Going To Prison: What’s Jay Gonna Say?

It has been a while since I wrote anything to update folks on the Bagley case.  The last I wrote,three defendants had pleaded guilty, and now every defendant not name Bagley had pleaded guilty to a felony and is going to be sentenced to prison; three of them agreed to cooperate and the fourth was so toxic that his cooperation wasn’t useful.

Two major things have happened since then.  The first concerns the prosecution’s attempt to introduce evidence that I believe is inadmissible, in order to make arguments that I believe are improper.  I will discuss that in a separate post.

The second, which I’ll address here, is the jousting over expert witnesses, which produced last Friday the Court’s ruling that the defense could hire Jay Wiseman, author of SM 101 and greybeard of the Bay Area het BDSM scene, as an expert witness to testify at trial.  This is interesting because Jay Wiseman was, before the internet era, a whole lot of people’s introduction to the BDSM community, and remains tremendously influential.  Aside from the book, which is still an oft-cited resource, Wiseman serves on the board of the National Coalition for Sexual Freedom, the closest thing kinksters have to a national political and cultural lobby. [Sorry, that’s not correct].

Just to back up, for folks who have not read all the things I’ve written about this case, I want to cover the basics:

(1)    What Bagley is primarily charged with is a federal sex trafficking violation, that is, forcing someone into sex work.

(2)    The person he is alleged to have forced into sex work, called FV, was a teenager when this all started, a foster kid who dated his son and then moved into his home when she was 16.  At 18, she signed, allegedly under duress, a “slave contract” that lasted forever.

(3)    FV has some sort of mental or cognitive disability, and we don’t know what or how serious.

(4)    Some of the physical things he is alleged to have done are very heavy play:  electrical play with hand-crank telephones, genital suturing.  Seriously painful stuff.

(5)    He is also alleged to have made death threats, surveilled  her with the help of others,  killed pets to terrify her.

(6)    He was arrested after FV ended up in cardiac arrest, in a hospital, allegedly after both suffocation and electrical play.

Folks who want to read the original indictment, it is here.  If you want to read my original post, about ethics and the indictment, it is titled Not What We Do.

First of all, either the prosecution can prove facts that make out the elements of the offense, or it can’t.  That’s why we require a trial to convict people and not just a Grand Jury indictment.  There is no real question that the prosecution can prove that Bagley (and his wife, who is his codefendant) did some extremely painful things to FV and that she did various kinds of sex work.  What it comes down to is consent.

I’ve taken the position that the conduct alleged in the indictment constitutes indefensible ethical violations for a number of reasons.  As to criminal violations, I agree that it all comes down to consent.  If FV took the stand and said, “everything that was done to me was part of a BDSM dynamic that I wanted and that I chose to remain in even though I knew I could stop at any time” then I’d say, however poor some of their choices, the Bagleys should be acquitted.  I don’t think that’s going to happen, because the cooperating witnesses and almost certainly FV are going to say that she couldn’t stop anything.  But if it did, I’d be for acquittal.

The Court’s Ruling on Expert Testimony

So what about these experts?  The prosecution hired Dr. Park Deitz, celebrity expert witness best known for the Hinckley and Jeffrey Dahmer cases.  He’s a very polished expert.  I think he thinks he knows something about the BDSM community, and I doubt that he really does.  He’s spent his life studying people who kill and nonconsensually harm people, and I suspect that whatever learning he’s done on the BDSM community is a bolt-on to pathologizing notions he’s developed.  But I could be wrong.

The defense sought funds to hire Jay Wiseman to counter him.  The Court wasn’t really sure it was a good idea to have either of them testify.  The Court held what’s called a Daubert hearing:  that’s a hearing for the purpose of determining what expert testimony is admissible.  It only went about a half hour.  The ruling the Court made is this, in relevant part:

…both the Government and the Defendant’s respective experts may testify about their understanding of: (a) the general definition of BDSM, and (b) the type of conduct and activities that BDSM practitioners generally engage in.  This testimony is admissible because the Defendants argue that the conduct complained of was consensual BDSM activity.  Many potential jurors, however, will likely have little knowledge about BDSM.  Without that background, the jury may “be hard pressed to understand how an individual could consent to such out of the mainstream sexual activity.” []

…expert testimony will not be admitted on whether the conduct in this case falls within or outside the BDSM subculture.  Competing expert testimony on this point is unnecessary as the main issue is whether the alleged victim consented to the alleged conduct, not whether that conduct conformed to typical BDSM activities… After being educated on BDSM generally – and to the extent it bears on the issue of consent – the jurors may give any perceived conformity or nonconformity the weight they believe it is entitled to.

4:10 cr 00244-DW (W.D. Mo.), Docket No 385, for those with Pacer access who want to go get the opinion.

What does that mean?  There’s a range of what it could mean.

