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Going To Jail: The Bagley Prosecution’s Bad Motion

December 6, 2012
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Did you know that putting a dildo in a consenting partner’s ass is a “sadistic sexual assault” according to one federal prosecutor’s office?  Since then they have tried to rely less on that argument and supply alternative reasons to admit the same evidence, and I think they did so because it’s a bad argument and harmful to public policy, but they have not withdrawn it, and they should.  Edward Bagley is such a scary POS that I understand the impulse to get him by any means necessary.  But the prosecution is making arguments in this one instance that have impacts far beyond the facts of the case, and their implications are terrible.  I don’t know whether they are doing that because they are so focused on this one prosecution that they can’t see the forest for the trees, or if they don’t care what tree they chop down.  Let’s start at the beginning.

I said in my last Bagley post that I would have a companion post about something the prosecution tried to get into evidence.  This is very troubling to me.  I’ve been clear that I think Ed Bagley, if he did what the indictment says, both is unethical and belongs in prison.  That view has not changed.  But the enemy of my enemy isn’t really always my friend, and the prosecution in this case isn’t my friend just because Bagley is my enemy.  The prosecution, in trying to win the case, is trying to do something that harms all kinky people everywhere.

Prior Bad Acts Evidence

Here’s what the prosecutor wants:  to show the jury graphic evidence of the physically heavy s/m that Edward and Marilyn Bagley did together, even though Marilyn Bagley said it was consensual.  And they seek to admit it for “propensity”, to show that Edward Bagley is likely to have done what he’s accused of – forcing someone into sex work, etc. – because he did consensual BDSM with his wife.

Normally, propensity evidence isn’t permitted.  What are called “prior bad acts” are generally inadmissible under the  federal rules of evidence, unless they go to specific things that are not propensity.  Those things are set forth in specific exceptions, such as a common plan.  (There’s a mnemonic many of us learned in law school, the “MIMIC” rule: Motive, Intent, lack of Mistake, Identity, Common plan.  So for example, Zorro’s trademark of carving a Z on people’s chests could be admissible if there’s a z-shaped dueling scar on the complaining witness and Zorro said, “hey, I was just defending myself and I ended up making a z-shaped mark by accident.”)  There are other reasons for evidence of prior bad acts to come in, and as the motion got briefed, the prosecution turned primarily to reliance on those other arguments.

There is a specific rule that creates an additional exception to this general exclusion, one just for sex offenses.  Federal Rule of Evidence 413 says:

(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

***

(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:

(1) any conduct prohibited by 18 U.S.C. chapter 109A;

(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;

(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;

(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or

(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).

[Underlining mine.]  The rule requires notice, so the whole thing kicked off with the prosecution’s notice that they wanted to rely on FRE 413 to admit some evidence.  Note, because it is important, that subsections 2 and 3 require the absence of consent (and so does 1, because absence of consent is part of the statute referenced), but 4 and 5 don’t.  Think about the implications of (d)(4) if read the way that the prosecution wants to read it —  but I’ll come back to that.  What they said they wanted to use were mostly photos and video that the Bagleys took of their own private play.

Here’s what the prosecution originally said it wanted to demonstrate:

Specifically, the government intends to introduce evidence, including testimony, photographs, and video, of the following sadistic sexual assaults committed by Defendant Edward Bagley against Marilyn Bagley:

1. Vaginal Suturing – sewing the vagina shut with wire/thread

2. Strangulation – hanging and strangling with rope

3. Suffocation – withholding oxygen by suffocating with a plastic bag

4. Anal Penetration with Foreign Devices

5. Binding – binding arms, legs, and throat with rope and materials

6. Needles – penetrating breasts with needles

7. Nailing – nailing breasts/nipples to objects

8. Collars – strangling with tightened dog collar

9. Ball Gag – choking with tightened ball gag in mouth/throat

10. Flogging – severe beatings with flogs and whips

[Docket No. 316, pp. 4-5 for folks with the capacity to pull the papers from the docket.  Bold mine.]

