Court Rules on S/M Consent

Court Rules on S/M Consent

Nebraska Supreme Court rejects appeal in prosecution of master

The Nebraska Supreme Court has upheld a 16- to 29-year sentence for an Omaha florist convicted by a jury on five criminal counts for sadomasochistic acts committed in December 2001.

The court’s unanimous November 12 decision rejected Roger Van’s argument that J.G.C.’s initial consent to their relationship should be considered a defense in this case, even though the men had worked out the details of a sadomasochistic encounter over hundreds of e-mail messages.

Van was convicted in July 2002, but, out on bail pending sentencing, he fled and was wanted as a fugitive until he was apprehended in a dramatic police chase on a California highway that December. He was captured when he plowed a rented van into a police patrol car at 80 miles an hour, according to The New York Times. There were no injuries.

Van, an experienced S/M master who maintained a dungeon in the basement of his Omaha flower shop, had an employee named Jerry Marshall who was also his slave. Marshall assisted in the scene with J.G.C., whose full name has not been released, but testified for the prosecution and received a relatively short prison term.

Justice Kenneth Stephan’s opinion for the court relates the facts of the case in great detail. J.G.C. was in a master/slave relationship with another man in Houston, but looked online for a new partner and contacted Van, telling him via e-mail that he was “not getting enough structure, pain, and discipline” from his master who allowed him use of a “safe word” with which J.G.C. could end any particular activity.

J.G.C. and Van exchanged about 300 e-mail messages beginning in September 2001, in which they explored in great detail the kind of relationship J.G.C. was seeking. J.G.C. indicated that he wanted to be a “total slave,” with no safe words and no limits, and he was looking for a “permanent” relationship. According to Stephan’s opinion, “J.G.C. testified at trial that a submissive cannot end a ‘no limits’ relationship and that he expected to be tortured, humiliated, and to eventually die as a result of his relationship with Van.”

According to the e-mail messages, J.G.C. indicated that he wanted to be “flogged, whipped, beaten, restrained, gagged, shaved, tattooed, pierced, blindfolded, injected with saline, and locked in a cell. He also asked that hot wax be dripped on him, that clothespins be placed on his body and ripped off, and that electronic stimulation be used on him.”

J.G.C. staged his own “abduction” in December 2001, driving to New Orleans, abandoning his car there and taking a bus to Omaha, where Marshall met him at the bus station and brought him to Van’s dungeon. Van beat J.G.C. lightly and shaved parts of his body the first day, then restrained him in a small cell for the night. The following morning, Van told J.G.C. to write down everything he had done wrong in his lifetime, so that Van would have a list of things for which to punish him. In the midst of carrying out this assignment, J.G.C. experienced what he described as a “huge catharsis” in which he realized that he was not a bad person and did not need to be punished. He decided to terminate the relationship with Van.

However, since the men had not agreed on a safe word and J.G.C. had repeatedly told Van that Van should not let him escape or end the relationship, Van testified that he was not sure what to do. Van and Marshall talked at great length out of J.G.C.’s hearing, and reviewed the saved e-mails, in which J.G.C. had instructed Van not to allow him to leave, even if he so requested. Van concluded that J.G.C.’s request to leave was just part of their relationship and that he should mete out punishment to J.G.C. for requesting to end the relationship. Van threatened that he would kill J.G.C. if he “screwed up again.”

J.G.C. testified that he feared for his life, ceased asking to leave, and cooperated to avoid worsening his punishment. Nevertheless, he received many of the punishments earlier discussed via e-mail, including hot wax sessions, scrotal injections of saline solution and frequent floggings. Van also branded J.G.C.’s right thigh while the man was gagged and blindfolded.

Marshall, concerned that J.G.C. was truly being held against his will, finally won the man’s trust that he was not being trapped into provoking more punishment, learned that J.G.C. wanted to be freed and helped him escape.

Initially, J.G.C. did not want to report what happened to the police, but at the urging of his father reconsidered and notified the Houston police. Both men were arrested. Marshall pled guilty to a reduced charge in exchange for testifying against Van.

The jury convicted Van on five counts—one count of sexual assault, stemming from incidents where Van had anal sex with J.G.C. while he was under restraint, two counts of assault for the branding and the more severe beatings, one count of false imprisonment, and one count of terroristic threats, based on Van’s repeated warnings that he would kill J.G.C. if he tried to escape.

Van’s defense throughout the trial was that everything he did had been agreed upon in advance, and that J.G.C. had instructed him to ignore any request to end the relationship. Wayne County District Judge Robert B. Ensz rejected the idea that consent could be a defense to the particular acts for which Van was being charged and instructed the jury accordingly.

Once Van was captured as a fugitive and sentenced, he appealed, raising numerous issues including the argument that after the Lawrence v. Texas sodomy ruling, Nebraska could not make it a crime for consenting adults to engage in sadomasochistic sex. He maintained that the assault statutes as applied to his case imposed an unconstitutional invasion of his privacy.

Justice Stephan asserted that the Supreme Court’s Lawrence ruling was distinguishable from Van’s case, since J.G.C. “claimed to have withdrawn his initial consent to the relationship.” Since the state had a burden of proving lack of consent in order to sustain the sexual assault charge, Stephan ruled that the jury must have concluded that J.G.C. did not consent to be anally penetrated.

Stephan pointed out that the statutes regarding the non-sexual assaults make no reference to consent. An Iowa appeals court in the 1980s had ruled, “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.”

The appeals court was unpersuaded by the Lawrence argument: “The Lawrence Court did not extend constitutional protection to any conduct which occurs in the context of a consensual sexual relationship,” wrote Stephan. “Rather, the Court indicated that State regulation of such conduct was inappropriate ‘absent injury to a person.’”

Given these findings, Van’s appeal really came down to his argument that the evidence did not support the jury’s conclusion that J.G.C. had withdrawn consent, and the testimony of the victim and of Marshall made that conclusion unlikely.

Van attempted to challenge the trial court’s handling of certain matters relating to evidence, such as the restrictions on testimony about J.G.C.’s prior S/M relationships. In the end, it was basically irrelevant that J.G.C. had given advance consent and instructed Van to ignore his pleas to let him go, since the court concluded that consent was not a defense to the particular charges levied against Van.

Van could try to interest the U.S. Supreme Court in his case, but the likelihood that the Court would be interested in taking this case seems slim.

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