The original “Jay Wiseman’s “Closing Argument” On Breath Play”, 2010 (as well as more essays about breath play) can be found on Jay Wiseman’s site: The site isn’t loading at the moment, so I copied the article below in case it doesn’t come back.
Jay Wiseman’s “Closing Argument” On Breath Play
Copyright 2010 by Jay Wiseman, JD. All rights reserved.
Outline/Table of Contents
1. Preface
2. Personal Introduction
3. Overview of BDSM Practices
4. Overview of Breath Control Play
5. Medical Aspects of Breath Play
6. The Chokehold Question
7. The Ongoing Controversy Regarding Chokeholds in the Forensic Pathology Literature
A. The Great “Salt Water” Divide
B. Why the Extremely Unlikely/Not Extremely Unlikely Distinction Matters.
8. A Meta-analysis of Vagal-induced Cardiac Arrest
A. General Causes
B. Causes Associated with Pressure on the Neck
C. Further Causes, Especially as Regards the Valsalva Maneuver
D. Speculation: To What Extent Does the Strength of the Vagal Stimulation Matter?
E. Summary Regarding Vagal-induced Cardiac Arrest
9. Harm Reduction?
A. Learn CPR
B. Stop Before They Pass Out
C. Get Medically Screened.
D. Get Martial Arts Training
E. Don’t Play Alone (including Commentary on Autoerotic Asphyxiation)
F. Should the Use of a Break-away Device During Autoerotic Asphyxiation be Advocated?
G. Parasympathetic Blocking Agents
H. Summary Regarding Harm Reduction
10. The Choking Game — A Related Activity
11. Legal Aspects of Breath Play
A. What is a Prima Facie Case?
B. What are Affirmative Defenses?
C. A Key and Fundamental Aspect of Law: What is a “Jury Question”?
D. What Evidentiary Standard Applies?
E. What Constitutes A Jury of One’s Peers?
F. Legislative Intent
G. What are Jury Instructions?
12. An Overview of Tort Law
A. The Intentional Torts and The Affirmative Defense of Consent
B. The Tort of Battery and Affirmative Defense of Consent
C. The “Great Bodily Injury” Upper Limit to the Affirmative Defense of Consent
D. Definitions of Bodily Injury, Substantial Bodily Injury, and Serious Bodily Injury
E. Negligence, Degrees of Negligence, and the Affirmative Defenses Thereto
F. Sidebar Comment: The Flawed Reasoning Shown by “Yeah, But People Also Get Killed Crossing The Street”
G. Affirmative Defenses To Negligence
H. Ordinary Negligence versus Gross Negligence
I. Limited Insurance Coverage and Bankruptcy
J. Personal Injury Litigation — Who Pays The Bills?
K. Wrongful Death Litigation
L. Proving Causation and the “Extraordinary In Hindsight” Test
M. The Dubious Value of Waivers
N. No Right to Counsel in a Civil Case
O. Summary of Tort Law
13. An Overview of Criminal Law
A. Homicide
B. Murder
C. Manslaughter
D. Lesser Included Offenses
E. Battery
F. Aggravated Battery
G. Solicitation
H. Aiding and Abetting
I. Sidebar Commentary: The Double-edged Legal Nature of the “Only Pilot Error Causes Death” Theory Regarding Fatal Chokehold Outcomes
J. Victim Impact Statements
K. Bail
L. Summary of Criminal Law
14. Discretion — A Major Aspect of Criminal Law
A. Police Officer Discretion
B. Prosecutorial Discretion
C. Judicial Discretion
D. Further Commentary on Discretion
15. Working As An Expert Witness
A. Overview
B. Working In Actual Cases
C. The Difficulty in Establishing the Defendant’s State of Mind At The Time of The Act
D. The Dubious Nature of Media Reports
E. Summary
16. The Dicey Nature of Doing Breath Play “Education”
A. Author Liability Regarding Writing a How-to Book About Breath Play
B. Presenter and Organizational Liability Regarding Teaching How-to Classes and Workshops on Breath Play
C. What About “They’re Going To Do It Anyway”?
17. Final Summary
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Jay Wiseman’s “Closing Argument” On Breath Control Play
Copyright 2010 by Jay Wiseman, JD. All rights reserved.
1. Preface
It has occurred to me that, in the give-and-take, fairly disorganized environment of Internet-based discussion of this issue, my overall position on the subject of breath control play can get a bit lost, or more than a bit lost, in the shuffle. I’ve therefore decided to take some time, collect my thoughts, and write this more organized and systematic “closing argument” regarding that topic.
Let me add here that by “closing argument” I don’t mean that I’ll never write about this topic again (although there are days when that idea is more than a bit attractive), but rather that I decided to take some time and compose a writing that summarizes what I think about this matter and why. I do so in part because I appreciate that some people, especially some people “on the other side” of this argument, don’t understand where I’m coming from. Hopefully, this essay will, among other things, remedy that lack of understanding at least somewhat.
Let me also add here that this is a closing argument, not an essay. In a closing argument, the evidence has already been submitted to the jury. Therefore, in this particular writing I will not be making many specific references to information that I have previously cited. (During a recent highly acrimonious online debate, I put forth more than three dozen references, mostly to the medical literature, in support of my points. I will not repeat them here, but those references, and more, are available on my website here.)
2. Personal Introduction
My name is Jay Wiseman. I was born in 1949. After working in the emergency medical services (EMS) for about eight years, I graduated from college in California in 1981 with a degree in biology that had an emphasis in physiology. I attended a medical school in the Caribbean for a bit more than two years. While I did well academically in medical school, and passed the internship-qualifying exam, I unfortunately didn’t have the financial resources to complete my medical education. I have taught first aid and CPR at both the basic and advanced levels for more than thirty years, and am a former instructor in advanced cardiac life support (ACLS).
In 2005, I graduated from New College of California School of Law, a public-interest law school accredited by the State Bar of California. I passed the California Bar Exam given in July of 2006. I spent three semesters as an adjunct law school professor — first with New College and later with JFK University, another law school accredited by the State Bar of California, when the law school at New College merged with the law school at JFK. While I have done a great deal of writing and teaching regarding law, including teaching how to prepare for the bar exam, I have not yet applied to admission to the bar but will likely do so fairly soon. (Actually practicing law is not a major priority for me. I’m more of an academic sort.)
After surviving a major criminal assault on me in San Francisco’s Haight-Ashbury district during the summer of 1969, which included being kidnapped and robbed at both gunpoint and knife point by multiple assailants, I began studying martial arts fairly seriously in the early 1970’s. I have formally studied judo, jujitsu, aikido, and tai chi. In March of 1981, I earned a first-degree black belt in Tae Kwon Do from the Martial Arts Sports Program at Cal State University, Hayward in Hayward, California. During my martial arts training, particularly my judo training, I was taught how to apply various chokeholds and both applied them to others and had them applied to me, in both structured practice sessions and during freestyle matches. Let me add that during my EMS days on at least two occasions I was choked “for real” by able-bodied male assailants and that one at least one occasion I applied a chokehold “for real” — in that instance to a man who was assaulting a police officer, had knocked the officer to the ground, and trying to grab the cop’s gun.
I have been a member of the BDSM community since 1975 and have attended thousands of BDSM educational and social events.
In about 1990, I became a full-time author, writing primarily in the areas of relationships and sexuality, especially alternative sexuality such as BDSM. (“BDSM” is a collective term which is something of a “compressed mnemonic” for the terms bondage and discipline, dominance and submission, and sadism and masochism.)
I have written 12 non-fiction books dealing with relationships and sexuality. My best-known work is titled “SM 101: A Realistic Introduction.” As the author of “SM 101,” which has sold in the six figures and is distributed internationally, I’m arguably the single most permission-giving BDSM educator in the history of life on the planet. Looking at my writings overall, the overwhelming message regarding engaging in BDSM play is “Yay! Rah! Go do it, and let me teach you a thing or two about how to go do it!” I have green-lighted bondage (I have written two books devoted exclusively to that topic), spanking, clamps, flogging, dominant/submissive relationships, slave training, hot creams, ice, knife play, electricity play, fire play, and many other BDSM-related practices. I travel heavily, have given hundreds of presentations on various BDSM-related topics, and have presented in more than 65 cities. I also do expert witness work in major “crash and burn” cases that have become matters for the courts to resolve.
So as a highly active BDSM educator my message tends to be something along the lines of:
Bondage? Cool!
Spanking? Excellent!
Clamps? Outstanding!
Breath play? Um, wait a minute.
While I’m noted for my cautionary approach to BDSM in general, I have been especially cautionary specifically regarding breath control play (which I define below). I do NOT take a “just say no; abstinence-only position” on these practices. It is widely and incorrectly believed within the BDSM community that I do take an abstinence-only position; this unfortunate error hinders both communication and understanding. While it’s correct that in the first edition of SM 101, published in 1992, I had a “stay away from this stuff” message regarding breath control (and even that writing allowed for an exception), a few years later I wrote my primary essay on the topic — “The Medical Realities of Breath Control Play” — which did not contain a similar message. That essay was included in the second edition of SM 101, published in 1996. To state that my position on breath control is an “abstinence-only; just say no” position is plain and simply to make a factually false statement.
That said, I do believe, based on studying these activities extensively, that they have a very questionable risk/benefit ratio and that they are both far more unpredictable and far more dangerous than many people understand them to be. Further, any harm caused by them is likely to be both medically severe and legally indefensible. These medical and legal risks extend not only to engaging in these practices but also to both allowing breath play at events one is putting on and/or to teaching how-to classes regarding these practices.
OK, what’s up with that?
Why am I so cautionary regarding breath control play, or even, as some have alleged, so intransigent?
As I said, it’s a matter of risk/benefit ratio. Let me explain.
3. Overview of BDSM Practices
While the following percentages are admittedly something of an estimate, they will do well enough to illustrate my point.
In, say, 90% of SM play — for example, activities such as spanking, flogging, clamps, wax play, and most forms of bondage — there is basically no inherent material risk of truly serious injury occurring. At worst, we’re usually talking about something like a welt, a bruise, a small burn, or a small laceration. Further, there are also meaningful safety precautions that can be taken. For example, the person who takes the submissive or “bottom” role is often given what’s called a “safeword” that they can call out if the activity becomes more intense than works for them. There are also landmarks that can be used to help ensure that no serious harm is likely to result. For example, “don’t flog over someone’s kidney area” is an example of a commonly taught landmark. Therefore, unless things get carried away to a truly insane degree (which happens, but it’s pretty rare, and often caused by ignorance), there is a distinct upper limit as to how severe an injury most BDSM play is likely to produce. Most injuries that do result need no formal medical treatment and can be managed by simple self-care measures such as ibuprofen and icepacks. Speaking in legal-ese, there is “no inherent risk of death or great bodily injury.” Therefore, should great bodily injury or death occur –very unlikely as regards these practices — and legal action result, the defendant would likely be able to offer valid legal defenses such as consent or assumption of risk. (Note: I discuss the legal issues regarding consent and assumption of risk in far greater detail later in this essay.)
