrace of any single activity may or may not be all that similar to the enthusiasm of a client with similar preferences.
The therapist also needs to be tolerant of ambivalent feelings, and to be careful to not prematurely take sides in a client’s conflict about whether they love or hate such intense experiences.  In the past, therapists have often made the mistake of interpreting the conventional side of such ambivalence as ‘healthy’ and the kinky side as ‘pathological’.  Even where such ambivalence is directly identified by the client as a key part of the therapeutic contract that is driving the treatment, it is premature and unwise to arrive at such a judgment without fully empathizing with the client’s feelings about multiple sides of the conflict, and allowing the client to arrive at their own conclusions about how such ambivalence can be tolerated or resolved.

It has been gently argued in this blog that the unifying dimension of most BDSM activity is power exchange, although no single dynamic is universal to all participants.  The essence of client-centered therapy is, following the sage advice of Vigorito and Braun-Harvey, protecting the client from casual exercise of the inherent professional powers of the therapist.  The social conventions of therapy rely on the context of professional services: we seek counsel with an expert in some technical specialty in which we lack knowledge or detached objectivity.  This empowers our doctor, lawyer, or financial advisor to tell us things we cannot know directly.  But flawed individual clients, in conflict about the meanings and consequences of their own behavior, bring to psychotherapy a rich history of past experiences and an inner world in which we therapists lack the special knowledge base that tax lawyers and orthodontists have.  Our special process expertise, which the vast majority of our clients lack, and our capacity for detachment -- which is conventionally valued, but brings special challenges as well as observational power and perspective -- may or may not work to advantage in an intimate therapeutic situation.  We can know about all those risks of self-reflection I have cited from social psychology, but clients seeking our expertise come in a vulnerable position of power imbalance.  We exaggerate that vulnerability by assuming conventional assumptions  that we are the experts.

Indiana Jones:  "Snakes!  Why does it always have to be snakes?"
Actually, Indy, Cobras are fairly dangerous.
From Raiders of the Lost Ark (1981)

As in the previous example of the ophidiophobe who was not cured by all manner of mundane assurances that snakes aren’t all that dangerous, somehow, all the ‘good’ rewards cues, norms and incentives of conventionality have not rendered our client’s kinks irrelevant and depleted them of meaning or satisfaction.  Many clients present in therapy after having experienced powerful social sanctions for their kinks.  They imagine that they would be better school board members, aunts, sex partners, or athletes without these temptations.  Perhaps they have already lost jobs, friends, lovers, or harmonious relations with their families because of them.  So we risk repeating the same old mistakes conventionality makes if we cannot understand why those conventions did not work for our clients.
Sometimes therapy is just the place for the power exchange a client may crave, in which they get to be neither tops nor bottoms, but fully co-equal participants.   For a few, this may be therapeutic in and of itself, but at minimum it is a novelty that they must explain to themselves, and this may hold out methods for applying insight that can undergird genuine life changes.  All that is impossible if we collude with society or the client in pretending that we are powerful experts with special knowledge that the client lacks and they need to submit to our advice.

One of the discomforts that our refusal to cloak ourselves in traditional professional power dynamics may hold for the client is that, frightened, anguished and confused about the conflicts in their life, our confrontation of the wish for the security of having someone more ‘qualified’ to do the work for them feels abandoning and scary.  After all, if we do not know more than they do, why are they paying us a large fee?  When they go to the orthopedic surgeon, they do not expect the surgeon to ask for their uninformed opinion about whether joint replacement is needed.   Actually, better professionals of all stripes do actively draw the client into contracting for treatment and take care that treatment decisions are informed and made on a participatory basis, rather than coming down as professional diktats.  In psychotherapy, like BDSM play, consent based on mutual communication needs to be alive moment-to-moment in the treatment, and that makes the client more directly responsible for the treatment than many people are used to experiencing.  Seasoned members of BDSM communities and poly relationships may be very sophisticated about this from the moment they arrive for treatment.  Clients with low social skills, poor affective control, and who are bringing lots of social isolation and/or romantic idealization to treatment are likely to be much less comfortable with the implications of client-centered technique.  Client-centered therapists are experienced at confronting the dynamic in which clients come in, flop down in the consultation chair and say “fix me!”

