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Justice In Houston: Gregory Longoria Convicted

November 16, 2011

[Trigger warning for descriptions of intimate partner violence, graphic mutiliation, and use of BDSM as a cover for abuse]

I haven’t blogged about this because I wanted to see the outcome. There are too many stories about rape and abuse that end with the abuser walking and the accuser being publicly humiliated, and I was afraid this would be another. And because as it developed it became a BDSM story … well, sometimes I’m just too emotional about those to post.

This one ended in a conviction. It’s a sad and wierd tale. I’m happy about the conviction, and I don’t know what it means, but either of the two likely meanings are fine with me. I’m scared shitless of the appeal. I’ll get to that.

Back in February when he was arrested, the reports were that the victim was his ex-wife, and that he had a history of abusing her and a violent history in general. The account of the injuries were grizzly: [TW for Graphic, you can’t unread this] He was alleged to have burned her genitals so badly with an aerosol can and a lighter than she needed reconstructive surgery, and to have ripped her nipple off. It’s hard to tell from the media about the trial, but it appears that they didn’t demonstrate that the nipple was removed – whether or how badly it was damaged I can’t tell from the stories. Photos of some of the burns were shown to the jury. How bad they were is, again, hard to tell from the media I’ve seen.

The victim and this guy have a child together. They’ve reconsiled. Yeah, you read that right. It’s so depressing I just can’t say more about it.

So, perhaps predictably in this situation, this piece of shit employed a consent defense. She was kinky, he alleged. She consented, he alleged. We’ve heard that one before, and it would be easy enough to dismiss if it didn’t work sometimes.

The Victim As a Witness For The Defense?

Here’s the part that takes this case way outside the usual run of extreme and awful intimate partner violence (and sadly, there is a usual run of extreme and awful intimate partner violence). She testified for him. Sort of.

The defense said in opening that the victim would testify for him. And they wouldn’t say that if they didn’t have her agreement to do that. They couldn’t put her on as a hostile witness, could they? That would be totally self-destructive. The prosecution said, and I agree, that this kind of recantation can’t be trusted. She said at the hospital that she had been abused; she was only back with him and trying to help him, they argued, because she was terrified. That makes perfect sense. We probably all know that the time when a woman in an abusive relationship is most likely to be killed by a male abuser is when she tries to leave.  She had left, and he had done permanent damage to her, and she had no reason to believe anyone could keep her safe.

But she didn’t really testify for him. Not in my eyes. She said they had done BDSM before, and even some fireplay, but that he had gone “overboard” and “way too far.” She said that she hadn’t realized until the next day how injured she was, and had been very upset at the hospital. All the things she said about being afraid of him and abuse when the police had questioned her, she couldn’t remember. I don’t care about that. She didn’t say the only thing she could have said that would have mattered to me. She didn’t say, “it was all consensual and he didn’t do anything I didn’t want him to do.” In these circumstances, since she didn’t say that, all the rest is details.

His attorney must have known it was over at that point, too, because she didn’t try to build up the woman’s credibility. She didn’t get her on record as saying that the injuries were accidents but the conduct was consensual and then argue, “see? no crime here, just a tragic accident among consenting adults.” Instead, she attacked the victim, trying to impeach her credibility with such classic tropes: for example, that the defendant hadn’t done anything for Valentine’s Day, and she said he abused her because she was angry. Classic crazy-scorned-woman tales, that could be safely ignored if those, too, didn’t work so often. I guess those arguments work better when the victim doesn’t have third degree burns.

The jury was out for about three hours and convicted, and they’re in the penalty phase now, where life is a possibility. He has prior weapons violations. Nobody will really be sorry to see him behind bars, probably not even the victim.

The jury, to my eyes, could have believed either of two things, and either one is fine with me. (1) this asshole violent criminal kidnapped and brutalized his estranged wife, and she’s so terrified that he’ll do it again or kill her that she’ll say anything she needs to to pacify him, even if it helps his defense against her. If that’s why they convicted, good, because I think that’s what’s probably going on here. 85%. Or, (2) this woman consented to some things with her violent asshole ex, for whatever reason, but what she agreed to and what he did were nothing like the same thing. If they believe that, they’re taking her at her word, and I’m good with that, too.

To me, the real good news, the real headline, is that even though the jury knew that the woman was kinky and that her injuries were caused by her ex, they still convicted.  Even with serious injuries, I wasn’t sure it would go that way.  I do think it’s a concern that a jury will just abandon a kinky woman, deciding they don’t care what happens to women like that, or that up for something means up for anything (which amounts to the same thing).  That didn’t happen here, so that’s a win.