It has become apparent as the motion has been briefed that the focus is on the suffocation and strangulation aspects, which makes sense since the prosecution’s case is that FV’s heart attack was caused by suffocation and electricution.  And the descriptions of the evidence (they’re below in a long excerpt from the prosecutor’s briefing) are … deeply troubling.  They tend to indicate, at very best, a top who was willing to take extreme, stupid risks, the kind of person that even if it was all entirely consensual would develop in many public communities a reputation as a jackass who didn’t care about safety or didn’t know enough to care about it.

Leaving that all aside for later, some really problematic things stick out here.  First of all, anal penetration with a consenting partner (the prosecution concedes in its papers that Marilyn Bagley says she consented to the things they are trying to use, but they’re apparently taking the position that she’s lying about her own consent) as a “sadistic sexual assault”?  That’s horrifying.   Consensual anal penetration isn’t a sexual assault, it’s sex!  And it’s not a crime anywhere in the US! Lawrence v. Texas settled that, if not explicity as to foreign objects, then by obvious implication.  As a matter of constitutional law, that kind of activity between consenting adult partners is definitely not assault. How could a judge seriously allow the prosecutor, in 2013 (when the trial will happen) to argue that because someone likes to stick a dildo in his partner’s ass, he is a criminal and has a propensity to rape?

The defense responded with a motion to keep this stuff out (Docket No. 336), and in part pointed out that the prosecution’s facts were not unchallenged.  The defense says that the  photos of suturing are actually just photos of wire or thread laced through the holes from permanent genital piercings, for example, and that the nailing photos were likewise either staged or used existing piercing holes.

The suturing and piercing stuff doesn’t seem to me problematic, and the prosecution’s attempt to use it is troubling.  It can be done relatively safely, and shouldn’t do permanent damage.  Even if the suturing was done with a needle rather than lacing existing piercing holes, so what?  It hurts, but some people enjoy pain.  Under the broadest reading of FRE 413, without proof of violation of consent, the mere fact that one hurts a partner and likes it tends to prove propensity to sexually assault.  If that’s true then by federal statute my wife has a propensity to sexually assault, which shows how intellectually bankrupt that interpretation is.  Some of us do pain play specifically because the bottoms enjoy and find moving and intimate those experiences; not over their objection but at their behest and for their fulfillment.

So the core of the argument is that the prosecution wants to be able to argue to the jury that doing genital suturing with a willing partner means that someone has a propensity to force that on an unwilling victim.  Now, let’s remove the shockingly unfamiliar acts (well, maybe not to some of my readers) from that.  Could the prosecution argue that a history of penis-in-vagina intercourse with one’s spouse means that one has a propensity to stick one’s penis in an unwilling person’s vagina?  The logic of the implication is the same, but no judge would ever accept that argument, because most folks have a history of penis-in-vagina intercourse and we all know that most people who have PIV with a willing partner don’t also rape people.  It would be absurd to suggest otherwise.  Yet the argument that consensual anal penetration with a dildo is admissible under FRE 413 is almost exactly that.  So is the argument that using a ball gag is admissible under FRE 413.  So is the argument that using a collar is admissible under FRE 413.

To have even a straight-face level of plausibility, the 413 argument relies on shock value: on the disorientation produced by the rarity, unfamiliarity and physical severity of the kinds of s/m the Bagleys did.   Effectively, that’s the bigot argument.  And I think that’s why the prosecution has shifted mostly to reliance on other grounds, and rightly so.

This is not what FRE 413 was meant to do.  413 was meant to allow the jury in a rape case to know if the defendant had raped someone else, because really what better evidence could a jury have that a defendant’s consent defense was bullshit than that he had previously been convicted of rape?  Or to tell a jury that a child molester had molested before, so they could be sure that if he said that the allegations were all made up, they could discard that.  Those are actually somewhat controversial propositions among legal academics, because the jury is so likely to be swayed by propensity evidence or simply to not care whether the defendant did it this particular time if the defendant did it before.  But as usually applied, FRE 413 is pretty narrow.