In the remaining 10% of BDSM play, there is some inherent material risk of death or great bodily injury occurring. That said, in about 80% of this 10%, there are also meaningful precautions that can be taken to reduce the risk-level of such BDSM play down to where it’s reasonable to say that there is now, again, no material risk of the activity causing death or great bodily injury. Activities such as fire play, suspension bondage, knife play, and electricity play fall into this category. Properly trained people using proper equipment can and do engage in these practices with adequate safety. Additionally, there are, again, landmarks, such as “no knife play on the face” and “keep electricity play below the waist.” Also, again, what injuries do occasionally occur usually require no formal medical treatment or are, at worst, of the “get treated at the ER and go home” variety (and injuries of this latter “go to the ER type” are extremely rare). Therefore, again, should great bodily injury or death occur — very unlikely if proper procedures are followed — and legal action result, the defendant would again likely be able to offer valid legal defenses such as consent or assumption of risk.
That leaves about 2% of BDSM play. With these practices, there IS a material risk of the practices causing death or great bodily injury. With these practices, the risk is not that of suffering a welt, bruise, burn, or laceration, or even a more serious injury such as a broken bone. Here, the risk is the risk of suffering a very great bodily injury such as a traumatic brain injury or even of dying — of one person killing another person (or, sometimes, themselves) by engaging in these practices. Further, and very unfortunately, there are NO reasonable precautions that can be taken regarding these activities that can be taken to reduce their risk of causing death or great bodily injury down to a level that most people would consider reasonable. Nor are there meaningful landmarks. Within this category are what I call “The Bad Five”: self-bondage, chest punching, ball-kicking, gun-play, and, of course, breath control play.
Self-bondage is exceptionally risky because many people have died after complications arose while they were bound and completely alone. In fact, the leading cause of BDSM-related fatalities seems to be due to complications that arise while a person is in highly restrictive bondage while completely alone. (Let me add that the risk level greatly increases if the person who is bound and completely alone is also gagged.) While there is usually nothing all that risky about tying oneself up if a helpful companion is present, if someone does it to themself while completely alone and unable to yell for help that will respond within minutes, then the stage is set for disaster. (Tying someone up and then leaving them completely alone is similarly very risky, with any resultant harm being both legally indefensible and severely punished. Should they die after you bind and abandon them, you could be charged with murder.) Chest-punching has demonstrated ability to cause sudden cardiac arrest. Search on “commotio cordis” for more information on that. Ball-kicking is exceptionally risky because sudden cardiac arrest can be caused by sudden severe pain to the testicles. (I discuss this further later in this essay.) The exceptional risks, both physical and legal, of using of an actual firearm during BDSM play are, I would hope, obvious. That leaves breath control play, which I shall devote most of the remainder of this essay to discussing.
4. Overview of Breath Control Play
Some people, including but not limited to some people who identify as being into BDSM, engage in various activities that involve strangulation and/or suffocation during consensual erotic play. Within the BDSM world, these various practices are often collectively referred to by the umbrella term of “breath control play.” While many “normal” people regard such practices as being beyond utterly shocking, people who enjoy breath control play find either doing these things to their partner or having these things done to them by their partner to be physically and/or psychologically rewarding, sometimes very rewarding, in a number of ways.
For those on the receiving end, the first symptom of hypoxia (being low on oxygen) is often euphoria. Also, as one person who likes having these practices done to them once told me, “I enjoy passing out.” Allowing oneself to be strangled or suffocated certainly involves an extraordinary degree of submission and surrender to one’s partner. Some people report that an orgasm experienced during hypoxia feels more intense than a “regular” orgasm feels. For those on the giving end, it could be reasonably said that controlling whether or not their partner is conscious, or even controlling the very air that the partner breathes, puts one in a rather dominant position over them.
Additionally, it is precisely BECAUSE breath play is perceived as life-threatening that some people find it attractive. (This applies to other highly risky practices as well.) The additional emotional thrill such fear adds to the experience is exactly what draws them to it. To (admittedly loosely) quote one person I have discussed breath play with, as he spoke to his audience about breath control play at a leather conference circa 1996 in Portland, Oregon that we both attended (I was in the audience at the time): “Look, I’ll be honest. I’m a fear freak. What gets me hard is fear, but it can’t be “play” fear. It has to be “real” fear. Jay is sitting over there and he will tell you that you can die suddenly and without warning from doing this. He’s exactly right! That’s WHY I do this! I wouldn’t do this stuff if it wasn’t risky like that. I don’t particularly want to die, or to spend the rest of my life as “Bubba’s bitch” in prison, but if either of those things happen to me don’t cry overly much. I knew those were the risks. I chose to take them.” (On a personal note, I find it difficult to argue with his position.)
Other people are quite reasonably aware of the risks and yet choose to face them. I had a recent conversation with a nurse of many years experience who admitted to me, with a bit of chagrin, that she just loves having breath play done to her during sex. When I gently chided her for such, pointing out that she, unlike people without significant training in medicine or nursing, knew exactly what the mechanisms were that could produce a sudden, unpredictable cardiac arrest she agreed that she was in fact quite familiar with these mechanisms and their degree of risk (she and I even talked about the specific risks in formal medical-ese for a bit, and she did indeed know about them in some detail), but she found the effect breath play created to be so compelling that she just couldn’t resist having it done to her anyway. She did blush a bit upon saying that.
While these practices have their rewards (at least for some people), they also have their risks.
It’s commonly known, even among children in grade school, that strangling or suffocating a person has the direct potential to kill them. It’s further commonly known that if a person is strangled or suffocated severely enough and long enough then that person will, without exception, ALWAYS die.
No other BDSM-related practice has this potential. No other practice will always necessarily and directly lead to a fatal outcome if continued long enough — unless, I suppose, it was engaged in an essentially insane way. Granted, many other BDSM practices could INDIRECTLY cause a fatal outcome if an unexpected event occurred or if the practice was continued long enough — for example, a person kept helplessly bound long enough will always eventually die of thirst, starvation, or another cause unless assisted — but that would be an indirect result, not a direct result, of their being bound. It’s entirely possible to engage in even very elaborate and stringent forms of bondage, and in most other BDSM practices, with no reasonably foreseeable potential for the activity in and of itself to kill.
Further, while the other “Bad Five” high risk practices, such as chest-punching or ball-kicking or even gun-play, do have the objectively demonstrated potential to kill, but even with those practices a fatal outcome “if you just do it long enough” is not guaranteed. Hypothetically, Person A could punch Person B in the chest a million times without fatal result. (Please don’t try to test this hypothesis.)
How long a breath control play death might take to occur “if you just do it long enough” is highly variable (this variability is part of what makes these practices especially risky), but there does seem to be an upper limit. In the studies of judicial hangings that I’ve read, the longest that the heart has continued to beat once the hanged person’s air was cut off by the noose was 17 minutes. Let’s round that up to 20 minutes. We can therefore say, with a very high degree of certainty, that suffocating or strangling somebody for 20 minutes is going to be essentially ALWAYS fatal. As we graph out how probability of a fatal outcome increases with time, this is the endpoint of the risk curve. We reach a 100% fatality rate at 20 minutes.
So at the endpoint of the risk curve we know that strangling or suffocating a person will essentially always kill them “if you just do it long enough” — as in do it for 20 minutes. Let’s look at the risk curve from the start point: How long would it NECESSARILY take to kill a person by strangling or suffocating them? We know the maximum time. What is the minimum time?
Unfortunately, the answer to that question, for a given person on a given day, simply cannot be known.
We can sorta/kinda try to estimate the odds of these practices killing or not killing, but that’s exactly what we’re doing — attempting to estimate (read: guess) the odds — the odds, please note this well, of nothing less horrific than one person killing another. Unfortunately, for a given person on a given day, we cannot know with a high degree of certainly that there is a “safe minimum” amount of time that one person can strangle or suffocate their partner with no reasonably foreseeable chance of killing them by doing so.
Many people people with no medical training believe that there is a universal sequence from loss of consciousness to death that goes like this as the situation worsens: First someone passes out, then they stop breathing, then they go into cardiac arrest. While this sequence certainly does occur — it’s classic, for example, in situations such as a heroin overdose — it is NOT a universal sequence. Unfortunately, some people start out by going into cardiac arrest, then they lose consciousness, and then they stop breathing. (FYI, the final, desperate, irregular gasping attempts of a person in that situation to breathe are called “agonal respirations.” I saw agonal respirations on numerous occasions during my EMS days and they can be disturbing to watch.)
Multiple sources in the medical literature, especially the forensic pathology literature, have cited instances of only a very few seconds of strangulation or suffocation causing sudden cardiac arrest. It is precisely this risk which makes engaging in breath control play especially problematic and risky. While such cardiac arrests are rare, being rare is not the same thing as being non-existent. Suffocating or strangling one’s partner, even very briefly, is therefore ALWAYS at least something of a roll of the dice — with a “snake eye’s” roll being nothing less severe than fatal.
The odds of five seconds of strangulation or suffocation causing cardiac arrest are really, really, really low, but not zero.
(A suffocation death from such a brief period is likely caused by the Valsalva effect, discussed below.)
The odds of 30 seconds of strangulation or suffocation causing cardiac arrest are really, really low, but not zero.
(Again, a death due to this brief a period of suffocation would likely have a Valsalva component to it.)
The odds of one minute of strangulation or suffocation causing cardiac arrest are really low, but not zero.
The odds of 90 seconds of strangulation or suffocation causing cardiac arrest are low, but not zero.
The odds of two minutes of strangulation or suffocation causing cardiac arrest are, well, maybe those odds, they are not so low.
The odds of more than two minutes of strangulation or suffocation killing someone are, well, yeah, now it wouldn’t be too surprising if we had a major problem on our hands.
At five minutes, we very likely in serious trouble.
At ten minutes, there is likely little doubt.
At beyond ten minutes, there is virtually no doubt whatsoever.
Let me briefly note here that it is widely believed, and even asserted by some medical authorities, that a person cannot die from holding their own breath or from strangling themselves with their own hands. This is not entirely true. While such incidents are rare, case reports of precisely such deaths have appeared in the forensic pathology literature.