This Appeal Could Be Trouble

I can’t breathe easy, though.  Given the testimony, an appeal is a certainty, and the appeal will almost certainly allege that the victim’s testimony is at least ambiguous as to the scope of consent.  That’s bullshit, but it’s a fact issue.*  Courts tend to end-run fact disputes in criminal appeals by ruling on the law.  The easiest way for the Court to resolve it will be to say that as a matter of law, even if consensual it’s still criminal.  And what they say there, depending on how broad it is, could be a big problem for those of us consenting adults who play in the deep end of the pool.  They will probably say that third degree burns are serious bodily harm, or whatever the Texan equivalent is, and that can’t be legally consented to.  That might make branding a crime (someone with a good knowledge of Texas law of assault and consent out there want to fill in the specifics?).  But that doesn’t affect too many truly consensual acts.  But they could also say that there is no consent to assault, that basically all painplay is criminal.  Don’t laugh that off; they could say that.  And then how does a woman who has been abused in a kinky relationship seek help?  She’s aided and abetted every scene, and only objects to the parts she didn’t consent to.  That’s been done before; in the UK, in Operation Spanner in the 1990s**, the men who were bottoms in the videos were convicted of aiding assaults on themselves. 

*No ethical top would agree to the injuries here even if consensual.  People making life-altering body modification decisions don’t and won’t use an instrument as unpredictable as open flame — even branding uses much more controllable tools, and most brands are multi-strike with a very small, controllable tool.  On the other hand, if someone agrees to do fireplay, doesn’t have a clue what they’re doing and causes third degree burns, you can measure my sympathy in micrograms.  Ethical tops don’t cowboy dangerous play, and tops who cause injuries that require medical treatment go with the bottom to make sure the medical professionals have all available information to treat the injuries. 

**Many commentators believe that Spanner was motivated by homophobia in the legal system of England and Wales, as the cases concerning male-female couples have produced some inconsistent results.

4 Comments leave one →
  1. November 16, 2011 9:59 pm

    Kansas City used to have pretty good BDSM community but not any more thanks to assholes like this.

    We had a man of pure evil called Robinson.

    Good post on a terrible subject.

  2. Kinky Lawyer permalink
    November 18, 2011 9:59 am

    I doubt that they’ll rule that there is no consent to assault, since the Texas Penal Code explicitly grants that as a defense.

    victim’s effective consent or the actor’s reasonable belief that
    the victim consented to the actor’s conduct is a defense to
    prosecution under Section 22.01 (Assault), 22.02 (Aggravated
    Assault), or 22.05 (Deadly Conduct) if:
    (1) the conduct did not threaten or inflict serious
    bodily injury; or
    (2) the victim knew the conduct was a risk of:
    (A) his occupation;
    (B) recognized medical treatment; or
    (C) a scientific experiment conducted by
    recognized methods.

    It’s possible that the “threaten or inflict serious bodily injury” could be expanded to include most BDSM activities, but if it is, it probably won’t come from this case.

    • November 18, 2011 2:26 pm

      That’s pretty good. I would say unless a court is going out of its way to cause problems for kinksters, they’re likely to find that consent is a defense in BDSM scenes unless there’s actual or threatened serious bodily injury. Litigating the meaning of “threatened” could be hairy, as it could turn on what an instrument itself was capable of, or on as used. For example, if I had to mount a defense of a kinkster for consensual single-tailing, I might first hire a lab to measure the force as applied by a skilled practitioner in as-used conditions and then get a doctor to opine that those forces do not threaten serious bodily injury, but if I were the prosecutor I’d argue that “threaten” meant that the whip itself was capable of serious bodily injury. Same with knife play, for example: obviously knives can cause serious bodily injury, but if used properly by an experienced top the risk of unintentionally causing serious bodily injury should be minimal.

  3. lalouve permalink
    November 18, 2011 10:15 am

    We ha a Swedish case which did give me some hope: two men were convicted of rape of a woman, despite the fact that they had done BDSM before, were doing it at that point, and that it started out consensal. The court (we don’t have juries) essentially ruled that ignoring a safeword constitutes rape.
    In another recent case, about which I’m more ambiguous, the top walked, as it was ruled not to be aggravated assault, to which you can’t consent. You can consent to assault, though. That guy struck me as a dangerous top: playing hard with a 16-year-old (he was in his 30s) with a history of self-damaging behaviour is a bad decision, though I agree it should not be a criminal one. I just wish the BDSM cimmunity would be a little less happy and a little more critical of the situation: there is the law and then there are ethics.

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