Here, however, the prosecution is relying on subsection (d)(4), and reading it so as to require no crime that ought to be a crime.  That’s really bad.  That’s the part that says my wife has a propentity to rape.  See, the main test of FRE 413 requires a prior crime that is a sexual assault, but it does not require a conviction, though the rule is more typically used to put in prior convictions.  When we think of a criminal sexual assault, we don’t think of consensual conduct, because consensual sexual activity among adults shouldn’t be criminalized.  We largely crossed this bridge in Lawrence v. Texas, over Scalia’s raging dissent.  So it’s really novel for the prosecution to try to put something in as 413 evidence where all the people who were involved in it, including the alleged victim, say it was consensual.  Novel, and dangerously wrongheaded.

The prosecution needs the photos and videos to be of a criminal sexual assault in order to get it in under FRE 413 , and so makes an awful argument: that what they do together is inherently unlawful, even if they both consent before, during and after.  (The prosecution doesn’t actually concede consent as a matter of fact, saying that Marilyn Bagley was coached and is still under Ed’s abusive control, a claim that I have no ability right now to evaluate.  This is a fork in the road for the Court to take, and I’ll return to that: the Court can either decide as a matter of fact whether Marilyn Bagley consented, or decide that it doesn’t matter if she did.  Both are unattractive prospects, but for different reasons.)  But the prosecutors say they win even if she consented:

Unlike the victim, Defendant Marilyn Bagley has maintained that she “consented” to the sexual assaults Defendant Edward Bagley inflicted upon her. Marilyn Bagley’s “consent” to the sexual assaults by Defendant Edward Bagley does not change whether the acts legally constitute assault or not. Pursuant to the Missouri state assault statute, V.A.M.S. 565.050, consent is not a defense to assault resulting in serious physical injury.

[Docket No. 316, p. 6 n.5.]

Is BDSM A Crime?

I don’t want to turn this into a post about the criminalization of kinky play, so I’ll just summarize, leaving out a lot of interesting details and digressions.

As the defense later pointed out, the statute referenced requires “serious physical injury or death”. (Docket No. 336, p.4.)  But this argument that consent is not a defense to assault isn’t made up out of whole cloth.  There’s a whole history about the legality of consensual BDSM, and two camps within kink communities to the extent people know the cases.  On the one hand, the argument that what we do is still persecuted criminal activity goes like this:

There are a whole bunch of cases, including all the appellate cases to address it, that say that consent isn’t a defense to a charge of assault in a BDSM context.  Some of those cases are old and all of them have “bad facts”, but they are the law, and there are no more recent cases to cite for the other side.  So it’s still the law, and even if prosecutors generally don’t go there, we need to change it.

For a deeper dive into this, you can read NCSF’s publication on the topic.  I would prefer a “state of the law” that goes into further description of the cases; I read most of these sometime in the Clinton administration and I know the facts, but I have not had time to sit down and write it the way I think it should be written.  Here is the argument for the “nobody is kicking down our doors” side, which I’m firmly on:

All the cases in the past twenty years that address BDSM as criminal assault are cases where the victim testified that the conduct was nonconsensual; prosecutors have very rarely considered and have never tried to verdict a case where all the participants to the acts agreed at the time of trial that they were consenting the whole time, and they absolutely will not do so because if a court were to consider that scenario in a post-Lawrence world, they face a serious likelihood of making law that says consensual BDSM is not assault.  In fact, in the “Paddleboro” case about twenty years ago which really did amount to a police raid on a play party full of consenting kinksters, the ultimate result was that all the charges relating to BDSM play as assault were dropped.  The reason there are not any appellate cases that say that consent in a BDSM context is a defense to assault is because no prosecutor in many years has been willing to press a case where the alleged victim will say that everything that happened was consensual, and as long as the victim’s cooperation is a practical requirement for prosecution, changing the law isn’t an immediate priority.

In general, the people on the two sides of this debate can be civil and find common ground and respect each other’s intelligence and good intentions, but it’s a difference of perspective and basically we just disagree.  So I’ll leave it at that for now.

So what does that mean for the Bagley FRE 413 evidence?  The prosecutors recognized in advance that they were going to get hit with the consent issue and its implications and they tried to head it off by saying that even if Marilyn Bagley consented, her consent isn’t effective as a matter of law.  The defense did in fact hit that issue head on, relying in part on Lawrence and also noting the limitation in the statute to “serious bodily harm” and saying that since Marilyn Bagley hadn’t been harmed seriously, that standard wasn’t met.