A large part of the problem here is that quantification of the above odds is basically impossible, especially for a given person on a given day. This is due in significant degree because people vary in their risk level — both one person from another and within a given person as their body changes. This problem is worsened by what we’re trying to estimate the odds of — which are the odds of nothing less serious than one person killing another.
5. Medical Aspects of Breath Play
We know that “older people” face higher odds of a fatal outcome from engaging in breath play than “younger people” face, but nobody knows what the shape of the curve on the age/risk graph looks like. (Some medical authorities have drawn a line between “older” and “younger” people at age 40, although why they drew the line specifically there isn’t clear.)
We know that “sicker” people, perhaps especially people with heart disease, face higher odds of a fatal outcome than “healthier” people face but, again, nobody knows the shape of the risk curve, nor is there a bright line separating the two populations.
In addition to increased age and poorer underlying health, other factors known to increase the odds of a fatal outcome occurring (not a complete list) include: concurrent alcohol use, concurrent cocaine use, concurrent tricyclic antidepressant use, oxygen depletion due to concurrent physical exertion (such as by fighting or vigorously engaging in sex), history of a seizure disorder, and concurrent elevated levels of adrenalin in the blood due to anger or fear. Additionally, as stated in the forensic pathology literature, some people may simply be, unknown to them or others, genetically more susceptible to damage by low oxygen levels than other people are. (This concept of genetic variability in one’s ability to tolerate hypoxia is consistent with my experience in treating actual victims. During my EMS days, I saw victims of a relatively minor “hypoxic insult” be terribly damaged by it, while others who suffered a much more severe insult seemed to recover entirely.)
The issue of sudden death occurring from only very brief periods of suffocation or strangulation is especially controversial. Here’s the overall picture from a medical point of view: The nervous system is composed of the central and peripheral nervous systems. The central nervous system includes the brain and spinal cord. The peripheral nervous system includes the sensory nerves, the motor nerves, and the autonomic nerves. The autonomic nerves largely regulate involuntary functions such as digestion and are mostly beyond a person’s ability to control.
The autonomic nervous system is divided into the sympathetic and parasympathetic nervous systems. The sympathetic is the “fight or flight” system and can be thought of as the body’s gas pedal. The parasympathetic is the “feed and breed” system and can be thought of as the body’s brake pedal.
We know that strong parasympathetic stimulation of the heart — which occurs by way of the vagus nerve — slows down the heart’s rate and force of contraction. Most of the time, strong vagal stimulation of the heart causes about a one-third decrease in rate and force of cardiac contraction. “Sometimes” strong vagal stimulation of the heart causes a cardiac arrest, with such an arrest usually being fatal. It is the definition and understanding of the term “sometimes” that is highly controversial.
It’s the vagal aspect of breath play, especially choking, that makes it so unpredictable and dangerous. If it weren’t for that aspect, the practices involved might be considered about as harmless as taking a blood pressure (a practice that also involves squeezing an artery shut) provided they weren’t continued for “too long” — whatever that means. There is just no telling what a heart that is receiving strong vagal stimulation is going to do in a given instance, especially if that heart is also low on oxygen. To enter this area is to necessarily enter a “zone of uncertainty” as to what will occur. That a cardiac arrest could result under these circumstances hardly seems unreasonable to believe. If the heart is also simultaneously soaked in adrenalin, and/or if any of the other known risk factors are also present, then we’ve really got an ominous “synergy of risk factors” situation on our hands.
6. The Chokehold Question
We know that various “properly applied” chokeholds — as taught in judo, other martial arts, and to the police and the military — put pressure on the carotid arteries in the neck supplying blood to the brain while avoiding the trachea (windpipe). The belief is that unconsciousness can be caused fairly quickly and harmlessly by doing so, allowing such things as a victory in a martial arts match or the subduing of a person resisting arrest.
While it is true that a “properly applied” chokehold for the most part avoids the windpipe, when such chokeholds press upon the carotid arteries, they almost unavoidably also press upon what are called the carotid sinus bodies, located at the base of the internal carotid arteries. Pressure upon these carotid sinus bodies dilate the arteries in the brain, causing a drop in cerebral blood pressure, and also cause reflex parasympathetic slowing of the heartbeat via the vagus nerve. This combination of effects often produce an unconscious state that usually (repeat: usually) resolves when the chokehold is released.
It is not in dispute that such harmless unconsciousness does indeed seem to result when such chokeholds are applied briefly during formal practice sessions or during official martial arts tournaments. Such chokeholds, when “properly” done, have been applied within the martial arts world millions of times without a single documented fatality. Indeed, those areas almost seem to be “vagal-free zones.”
While acknowledging this safety record when such chokeholds are attempted INSIDE the walls of a martial arts academy, when they are attempted OUTSIDE the walls of such a place then the picture rapidly becomes much murkier and much more controversial. In police work, for example, so many people have died after having chokeholds applied to them by “properly trained” police officers, with consequences such as numerous wrongful death civil suits, that many police departments have either now reclassified chokeholds from “non-deadly force” to “deadly force” measures (meaning that an officer is justified in applying a chokehold to someone only if the officer would also be justified in shooting them), or have outright banned the use of chokeholds entirely.
There is also a sizable laundry list of documented secondary chokehold complications, including but not limited to fracture of the larynx, paralysis of one or both of the vocal cords due to contusion of one or both recurrent laryngeal nerves, sudden blindness, hoarseness of speech, cerebral hemorrhage, fracture of the hyoid bone in the neck, fracture/dislocation of the cervical vertebrae and/or damage to the spinal cord, dislodging of an atherosclerotic plaque in the carotid arteries which then travels up to the brain and causes a stroke, and deaths occurring up to three full days following the application of the chokehold due to either the forming and dislodging of a clot or to post-chokehold swelling of the tissues, but in this writing I shall mention those “trivial” secondary matters only briefly and occasionally.
Because of the medical and legal risks all forms of breath control play practices are perceived to involve, BDSM organizations and establishments have almost universally banned both the engaging in breath control play techniques, including martial-arts-style chokeholds. (Given the role my writings have created in establishing this perception, I get both a lot of credit and a lot of criticism for such bans being in place.) Some martial artists who are also BDSM enthusiasts feel that this ban is unreasonable and overly-broad, and have strongly argued that “properly” done chokeholds have an excellent safety record in the martial arts world and therefore those chokeholds should be both practiced and taught as part of BDSM play even if other practices related to breath control, such as suffocation, remain banned.
Defenders of chokeholds, especially BDSM people who believe that “properly applied” chokeholds should be allowed at BDSM events, argue, in part:
1. In the cases of “in the street” fatal outcomes the chokeholds are often applied by relatively unskilled personnel.
2. That the conditions of applying a chokehold are often far more uncontrollable and turbulent under “street” circumstances than is the case in a martial arts school (or in a bedroom or BDSM event space).
3. That drugs and alcohol are often present as co-factors that increase the risk in street situations, but that such substances are largely avoided by people engaging in BDSM play.
4. That “in the street” the chokehold may be applied with substantial malice and held far longer than necessary, but that such would not be the case in consensual BDSM play.
5. That the surge in adrenalin level that accompanies having the chokehold applied in a “real world” situation increases the instability of the recipient’s heart, but that a comparable adrenalin surge would likely not occur in people who were “only playing” as would be the case for people engaging in consensual BDSM.
6. That only a vanishingly small number of people are unusually sensitive to the effects of a chokehold.
7. That what “recreational” deaths from chokeholds have been reported were almost invariably due to extraordinarily reckless conduct or to outright criminal behavior.
Critics of chokeholds argue, in part:
1. That even skilled personnel will probably apply a chokehold in a way that presses on the carotid sinus bodies with resultant and always risky vagal slowing of the heart.
2. That most martial artists are relatively young people in robust health and thus likely more “resistant” to a chokehold’s more ominous effects whereas BDSM people are often older and/or in much poorer health, and therefore less resistant to a chokehold’s effect.
3. That martial artists are acting in an environment where what they do is closely monitored by highly trained third parties who can and will intervene if necessary (and not alone with their partner in a bedroom while both people are in the throes of passion. Under these circumstances, as one breath play enthusiast herself noted, “It’s easy to go too far.”)
4. That concurrent usage of drugs and/or alcohol are not essential co-factors in producing a fatal outcome and, further, that drug and alcohol usage during sex are fairly common, making the giver more prone to reckless conduct and the receiver both less able to signal their distress by calling a safeword and more physiologically vulnerable to complications from being choked.
5. That there are many reports of even very brief chokings causing cardiac arrest — indicating, among other things, that such deaths occurred so quickly that an adrenalin surge could not have had time to occur, which means that they almost had to be “pure vagal” deaths.
6. That vagal-induced cardiac arrests are known to occur even in entirely healthy people with no known specific sensitivity to the effects of a chokehold.
7. That “recreational” deaths can result even from the most careful choking (and that media reports of such “recreational” deaths are often sensationalized and contain substantial amount of inaccurate and/or incomplete information).
7. The Ongoing Controversy Regarding Chokeholds in the Forensic Pathology Literature
The controversy regarding sudden deaths being caused by chokeholds (and other forms of strangulation) rages not only in the BDSM world, but also in the forensic pathology literature. Some authors of forensic pathology textbooks assert that vagal-induced sudden deaths from relatively brief periods of choking are all but unheard of and therefore are “extremely unlikely.” Other authors of forensic pathology textbooks assert that vagal-induced sudden deaths from relatively brief periods of choking are indeed heard of and therefore are “not extremely unlikely.”
A. The Great “Salt Water” Divide
I have read more than a dozen forensic pathology textbooks that address the issue of the likelihood of a chokehold causing a rapid, vagal-induced and usually fatal cardiac arrest. The results, as I noted above, were distinctly mixed and sometimes even quietly adversarial. (It could be fairly said that a low-grade flame war has been going on regarding this topic in the forensic pathology literature for quite some time.) As I continued to read, I noticed something that I regarded as more than a bit odd. The likely/unlikely debate seemed to divide by salt water. By that I mean that American forensic pathologists tended to be in the “extremely unlikely” camp whereas British forensic pathologists tended to be in the “not extremely unlikely” camp. Why opinions on this topic should divide on a geographic basis is beyond me, but it is clearly there.
The “Salt Water Divide” has significance in trials. It can be more difficult in the United States than it is in Great Britain to find a board-certified forensic pathologist willing to testify as an expert witness for the defense that a chokehold could kill fairly quickly. It can be similarly difficult to find someone with substantial martial arts training who is willing to so testify. Indeed, the martial artists, because they want to defend the safety of what they do, are likely to testify that such a rapid death is not likely to occur, at least if the chokehold is applied properly. (This is one reason that I get as much expert witness work as I do.)
