The justices said Tuesday they will hear an appeal filed by federal prosecutors in the case of Glenn Marcus, convicted after a sensational trial that dealt with mutilation and extreme humiliation. Arguments will be held early in 2010.
Last year, the 2nd U.S. Circuit Court of Appeals ruled the conviction violated the Constitution because Marcus was convicted of breaking a law, the 2000 Trafficking Victims Protection Act, that wasn't in place when some offenses happened.
In September 2007, Marcus was sentenced to nine years in prison for abusing a woman he photographed for his Web site, which reveled in sadomasochism. She was identified only as "Jodi."
Justice Sonia Sotomayor took no part in the court's consideration of the case. She was on the appeals court panel that ruled in Marcus' favor and joined in the panel's decision. But she wrote separately to suggest that the ruling, though required by a string of 2nd Circuit cases, might not be in line with the Supreme Court's view of the case.
The ruling turned on authorities' use of the 2000 law to prosecute Marcus for incidents spanning from 1999 to 2001. Marcus' attorneys argued, and the court agreed, that the law was applied retroactively.
"Marcus's relevant conduct differed materially before and after October 2000, such that there is a reasonable possibility that the jury may have convicted him based exclusively on pre-enactment conduct," the appeals court said.
But Sotomayor pointed out that the high court has been willing to overlook errors that "do not seriously affect the fairness, integrity or public reputation of the judicial proceedings." Sotomayor said that standard would have allowed Marcus' forced-labor conviction to stand.
Prosecutors claimed Marcus crossed the boundaries of both civilized society and the S&M community by holding his victim against her will.
The woman met Marcus in 1998 and agreed to be one of his "slaves." He carved the word "slave" on her stomach with a knife, shaved her head and systematically punished her, according to the appellate decision. He also forced her to write for the Web site while he kept every penny it earned through advertising and membership fees.
During their last encounter, he beat and whipped her while hanging her from a beam, then forced her to write about the incident on the Web site, the decision said.
At his trial, the woman said she felt like she was literally in hell.
The defense argued Marcus and the woman had a "contract" to engage in a master-slave relationship. While potentially offensive to the general public, it was consensual and even pleasurable to the participants, the defense said.
Marcus had liaisons with the woman in homes in Maryland, Washington, D.C., and New York City, and on Long Island.
The case is U.S. v. Marcus, 08-1341.