 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State v. Van11/12/2004
o the relationship with Van and expressed his desire to return to Texas. In order to obtain a conviction on the charge of sexual assault in the first degree, the State was required to prove beyond a reasonable doubt that sexual penetration occurred without J.G.C.'s consent. See § 28-319(1)(a). We find nothing in Lawrence to even remotely suggest that nonconsensual sexual conduct is constitutionally protected under any circumstances or that consent, once given, can never be withdrawn.
Our statutes defining first and second degree assault include no reference to consent. Van was charged with assault in the first degree, defined by § 28-308(1), which provides: "A person commits the offense of assault in the first degree if he intentionally or knowingly causes serious bodily injury to another person." He was also charged with violating § 28-309, which defines assault in the second degree as " ntentionally or knowingly" causing "bodily injury to another person with a dangerous instrument." 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." State v. Hatfield, 218 Neb. 470, 474, 356 N.W.2d 872, 876 (1984). Although we have not previously had occasion to determine the applicability of this principle to a BDSM relationship, other courts have done so. For example, in People v. Jovanovic, 263 A.D.2d 182, 198 n.5, 700 N.Y.S.2d 156, 168 n.5 (1999), a case involving alleged conduct which occurred after e-mail correspondence in which the complainant had indicated an interest in participating in sadomasochism, the court noted that under New York law, consent was not a defense to the crime of assault because "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."
In State v. Collier, 372 N.W.2d 303, 305 (Iowa App. 1985), the Iowa Court of Appeals held that BDSM activity did not fall within an exception to the Iowa assault statute as conduct by voluntary participants in a "sport, social or other activity" which did not create an "unreasonable risk of serious injury or breach of the peace." (Emphasis omitted.) The court in Collier held:
Whatever rights the defendant may enjoy regarding private sexual activity, when such activity results in the whipping or beating of another resulting in bodily injury , such rights are outweighed by the State's interest in protecting its citizens' health, safety, and moral welfare. . . . A state unquestionably has the power to protect its vital interest in the preservation of public peace and tranquility, and may prohibit such conduct when it poses a threat thereto.
(Citations omitted.) 372 N.W.2d at 307.
The Supreme Judicial Court of Massachusetts used similar reasoning in rejecting the defendant's argument that he was not guilty of assault and battery because he and the victim were engaged in a sadomasochistic relationship in which beatings administered with a riding crop were for sexual gratification. Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051 (1980). The court held that any right to sexual privacy held by a citizen "would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations." Id. at 310, 402 N.E.2d at 1060. See, also, People v. Samuels, 250 Cal. App. 2d 501, 58 Cal. Rptr. 439 (1967) (holding consent not defense to aggravated assault charge arising from filmed sadomasochistic beating).
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|