The Prosecution’s Response

The prosecution didn’t withdraw the FRE 413 argument, and keeps trying to justify it.  But they did propose every other reason to admit the evidence.  They said that the photos and videos of Ed and Marilyn Bagley were used as recruiting tools on FV; that they were shown to customers to entice them to pay Ed Bagley to let them watch or torture FV; that Ed Bagley used this material to try to lure other women; that the conduct between the Bagleys was such a part and parcel of what FV experienced living with them that it would distort the story to leave it out.  I’m not going to weigh in on how good I think those arguments are.  I sort of don’t care, because they don’t have the broad impact that the FRE 413 argument does.  Whether those arguments prevail or not are a lot more specific to facts that are not common to a broad array of the kinky community, and they are a great deal more sensitive to the facts of the particular case.  Whether the Court agrees or disagrees with these other grounds is of much less importance than that the Court reject the 413 argument.

The prosecutor’s opposition to the defense’s motion to keep this evidence out is Docket No. 352.  It plainly says that the evidence of Ed and Marilyn Bagley’s play is “first and foremost [] admissible as intrinsic evidence,” and only secondarily as FRE 413 propensity evidence. (p. 5.)

They also raise another ground for admissibility:  that Ed Bagley made a bunch of obviously bullshit statements about how he wasn’t so into BDSM, and didn’t have experience with certain kinds of play, until FV pushed him to up the level of harshness.  Nobody is going to buy that, and the prosecution says the videos contradict it, and they’re probably properly admitted for that purpose.  Again, that’s case-specific.

The renewed FRE 413 argument is really bad, though.  There’s a lot in here, especially facts that don’t appear elsewhere in the public record (and which I don’t necessarily take at face value but that may be true).  It’s an instance of bad facts making bad law:  at best, if this isn’t completely wrong on the facts, Ed Bagley is a reckless top who is lucky that he hasn’t actually kill his wife and had no business topping anyone.  At best.  And that’s the sympathetic read.

Still, this isn’t just about Bagley.  By going this route, the prosecution has made it about whether kinky people are inherently abusive and potential rapists, a stereotype too many people already have.  I’m not shy about saying that there are abusers in our communities; I wrote the seven-part There’s A War On series about it.  But our communities are not composed mostly of monsters and sociopaths.  Our communities are composed mostly of decent, ordinary, kinky people.

I’ll put in the text of the 413 section from the prosecution’s brief at length for people who can’t pull it off the docket.  Bold italics are my emphasis:

1. The Evidence Is Admissible Under Fed. R. Evid. 413 and 404(b)

In addition to being admissible as intrinsic evidence, the evidence also is admissible under Fed. R. Evid. 413, as detailed in the government’s Rule 413 Notice. The evidence at issue shows the Defendant violently assaulting Marilyn Bagley for his own sexual gratification. Alternatively, as noted in the government’s Rule 413 Notice, the evidence also is admissible under Fed. R. Evid. 404(b) because it shows “other act[s]” that are being offered to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” However, analysis under 404(b) is unnecessary because the evidence is admissible first as intrinsic evidence and second as Rule 413 evidence.

For purposes of Rule 413, an “offense of sexual assault” means a crime under Federal law or the law of a State that involved one of the four proscribed items listed in Rule 413(d). The Defendant’s assaults on Marilyn Bagley violate an array of state statutes, including, but not limited to, Assault in the First Degree (V.A.M.S. 565.050), Assault in the Second Degree (V.A.M.S. 565.060), Domestic Assault in the First Degree 1 In addition to being intrinsic evidence in the government’s case in chief, if either of the defendants testify at trial, it would also likely become relevant to introduce during cross examination. (V.A.M.S. 565.072), Assault in the Third Degree (V.A.M.S. 565.070), Domestic Assault in the Second Degree (V.A.M.S. 565.073), Domestic Assault in the Third Degree (565.074). The state of Missouri only allows consent as a defense to these state violations if “the physical injury consented to or threatened by the conduct is not serious physical injury.” V.A.M.S. 565.080. In this case, unlike the conduct accepted within the legally practicing BDSM community, the assaults upon Marilyn Bagley did result in serious physical injury. While it is wholly irrelevant whether state charges were ever filed, because the Defendant belabors the point in his motion, it should be noted that by the time the evidence of the assaults upon Marilyn Bagley was discovered in computer forensic examinations, federal charges were already filed and the evidence was in FBI custody.