Likewise, client’s may experience hopelessness that, after long and painful confrontation from some bind in their lives that touches on their kink, that they will achieve new insight in therapy that has eluded them in social discussion and private introspection.  Partly, this hopelessness is a reflection of just how distorted we can all be as mirrors for ourselves, and how difficult it can be to reexamine our own assumptions with fresh eyes.  But it can also be hard for clients who have experienced social stigma outside the therapy not to anticipate it from within, and it is not uncommon for Kink Aware Professionals to hear stories of other therapies that lend credence to such feelings.  But being deeply listened too and reflecting together on how one talks about one’s inner experience often does lead to new insight, and can lead to supporting behavioral changes that are based on that new knowledge.  In all cases, the feeling of being understood and accepted that client-centered techniques promote bolsters the likelihood that such insights will be transformative, not just intellectualizations that fail to change.
For Rogers. many of the most deepening and powerful insights were promoted by verbal reflection of the client by the therapist.  He is the father of applied active listening techniques.  And this lead to a powerful and ironic social experiment that still resonates today in the world of ‘artificial intelligence’.

Back in 1964, the famous computer scientist Joseph Wiesenbaum invented a computer program called ELIZA, after George Bernard Shaw’s flower girl protagonist who language professor Henry Higgins contrives to pass off as an aristocrat on the basis of reforming her language, dress and deportment alone.  Following the guidance of Alan Turing’s famous test that an artificial intelligence would be ‘real’ if it was indistinguishable from human communication, Wiesenbaum contrived to build a simple program to implement active listening technique by simple implementation of syntax rules.

Audrey Hepburn as Eliza Doolittle in My Fair Lady.
Getting Audrey Hepburn to pass doesn't seem that challenging, in retrospect!

ELIZA would analyze the typed sentences of the human participant for key words, and then frame queries that repeated those key words.  Often this felt like a deepening of the conversation, as ELIZA appeared interested in the most significant and affect-laden words.

ELIZA:  How are you today, Russell?
client:  I feel bad. It has been a hard week!
ELIZA:  A hard week?
Client:  Yes, I’m very anxious about the upcoming exam.
ELIZA:  Can you say more about the exam?
Client:  Yeah, the last one was quite difficult and I only did OK on it.  It is really important that I do well in this test.
ELIZA:  Tell me more about the test?.

The program was not capable of rendering interpretations, so long conversations could, at times, become circular.  At no point would it break in and suggest the I might manage my test anxiety with well-tested self-calming techniques, an intervention that any good cognitive behavioral therapist would eventually suggest when they felt they had a pretty good handle on why I was stressed enough about the test to devote this attention to it in session.

The ELIZA program raises significant questions about how we know we are understood and what empathy really means, but there is no question that back in the 1960’s when computing power was very limited and programs needed to be very simple, the observed fact was that people who played around with ELIZA often marveled at how ‘real’ and deep their conversations felt.  For comparison purposes, the reader is referred to my previous coverage of bots and the Ashley Madison site’s exploitation of men looking for affairs with married women Romantic Idealization and Betrayal and The Epistemology of Lies.

The reader may wish to experience Eliza directly at the following site:

You will find ELIZA is easy to trick, and do not expect much if you try to draw her into a conversation about the Turing Test.  Like the hoary old joke about the dancing bear,  the miracle is not in her fancy footwork, but that she appears to be dancing at all.

Client-centered therapy and unconditional positive regard, to be effective, need to be more than automatic reflexive mirroring. The example that the behaviors of active listening and unconditional positive regard can be aped by a computer program is another example in a long string of stories on this blog that behavior has limited intrinsic meaning and that its context is crucial in the interpretation of a behavior’s significance.   But it is also true that, for clients who do not understand themselves fully and expect others to be judging and dismissive, genuine empathy re-contexts how they listen to themselves, and makes them look at their insights about themselves in new ways.  And in that sense, a therapist can practice any psychotherapeutic orientation more effectively by advising less, reflecting more, suspending moral judgment and promoting articulation from the client about all of the client’s different perspectives on the problems brought them to treatment.

© Russell J Stambaugh, March 2016, Ann Arbor MI, All rights reserved

Monday, March 14, 2016

The Son of the Bride of Spanner Returns: Part II

“Judge Rules You Have No Right to BDSM”

Almost Bedtime for Ripley in Alien (1979)

We all know the horror movie trope.  We are nearing the end of the final reel, and the menace has finally been disposed of.  Sigourney Weaver and Jones the cat are about to bed down to nice cozy cryo-sleep when, ‘She’s baaack!’  The alien uncoils from hiding and we get to sweat through a final desperate battle.  And on that basis, we are treated to an unending series of prequels, sequels, and spin-offs intended to milk our tolerance for excessive self-stimulation until we are as dry as the husk of the Alien’s midnight snack.  Tell me it isn’t so!  Spanner isn’t back?
Miss me?

