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 and 120.05 (contrast, Penal Law § 120.05 [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