Iowa State University Conduct Decision

Judicial Affairs Division

On the 1st of March 2004, an Administrative Hearing was conducted to adjudicate the alleged student conduct code violation(s) as specified in the ISU Student Disciplinary Regulations.

Complaint: The facts that became the basis for the alleged charges were reported in the ISU Daily on the 15th day of December 2003 and have been investigated by the Office of Judicial Affairs.

Charges: * Assault #4.2.3

* Violation of Iowa Law #4.2.18

Student Organization’s response to the charges:

As an organization Cuffs denied responsibility for both charges

Findings and Decision:

Based upon the documents and testimony presented during an Administrative Hearing held Monday, March 1, 2004, I find that the Cuffs Student Organization is responsible for the following violations of the ISU Student Disciplinary Regulations: Assault #4.2.3 and violation of Iowa Law #4.2.18. The leadership of Cuffs planned, encouraged and knowingly allowed actions at a meeting of the student organization that consisted of one person striking another person with various instruments and with the intention to cause pain to the person struck.

ISU Student Disciplinary Regulation #4.2.3 prohibits an “act that is intended to cause pain … to another.” Iowa Code Section 708.1 states: “A person commits an assault when, with justification, the person does … any act which is intended to cause pain … to another …”

During the hearing the President, Duane Long, stated that he had planned and implemented the demonstration at the November 10, 2003 meeting. He also stated that a live subject was necessary to educate the group on the recipients anatomy, to show the group changes in skin color after contact with the instruments and to hear the recipient call out numbers to gauge the intensity of the “sensation” when struck. However, education as a basis for this demonstration is not a legal justification for striking another person and is not a defense to committing an assault. Legal justifications that rise to the level of a valid defense to a charge of assault include such justification as self-defense or necessity.

Cuffs representatives stated the activities performed at the November 10, 2003 meeting were not sadomasochistic. However, the description of the Cuffs organization as provided by the Cuffs organization tot he ISU Student Activities Office states that Cuffs is “an educational and social discussion group for people interested in BDSM, fetishes and other expressions of safe, sane, consensual and non-exploitive human sexuality.” The striking of another person to educate members about sadomasochistic activities is a sadomasochistic activity. Although the participants in the activity may have a different personal and emotional reaction to the activity when it is performed at a meeting in front of a group than if the same activity had occurred in a private location, the activity itself is still sadomasochistic in nature.

Cuffs representatives also argued that the purpose of striking another in a sadomasochistic activity is not “pain” but a “sensation” and therefore the activity would not be an assault unless it causes injury. However, it is clear from the information presented about sadomasochistic activity that the sensation creating sexual pleasure during the activity is based on pain and the increasing or decreasing levels of pain involved in the activity. Both participants in the demonstration described the sensation involved in the activity as “pain.” Duane Long described the sensation caused by sadomasochistic activity as “normally perceived as pain” but attempted to justify the “pain” as only a “sensation” and “not physically, mentally, or emotionally harmful to the participants.” In addition, the recipient involved in the demonstration at the Cuffs meeting on numerous occasions described the sensation she was feeling that night as “pain.” As examples, she stated:

* “He demonstrated a couple of techniques on me, none of which hurt at all. I don’t think he ever got above a five on a scale of one to 10. 10 being the highest amount of pain.”

* “This was the most painful type of pain,” when referring to a cane.

* “I personally like bruises as marks to show what I did and the pain I took, but there weren’t any,” when indicating that she had checked herself for marks from being hit during the demonstration and found none.

Despite the Cuffs representative’s attempts to characterize the result of their activity as a “sensation” and not “pain,” Iowa Law does not differentiate between levels of pain or unpleasant and pleasurable pain in defining assault. From the testimony and the record it is clear that the demonstration in this case was intended to cause pain in another person and, therefore, was a violation of the assault provisions under Iowa Law and the ISU Student Disciplinary Regulations.

Cuffs representatives submitted signed statements from Duane Long and the recipient of his striking stating that they had consented to participation in the demonstration. However, it is clear that the assault statute in Iowa, Iowa Code Section 708.1, as interpreted by the Iowa Court of Appeals in State v. Collier, 372 N.W.2d 303 (IA Ct. App. 1985) does not allow for the defense of consent to a charge of Assault during a sadomasochistic act. The court in the Collier decision specifically found that the exception in the statute for “voluntary participants in a sport, social or other activity” did not apply to sadomasochistic activities.

Cuffs complains that the charges in this case single out their organization in a discriminatory manner since the Office of Judicial Affairs has not brought similar charges against other student organizations such as the boxing Club … Although members of those sports related student organizations would physically contact another person during the sporting activities sponsored by the organization, the activities of those clubs fall within the specific exception in the assault statute for, “voluntary participants in a sport, social or other activity.” As long as the act is a “reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace,” the acts involved by “voluntary participants in a sport, social or other activity” is not considered assault under Iowa Law. Since Iowa Law creates the distinction that excludes sadomasochistic from the exception for “sport, social or other activity” it is permissible for the Office of Judicial Affairs to treat Cuffs differently than other student organizations on this issue.

Arguments against the charges presented by Cuffs representatives and pertaining to the State v. Collier case were similar to the issues raised by the dissenting opinion in the Collier case. However, the majority of the judges who decided the case rejected the position argued by the dissenting judge, It is not the law of Iowa. Until this interpretation of Iowa Law is changed in the courts or the Legislature, Iowa State University will use it as the basis for interpretation of the defining of assault under Iowa Law and out own Student Disciplinary Regulations.

Sanction:

Having considered all the relevant evidence and arguments involved in the case, the following sanction is imposed upon the Cuffs Student Organization on the 6th day of March, 2004:

Conduct Probation Effective immediately and extending through the final day of classes in the Fall semester 2004

Conduct Probation is a more severe sanction than a disciplinary reprimand. It is a period of review during which the student organization must demonstrate that ability to comply with University rules, regulations and other requirements stipulated for the probation period.

During the hearing, representatives from the Cuffs organization commented on the potential for members learning techniques for “caning of the feet” and “bodily suspension” for use in a sadomasochistic scene. The Cuffs organization must operate as an educational and discussion group only as it is restricted from performing future demonstrations, sponsoring events and organizing “play parties” or social functions that involve acts which violate the Iowa State University Student Disciplinary Regulations and Federal, State or Local Law.

The Cuffs Student Organization is free to meet and discuss common interests in “BDSM, fetishes and other expressions of safe, consensual and non-exploitive human sexuality,” as it has described its purpose on the registration form that is on file in the ISU Student Activities Office. You are free to advocate for and petition the Legislature and the courts to change the definition of assault under the Iowa Code. All student organizations and Iowa State University are under the obligation to no violate the law. Until this law is changed, the University cannot allow your organization to commit criminal acts, such as assault, during meetings or at any activities sponsored by your organization.