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Nebraska v Van

An argument based on Lawrence v. Texas was rejected in the Nebraska case of State v. Van, 268 Neb.814 (2004).  Van was convicted of first-degree assault on the basis of an extended imprisonment and extremely intense BDSM/torture of a gay male submissive.  The submissive initially consented to practices that were quite intense, but the evidence was in conflict as to whether he later withdrew that consent.  On appeal, defendant Van argued that this was a case of “two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle” and as such was protected under Lawrence v. Texas.

Rejecting that argument, the court made three points.  First, it noted that the Lawrence opinion contained a phrase that its doctrine only applies “absent injury to a person”.  Second, the court emphasized that the evidence on the issue of consent was not clear-cut.  Finally, and most fundamentally, the court held—citing the other decisions discussed in this paper—that consent is not a defense to a charge of assault:

Our statutes defining first and second degree assault include no reference to consent…This court has held that “all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault”.

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Consent Counts: We're Making a Difference

  • Completed Federal and State Legal Research
  • Developed Educational Programs and Outreach Materials
  • Built Alliances With Sexual Freedom Advocacy Groups

About Consent Counts

NCSF is leading a major national campaign—Consent Counts—to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.

  • BDSM is prosecuted as assault in the U.S., even when it is consensual.
  • No state or appellate court has allowed consent as a defense to assault in BDSM cases.
  • Consent Counts is a nationwide project to decriminalize consensual BDSM.
 
Program Goals:
Consent Counts
is a nationwide project to decriminalize consensual BDSM through education, advocacy, legal actions and lobbying.

 

Contact:
Judy Guerin
Director, Consent Counts 
 
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