The Defendant spends a significant portion of his motion repeating that Marilyn Bagley “consented” to his violent assaults2 and attempts to use this lengthy discussion to claim that the assaults did not involve one of the Rule 413(d) required subsections. However, while the definitions of “offense of sexual assault” under Rule 413(d)(1), (2), and (3) explicitly require contact without consent, the definition under Rule 413(d)(4) and (5), which the government relies on, do not. The defendant ignores the “or” included in Rule 413(d) which requires only one of the subsections to be met. Rule 413(d)(4) defines sexual assault as “deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain to another person” and Rule 413(d)(5) defines sexual assault as “an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).”

The Defendant further claims that the government cannot show that the Defendant inflicted bodily injury or physical pain upon Marilyn Bagley for purposes of Rule 413(d)(4). Bodily injury is defined in other federal statutes as “a cut, abrasion, bruise, burn, or disfigurement; physical pain; illness; impairment of a function of a bodily member, organ, or mental faculty; or any other injury to the body, no matter how temporary.” See, United States v. Myers, 972 F.2d 1566, 1572-73 (11th Cir. 1992). Missouri code defines “serious physical injury” as “physical injury that creates a substantial risk of death, or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” V.A.M.S. 556.061(28). The photographs and videos speak for themselves and go well beyond even the requirements of these definitions. Contrary to the Defendant’s assertions otherwise, the details and images the government intends to introduce do not depict the Defendant and Marilyn Bagley engaging in private and intimate sexual contact and intercourse. Rather, they show Defendant Bagley physically beating, strangling and mutilating Marilyn Bagley.

Defendant Bagley punctured her breasts and vaginal opening with so many needles and skewers that the images show her with fresh blood upon scabs and prior scars. One of her nipples was permanently ripped in two pieces. The long standing abuse eventually led to her hysterectomy. In many of images, Marilyn Bagley, who is restrained and hanging from the ceiling, loses so much oxygen that she becomes unconscious and lapses into seizures. Notwithstanding her obvious need for help, Defendant Bagley does not release her from the ceiling until he obtains sexual relief for himself; he leaves her dangling from a noose limp, blue in the face, and unconscious, as her brain continues to be deprived oxygen. During Marilyn Bagley’s proffer interview with the government,3 she stated, in direct contradiction to the videos, that she was never unconscious or restrained and that her hands were always loosely kept in front of her body. In fact, the videos show Defendant Bagley heavily restraining her, and he always has her hands tied behind her back. Further, Defendant Bagley reprimands her if she squirms or strains for relief in the restraints. The Defendant crudely represents this conduct as joint sexual pleasure of the parties. Whereas Defendant Bagley masturbates throughout the videos, none of these images depicts Marilyn Bagley deriving any sexual pleasure and often she is not conscious at all. Without delving into additional horrific details, it is sufficient to say that the Defendant’s represented notion that the conduct is role play or did not result in serious injury is easily refuted by the images themselves.

Furthermore, the Defendant mistakenly believes that the jury will be called upon to determine whether the Rule 413 evidence constitutes evidence of sexual assaults. As the Court is well aware, it is the province of the Court to determine whether evidence is admissible. Fed. R. Evid. 104(a). The jury will not be asked to “conduct mini-trial regarding unsupported allegations” as the Defendant claims. (Def. Mot. at 4.) Nor will “[t]he jury be required to determine whether an offense occurred and whether Edward Bagley is guilty.” (Def. Mot. at 10.) If the Court determines that the photographs and videos are admissible, the government will introduce them to show the Defendant’s power and control over women, his consciousness of guilt – because the evidence contradicts his statements to the FBI4 – his proficiency in strangling the victim to the point of unconsciousness without killing her, as well as his motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, and lack of accident.