Readers who know their kink history, or have simply have read the earlier blogpost on Elephant about  Operation Spanner, know the importance of the case in the organization of BDSM in Britain and the U S.  But they couldn’t have been pleased to see the Federal Court of the Eastern District of Virginia asserted “There is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, chocking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”   The argument that consent is no defense against assault was precisely at issue in Spanner, and this looks like that argument all over again.  It seems we are going to have to sit through a bad sequel.

First, let’s briefly review the original horror show, which derived its title from Scotland Yard’s – the British equivalent of our FBI -- investigation, ‘Operation Spanner’, of an alleged ‘snuff’ film back in 1987.  Local police had found a gay kinkster’s erotica collection which included a videotape of genital torture.  Never having seen anything like it before, they presumed that the scene was coercive and part of torturing someone to death and a huge and expensive investigation was launched.  It culminated in Scotland Yard swooping down on a local group’s play party and 16 gay men were arrested.  When the stunned authorities learned that all the action was consensual, and the original film was for private use, the prosecutors were thrown into disarray.  After 21 months of hemming and hawing, the prosecutors declared that the participants had no right to consent to assault, which was criminal under British statues as it is in the US.  They went ahead with the prosecution.  All 16 either plead to the charges, or were tried and sentenced to several years in prison while the case wended its way through the appeals process.  This culminated in a special panel appointed by the House of Lords which serves as the British Supreme Court, which ruled 3-2 that consent was indeed no defense against criminal assault charges.  The case was eventually referred to the European Union’s Court of Human Rights, where member nations unanimously voted that Britain was not violating human rights principles to criminalize assault and to disallow consent as a defense.  The net legal result: BDSM that involves significant sensation play remains illegal in Great Britain to this day.  That is a genuinely horrific outcome to be sure!

The Virginia Tech shooting tragedy in 2007 led to George Mason University's efforts to improve campus safety.

Our sequel begins with a relationship gone bad between two anonymous parties, non-student Jane Roe, who entered into the problematical relationship with plaintiff and George Mason University student John Doe.  In 2012, Doe came to the attention of University when a dorm resident adviser reported him for consensually carving ‘Kill Them’ into Roe’s knuckles with a pen knife in his dorm room.  Referred to the Campus Assistance and Intervention Team (CAIT) designed to investigate possible threats to campus safety in the wake of the tragic Virginia Tech shooting, Doe was on George Mason University’s radar as a potential safety threat thereafter.  He accumulated additional interventions for minor offenses that had nothing to do with his relationship with Roe, before he committed an alleged safeword violation and Roe decided to terminate the relationship in 2014.  At this point, Doe repeatedly and non-consensually contacted Roe, who eventually complained of his behavior to campus officials following receipt of a text message threatening to shoot himself if she declined to respond.
At this point, George Mason University CAIT officials began proceedings to remove Doe from the University as a threat.  Despite the CAIT eventually deciding that discipline should not include expulsion, a higher level administrator took over and ruled against Doe, committing alleged due process violations in the process of expelling him.   Doe sued, complaining of the due process violations, and argued that his behavior was proper within a BDSM sub-cultural context.  The university and Doe appealed for opposing summary judgements.

Enter at this point, the villain of this piece, Judge T C Ellis III of the United States District Court for the Eastern District of Virginia.  Harvard and Oxford University trained, he was a naval aviator during the Vietnam War era and a Ronald Regan appointee back in 1987, and is now Senior Judge on the Eastern District bench.  A clear thinker and articulate writer, he is a strict constructionist, citing jurists like Antony Scalia as his inspiration in disposing of Doe vs Rector and Visitors to George Mason University.

Justice Antonin Scalia of the Supreme Court of the United States (1936-2016).  Appointed by Ronald Regan, he served from 1986-2016.  An originalist and textualist conservative, he was an intellectual leader of the court's right wing and a leader to many like Judge Ellis.

The bulk of the Judge Ellis’s ruling focuses on the due process issues and he cogently finds plenty of fault with the George Mason University, especially after the case was removed from the hands of the CAIT after it found too little evidence of safety threat to the community to remove Mr. Doe despite his obnoxious conduct toward Ms. Roe.  For example, the Judge saw clearly that penalizing Doe for complaints of suicidal ideation had no direct benefit to the safety of the community, instead acting as a deterrent to the reporting and resolution of real safety threats.  But the ruling, while irrelevant to the standing of BDSM, does give uncomfortable guidance to university administrators who are charged under Title IX with trying to protect vulnerable intersectional minorities from non-consensual conduct on campus.  Ill prepared to investigate rape and consent misunderstandings in the freewheeling environment surrounding the academy, administrators need to have careful procedures for ensuring the rights of the accused.  Judge Ellis’s ruling is likely to set precedent and greatly inconvenience those efforts despite Doe’s record of clearly undesirable conduct.