B. Why the Extremely Unlikely/Not Extremely Unlikely Distinction Matters.
This distinction matters greatly from a legal point of view, and this fact is very well known to the forensic pathology textbook authors when they write about this topic. If someone is on trial because they killed another person by choking them, the question of how long the chokehold had to be applied and held to be fatal is very important because it reflects upon whether or not the defendant intended to kill the victim.
If a chokehold necessarily must be held for several minutes to be fatal, that can be used to argue that the defendant intended to kill and that the defendant is therefore guilty of some degree of murder — which is, of course, a very severely punished crime. On the other hand, if a chokehold could be fatal from less than, say, one minute of application, then that can be used to argue that there may not have been intent to kill and therefore defendant may “only” be guilty of some degree of manslaughter, a much less severely punished crime.
Let me note here that the exact sequence of events and the precise cause of death by chokehold or other form of strangulation in a given instance is often very difficult or even impossible to determine after the fact. It’s reported in the forensic pathology literature that the grip may be repeatedly relaxed and reapplied. (Such grips take a fair amount of strength to apply, and it’s physically difficult to hold them continuously for very long.) It’s also reported that grip may shift its location and thus move from not pressing on the windpipe or carotid sinus bodes to pressing on them. It’s further also reported that the grip may continue to be strongly applied for several minutes after the victim has died.
Let me also note here that the degree of damage to the choked person neck area doesn’t at all necessarily correlate with a fatal or non-fatal outcome. On the one hand, in some fatal cases there have been little or no secondary physical findings. On the other hand, in some non-fatal cases there have been substantial secondary physical findings such as bruising of the choked person’s throat tissues, ruptured capillaries of their eyes and face, black eyes, and vocal hoarseness.
One author, British forensic pathologist Bernard Knight, talks about “pale face” rapid and sudden deaths from neck compression which are presumably vagal in origin because no signs of venous congestion had time to occur above where the recipient’s neck was being gripped, however in venous congestion “red face” deaths, which presumably took noticeably longer to occur, vagal-induced arrest often cannot be excluded because, among other things, a shift in the grip of the strangler from a grip not strongly pressing on the carotid sinus bodies to a grip that does strongly press upon them can occur at any time.
The picture is similarly murky regarding the timeline associated with other injuries that the victim may have suffered. It’s often impossible to establish “with a reasonable degree of medical certainty” that a particular injury occurred a significant time before death, during the time of death, or a significant time after death. The term “perimortem” is especially vague and ambiguous.
The dispute of whether or not a vagal-induced fatality is likely to result from relatively brief periods of being choked or strangled has been going on the forensic pathology literature for decades. It will undoubtedly continue to do so, with world-class authorities emphatically coming to directly contradictory conclusions.
Why such a difference? I think it’s pretty easy to understand. The following scenario is, in the forensic world, known to be not all that uncommon: A man kills a woman by strangling her to death, and later asserts that she died “all of a sudden” while he was strangling her as part of consensual sex. He may even assert that the whole “sex choking” thing was her idea (and the practice is in fact more widespread than many people appreciate). Often there is nothing about the facts of the case that makes concluding that this was indeed an unintentional killing during consensual sex, and therefore a horrible tragedy, clearly unreasonable. What to make of this? It seems clear to me that some authors of forensic pathology textbooks don’t want to create what would be, in essence, a “get out of jail, if not free, then at least for relatively reduced cost” argument which would allow a man who in fact did kill a woman by strangling her with real-world malice to escape the full punishment of the law that such a man rightfully deserves. Such textbook authors therefore fall into the “highly unlikely” camp. Other textbook authors, although mindful of this “get away with a reduced charge” risk, nonetheless conclude that such a death is “not highly unlikely” and in fact may be more common than other authorities assert.
The difference can be very stark. For example, in “Deaths Allegedly Caused by the Use of ‘Choke Holds’.” Journal of Forensic Sciences, Volume 32, No. 2 (March 1982). author Kowai concludes: “The state of unconsciousness, according to the investigators of the Society for Scientific Study in Judo, Kodokan, is caused by a temporary hypoxic condition of the cerebral cortex. In judo,the player holds the opponent’s neck in his hands (forearm) or judogi, the bloodflow of the common carotid artery is obstructed, but the vertebral artery is not obstructed. It has been confirmed that complete obstruction of blood flow to the brain or asphyxia by complete closure of the trachea will result in irreversible damage to the body which often results in death. While unconsciousness (ochi) caused by choking (shime) in judo is a temporary reaction which incapacitates the opponent for a short while, its execution is quite harmless.”
By contrast, in the very same journal later in the very same year we also find “Death From Law Enforcement Neck Holds” — American Journal of Forensic Medicine and Pathology, Volume 3, Number 3, September 1982 by Reay and Eisele, the authors conclude as follows: “Use of neck holds must be viewed in the same way as firearms; the potential for a fatal outcome is present each time a neck hold is applied and each time a firearm is withdrawn from its holster. The neck hold differs in that its fatal consequence can be totally unpredictable…No officer should be lulled into the false confidence that squeezing an arm about the neck is a safe and innocuous technique of subduing a suspect. It must be viewed as a potentially fatal tactic and reserved to situations which merit its risk.”
So who likely has the better take on it?
8. A Meta-analysis of Vagal-induced Cardiac Arrest
I think we can get a really huge clue regarding the answer to the “likelihood” question by noting that choking is not the only cause of vagal-induced cardiac arrest. Indeed, we have something of an “all roads lead to the vagus nerve” situation here. (Note: “vagus” is pronounced in manner identical to the second word in “Las Vegas.”) Let’s take a meta-view of the topic. There are numerous causes of strong vagal stimulation of the heart.
What I find truly, absolutely fascinating is that once the “forensic overlay” is removed, once a question of civil or criminal liability is taken out of the analysis, the likely/unlikely dispute in the forensic pathology literature seems to completely evaporate.
A. General Causes (Not a complete list)
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by “immersion syndrome” exposure to very cold water.
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by exposure to high atmospheric concentrations of toxic chemicals or to high atmospheric concentrations of carbon dioxide.
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by pressure on the eyeballs (the oculocardiac reflex).
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults (and children) can be caused by sudden severe pain, particularly to the testicles of men or the cervixes of women. (A cautionary fact for those encountering a masochistic man who wants to be kicked hard in the balls.)
B. Causes Associated with Pressure on the Neck
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by “commando punches” to the throat.
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by hanging (as in from a rope).
It is not disputed that vagal-induced sudden cardiac arrests in healthy adults can be caused by choking on a piece of food or other foreign body.
(I personally find the lack of dispute regarding sudden, vagal-induced death from choking on a piece of food highly illuminating in view of the “chokehold” debate. I would love to cross-examine a forensic pathologist of the “extremely unlikely” school as to why a sudden death in a healthy adult from “external” pressure on the neck — from a chokehold — is so extremely unlikely while a sudden death in a healthy adult from “internal” pressure on the neck — from choking on a piece of food — isn’t so extremely unlikely.)
C. Further Causes, Especially as Regards the Valsalva Maneuver
It is not disputed that vagal-induced sudden cardiac arrests can be caused by straining during a bowel movement (which involves what’s called a Valsalva maneuver — a vagal slowing of the heart secondary to increased intrathoracic pressure on the aortic sinus bodies, which act in a manner similar to the carotid sinus bodies), sudden severe fear, or sudden exposure to severe heat. That said, the huge majority of these latter deaths occur almost entirely in “older” people — however “older” cannot be objectively defined. Again, there’s no bright dividing line between “older” people and “younger” people.
I will note that some medical authorities advise patients over 50 to “never hold your breath during a bowel movement” so as to avoid Valsalva-induced fainting or even cardiac arrest. You may have heard of someone “having a heart attack and dying” while sitting on the toilet. The Valsalva effect is almost undoubtedly the mechanism that causes such deaths.
D. Speculation: To What Extent Does the Strength of the Vagal Stimulation Matter?
Vagal stimulation of the heart is not an all-or-nothing event. Just as is true with applying the brakes in a moving car, there are degrees. Given this reality, it’s rational to speculate that different practices may result in different strengths of vagal stimulation, and therefore in different frequencies of fatal outcomes. I note that situations that could be associated with very strong vagal stimulation, such as hanging, immersion syndrome, strangling by hand, and heavy straining during a bowel movement are notably associated with vagal deaths, whereas situations that could be associated with “not so very strong” vagal stimulation, such as “legal” chokeholds during a martial arts class, are not notably associated with vagal deaths. Perhaps there is a clue here. I do observe that authorities such as Dr. Bernard Knight have observed that strangling by hand may allow for more forceful, localized pressure on the carotid sinus bodies than does the more diffuse pressure of a martial arts chokehold.
Of course, people vary considerably one from another as to how susceptible they are to the effects of vagal stimulation (and a given individual’s susceptibility can vary as factors such as their age, health, and intoxication level varies), and therefore a degree of vagal stimulation that might cause a fatal arrest in one person would not cause such in another person, and of course how much vagal stimulation a given person is receiving at a given time cannot be objectively assessed. Still, if some activities produce stronger vagal stimulation than other activities produce — for example, hanging by rope versus martial arts chokeholds — then it would make sense that the activity that produced the stronger vagal stimulation would have the higher fatality rate. How this is “news you can use” in the real world is not entirely clear.
E. Summary Regarding Vagal-induced Cardiac Arrest
Given all of the above, a person could reasonably conclude that there is at least SOME risk of causing a vagal-induced sudden cardiac arrest from squeezing another person’s neck, no matter how “carefully” or briefly one does it. Further, beyond a very minimal degree, “trust” on the part of the receiver and “skill” on the part of the giver have basically NOTHING WHATSOEVER to do with affecting the risk of causing an utterly disastrous outcome. It’s ALWAYS a roll of the dice.
9. Harm Reduction?
A number of measures have been advanced as reducing the risk of engaging in breath play. Let’s look at some of those.
A. Learn CPR
It’s good for people to learn CPR. (I’ve taught it, at both basic and advanced levels, for decades.) That said, should breath play result in a cardiac arrest, it cannot be reasonably said that doing CPR is reliably likely to revive the victim. Cardiac arrest is a completely out of control disaster. Resuscitation is certainly not guaranteed even for a very experienced and highly trained medical team with all advanced life support equipment immediately available. An inexperienced and minimally trained civilian, likely working alone, faces a much more uphill battle. In the unlikely event that an automatic external defibrillator (AED) was available it should certainly be used, but the battle nonetheless remains very much an uphill one. While CPR training can reasonably be said to mitigate some of the “lesser” risks of breath play, such as respiratory arrest or airway obstruction by the victim’s own tongue, it cannot reasonably be said that CPR training significantly mitigates the “greater” risk of a fatal outcome due to cardiac arrest.