Finally, the Defendant claims that the evidence is prejudicial and should be excluded under Rule 403. As discussed in the government’s Rule 413 Notice, where “evidence [of prior abuse] [is] so similar to [one of] the acts charged it would not be so facially inflammatory as to unduly divert attention from the issues of the case.” United States v. Gabe, 237 F.3d 954, 959 (8th Cir. 2001). The Defendant acknowledges in his motion that the “sexual activities [involving both Marilyn Bagley and the victim] may be similar.” (Def. Mot. at 10.)

Moreover, the evidence at issue is sufficiently probative. It goes to show the Defendant’s power and control over the victim, his consciousness of guilt, and his proficiency in strangulation and knowledge of such techniques, as well as the absence of any mistake or accident in assaulting the victim, his motive, opportunity, and intent for assaulting the victim, and his preparation and plan to commit the crimes charged. This probative value outweighs the danger of any unfair prejudice.

2 The government does not concede that Marilyn Bagley consented, despite the Defendant’s claim otherwise. Rather, as explained in the government’s Rule 413 Notice, the government only acknowledges what Marilyn Bagley has stated to that effect.

3 The evidence shows that she was coached by Defendant Bagley in advance of the interview.

4 Interestingly, the Defendant now claims in his motion that he and Marilyn Bagley participated in BDSM for years before meeting the victim, notwithstanding his denial of this fact to the FBI.

The jump-out part of this is the set of factual assertions: that Marilyn Bagley had a hysterectomy due to things Ed did to her, that one of her nipples is permanently bifurcated, that he restrained her hands, hung her by a noose until she passed out and seized, and continued masturbating.

The nipple bifurcation:  if deliberate, it’s a heck of a body mod.  People split tongues and penis heads, and I suppose one could decide to do that to a nipple.  But it’s a heck of a body mod, and not something any reasonable person would impose without complete buy-in from the person whose body is being modified.  If it was an accident, then that’s a really bad play accident and probably indicates that the top was an irresponsible asshole.

The hysterectomy:  I can’t even evaluate the prosecution’s claim.  What did he do that allegedly caused that?  I don’t have a clue.

The hanging:  Defense expert Jay Wiseman is on record as arguing that even strangulation not to the point of unconsciousness is very dangrous, much more than people realize, and can result in cardiac arrest without warning.  If this video looks like what the prosecution is describing, and it gets in, Wiseman is in a hell of a spot.  The judge may keep him far away from opining on particular acts that Edward Bagley did, which would make his life easy, but if he has to answer anything about the generally accepted risks of breath play, then the jury will get either through his testimony or his writing, a list of risk factors, all of which Bagley will have likely been on the wrong side of.  They’ll probably conclude that he didn’t really care if these women lived or died, including his wife.  That would be bad for him.

There are two purposes for putting these factual allegations in; text and subtext.  The text is that the conduct here is criminal because it meets the serious bodily harm and other criteria in the statutes.  The prosecution could do a lot of good here by simply acknowledging that they only think the stuff that left permanent scars or risked imminent death satisfies that criteria.  That would likely avoid a ruling that would harm most kinky people, and anyone thinking we can get the law to protect consensual play that leaves scars or risks death is kidding themselves.

The subtext is that Ed Bagley isn’t an ordinary joyous kinky person doing things that are fun for everyone involved, that the stuff he does is dangerous and grueling and doesn’t look or sound like fun, and these women were not getting off on it, and he enjoyed it not because it was mutual but because he’s a disturbing, twisted person.  That may well be true.  The descriptions work to create that effect, and if the videos do as well, he’s sunk.  The problem is that the issue on this motion isn’t guilt or innocence but whether it is true that consensual BDSM, however heavy, shows a propensity to be a rapist.  And if the prosecution and the Court are swayed by how bad a guy he is to make the rules of evidence more permissive so as to convict him, then they make a rule of law that someone else who is much different may have to live with.

What Will The Court Do?

Of course I don’t know, but I can analyze the possibilities. 

