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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." Click to open Subject Index, Table of Authorities & Amicus Brief Click to open Miles Motion Click to open Miles Brief Click to open Goverment Brief Click to open Defense Response
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. Click to download a PDF of the case.
A recent Rhode Island decision, State v. Gaspar, reversed a BDSM assault conviction on evidentiary grounds that related in part to the issue of consent.  While the court did not discuss the issue of consent with any specificity, the decision contains the following assessment of the central issue in the case: The evidence adduced at the trial of this criminal case included testimony concerning a multitude of unconventional sexual practices but ultimately presented only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault? State v. Gaspar  982 A.2d 140, 141 (R.I.,2009) Click to open Rhode Island V Gasper PDF
In Govan v. State, 913 N.E.2d.237 (Indiana Appeals Court 2009), the defendant (Govan) was convicted of both assault and battery, based on a BDSM incident in which he “punished” the victim (A.H.) by branding her with a hot knife and whipping her with an electrical extension cord.  The appellate court rejected Govan’s argument that A.H.’s consent was a defense to his conduct.  First, it ruled that consent could not be a defense to the assault charge.  Second, although the court acknowledged that consent was a valid defense in a battery case having “sexual overtones”, it found that the use by Govan of a knife invalidated the defense: Turning to the case at hand it is undisputed that it involves sexual overtones.  Notwithstanding those overtones, A.H.’s consent is not a defense to the crime because Govan’s actions involved a deadly weapon,...namely a knife, and therefore A.H.’s consent is not available as a defense to battery.  Govan, 913 N.E.2d at 242-243. Click to open Govan v Indiana PDF
In this case, the defendant’s lawyer sought to invoke the doctrine enunciated by the Supreme Court in Lawrence v. Texas, which held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime.  That argument was rejected. Click to open California v Febrissy PDF
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”. Click to open Nebraska v Van PDF
Lawrence v. Texas, a landmark U.S. Supreme Court case for privacy and sexual freedom rights, held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime.  Attempts to argue Lawrence in appellate cases related to BDSM have been unsuccessful to date.  Click to open Lawrence v Texas PDF
People v. Jovanovic was a New York case involving an intense scene between a man and a woman who had previously engaged in extensive Internet discussion of their BDSM interests.  The scene apparently went bad, and the woman went to the police.  Mr. Jovanovic was tried and convicted of assault, sexual assault and kidnapping and spent 20 months in prison.  Email correspondence regarding their pre-negotiations was excluded under the rape shield laws.  The Court of Appeals, although it reversed the convictions on evidentiary grounds, very explicitly stated in a footnote that consent, while available as a defense to the charges of kidnapping and sexual assault, was irrelevant to the assault charge: There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v. Duffy, 79 N.Y.2d 611, 584 N.Y.S.2d 739, 595 N.E.2d 814), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v. Brown, 154 N.J.Super. 511, 512, 381 A.2d 1231, 1232; People v. Samuels, 250 Cal.App.2d 501, 513-514, 58 Cal.Rptr. 439, 447, cert. denied, 390 U.S. 1024, 88 S.Ct. 1404, 20 L.Ed.2d 281; Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051; Iowa v. Collier, 372 N.W.2d 303). People v. Jovanovic  263 A.D.2d 182, 198, 700 N.Y.S.2d 156, 169 (N.Y.A.D. 1 Dept.,1999) It is important to note that the Jovanovic court cited the Samuels, Appleby and Collier decisions, confirming that the prevailing view is that there is a settled  Click to open New Yort v Jovanovic PDF
Some cases arising from BDSM incidents have been prosecuted under the criminal charge of battery.  Battery, unlike assault, does not necessarily involve an attack by one person against another.  The crime of battery is injurious touching or striking of one person by another.  Thus, in battery cases, there is an issue as to the context in which the injurious touching or striking occurred.  As the Court of Appeals of Indiana stated in Helton v. State, 624N.E.2d499(1993) at 514, n.22: Consent is connected with the harm or evil sought to be prevented; therefore, if the victim consents to the defendant’s touching, that touching is not rude or insolent and should not be considered unlawful unless it meets one of the exceptions to the general rule. The exceptions to the general rule (in Indiana) that consent is a defense to battery, and specifically is a defense available in cases “involving sexual overtones”, are as follows: (1)       Where the defendant goes beyond acts consented to; (2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as, as where there are no sexual overtones and the battery is a severe one which involves a breach of the public peace, as well as, an invasion of the victim’s physical security;  (3)  Where consent is ineffective as where it is obtained by fraud or from one lacking legal capacity to consent; (4)  Where a deadly weapon is employed; (5)  Where death results; or, (6)  Where the battery is atrocious or aggravated.  [Helton 624 N.E.2d at 514, citing Jaske v. State, 539N.E.2d 14, 18 (Supreme Court Indiana 1989).] The concept here is that touching or striking, unlike an attack, is not inherently criminal.  (Similarly, the conduct underlying the offense of rape—sexual intercourse—is mutually pleasurable conduct when consensual, and becomes criminal only in the absence of consent.)  Thus, when that conduct is consensual, even where some injury is caused, it is more palatable to find that such consent prevents the conduct from being a criminal offense. Click to open Helton v Indiana PDF  
In Iowa v. Collier, there were wildly differing accounts given of a BDSM incident, but the judge refused to let the jury consider the question of consent.  The Appellate Court upheld the conviction and ruled that consent was not a defense.  Significantly, the Iowa law on assault was in most ways similar to the Model Penal Code. Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such 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 act shall not be an assault. I.C.A. § 708.1 The court’s moralistic tone in rejecting the consent defense is a good illustration of the type of thinking that seems to underly most judges’ handling of BDSM assault cases: The foregoing discussion compels us to conclude that, in the present case, the legislature did not intend sadomasochistic activity to be a "sport, social or other activity" under section 708.1. We are hesitant to give a precise definition of this term and believe it is more appropriate that its meaning be interpreted on a case by case basis. However, it is obvious to this court that the legislature did not intend the term to include an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society. In fact, the statutory provision in question specifically excludes activities which would "create an unreasonable risk of serious injury." There can be little doubt that the sadomasochistic activities involved in this case expose persons to the very type of injury deemed unacceptable by the legislature. Were we to follow defendant's broad interpretation of "social activity," street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society. State v. Collier  372 N.W.2d 303, 307 (Iowa App.,1985) Click to open Iowa v Collier PDF  
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). Click to open Massachusetts v Appleby PDF  
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. Click to open California v Samuels PDF  
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