December 4, 2014 - Motion on behalf of the National Coalition for Sexual Freedom for leave to file a brief as amicus curiae in support of appellant's petitioin for grant of review.
March 26, 2014 – Washington DC. – NCSF has filed an amicus brief in a military case involving a marine who engaged in a consensual threesome and because of that was convicted of adultery, attempted consensual sodomy and indecent conduct, a "crime" based solely on undefined sexual conduct inconsistent with "common propriety."
Indictments found and returned in the Superior Court Department on July 23, 2007.
The cases were tried before Richard E. Welch, III, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
James L. Sultan for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
CORDY, J. Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G. L. c. 265, § 16; armed home invasion in violation of G. L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and assault and battery in violation of G. L. c. 265, § 13A.(1) A divided panel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass. App. Ct. 587 (2011), and we granted the defendant's application for further appellate review.
On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 577-578 (2003) (Lawrence), the trial judge committed constitutional error by not instructing the jury that consent is a defense to the crimes of armed home invasion and assault and battery by means of a dangerous weapon. The defendant also claims that the judge erred by admitting certain evidence regarding materials retrieved from his home computer. This evidence included eight photographs and one ninety-second "video clip" (video), each depicting a nude or partially nude woman being strangled seemingly to death; an Internet article reporting the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of images stored on the computer "that were strangulation-oriented or had strangulation themes," as well as testimony about Internet searches and the number of files saved on the computer that concerned asphyxiation.
"When the Levee Breaks: A guide to dealing with and avoiding arrest and prosecution in BDSM scenes."
"When the Levee Breaks" is a companion to the NCSF publication, "The Aftermath," and is a guide to provide a perspective for those who have, through mistake, misunderstanding, or a fleeting lapse of reason, committed an act of criminally actionable sexual assault. It is not intended to provide a defense for indefensible acts. "When the Levee Breaks" also provides information on how to better protect oneself against arrest and prosecution.
"The Aftermath: A guide for victims of sexual assault and/or intimate partner violence in the BDSM community," by Natalie Quintero
"The Aftermath" is a compilation of advice that is regularly provided to victims who ask for help through NCSF's Incident Reporting & Response project. This guide will educate anyone in the BDSM community who has been victimized on what one might expect to experience after an assault, what one's options are, things to consider when weighing options and making decisions on what to do next, what one might expect if one decides to report the experience, as well as the resources available to assist in coping with and healing from abuse.
In most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said:
“Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…”Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980).
An early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision. In that case, Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene. The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”:
Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.
People v. Samuels 250 Cal.App.2d 501, 514, 58 Cal.Rptr. 439, 447 (Cal.App. 1967)
The Samuels decision was cited as recently as 2006, in People v Febrissy.
Legal cases dealing with the consent counts project.
To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct. The following overview, from Consent to Harm by Vera Bergelson, is a good summary of the case law:
Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.” Courts tend to inflate the risk and harmfulness of an activity they want to denounce. For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious.
28 Pace Law Review 683, 691
Case index, click to view the individual case summary and a PDF of the case.
California v Samuels , 4/28/1967
Massachusetts v Appleby , 4/1/1980
Iowa v Collier, 5/25/1985
Helton v Indiana , 12/1/1993
New York v Jovanovic , 12/21/1999
Lawrence v Texas, 6/26/2003
Nebraska v Van , 11/12/2004
California v Febrissy, 7/1/2006
Govan v Indiana, 9/9/2009
Rhode Island v Gasper, 10/30/2009
United States, Appellee v Miles 3/24/2014
The Right to Be Hurt: Testing the Boundaries of Consent , Febuary 2007
Consent to Harm , 2007-2008
Autonomy, Dignity, and Consent to Harm , 1/29/2008
Law citations dealing with consent, compiled by the NCSF Consent Counts Project
By Susan Wright
The 2008 survey saw a total of 3,058 responses collected. Of those, 2,412 respondents resided in the United States (83.4%). Of the remaining 480 respondents, a total of over 42 other countries were represented. Where appropriate, the data is compared to the 1998 Violence & Discrimination Survey Against Sexual Minorities which collected over 1,000 responses to similar questions over the course of a year. The 1998 survey did not cover business or event-related experiences of harassment, nor did it ask about Internet experiences. The 2008 survey also included more questions about sexual activity and identity.
