Recent graduate Sarah Stein ’20 was awarded an honorable mention in the 2020 Academy for Justice & Arizona State Law Journal National Student Writing Competition for her paper, Decriminalizing Kink: A Proposal For Explicit Legalization Of Sexually Motivated Consensual Harm.
While at Fordham Law, Stein was a Stein Scholar and a member of the Brendan Moore Trial Advocacy team. She cites Professor Youngjae Lee’s classes as formative in shaping her approach to criminal law; she took his Criminal Law class in her first year and Criminal Law Theory and Criminal Procedure in her second. “Professor Lee would talk about not just what the law is, but why it is that way and how it should be, particularly in terms of the way that societal values and morality make their way into criminal law,” she said. “I think I look at things a lot differently because of his class.”
“Sarah has impressed me over the years, not only because of her intelligence and work ethic but because of her ethical sensibility,” remarked Professor Lee. “She is incredibly perceptive when it comes to some of the central questions the law, especially criminal law, deals with, which is how people ought to treat one another, and when the law should intervene in such matters.”
In addition to working with Professor Lee, Stein credits Adjunct Professor Mary Anne Wirth with helping her hone her legal writing skills.
The idea for Stein’s paper grew out of an independent study she completed with Professor Lee. After studying how morality affects criminal law doctrine, she said, “I thought about all the areas where the law does allow for people to consent to physical harm.”
Stein said many laws regarding bodily harm generally offer carve-outs for activities like body modifications, such as tattoos and piercings, as well as more dangerous sports—forms of bodily harm or risk of bodily harm that society has deemed acceptable. Sexual practices such as bondage, dominance, sadism, and masochism (BDSM), on the other hand, do not receive similar acknowledgment or acceptance under the law.
According to Stein, a small handful of court rulings (including the seminal 1978 case Commonwealth v. Appleby) have set legal precedent for ruling in BSDM-related criminal cases, many of which uphold the argument that consent is never a valid defense to physical harm in the BDSM context, even where the harm or risk of harm is not serious.
“I think that in making these distinctions, the law is saying that we as a society think sports and body modifications are worth the risk and that people should be allowed to take that risk, but when it comes to the sexual context, we don’t believe people should be allowed to take that risk,” she explained.
Professor Lee praised Stein’s analysis: “We understand the value of risky activities and have a way of thinking about it when it comes to things like athletic activities. But people tend to get nervous when it’s about sex, partly due to worries about sexual violence, and such worries have created a gray area of the law, where the law really ought to be clear. Sarah persuasively argues in the paper that there is a way out of this conundrum.”