B. Stop Before They Pass Out
I’ve had a number of people tell me that they always stop before their partner passes out. There are two problems here. First, you can never really know when another person is just about to pass out until they do. Second, and more serious, passing out is not a condition in and of itself. Rather, it is a SYMPTOM of one of dozens of underlying conditions — ranging from neck squeezing causing a brief lack of blood to the brain to full cardiac arrest. In the moment of the person passing out you usually cannot tell what caused their loss of consciousness.
C. Get Medically Screened.
This certainly sounds reasonable. Some breath control advocates have recommended presenting oneself to one’s doctor and telling them that you plan to participate in martial arts classes that will involve your having chokeholds applied to you, and you want your physician to evaluate your risk level from engaging in this. (Let me note here that this involves LYING to your physician. Were you to be honest with your physician about why you wanted your risk of having chokeholds applied to you, the doctor visit would likely take a very different course.) Setting aside the nontrivial “you should lie to your doctor” aspect, relatively few physicians are trained to any significant degree in how to make such an assessment. Most physicians have no special training, education, or experience regarding how to respond to such a request. What questions should they ask you? What should they look for when they examine you? What tests should they order? This is not something widely taught. Given this reality, it might be better to consult a physician who was a specialist in sports medicine. About the best a physician could do would be to screen you for major risk factors that involve participating in highly vigorous sports such as the cardiac condition known as “prolonged Q-T syndrome.” A physician, upon completing such a screening exam could pronounce you free of factors believed to increase your risk, but no physician can say “with a reasonable degree of medical certainty” that clearing any screening process means that you face no risk of sudden cardiac arrest (let alone any of the secondary complications) from being choked. The dangers remain.
D. Get Martial Arts Training
The current “state of the art” as regards breath play in the BDSM community is a one-time class, lasting about one to two hours, concentrating on the how-to aspects with little or no education as regards the underlying anatomy and physiology of what’s involved (and with much of the anatomy and physiology information that the presenter does offer being highly flawed.) It’s been suggested that if you want to choke your partner during sex then you should attend a few months of classes at a martial arts academy to learn “proper” choking techniques. This likely has at least some benefit. (Numerous forensic pathology authors note that strangling by hand seems to be especially risky — a cautionary message for those who wish to combine, say, a bit of manual strangulation with missionary position sex.)
Certainly by attending such classes the student will learn the difference between what’s sometimes called a “carotid sleeper” hold, which involves compressing the arteries in the neck between the forearm and upper arm while avoiding significant pressure on the windpipe (and is generally allowable), and what’s sometimes called an “arm bar” hold which compresses the windpipe with the forearm (and is generally not allowable). The student will also likely get an opportunity to both apply such chokeholds and have such chokeholds applied to them.
Further, all of this will occur in a monitored environment with both referees and (hopefully) First Aid/CPR trained people immediately available to keep things sane and to intervene if necessary. This means, among other things, that students who incline towards being a bit “over-enthusiastic” about applying chokeholds to others will know quite well that such third party “umpires” are present and are therefore likely modify their enthusiasm. (Such umpires will, of course, likely not be present when two people are enthusiastically doing breath play in the privacy of their bedrooms.)
Getting such training is all well and good, however the problem here is that while “properly applied” chokeholds have an excellent safety record when applied within martial arts schools, applying them outside of a martial arts school is a much more problematic matter. Let me note briefly here — I’ll touch on it later in more detail — that one of the major problems facing the breath play enthusiast is that causing harm or death by applying a chokehold during a formal practice session at a recognized martial arts school has a fairly good chance of being legally defensible, whereas causing harm or death by applying exactly the same chokehold during erotic “breath control play” games is legally utterly indefensible. It’s like two grown-ups deciding to play-wrestle in their back yard during a picnic. If one of them badly hurts or kills the other, there’s almost undoubtedly gonna be a really big legal problem.
You can decrease your odds of causing a fatal outcome by getting training in how to “properly” apply chokeholds, but you cannot reduce your odds to zero. How much did you reduce them? You won’t know, you can’t know, until you find out the hard way.
E. Don’t Play Alone (including Commentary on Autoerotic Asphyxiation)
While no studies have been done (and doing them would be incredibly difficult), it does seem reasonable to believe that significantly more people die each year from autoerotic asphyxiation play (breath play, often involving a noose, done by oneself) than by engaging in breath control play (done with a partner). Exactly how many people die of autoerotic asphyxiation every year is not known, but estimates range from about one to four deaths per million people per year. Therefore every year about 300 to 1200 people will die from this practice, and that’s just in the United States. This practice used to be believed to be only engaged in by men, however more and more cases involving women are being noted.
Let me note here that there is a fair amount of insurance-related civil litigation as regards auto-erotic deaths because many life insurance policies will pay in the event of an accidental death but not in the event of a suicide. This results in the surviving family members arguing in court that the death was accidental and the insurance company replying that the death was in fact a suicide. A messy and painful situation.
The number of deaths each year from autoerotic asphyxiation play is likely significantly higher than is the number of with-a-partner asphyxiation because a different mechanism of death is likely involved. While authorities attribute a role for vagal-induced sudden cardiac arrest in some of the autoerotic cases, what seems to happen considerably more often is that the victim passes out with a noose still around their neck in a load-bearing location and therefore dies of compression of the windpipe and/or carotid arteries, taking several minutes to do so.
This presents something of a dilemma. On the one hand, the presence of a second person to act as rescuer could likely save the unconscious person’s life. On the other hand, the presence of a second person could leave that second person open to serious criminal and civil liability should a death or serious injury result. The basis for their liability would be that they “aided and abetted” the lethal behavior.
F. Should the Use of a Break-away Device During Autoerotic Asphyxiation be Advocated?
Since I became a “known person” regarding breath play some years ago, I have talked with or corresponded with numerous people who have lost a loved one through autoerotic asphyxiation. These are very difficult and painful interactions. The surviving loved ones are often completely stunned by the death, and frequently had no idea that such practices even existed — thus compounding their grief. Perhaps, just perhaps, I can spare at least a few people from enduring similar grief.
To admittedly engage in a bit of “radical brainstorming,” perhaps the use of some sort of “breakaway” device, either formal or improvised, might offer meaningful harm-reduction potential as regards autoerotic asphyxiation. One can buy breakaway dog collars, breakaway cat collars, and breakaway lanyards designed to be worn around human necks. What the “approved breaking strength” of a breakaway device to be used as a safety measure during autoerotic asphyxiation should be, I have no idea. Just to speculate, let’s assume that the smallest user of such a device weighs 100 pounds (and younger — therefore smaller — teenage boys do seem to be the most common type of people who engage in this practice.) Let’s further assume that such a person would pass out while in a standing position with the noose around their neck and their feet on the floor. According to the forensic pathology literature, it takes about ten pounds of pressure to close off the carotid arteries. Let me also observe that a gallon of water weighs about eight and one-third pounds.
Perhaps, just perhaps, one could find or construct a device that would support one gallon of water 8 & 1/3 pounds) but not two gallons of water (16 & 2/3 pounds). If such a person were to go unconscious, then they would almost undoubtedly exert at least 17 pounds of pressure on the rope. Therefore, if the breakaway device were rated to separate at no more than 17 pounds, the unconscious person’s weight would presumably trigger the breakaway mechanism and they would fall to the floor to presumably regain consciousness. (Note: this assumes that the person is in a standing position when they became unconscious. Should they be sitting or lying down, then their going unconscious could result is far less pressure being applied to the rope around their neck with resultant compromise to the effectiveness, possibly to the point of being completely ineffective, of any breakaway safety device that they might be using while in such positions.
Please let me hasten to add that this “solution” is far, far from perfect. For one thing, it completely fails to address the risk of sudden, vagal-induced arrest. It also doesn’t address a host of secondary risks, including but certainly not limited to possible fracture of the larynx or hyoid bone, or damage to the vocal cords. Additionally, let me note that the term “failed self-rescue mechanism” is often found in case reports of auto-erotic fatalities. Still and all, I suppose the use of such a device could, at least in theory, be better than using nothing at all. Is it a LOT better than using nothing at all? That is not (repeat: not) something I could confidently assert, but at least it’s SOMETHING, perhaps especially if the autoerotic asphyxiation is also done in the presence of a second person.
G. Parasympathetic Blocking Agents
Given that the parasympathetic dangers of breath play are what make doing it even briefly so dangerously unpredictable, I have written that there is — speaking VERY hypothetically here — at least one measure that might actually have meaningful harm-reduction potential. There is a family of drugs called cholinergic blocking agents — atropine is a well-known member of this family, scopolamine is another — and these drugs block the effects of the parasympathetic nervous system. Hypothetically, a person who was pre-medicated with one of these cholinergic blocking drugs would show increased resistance to vagal effects, and therefore be at decreased risk for vagal-induced cardiac arrest. While I have no idea what drug one might take, in what dosage and by what route, and what degree of protection would be offered or how long it would last (nor, due to liability concerns, am I inclined to work out a set of specific recommendations; I’ll leave such for a much bolder individual), at least hypothetically this precautionary measure, at least from a pure logical standpoint, makes a certain amount of sense.
H. Summary Regarding Harm Reduction
I was asked to give a presentation on breath play to a class of people who were going for doctorate degree in human sexuality. When I finished my presentation, one of the students asked me, “So, you’re basically saying that there are no harm reduction measures as regards these practices?” My answer was, in essence, “Yes, that’s correct. I’ve tried really hard, but I cannot find any harm reductions measures as regards these practices that I believe are reliable enough to bet a human life on. They just don’t seem to exist.”
Are there at least somewhat safer ways, yes, there are, but NO way is so safe as to either eliminate the possibility of a seriously bad outcome or to make such a bad outcome legally defensible. Choose to take the risk or choose to not take it, but you choose to believe that you are engaging in “safer” breath play at your profound peril.
Here’s a blunt fact: You cannot, in legal safety, put your partner’s life at risk because one or both of you gets a sex thrill from doing so. If you endanger your partner’s life and no harm results, then lucky you. On the other hand, if you endanger your partner’s life and as a result they are now either badly injured or dead, then both of you are likely now in the biggest trouble of your lives.
