KANSAS CITY, Mo. – Kinky has gone mainstream with the popularity of the “50 Shades of Grey” trilogy as sales of sex toys have skyrocketed. But there’s a fine line between kinky and criminal – and it’s called consent.
That important distinction may get lost with a federal court case in Kansas City that would make criminals of Christian Grey, the fictional hero of “50 Shades of Grey,” and real-life followers of the BDSM (Bondage/Discipline, Domination/Submission, Sadism/Masochism) lifestyle.
Defense attorney Susan Dill has filed a motion to keep the private bedroom behavior of Edward Bagley Sr., 45, and his wife Marilyn, 47, out of court in his upcoming federal case. The couple, from Lebanon, a small town in southern Missouri, admit to what many would consider violent sexual habits (pierced genitalia and flogging, anyone?), but both say it’s consensual.
The U.S. attorney’s office claims that Bagley’s sexual activities with his wife constitute a history of sexual assault, despite its consensual nature, and that it should be admissible as evidence in its case accusing Bagley of grooming a young woman as a sex slave and holding her against her will.
Bagley has been charged with multiple counts that include sex trafficking, and if convicted, he could be sentenced to life in prison. His wife has also been charged, and so have four men who are associates of the couple.
But Dill is not convinced. “Edward Bagley is one of the few clients I have had in my career as a defense attorney that I truly believe is not guilty,” Dill told me. (She represents Bagley, while another Kansas City attorney is Mrs. Bagley’s defense lawyer.)
Dill’s motion to the court to prevent the admission of the couples’ sexual activities lists 10 categories of behavior with explanations as to why each is not assault. In the discussion of “binding,” Dill wrote, “Edward Bagley takes care to position the ropes and bindings carefully to avoid inflicting injury on his wife.”
For another activity, Dill pointed out, “In fact, the videos depict Marilyn clearly enjoying (it).”
Dill also mentions the “prejudicial” nature of such evidence – let’s face it, there’s a serious “ick” factor for a lot of people – and that the 14th Amendment allows behavior in the bedroom to remain private (Lawrence v. Texas struck down sodomy laws, for example).
Although Dill could not reveal details about the case, an article in the St. Louis Post-Dispatch, which included interviews with Marilyn Bagley and several residents of Lebanon, tells the story of a young woman, possibly mentally deficient, with a troubled past who moved in with the Bagleys in 2002.
Known in court documents only as FV, or female victim, she eventually posed for a photo shoot in Los Angeles for Hustler’s Taboo magazine, worked as a stripper in a local club in Lebanon and got involved in violent sexual activities.
Was it her choice? Or was she sex slave to Bagley?
According to many of those interviewed for the Post-Dispatch, she chose to engage in those activities. But according to the findings of a grand jury, she was held against her will, tortured and sexually assaulted repeatedly; a former U.S. attorney called it “horrific.”
After “FV” suffered a heart attack in 2009 at age 23, law enforcement became involved.
Whether Bagley is guilty or not is up to a jury to decide in February.
Of more immediate concern to the BDSM community is the idea that consensual kinky sex could be considered a crime, which would be the case if the Bagleys’ sexual history is used as evidence of assault, said Susan Wright, a spokesperson for the National Coalition for Sexual Freedom in Baltimore.
“It could retroactively criminalize consensual behavior,” Dill said.
Consent is considered a defense against assault unless “serious bodily injury” occurs. But what constitutes “serious bodily injury” is open to argument, Wright said. “The courts have found it’s the use of a riding crop and use of candle wax, and those sorts of things don’t cause serious injury.”
Consent, though, plays an important role to keep BDSM activities safe.
Fellow She the People contributor Suzi Parker went undercover to a bondage club in rural Alabama as part of the research for her book, “Sex in the South: Unbuckling the Bible Belt.”
Before she could enter the club, there was paperwork. Lots of it. And it focused on BDSM play being “safe, sane and above all, consensual,” she said.
Every person she interviewed “stressed consent more than ‘you gotta wear leather and chains,’ ” she said about BDSM.
Although the level of BDSM activities practiced by the Bagleys falls at “the extreme,” Wright said, there are more people involved in BDSM than you might expect – as many as 10 to 13 percent of the population, according to one study.
She applauds “50 Shades of Grey” for taking the bondage lifestyle out of the shadows.
But for the courts, it might be best if what happens in the bedroom stays in the bedroom. As long as both parties agree.
Diana Reese is a freelance journalist in Kansas City.