Administrative Discretion and Moral Policing

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Casey Renée Lopez
December 22, 2025

Public administrators often pride themselves on bureaucratic neutrality. We talk about equity as if it springs naturally from rules, procedures and codes of ethics. However, anyone who has ever operated inside a public institution knows that neutrality is just a story we tell ourselves and that administrative decisions are shaped by one’s culture, beliefs and the assumptions we inherit. Nowhere are these assumptions more pronounced than in how the justice system treats consensual BDSM (bondage, discipline, sadism, masochism) and the people who practice it.

As administrative actors, prosecutors and judges make meaning as they work, and their decisions do not emerge solely from statute but from the cultural narratives that help them interpret what they see. In cases involving BDSM these narratives often transform consensual intimacy into criminal deviance. Scholars have warned for decades that BDSM is governed more by discomfort than by evidence. Courts treat it as a matter of immorality rather than personal autonomy, often ignoring consent entirely. By enacting such moral policing the administrative state becomes an arbiter of sexual respectability.

Unfortunately, deviance and criminality are sharpened when a defendant is transgender. Queer legal scholars call this “the architecture of disbelief.” It is the institutional habit of treating trans people as unreliable narrators of their own lives. Therefore, when transgender people are involved in BDSM related cases, their credibility is scrutinized more intensely and their consent is undermined more readily. Trans identity becomes a mechanism for moral doubt and the justice system effectively layers one stigma on top of another, resulting in multiple marginalizations and systemic bias.

Public administrators know that street-level bureaucrats exercise broad discretion. Often administrators must interpret complex policies on the fly and rely on their professional judgment. Still, when meaning-making is guided by moral scripts rather than empirical evidence, it produces administrative outcomes that reinforce inequity. In BDSM cases, prosecutors and judges often rely on inherited norms about gender, pain, pleasure and deviance. These norms shape charging decisions, courtroom language, credibility assessments and sentencing.

Put plainly, such moral policing is an administrative ethics problem. Consent within BDSM communities is not chaotic, but rather it is intentional, negotiated and ongoing. Researchers consistently document strong communication practices and emphasis on safety and trust. Yet these practices are rendered invisible in court. Instead of evaluating the agreements between adults, legal actors collapse consent into a single static moment or disregard it entirely. The difference between how BDSM is practiced and how it is policed reveals how administrators filter human behavior through cultural and personal discomfort.

It is easy to view such policies as administrative outliers. Nonetheless, BDSM prosecutions elucidate a broader truth about public administration, suggesting that when administrators are uncomfortable with a practice, they regulate and police it more harshly. When they do not understand a community, they invent harm where none exists. Bureaucratic discretion becomes moral governance and neutrality vanishes.

For transgender people, these dynamics carry hefty costs and institutions already frame their identities as unstable or deceptive. When this frame is combined with stigma around BDSM, the resulting administrative narrative positions them as incapable of consent and in danger, undermining agency. Furthermore, such narratives do not reflect evidence; instead, they reflect the narratives institutions perpetuate around which bodies are legitimate and whose desires must be controlled.

Public administration as a field must take this issue seriously. We cannot continue to champion social equity while simultaneously ignoring how our institutions construct biased deviance of marginalized communities. If we want more equity in administration, we need to examine how discretion operates in practice. We must acknowledge that discretion is not neutral, but is a subjective act. We also need training and guidance that treats sexual diversity as a matter of public administration rather than a private curiosity. Administrators make decisions about safety, legitimacy and harm, so these decisions must be grounded in evidence rather than moral discomfort.

Transparency acts as the antidote to unexamined bias, so we must demand that prosecutorial offices and courts articulate how they evaluate consent in cases involving non-normative sexual practices. Administrators should not rely on cultural scripts to substitute for evidence-based analysis. However, most importantly, we must recognize that communities like BDSM practitioners, especially those who are transgender, are not marginal footnotes in the governance landscape; they are members of the public we serve. Their experiences reveal gaps between our ethical objectives and our ongoing administrative practices.

Public administration operates most effectively when it broadens the scope of who is seen, heard and treated with dignity. To achieve these ends, we must confront the moral assumptions that shape our institutions. The criminalization and moral policing of consensual BDSM is not simply a legal oddity, but a mirror held up to the administrative state. What we choose to see in that mirror is up to us.

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Author: Casey Renée Lopez is a Ph.D. student in Public Policy at the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University. They hold two Master of Arts degrees in Interdisciplinary Studies and European History, respectively. They also teach in the English Department at Brightpoint Community College in Midlothian, Virginia. In the classroom, they enjoy introducing their students to literary works that highlight social policy and environmental issues. As a student, they are primarily interested in violence intervention policy research related to transgender people and other marginalized groups. Through transdisciplinary work, they aim to contribute to the development of more research on social equity as it pertains to the transgender community in and around the Richmond, Virginia, metropolitan area.

 

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