The potential threat to BDSM comes in the opinion’s short third section, and proposes that a high bar be set to ‘ordered liberties’ that merit constitutional protection.  As irritating as Judge Ellis’ opinions maybe to those of us who believe private personal conduct merits constitutional protection, the plaintiff’s claim that he faced discrimination due to failure to recognize his sub-cultural identity and values is too weak for the attack on BDSM to gain much legal traction.  Doe was hardly acting on a basis of continuously communicated consent as advocated by the BDSM community.  His BDSM conduct might well have been permitted and not formed the basis of any discrimination had he kept it private, and he was having difficulty adhering to other George Mason University rules besides those relating to his relationship problems that provoked institutional over-reaction. 

Etruscans at play circa 700BCE.  "It was a typical case of blind justice, and the judge wasn't going to look"  A. Guthrie

Ellis’ attack on BDSM must needs be circuitous, by suggesting that BDSM does not deserve the same kinds of protections offered homosexual conduct in the United States Supreme Court’s landmark Lawrence v Texas (2003) decision.   In this attempt to limit applicability, Ellis takes a strict constructionist stance following Washington v Glucksberg that in order to merit protection, an activity needs to be “deeply rooted in the nation’s history and traditions, and implicit in the concept of ordered liberty.”  I suspect that, for Ellis, homosexuality, despite a long history would lack standing as a protected class under the criteria used in Washington v Glucksberg, but that BDSM definitely does not because of the risks associated with physical harm from assault.  Although BDSM has a long and varied human history, Ellis is arguing here that it lacks significant standing in American cultural history for kinksters to be a protected class with a history of unjustified discrimination that requires judicial acknowledgement for possible protection or redress.  This, it should be noted, is a variant of the strategy of state legislatures that are trying to re-criminalize sodomy for all citizens as a method of dodging the argument that they are discriminating against homosexuals.  This is a ridiculous argument, in that homosexuals do not have access to the narrow definition of permissible acts available to heterosexuals if oral, anal, and inanimate means are barred to all.  While I am certain the Judge Ellis would not be citing the Marquis de Sade or Pauline Réage, cultural history, even of an American institution like the Folsom Street Fair if he was familiar with them, they are not relevant to the kind of tradition he is referencing in his opinion here.

The National Coalition for Sexual Freedom NCSF) has issued public statement that, holding no power to set precedent, this judicial pontification constitutes dictum; the judicial equivalent of an empty gesture. On BDSM, it is an opinion, not a ruling. George Mason University might appeal the case, but can only do so on the grounds they lost, about the due process concerns.  Doe who, won the summary judgment he requested, cannot appeal the part of the case he disagrees with because he won.  So legal argument about the standing of BDSM is not going anywhere from this legal dead end.  So the monster is disposed of, right?

From a strictly legal point of view, this is surely right, but from a social constructionist view, this is not a very reassuring discourse.  This is not a real horror story like Spanner was, just a flimsy sequel.  Still, it contains harmful messages that deserve some education.  For example:

Interested people might decline to explore their kink desires because the behavior of Doe in this story suggests that some BDSM practitioners aren’t very safe to play with.  This is true as far as it goes.  It is very important to stay connected with a community and use your scene relationships to protect against a rogue practitioner like Mr. Doe.  Conventional people have trouble letting go when relationships end, so this part of the story is far from unique to kink.  But they might have an easier time availing themselves of conventional resources when relationships go badly.

Interested people might decline to explore their kinky desires because they have no constitutional protections, and institutional responses to kink might be discriminatory.  Sexual rights aren’t well protected under the Constitution, but institutional responses are becoming less discriminatory.  You are safer now than pioneers in the field were 40 years ago.  And how you vote matters a great deal.  The judge in this case is a great admirer of the very conservative Supreme Court Justice Antonin Scalia who just died, and the Obama administration and Republican led Senate are fighting over his replacement.  Your vote might influence how this conflict gets resolved.  But Lawrence v Texas, as little as strict constructionists may like it, protects against moral judgments like Judge Ellis would like to make.  Kinky folk retain all the protections they had prior to this opinion.