Ultimately, I think the Court will avoid ruling on the 413 argument.  There are two ways to give the prosecution what they ask for under FRE 413: either Marilyn Bagley’s consent is irrelevent and the acts between her and Ed Bagley are inherently criminal even if consensual; or she’s lying when she says it was all consensual.  I think this judge needs to wade into either of those like he needs a splitting headache and a stubbed toe.

The Court already held a short hearing on expert testimony and decided what Park Deitz and Jay Wiseman will be allowed to address.  He really showed no sign of wanting to settle questions of what are the acceptable bounds of BDSM.  He’s not going to let the jury hear testimony about whether the experts think the acts in evidence are acceptable under BDSM community standards, and while that doesn’t necessarily mean he isn’t willing to make those determinations himself, I really doubt he does.  To rule that consent isn’t relevant, he’d have to find that anal dildo penetration and ball gags and flogging are crimes even among consenting people — under state law, and he’s not even a state judge!  I just think he won’t do that.  And if he lets it in on that basis, it’s very likely to lead to reversal on appeal and a new trial if the appellate court disagrees about what is lawful for consenting adults.  That would give some of us the shot at the appellate law we’ve wanted for a long time.

The other way to go would be to find that these things might not be crimes if consensual, but Marilyn Bagley didn’t consent (even though she said she did.)  How would be make that finding, though?  He’d need an evidentiary basis.  What could the prosecution do to make that?  Ask Marilyn Bagley?  She doesn’t have to testify, and even if she did, she wouldn’t help them out.  She’s a defendant.  She’d either assert a Fifth Amendment privilege, or waive it and say she consented to every single thing in the photos and videos, even when it was hard to handle, even if it made her sob and scream.  So the prosecution doesn’t want that hearing, and I see no way for the judge to make a factual finding that her statements as to her own consent are false without evidence contradicting her statements about her state of mind, as to which, really, her own statements are the only evidence.  

So I expect that the Court will look to the prosecutions’ non-413 arguments to let as much of this in as is reasonable for those other reasons, and say that the rest is duplicative and more prejudicial than probative in light of what he’s already letting in.  So that’s my prediction.  And that’s good, because if he rules on the 413 and lets the photos and videos in on that basis, it will make an awful goddamned mess.

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3 Comments leave one →
  1. Alex permalink
    December 6, 2012 10:11 pm

    I don’t have access to anything except what you wrote here, but it seems to me that at least a number of those acts above would qualify as serious injury under the state law.

    “physical injury that creates a substantial risk of death, or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.”

    The hanging and suffocation both create “a substantial risk of death”. (let’s not get into the breath play argument. I don’t know anyone who disagrees that the bottom passing out and turning blue crosses the danger line) And the splitting a nipple does seem to fall under both “serious disfigurement” or “protracted loss or impairment of the function of any part of the body”. (especially if the statute is construed such that “of any part of the body” applies to both “serious disfigurement” and “protracted loss…”) For the rest, the prosecutor is obviously hoping the judge agrees that there was no consent.

    Regarding Lawrence, (which would seem like one obvious thing to bring up in response) it’s important to remember it just establishes the standard of review which is somewhere between rational basis and heightened scrutiny as I recall. Looking at the above-mentioned acts, (the suffocation and split nipple) I don’t think it would be hard to pass heightened scrutiny. The state clearly has an important interest regarding the health and safety of its citizens and prohibiting the infliction of serious physical injury is substantially related to that interest. (honestly, I think it would probably even pass strict scrutiny)

    Not that this makes me happy. I’d much prefer we be protected under the un-enumerated rights doctrine, but that’s not the world we live in.

    • Jeff permalink
      December 8, 2012 4:31 pm

      Consent is a defense to assault, however. That’s why, for instance, two boxers who may be engaging in activity that creates a substantial risk of death aren’t assaulting each other.

      • December 8, 2012 7:49 pm

        Short answer: No. Attempts to get courts to see a BDSM consent exception like a sports consent exception have not fared well, for a number of reasons. You can argue it, but courts have not generally found it persuasive. Lawrence is actually a much better ground.

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