10. The Choking Game — A Related Activity
There was a recent Internet-based surge of interest in a group of activities that have come to collectively be called The Choking Game. (There are numerous other terms for it.) This is a nonsexual activity, classically engaged in by those in their early teens and somewhat younger kids, which involves making themselves or each other pass out “for the fun of it.” This activity has been something that kids have been teaching each other “while the grownups aren’t around” for a very long time, and references to such practices can be found going back to the 1800’s. The typical final passing-out maneuver usually involves squeezing the neck to decrease blood flow to the brain or “bear hugging” someone’s chest from behind to produce a Valsalva-like effect. The rewards of these practices apparently include the novelty of going unconsciousness and the euphoria of being low on oxygen. Also, they are ways to alter one’s consciousness without taking drugs.
I had some personal experience with this a long time ago. My playmates and I were taught this game one summer (if memory serves, it was called “playground pass-out”) when I was about 12 years old by one of us who was slightly older. This person had apparently had learned it in that place called junior high school — an exotic land which the rest of us had yet to visit. After learning it, we proceeded to have hilarious fun for the rest of the day by making ourselves or each other pass out, but then an incident occurred on the second day in which I applied the “pass-out bear hug” to said older playmate. They fell to the ground as expected, but did not wake up within seconds as had always occurred before. Instead, they continued to just lie there, very very still. Many seconds passed, and I found myself, to my rapidly increasing fear, wondering if my playmate was starting to look paler than usual and if their lips were turning blue. Just as we were about to panic and run for the grownups, our playmate gasped and woke up — at which time we all instantly, unanimously, and strongly swore off the playground pass-out game.
These activities are collectively called The Choking Game because they involve “recreational” suffocation or strangulation in a non-erotic context. Given that fact, it would be rational to therefore refer to activities that involve recreational suffocation or strangling in an erotic context as “Sex Choking Games.” I note that this term could seem much more ominous than does the more benign-sounding term “breath control play” but it’s nonetheless a rational use of language — and I suspect that the judge would allow the prosecutor to use the term “Sex Choking Games” in describing the practices involved to the jury in any trial where such practices were at issue. From the defendant’s point of view, trying to defend the harm they caused by engaging in “sex choking games” could be, to say the least, extremely difficult.
One major aspect of The Choking Game is that it is UNIVERSALLY condemned by educators and medical authorities. (The CDC has produced a highly cautionary publication regarding it.) I don’t know of even one single person in a position of authority who is attempting to defend the risk/benefit ratio of the practices involved in The Choking Game, no matter how rewarding some kids find it. Absolutely nobody in authority is advocating the teaching of “safe choking game techniques” to the kids. There are some non-profits dedicated to warning of the dangers of The Choking Game, and there has even been discussion of including such warnings in the D.A.R.E. program. Outside of the kids who do it, The Choking Game basically doesn’t have friend or defender anywhere in the world — certainly not anybody in authority. (Those considering engaging in “sex choking games” might want to keep this fact in mind. Societal attitudes towards the practices involved in The Choking Game are essentially unanimously attitudes of strong disapproval — and if you cause a bad outcome then your jurors are likely to have such negative attitudes.)
It could be rationally advocated that “safer choking game techniques” should be taught to the kids, even though they are minors, on the ever-popular argument of “they’re going to do it anyway so we need to teach them to do it as safely as possible.” After all, kids — read: minors — shouldn’t be engaging in sex either, but it’s absolutely not a secret that they do. Further, it’s well known that The Choking Game kills kids. The “they’re going to do it anyway” assertion is a common argument put forth within the BDSM community in support of teaching breath control play, and also put forth in mainstream society in support of teaching meaningful birth control and STD prevention to minors.
The distinction between the two activities is that engaging in choking games is a behavior that, under current societal standards, is judged as having absolutely zero reasonable benefit. (Engaging in sex can, of course, have its risks, but it can also have reasonable benefits.) Given that harsh, zero-reasonable-benefit judgment of the practice, along with its dangers, The Choking Game utterly fails any sort of commonly used risk/utility test. In the face of this stark reality, one tries to imagine a school board or similar entity officially authorizing instruction in “safer choking games” for the kids in its program. (I will note here that most deaths due to The Choking Game seem to occur in kids who are doing it alone.) While one can try to imagine the implementation of such a program, one may put oneself at risk of acquiring a certain degree of cerebral strain by doing so, especially if simultaneously trying to keep a straight face.
More seriously, if those who engage in breath control play want to get a serious clue as to how their behavior will be regarded if said behavior comes to the attention of mainstream society members (jurors, for example), observing how The Choking Game, and the people who engage in it, are regarded by mainstream society members can be most illuminating.
11. Legal Aspects of Breath Play
There is a an acronym that is currently highly popular in the BDSM community. The acronym is RACK, and it stands for Risk-Aware Consensual Kink. While the definition of RACK is somewhat subject to discussion, in essence it involves an understanding that essentially all BDSM activities contain at least some degree of risk and, knowing that such risk exists, people are choosing to engage in the activities anyway. (RACK stands in contrast to another well-known BDSM slogan: “Safe, Sane, and Consensual.” RACK-based BDSM people acknowledge that many BDSM activities do involve some risk — and therefore cannot be “safe” — and choose to engage in them anyway.) In terms of legal-ese, RACK is therefore basically identical to the established legal doctrine of assumption of risk (discussed below) A lot of RACK-based discussion focuses on the physical risks of a given activity. That said, some activities also have legal risks associated with them. Given that legal risks are part of RACK, I’d like to take some time to discuss such risks, and to discuss other relevant aspects of law.
All human behavior, sometimes even including the human behavior of doing nothing, has at least some potential for exposing other people to a risk of harm. When a person’s behavior causes harm (in legalese, causes “damages”) to others, then a legal question can arise in both civil and criminal court as to whether or not the behavior that caused such harm is legally defensible.
Let me preface addressing the “defensibility” question by noting that the sports aphorism of “no harm, no foul” (and therefore no penalty) often applies here. While there are some exceptions, as a general rule somebody — a specific person in a civil matter and/or society as a whole in a criminal matter — has to be harmed (“suffer damages”) in order for a legally sufficient case against a particular defendant to come into being. Therefore, as a general rule, no damages means no case, and therefore no penalty. On the other hand, big damages means big case, and therefore big penalty. (Let me note here that “damages” is legal jargon and that what does and does not qualify as legally recognized damages is often spelled out by statute, however physical injury or death certainly qualify.)
A. What is a Prima Facie Case?
For a legal case to go forward, be it civil or criminal, the plaintiff (in a criminal case, that would be the prosecution), must be able to show that what’s called a prima facie case exists against the defendant. A prima facie (“at first sight”) case — also sometimes called a “colorable claim” — is composed of what are called “elements.” Elements are basically yes/no questions about the case, and each and every element must be proven by admissible evidence, aka “facts”. (Also, no “affirmative defenses” apply that would legally excuse what the defendant did. Affirmative defenses are discussed below.) If the plaintiff cannot produce sufficient admissible facts to meet at least a basic level of evidence, then the judge can dismiss the case against the defendant in a pre-trail hearing because the plaintiff failed to “prove up” a prima facie case.
(In the real world, if the plaintiff’s lawyer can see that no facts are available to at least basically satisfy each element of a prima facie case, then such a case is unlikely to be filed against the defendant in the first place. Bringing a clearly flawed case before a judge tends to annoy them, and judges can have long memories. Bringing a clearly flawed case can also subject the bringer to penalties, including but not limited to financial penalties.)
To give a simplified example of how this works, it could be said that the crime of arson consists of the unlawful burning of a structure. To convict a defendant of a charge of arson, the prosecution would have to prove by admissible facts that 1) a burning occurred, 2) what was burned was a structure, and 3) that the burning was unlawful. (The prosecution would also have to refute any affirmative defenses raised by the defense.) The terms “burning” and “structure” are, in such a case, legal jargon (the legal jargon for “legal jargon” is “term of art”) and these terms of art have specific legal definitions. For example, in the above scenario, the unlawful burning of personal property such as a car or laptop computer would not be sufficient to convict the defendant specifically of criminal arson because neither of those items is a “structure” (although it likely would convict the defendant of another crime, such as vandalism). Because the element of “structure” cannot be proven in such an example, the prima facie case of arson against the defendant would fail.
B. What are Affirmative Defenses?
Both crimes and torts have what are called “affirmative defenses” associated with them. An affirmative defense is one in which the defendant concedes that they engaged in the supposedly legally questionable conduct. (The other major defense is, “I didn’t do it!”) A person accused of tortuous and/or criminal behavior can argue, if they did in fact engage in that behavior, that they had a legally acceptable justification for doing what they did. A defendant can escape or significantly limit their civil liability and/or criminal guilt if they can prove that one or more affirmative defenses apply.
C. A Key and Fundamental Aspect of Law: What is a “Jury Question”?
In any trial, civil or criminal, there are two basic types of questions: Questions of law and questions of fact. Questions of law, such as should an objection to a question asked of a witness be sustained or overruled, or should certain evidence be admitted or excluded, are decided by the “trier of law” — the judge. Many such questions involve the procedures and mechanics of the trial. Questions of fact, such as was or was not the defendant present at the scene of an auto accident, are decided by the “trier of fact” — the jury. (In cases involving no jury, the judge acts as both the trier of law and the trier of fact. Such hearings are called “bench trials.”) A very important question for a jury to decide is what’s called a “question of ultimate fact”‘ such as the defendant’s guilt (and, if guilty, their degree of guilt, for example murder or manslaughter) or the defendant’s innocence.
In considering matters such as the legal aspects of breath play, it’s crucial that the concept of a “jury question” be kept in mind because different juries, hearing exactly the same facts and law in a given case, could come to very different verdicts — and all such verdicts are legally defensible. Was the defendant merely negligent or were they grossly negligent? Did the defendant kill intentionally or kill unintentionally? These are jury questions — and therefore the answer to them cannot be known ahead of time in a given case. One can often make an educated guess — a friend of mine who is a former prosecutor once remarked that “juries are 90% predictable” — but what a particular jury will decide in a particular case cannot be known ahead of time. Many of the legal questions regarding breath control play are “jury questions” are therefore how such questions will be answered in a given case cannot be known ahead of time. By it’s very nature, a jury question can always go either way, including in a direction that you think it “shouldn’t” go.
Having said that, let me add an observation based on my own experience as someone who has worked as an expert witness on breath control in several homicide cases in which it was at issue: Juries do not like these defendants. Juries are not at all inclined to give the benefit of the doubt to defendants in a murder case in which breath play may be involved. Should you decide to choke or suffocate your partner during sex, and should that result in your partner’s death or severe injury, understand clearly that you are likely to face a distinctly unsympathetic jury.
Let me add here that when a case is appealed from a trial court to an appellate court, the appellate court generally only considers questions of law such as was it proper for the trial court judge to admit or exclude evidence. Great deference is shown by the appellate courts to how questions of fact were decided by the jury unless something about the decision is strikingly unreasonable. For the most part, only questions of law, questions decided by the judge, are addressed by appellate courts.