It might be hard to expel troublesome people who do not adhere to a BDSM social organization’s rules.  Look at the difficulties George Mason University faced.  Maybe my local BDSM group couldn’t get rid of a bad apple very easilyThat is basically false.  BDSM social organizations are private clubs and have to clear a much lower bar to expel troublesome members than universities do.  It is a very good idea to for groups to have a code of conduct in place and for new members to learn those rules and use them for their protection, but violators are easy to expel from private clubs.

BDSM isn’t very safe and yet neither is it possible to get much protection under the law if I try things conventional people think are risky.  This is also partly true.  But your protection in matters sexual is not primarily a matter of law, but comes from communication. Relative to conventional behaviors, you do need to educate, inform, protect yourself and take primary responsibility for your kinky decisions.  But because of the diversity of interests in kink and the importance of continuous and on-going consent, there is much stronger support for communication in kink than many conventional relationships.  Kink is stigmatized, and the worst part of this court decision is that it isn’t helping to make kink seem safer or more acceptable, but it doesn't make it more dangerous.

The court makes people think they have no right to private sexual conduct that is outside some narrow set of conventional norms.  Right on!  The Constitution does not actually directly protect any sexual behavior, conventional or not, but public perception does matter.  Your best protections are to keep your private behavior private.  Doe did not do this here.  Additional protection can come from acting collectively to show that conventional thinking about BDSM is incorrect.  
If I try to get help for my problems, instead of assistance, I might be subject to discrimination like Doe was.  We don’t know that much about Doe from this very sketchy summary of his case, but it is impossible to rule out the possibility that prejudice against kink contributed to this messy story of well-intentioned administrators mistreating a troubled kinkster.  NCSF maintains a list of Kink Aware Professionals to help you find sophisticated and non-judgmental professionals if you need help to protect yourself from these kinds of misunderstandings.  Kink Aware Professionals are not readily available in all areas of the country, nor equally represented across all professions, however.

These observations are my poor substitute for a dramatic final confrontation with the Spanner menace.  They are the equivalent of those internet rules about how not to behave in a horror movie if you want to last to the final reel.  But the legacy of Spanner is still with us.  Some of that legacy is bad, like the media over-reaction to this case, but Spanner’s legacy is more complex.

Not long after the 1997 Human Rights Court decision in Strasbourg cementing Britain’s ruling that consent was no defense, Scotland Yard recognized that their relationship with the British kinky gay community was in shambles.  They began programs to cooperate with the community so that the community would not shun them when Scotland Yard had serious crimes that needed investigation and they needed community help to protect community people.  While BDSM is still unnecessarily risky in Britain today, the police are much more culturally competent than 30 years ago.

Another part of Spanner’s legacy is that kinksters, gay and heterosexuals alike, realized that they needed to get much better organized to protect against this kind of discrimination.  The Spanner Trust was started, and money goes to kink charities and organizing from events like Folsom Street Fair, The NELA Flee, and Southwest Leather.  You can fight decisions like this by giving to those organizations and to NCSF!  Although leather activism did not begin with NCSF, it formally launched in 1997 as part of the increase in social organization caused in part by Spanner.

Cute, but it takes serious educational efforts to teach authorities the different signs of kink vs abuse.  Unfortunately, there are  some relationships that are both kinky and abusive.

Part of the British legal argument against consent was valid:  it is impossible to prosecute domestic violence cases on either side of the Atlantic if authorities must rely exclusively on victims’ willingness to prosecute abusers.  Victims withdraw consent in large numbers and cases would collapse if the state did not retain an interest in and the legal authority to continue prosecutions.  Kink cases are a trivial percentage of police matters relative to domestic violence calls.  Yet BDSM practices and domestic violence do not present to the authorities in the same way, and, taught to differentiate consensual BDSM from domestic violence, police can discern the difference in many instances.  Since 1997, NCSF has spent lots of time and energy supporting programs for educating police on just these points.

Like any proper horror franchise, the struggle isn’t over when the final credits roll.  While we are not very entertained by this court decision, it is not nearly as scary as it looks, and there are lots of things you can do to protect yourself and the BDSM communities, until next time.  Until we have more substantive protections for personal and sexual expression in this country, there will surely be a next time….

Select Links:

NCSF’s press release: 

A good legal analysis of the implications:

Woodhull Foundations Press release:

Judge Ellis’ opinion can be found here: 

A cute defense of BDSM history from Jill Keenan in Slate, but not relevant to the use of 'tradition' in the court opinion:

Jill Keenan on BDSM history

Richard Cunningham's post on Lawrence v Texas and Doe v George Mason University
NCSF Legal Opinion on Doe v George Mason University

© Russell J Stambaugh, January 2016, Ann Arbor MI, All rights reserved