One thing it definitely means is that Wiseman will be allowed to tell the jury that they shouldn’t assume conduct is nonconsensual because it’s physically painful and even very heavy.  Mentally healthy and non-evil people, I assume he will say, sometimes do very painful stuff, and if they have enough understanding to make reasonable judgments about risk and how to control it, and if the parties all consent to the activities, there’s not a thing wrong with that.  That’s what I expect he’ll say.  And I think that’s properly admitted.  Some jurors won’t come in knowing that some people consensually do things like play piercing or heavy flogging and wouldn’t believe without some evidence that those things are ever consensual, so that testimony is important.

Another thing is clear from the Court’s ruling.  Neither side’s expert will be able to say, “I’ve looked at the facts of the case, and this is consensual/not consensual.”  The judge has foreclosed that absolutely, and rightly so.

But there’s some wiggle room in between.  The words “not whether that conduct conformed to typical BDSM activities” may do a lot of work, or just a little.  The reason that the Court is not allowing the “I’ve examined the case …” conclusion is because the norms of the BDSM community are not law, and what Wiseman thinks or Deitz thinks the “community” would accept as consent isn’t final as to what is consent.  But it is unclear how much leeway the experts will have to address particular activities as a general proposition.

Suppose, after explaining that not all kinky people are freaks or serial killers and that some people do very painful stuff and like it, the defense attorney wants to establish what kinds of things that includes, and defense counsel asks, “do BDSMers sometimes do things that include piercing genitals with needles?”  Would the answer be educating the jury on BDSM so that they don’t assume that things like that could never be consensual?  Or would that be telling the jurors whether the conduct in this case conformed to norms?  There’s a range, and the more general the testimony, the more likely the Court is to allow it.

I would even say that the judge himself may not know where that line is.  The prosecution is up first, and Deitz will take the stand, so the prosecution will largely determine how much the line gets pushed.  If Deitz is asked, “is putting needles through someone’s genitals something that is accepted as part of BDSM play?” the judge might sustain an objection and say he’s talking about the specific allegations.  Or he may not, but if the Court allows it, he is almost certain to allow Wiseman to give his view.

There are several thorny issues where the less the Court allows Dietz leeway, the more useful to the defense Wiseman will be.  See, the choice of Jay Wiseman is a perilous one for the defense because of his own past writing, but that mostly stays out of play if the specifics are circumscribed.

Potential Testimony on Dominant/Submissive Relationships

The first area is consent in a dominant-submissive relationship.  If the judge calls a tight strike zone on testimony as to what kind of relationship dynamics are permissible in BDSM, it’s easier to put Wiseman on.  The prosecution will put on evidence that FV couldn’t leave, or believed she couldn’t, which is the same thing for consent purposes.  If Deitz were permitted to give an opinion on when 24/7 D/s relationships were ethical and when they were not, then while he wouldn’t be able to say “this one wasn’t,” he would be able to put together the factors that the jury could use to make up their own minds about it:  age, experience, financial dependence, mental capacity, the use of threats.  The jury will hear evidence on those factors that all cut against consent.  And Wiseman would have to concede a lot of ground that would end up with the jury concluding that what happened here wasn’t something reasonable kinksters support.  The more general the testimony, the more Wiseman helps the defense.  The more specific, the more his own writing could hurt the defendant.

The judge might let Deitz go into what factors tend to undermine consent in power exchange relationships.  That might start with, “Do some people who do BDSM call their relationship master-slave?”  and then progress to “is there a consensus on what relationships are okay and what kind are abusive?”  Deitz could then draw his own line about what is consensual and what is inherently nonconsensual, and then dismiss dissent by saying, “but there are some people who don’t agree.”

If that’s where it goes, Wiseman will probably have to deal with that.  He may be asked, “if someone signs a master-slave contract, does that mean they have to stay forever even if they want to leave?  Have they then consented to whatever the dominant does forever?”  Of course the answer to that is no, and Wiseman wouldn’t say otherwise. And he’ll have to deal with passages like this from his own writing:

I firmly believe it is absolutely unethical for someone to try to “brainwash” another person into accepting a submissive role.

SM 101 p. 279

Or this:

Accordingly, an ethical dominant gives their submissive every chance to refuse to go further, and does nothing to make the submissive unfairly dependent on them. (This has many facets, too many and to diverse to go into at length here, but I will say that financial independence is often a good place to start.  A submissive should have their own bank account, and a source of income adequate to support them.)

Id.

He definitely will not be asked if the relationship between the Bagleys and FV met these criteria.  And I’m not sure what the evidence is on these points.  Part of the case is that FV was working as a stripper, and that Bagley was taking income from that work.  Is there evidence that he got her whole paycheck, that she worked but had no control over the money?  Did she have her own bank account, or did he hold her money?  The prosecution could end up with Wiseman’s view of what reasonable independence is, and then show that in fact the relationship didn’t meet those criteria.  That would support their argument, which is going to end up being that this relationship looks more like a domestic abuser relationship, where the abuser holds the purse strings, than the sort of relationship Wiseman envisions in SM 101 where even in a 24/7 relationship the sub maintains some real independence. And with some jurors, that could be what makes up their minds.

