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Consent Counts Resources

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.
"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. Click to get a PDF of "When the Levee Breaks"
"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. Click to get a PDF of "The Aftermath"
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  
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 Law Review Articles, click to open the individual PDF of this article. Sex Is Not A Sport: Consent And Violence In Criminal Law , 2001-2002 Beyond The Pleasure Principle: The Criminalization Of Consensual Sadomasochistic Sex , 2001-2002 Morality-Based Legislation Is Alive And Well: Why The Law Permits Consent To Body Modification But Not Sadomasochistic Sex , 2006-2007 The Right to Be Hurt: Testing the Boundaries of Consent , Febuary 2007  Pain, Pleasure, And Consenting Women: Exploring Feminist Responses To S/M and Its Legal Regulation in Canada Through Jelinek's The Piano Teacher , 2007  Consent to Harm , 2007-2008 Autonomy, Dignity, and Consent to Harm , 1/29/2008 The Moral Limits Of Consent As A Defense In The Criminal Law , 2009   
Law citations dealing with consent, compiled by the NCSF Consent Counts Project  Alabama  Alaska  Arizona  Arkansas  California Colorado  Connecticut  Delaware  D.C. Florida Georgia Hawaii Idaho  Illinois  Iowa  Kansas  Kentucky Louisiana  Maine  Maryland  Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York N. Carolina N. Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island S. Carolina S. Dakota Tennessee Texas Utah Vermont Virginia Washington W. Virginia Wisconsin Wyoming     Click to download a PDF of this document State Assault Consent Definitions Cases AL 13A-6-20 (1st degree) 13A-2-7  13A-1-2    13A-6-21 (2nd degree) (physical injury, serious physical injury) 13A-6-22 (3rd degree)   AK 11.41.200 (1st degree)   11.81.900 (serious physical injury, reckless)   11.41.210 (2nd degree) 11.41.220 (3rd degree) 11.41.250 (reckless endangerment) AZ 13-1203 Simple Assault       13-12-4 Aggravated Assault   AR 5-13-201 1st degree battery   5-1-102 definitions   5-13-202 2nd degree battery 5-13-203 3rd degree battery 5-13-204 Aggravated assault 5-13-205 1st degree assault 5-13-206 2nd degree assault 5-13-207 3rd degree assault   CA Penal Code 241 Assault, Punishment   Penal Code 7 Words and Phrases defined   Penal Code 243 Battery, Punishment Penal Code 240 Assault Defined Penal Code 245 Assault with deadly weapon or force likely to produce great bodily injury Penal Code 242 Battery Defined     CO 18-3-202 (1st degree)       18-3-203 (2nd degree) 18-3-204 (3rd degree) 18-3-208 (reckless endangerment) CT 53a-59 (1st degree)   53a-3 (serious physical injury, recklessly)   53a-60 (2nd degree) 53a-61 (3rd degree) 53a-63 (reckless endangerment 1st degree) 53a-64 (reckless endangerment 2nd degree) DE 11 Del Code 611 (3rd degree) 11 Del. Code 452 Consent of victim to inflictions of physical injury as defense 11 Del Code 222   11 Del Code 612 (2nd degree) 11 Del Code 613 (1st degree) 11 Del Code 603 (reckless endangering 2nd degree) 11 Del Code 604 (reckless endangering 1st degree) DC 22-404 (Assault)   No definitions section in this particular subchapter – “Serious bodily injury” defined elsewhere   22-404.01 (Aggravated Assault) 22-407 (threats of bodily harm)   FL 784.011 Assault       784.021 Aggravated Assault 784.03 Battery, Felony battery 784.045 Aggravated Battery   GA 16-5-20 Simple Assault   Definitions contained within the statutes   16-5-23 Simple Battery 16-5-23.1 Battery HI 707-710 Assault 1st degree 702-734 Consent to Bodily Injury 707-700 definitions related to offenses against the person   707-711 Assault 2nd degree 707-712 Assault 3rd…
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