|Table 1. Gender||2008||1998|
|Table 2. Sexual Orientation
A total of 1,146 (37.5%) respondents indicated that they had either been discriminated against, had experienced some form of harassment or violence, or had some form of harassment or discrimination aimed at their BDSM-leather-fetish-related business. Of the respondents who reported some form of persecution,
- 476 (41.5%) identified as male
- 615 (53.7%) identified as female
- 9 (.8%) identified as intersexed
- 78 (6.8%) identified as transgendered
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
Of the 1,146 respondents who indicated that they had either been discriminated against or had experienced some form of harassment or violence,
- 380 (33.2%) identified as heterosexual,
- 440 (38.4%) identified as bisexual
- 292 (25.5%) identified as gay or lesbian.
- 97 (8.5%) indicated that they identified in some other way from heterosexual, bisexual or gay/lesbian.
(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)
The sexual orientation of respondents who were discriminated against or had experienced some form of harassment or violence is compared in Table 6.1 to the total percentage of respondents who identified their orientation. It is interesting to note that Gay/lesbian, Bisexual and Other respondents have slightly higher rates of persecution than their average percentage of total respondents, while Heterosexuals are less likely to be discriminated against.
|Table 3. Sexual Orientation
In 1998, the survey asked: "Are you completely 'out' about your involvement in sexual minority practices? "62% stated they were not "completely out." That is statistically almost the same as the 59.5 and 59.7% of respondents in the current survey who said they weren't out to work and/or family.
11.3% (346) of the total number of respondents (3,058) reported being discriminated against by professional or personal service providers. That is 30% (346) of the respondents who were discriminated against (1,146). Those respondents could check one or more of the specific ways they were discriminated against (Table 8.), with 48.8% discriminated against by a medical doctor, and 39.3% discriminated against by a mental health practitioner.
|Table 4. Discrimination by Professionals|
|Mental health practitioner||39.3%|
|Police or govt. employee||25.4%|
|Other Professional service provider||8.4%|
|Other Personal service provider||6.1%|
In total, 203 (6.6%) respondents stated their business had been harassed or discriminated against.
Respondents could check one or more of the specific ways they were discriminated against
|Table 5. Business Discrimination|
|Negative media coverage||26.1%|
|Harassment by police/author||22.2%|
|Harassment by neighbors||20.7%|
|Harassment by organizations||20.2%|
|Loss of lease||17.7%|
|Refused credit card services||14.8%|
|Loss of business||13.8%|
|Refused insurance coverage||8.9%|
|Loss of occupancy certificate||4.9%|
When asked, "Have you curtailed your use of the Internet for fear of prosecution?" More than one-third of the respondents, 1,065 (34.8%) of the 3058 respondents, said "yes". Respondents could check one or more of the specific ways they curtailed their Internet use (Table 10.).
|Table 6. Curtailed Internet Use|
|Didn't post image||71.5%|
|Didn't visit website||45.7%|
|Didn't post text||43.4%|
|Didn't link to website||38.7%|
|Didn't join email group||31.0%|
|Posted 18-over warn||25.7%|
|Didn't add meta-text||8.0%|
9.3% of respondents, 285 out of the total returned surveys, reported that US 2257 had an impact on their use of the Internet. Of the 1,065 respondents who indicated that they had curtailed their use of the Internet regarding BDSM activities, 214 (20.1%) reported that US 2257 was a significant reason for that curtailment.
When respondents who experienced violence and/or harassment were asked, "Did you press charges?" 90% said no as compared to 96% of the respondents in the 1998 survey who did not press charges.
|Table 7. Reasons Declined To Press Charges|
|Fear of further harassment||41.0%|
|Fear of family disapproval||24.1%|
|Fear of job safety||22.2%|
|Fear of legal repercussions||21.9%|
|Fear of losing child custody||10.6%|
Copyright Susan Wright, Survey of Violence & Discrimination Agaisnt Sexual Minorities (2008)
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