D. What Evidentiary Standard Applies?
The burden of proof in a criminal case is the highest burden that exists, which is the “beyond a reasonable doubt” standard. (Note that no case is required to be proven “beyond a shadow of a doubt.”) While various definitions of “beyond a reasonable doubt” exist, a very useful one that I once heard a prosecutor use is: “It’s not reasonable to believe that the defendant didn’t do it.”
By contrast, in a civil case, the burden of proof is the “preponderance of the evidence” standard, which means that the plaintiff must only prove that it’s “more likely than not” that their case is correct. This lower burden exists, in part, because the consequences of an unjust verdict are less severe. The thinking is that if a completely incorrect civil judgment comes in against an innocent defendant then the worst thing what will happen is that said defendant will lose some money, and said defendant can always go make more money. By contract, a wrongfully convicted person in a criminal case could lose their freedom, or even their life, and therefore because the consequences of such a wrongful conviction are much harsher it’s only rational that higher safeguards must be in place.
In between the two standards is an interesting burden of proof called “clear and convincing evidence.” This is “more than” the preponderance standard but “less than” the beyond a reasonable doubt standard. In many jurisdictions, in order to get an award for punitive damages the defendant must prove by clear and convincing evidence that the plaintiff engaged in especially reprehensible conduct such as gross negligence or willful misconduct. Merely proving ordinary negligence by the preponderance standard often isn’t sufficient to seek an award for punitive damages.
E. What Constitutes A Jury of One’s Peers?
A BDSM enthusiast would do well to keep in mind that, should their conduct result in harm and civil and/or criminal litigation result, they will face a trail “by their peers.” The concept of being judged from one’s peers descends from the days when commoners had their conduct judged by member of the nobility, and the resultant judgments were often considered unfair. It was felt, and eventually enacted into law, that to help ensure that justice was done a commoner would have their conduct judged by other commoners rather than by a member of the nobility (and that members of the nobility would be judged by other members of the nobility). Modernly, a defendant has the right to have their conduct judged “by a broad cross-section of their community” — which is commonly interpreted to mean that people cannot be excluded from juries on such grounds as race, gender, or religion. In practice, what this means is that should a BDSM person face trial, they will NOT be judged by 12 people who have attended several munches and/or read a BDSM how-to book such as “Screw The Roses.” (In fact, the plaintiff’s lawyer is likely to use what are called “peremptory challenges” to exclude as many BDSM-knowledgeable people as possible from the jury, and this tactic is legally permissible — up to the limit of the number of such challenges that they are allowed, which is often about 12.) Rather, the defendant will be judged by, say, 12 people chosen at random in a local supermarket. THOSE will be the people who will judge the reasonableness of the defendant’s conduct.
F. Legislative Intent
All laws are intended to do one thing and one thing only: regulate behavior. Sometimes it can be difficult to determine from a plain reading of a statute exactly what behavior a law was intended to regulate. To aid law enforcement officers, prosecutors, judges, and others in understanding the purpose of a given law, a given law is often preceded in the statutory code books by a statement of legislative intent.
Unfortunately for BDSMers, laws regarding topics such as assault, battery, and domestic violence were likely not written with an appreciation that there might be people consensually, even gleefully, engaging in behavior that would be, on a plain reading of the statute, a violation of that statute. Obviously, this can set the stage for problems. There is, however, some good news. More and more police officers, prosecutors, judges, and others are becoming aware that a significant number of people out there are engaged in consensual BDSM play. Indeed, legal professionals of various types are far from rare attendees at BDSM events. What this means is that if behavior that is otherwise, strictly speaking, a violation of the statute, comes to the attention of the authorities, then people will be less likely to be either arrested or prosecuted if said legal authorities can be satisfied that 1) the behavior was reasonably consensual and 2) the behavior did not cause severe bodily injury or reckless endangerment. We need more educational outreach to all levels of the legal community to increase their awareness regarding the realities of consensual BDSM.
A plausible argument can be made that the regulation of consensual BDSM activities is outside the scope of the legislative intent regarding various statutes associated with matters such as battery.
G. What are Jury Instructions?
A trial basically follows the following almost universal sequence: Establishing jurisdiction, jury selection (often called voir dire — which almost nobody is entirely sure how to pronounce), opening statements, presentation of evidence, closing arguments, jury instruction, jury deliberation, and verdict.
The “jury instruction” phase is often particularly significant, and there is frequently a lot of behind-the-scenes wrangling in a given case as to what the nature of these jury instructions are to be. Jury instructions often involve exactly what must be proven, and by which side, and how much evidence is required to prove it. Fortunately, there are printed jury instructions and these can often be tremendously helpful. Printed jury instructions, which can often be taken into the jury deliberation room, offer systematic, step-by-step, checklist-like guidance to the jury as to how to resolve the questions before it. You can often greatly increase your understanding of any given aspect of law by checking out not only the language of the statute, but also the jury instructions associated with that aspect of law. Jury instructions often do a great deal to make a fairly complicated legal issue much simpler to understand. Many are freely available online. Check them out. They can be really helpful.
12. An Overview of Tort Law
In civil law, one person generally causes harm another either “on purpose” or “accidentally.” (In legal-ese, such acts are either “intentional” or “unintentional.”) Such harmful acts are called torts. A tort can be defined as a wrong done by one person to another for which the wronged person has a remedy available in civil court. Defamation is a tort, as is invasion of privacy. Product liability is a huge area of tort law. There are many other torts. An action which constitutes a tort may or may not also constitute a crime. For example, battery is usually both a tort and a crime, however defamation is a tort but is usually not a crime.
A. The Intentional Torts and The Affirmative Defense of Consent
Torts that cause harm “on purpose” are called intentional torts and are behaviorally specific voluntary acts. The intentional torts include such acts as battery, false imprisonment, and trespassing.
There are at least a dozen recognized affirmative defenses to the various intentional torts, including but not limited to self-defense, defense of others, recapture of chattel, and public necessity. Consent is a major affirmative defense to intentional torts. Consent is an effective affirmative defense to all intentional torts unless it was obtained by fraud or duress, or if the bounds of granted consent are exceeded.
B. The Intentional Tort of Battery and Affirmative Defense of Consent
The tort of battery is generally defined as the intentional touching of one person by another person in a harmful or offensive manner. A individual’s “person” can be defined as their body and anything closely connected to it, such as their clothing. The outer limit of someone’s “person-hood” is not clearly defined and can include such things as an item held in their hands or lips, or a vehicle in which they are riding. Even very minimal touching is sufficient for the tort of battery if the intent was harmful or offensive. (In law school, we studied a case — Leichtman v. WLW Jacor Communications, Inc. — in which one person intentionally blowing cigarette smoke into the face of another was held to be sufficient for a battery to have occurred.) Under civil law, consent is an effective affirmative defense to an accusation of battery.
C. The “Great Bodily Injury” Upper Limit to the Affirmative Defense of Consent
Let me add that consent is not available as an affirmative defense to the defendant if their battery inflicts “great bodily injury.” (This can also be referred to by such terms as “serious bodily injury” or “substantial bodily injury.”) While there is no universal definition of great bodily injury, an injury severe enough to qualify is generally understood to be fairly serious and often requiring formal medical care. Given this, one could strongly argue that conditions which heal on their own with no need for such formal medical care — the bruises and welts that often result from consensual BDSM play, for example — are not great bodily injuries and are therefore protected under the “consent umbrella.” Let me note here that whether or not great bodily injury was inflicted in a particular case is a jury question.
D. Definitions of Bodily Injury, Substantial Bodily Injury, and Serious Bodily Injury
Many jurisdictions define terms such as “bodily injury” and “great bodily injury” by statutory language. Such definitions vary widely scope, specificity, and clarity, but the definitions of them under federal criminal law can serve as a starting point.
United States Code, Title 18, Part 1, Chapter 7, Section 113
(b) As used in this subsection—
(1) the term “substantial bodily injury” means bodily injury which involves—
(A) a temporary but substantial disfigurement; or
(B) a temporary but substantial loss or impairment of the function of any bodily member, organ, or mental faculty; and
(2) the term “serious bodily injury” has the meaning given that term in section 1365 of this title.
Under 1365 (h) we find:
(3) the term “serious bodily injury” means bodily injury which involves—
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; and
(4) the term “bodily injury” means—
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or mental faculty; or
(E) any other injury to the body, no matter how temporary.
Commentary: The federal law is somewhat unique in that it defines three, rather than two, levels of bodily injury: 1) “bodily injury,” 2) “substantial bodily injury,” and 3) “serious bodily injury.” Rendering somebody briefly unconscious by applying a chokehold to them arguably causes a temporary but substantial loss of mental faculty, and is therefore “substantial bodily injury” under these definitions. How this would apply in jurisdictions where there are only two categories of bodily injury is unclear and therefore this could be charged as what’s often called a “wobbler” — meaning that it could be, at the discretion of the prosecutor, charged as a misdemeanor of as a felony (or, possibly, not charged at all). Again, ultimately what level of bodily injury occurred, if any, is a jury question.
E. Negligence, Degrees of Negligence, and the Affirmative Defenses Thereto
Acts that cause harm “accidentally” are often called negligence. Negligence is not behaviorally specific in the way that intentional torts are, but instead is much more wide-ranging. The tort of negligence consists of, in essence, behavior that unintentionally and unreasonably exposes others to a risk of harm. If such behavior causes harm (damages) to another person or their property, then the person whose behavior caused such harm is liable to the injured person for compensation for their damages under the tort of negligence. The phrase, “Oops. I should have been more careful.” is often associated with negligence.
In determining whether or not behavior is negligent, a risk/utility balancing test is often used. This balancing test was first proposed by Justice Learned Hand. It’s classically used in negligence cases involving product liability, but is also often used “by analogy” in evaluating other types of negligence cases.
Under the “Hand Test,” four questions are weighed, two on each side of the benefit/risk balance. On the “benefit” side of the balance is weighed the social utility of the conduct and the burden of preventing harm that the conduct might cause. On the “risk” side of the balance is weighed both the likelihood of the conduct causing harm and the estimated severity of the harm that the conduct might cause. In essence, if the “risk” side outweighs the “benefit” side, then the conduct is considered negligent and if that conduct causes harm to another then liability results.
Let me observe here that a high severity of harm can “outweigh” a low probability of harm. Given this, as the severity of the harm that might result increases, the probability of its occurring correspondingly decreases. Therefore, if the severity of the harm is very high — say, the risk of sudden death — then the corresponding probability of it occurring can become very low and still result in liability, particularly when the burden of not engaging in the behavior is also low and the behavior itself has low social utility.