Play Safety Issues

The other area is play safety.  While the riskiness of activities isn’t directly an element in the case, it makes a big difference in how the jury sees  consent.  If the defense is going to convince the jury that this was a consensual BDSM relationship – a note on that below — they will need to convince the jury that Bagley cared for and was protective of FV.  The physical activities will be shocking to a lot of jurors, but they should be able to get past that.  But to look past the painful stuff, the jury would have to buy that those activities were meaningful and fulfilling for FV, and I just don’t think there is any way they will buy that unless the defense can successfully protray Bagley as someone who cared a lot for her and her wellbeing, was willing to do intense things but really sweated the risks and wanted to make sure that she came out of even the most intense experiences mentally and physically unharmed.  (Good luck with that.  On my account, no such caring  person would ever enter a 24/7 relationship with a teenager who didn’t really have any place else to go.)

This is the part of the defense story where their expert is most likely to backfire.  She did, after all, end up in the hospital.  And what put her there is allegedly cardiac arrest following suffocation.  And Wiseman is the BDSM community’s best-know proponent of the view that breathplay inherently courts the risk of sudden cardiac arrest.

This is so well known that if the defense attorney doesn’t know it, she’s incompetent; and that if Wiseman didn’t bring it up, he’s done the defense a disservice.  This topic has its own appendix in his book. In fact, among people who sort of know all the bold-faced names of kink, it’s almost an unconscious association.  Wiseman and breath play and cardiac arrest, and the people who think he’s right and the people who think he’s wrong – it’s a thing.  Jay says breath play kills people, and he argues it fiercely, and he relies on his years of med school and on his EMT experience and on medical literature to back it up.  It’s not a position he can walk away from on the stand.

If the Court lets the prosecution ask Dietz, “is there any general view of suffocating people within the BDSM community,” the answer will certainly be something like “there is, it is generally considered one of the most dangerous activities, and the mainstream view is that it should never be done because it is too dangerous.”  There goes the idea that the Bagleys cared about FV.  And if the judge allows that testimony, what would Wiseman say?  Perhaps “well, that’s true, but lots of people argue with me.”  That’s not much of a rebuttal.

About The Consent Defense Here

I don’t think this is a winnable case for the defense, unless FV says something that will stun everyone.  The testimony of the cooperators, if nothing else, shows the kind of people Bagley exposed FV to, which really undermines any claim to have concern for her.  But the question of if the jury will convict is different from why they’ll convict.  The questions of whether or why the jury will convict are, in turn, not the same as what we should think of the Bagleys.

I don’t need to know what the jury says to know what I think of the Bagleys.  I said in Not What We Do that if the indictment was accurate there were four major ways he failed to be ethical.  Some of those things are not in dispute. He got into a 24/7 relationship with a teenage girl who was living in his home because the foster system wasn’t a good place with her.  I don’t need much in the way of further facts to say that’s wrong.  There’s no way to make that right.  If he was any kind of a good guy, he wouldn’t have played with her until she could support herself, certainly not in a 24/7 live-in context.  If any of the other stuff turns out to be true, it’s just more wrong on top of wrong.

That’s not the same as legal guilt for the charges he was indicted for.  That depends, mostly, on consent.  I want the jury to convict, and I want the jury to convict because after hearing all the evidence there is no reasonable possibility that she gave meaningful consent.

I don’t want the jury to convict because the Bagleys did heavy s/m, or because they did heavy s/m to someone other than their legal spouses.  But I also don’t want to jury to acquit because the  jury sees FV as some kind of sinner.  In this culture, that could happen.  I am really concerned that the jury will decide “hey, if you’re into kinky stuff, predators will seek you out and hurt you and that’s what you get for being a freak.”  That could happen.  I’m cringing ahead of this trial, which should go later this Winter.

The rumor mill, stuff I can’t confirm in the press, is that FV was grabbed by relatives (where they were when she was in foster care I don’ t know) who are right-wing evangelicals and who shipped her off to a brainwashing camp.  I assume that’s the defense’s spin: that she was fine with the Bagleys, but she has been surrounded by people who are coercing her to say he is evil and did evil things.  I’m pretty sure that will be the defense.  That could even be true.  She might be surrounded by people who would hate the Bagleys even if they never did anything she didn’t want them to do.  But motive to say something is only part of determining whether it’s true.  She has a right to tell her story.  There are plenty of spurious reasons to reject what she has to say, just as there are spurious reasons to reject anything Bagley says.  At the end of the trial, the jury will have a lot of evidence to sort out, and one question to answer: did she consent or not.