F. Sidebar Comment: The Flawed Reasoning Shown by “Yeah, But People Also Get Killed Crossing The Street”
The above illustrates the flawed reasoning in the “Yeah, but people also get killed by crossing the street” argument. On the one hand, yes, some people do indeed get killed by crossing the street. On the other hand, there is truly enormous social utility in crossing the street. Society would come to an immediate halt if people couldn’t cross the street. Further, the burden of crossing the street can be fairly easily reduced to quite low levels by actions such as crossing in crosswalks. Therefore the “benefit” side heavily outweighs the “risk” side. The next time someone tries to justify highly risky behavior by pointing out that people get killed by crossing the street, consider how much social utility a vanilla jury will assign to crossing the street in a reasonable manner versus how much social utility said vanilla jury will assign to engaging in what the prosecutor may call “sex choking games.”
G. Affirmative Defenses To Negligence
There are two major affirmative defenses to negligence: 1) assumption of risk, in which the plaintiff intelligently agreed ahead of time to waive their right to sue if they suffered damages from engaging in a certain activity, and 2) contributory/comparative negligence, in which the plaintiff themselves played a negligent role in causing the harm they suffered.
Assumption of risk often applies to activities such as participating in sporting events or other recreational activities such as boxing, river rafting, playing softball, and suchlike. Contributory/comparative negligence involves the defendant carelessly putting themselves at risk and is illustrated by behaviors such as choosing to not swear a seat belt while driving or riding in a car.
Let me add here that the waivers often signed by people attending BDSM events are often basically just written documentation that the attendees “knowingly and voluntarily” agree to assume the risks posed by the inherent dangers and by the acts of ordinary negligence that are associated with attending the event. In exchange for, in part, being allowed to attend the event, attendees agree by signing the waiver to not sue the events givers if they suffer an injury due to those risks. (That said, extreme or outrageous behavior, whether intentional or grossly negligent, is typically NOT within the scope of the harm-causing behavior shielded by such a document and therefore an attendee injured by such behavior would likely still be able to sue. I’ll discuss this in more detail later.)
H. Ordinary Negligence versus Gross Negligence
In the somewhat murky area between the intentional torts and “plain ordinary negligence” is a concept known by a number of terms. It’s often called “gross negligence” (or “reckless endangerment”) and it’s considered “worse” than ordinary negligence but “not as bad” as an intentional tort. In essence, gross negligence involves knowingly exposing other people to a substantial risk of suffering severe harm for no good reason.
The precise definition of gross negligence is not settled and is something of a judgment call — and this call is made by the jury. Thus, the question of whether or not the harm-causing behavior case was due to ordinary negligence or gross negligence becomes what’s called a “question of fact” and is therefore decided by the jury in any given particular case. It’s a jury question.
Again, what legal writers sometimes call “a bright and shining line” between ordinary negligence and gross negligence does not exist. On the one hand, one generally sees only typical human carelessness in ordinary negligence situations. On the other hand, there is often something rather shocking about the facts in gross negligence situations. Therefore in ordinary negligence situations one might hear, “Oops! I should have been more careful.” while in gross negligence situations one might hear something like, “Charlie, slow down! You’re going way too fast!” to which Charlie replies, “I don’t care! This is cool!” If you hear the defendant say, or infer from the defendant’s conduct, the phrase, “I don’t care!” then start looking around for gross negligence.
The distinction between ordinary negligence and gross negligence matters greatly for a number of reasons. One reason is that “punitive damages” can often be awarded in cases of gross negligence but not awarded in cases of ordinary negligence. Another reason is that the affirmative defense of assumption of risk generally IS allowed in ordinary negligence cases but IS NOT allowed in gross negligence cases. (The defendant might possibly be able to argue, if their conduct was ruled to be grossly negligent, that contributory/comparative negligence on the part of the victim themselves also played a significant role in causing the damages the victim suffered.)
An interesting sub-point here is that even very severe injury or death would nonetheless be defensible if caused by ordinary negligence because the affirmative defense of assumption of risk can be argued, whereas even slight injury caused by gross negligence is not defensible on an assumption of risk theory because that defense isn’t allowed to be argued in such cases.
I. Limited Insurance Coverage and Bankruptcy
Damage awards for conduct judged to be caused by gross negligence (as well as damage awards for conduct judged to be caused by an intentional tort) are generally EXCLUDED from being covered by insurance. Punitive damages are likewise usually similarly excluded The defendant must there pay such damage awards from their own financial resources.
Further, punitive damage awards generally cannot be erased by bankruptcy. Such damage awards are essentially immortal and continue to exist, earning interest all the while, until they are paid. (Given this, the “defense” of being “judgment-proof” can be effective only if the person intends to remain judgment-proof for the rest of their life. If they ever come into any money, then the judgment — which has been earning interest for some time now — can show up on their doorstep to demand, and likely get, its due.)
J. Personal Injury Litigation — Who Pays The Bills?
A key point to keep in mind here is that breath play has the potential to cause very serious injury, and the medical treatment of very serious injuries can run up very large bills. In a case like this, the medical bills can very easily run into the six figures. (Let’s not even get into “collateral” issues such as past and future lost wages, past and future pain and suffering, future needs for permanent medical care/nursing care/physical therapy, or the court costs of defending the suit.) SOMEBODY is going to have to pay those medical bills. Please note that if the bills are paid by the victim’s health insurance, then their insurance company could likely sue the defendant in the place of the victim so as to recover the money that they had to pay. Under the terms of the insurance contract, often in the “subrogation” clause, the insurance company has this right, and can sue even against the wishes of the injured person in order to recover the money that they paid out. Who is going to pay the medical bills if this behavior results in severe injury? That’s a good question to keep in mind, because somebody WILL have to pay those bills.
K. Wrongful Death Litigation
If a death occurs during something like a breath play scene then, in addition to the criminal charges brought by the state, the next of kin of the dead person can bring a wrongful death lawsuit against the person or persons who were involved in causing that death. (If such a death were to occur at a BDSM event, then the people in charge of that event would very likely be named as co-defendants.)
L. Proving Causation and the “Extraordinary In Hindsight” Test
When a given defendant’s negligent conduct has resulted in harm, the question emerges: How foreseeable was this harm to a reasonable person? Put another way, to what extent should the defendant have anticipated that his or her conduct would cause the harm that it caused? To answer this question, many courts use what’s called the “extraordinary in hindsight” test. Under this test, the court asks if the harm that resulted from the defendant’s conduct was or was not “extraordinary.” If the harm is judged extraordinary (as in, “Wow, who could have seen THAT coming?”), then the defendant is likely not liable, but if the harm is judged “not extraordinary” (as in, “Yeah, that’s hardly a surprising result.”) then the defendant is likely to be judged liable. Here, the defendant in a breath play case would have to try to convince a jury of their peers (those 12 people, all likely vanilla, chosen at random from a local supermarket as described above) that a death or serious injury resulting from being suffocated or strangled was an “extraordinary” result and therefore could not have been reasonably foreseen. Good luck with that.
M. The Dubious Value of Waivers
I often get asked by a person who likes to have breath play done to them if it would be helpful for them to sign a waiver indicating that they enjoy and consent to being suffocated or choked during consensual sex. My reply is that, in a civil case for personal injury or wrongful death, the discovery of such a waiver is
much more likely to make the plaintiff’s lawyer happy than it is to make the defense attorney happy. The reason for the plaintiff lawyer’s happiness is that a waiver is, in essence, nothing more than a documentation of assumption of risk. As mentioned above, assumption of risk can be raised as a valid affirmative defense for harm that is caused by ordinary negligence, but not for harm caused by gross negligence.
Given that engaging in “sex choking games” has absolutely no socially recognized value, and that severe harm that can from engaging in them, any harm that does result has a very good chance of being ruled as being caused by gross negligence. If the harm is ruled to be caused by gross negligence (which is likely) then the waiver cannot be used by the defendant. If fact, the waiver could actually be used by the plaintiff’s lawyer because it would help to document that both parties knew that there was a risk of very severe injury or death. Such a waiver might possibly be useful to the defendant’s lawyer in that it might be used to argue contributory/comparative negligence on the part of the victim, but even if the court allowed that argument to be made it would likely have little benefit for the defense. The defendant is still looking at being held liable for the severe and legally unjustifiable harm that they caused.
The situation is generally comparable as regards criminal law. Death or serious bodily injury caused by one person to another person by engaging in “sex choking games” is completely legally indefensible. The only question that remains to be answered is the degree of the defendant’s criminal wrongdoing, which is likely to be judged as very severe. (A “lucky” defendant “only” gets convicted of manslaughter.) That the victim consented, and even documented their consent in
writing, is not likely to be useful to the defendant and in fact may be more useful to the prosecutor.
N. No Right to Counsel in a Civil Case.
Let me note here that, unlike in a criminal case, as a general rule a defendant has no right to an attorney in a civil suit. They will therefore need to pay for counsel out of their own pocket, and such counsel is likely to want an hourly rate in the $200.00 to $500.00 range — and the number of hours is going to be substantial. Given this reality, it’s not unusual for an attorney in such a case to be paid an advance retainer in the low five-figure range before they will take a case. Got that amount of money laying around? (Equity in your home? A tasty IRA? A good stock portfolio? Get ready to kiss all of these good-bye.)
O. Tort Law Summary.
Tort law is the system of redress established by our legal system regarding issues where one person has caused damage to another. It should be kept in mind that many acts which are crimes are also torts, that the evidentiary standard needed to win a tort lawsuit is significantly less than is necessary to win a criminal case, and that there is generally no right of a defendant to be provided with counsel in a civil case.
13. An Overview of Criminal Law
A lot of overlap exists between behavior that constitutes a tort and behavior that constitutes a crime. For example, almost all of the intentional torts such as battery, false imprisonment, and trespassing are also crimes. Many acts that constitute negligence under tort law also constitute negligence under criminal law, such as negligent operation of a motor vehicle.
A key difference between tort law and criminal law is that in tort law the victim is a given individual, whereas in criminal law the victim is society as a whole. (This leads to some interesting semantics. For example, the people who allege that they have been harmed by criminal behavior — and who are still alive — are often called “complaining witnesses” rather than “victims.” This is presumably because “complaining witness” is a less emotionally inflammatory term than the term “victim” is and therefore is less prejudicial to the defendant.)
A. Homicide
Homicide is the killing of one human being by another. There are lawful homicides, such as a killing in legitimate self-defense, and unlawful homicides, such as a death caused by reckless driving. Unlawful homicides are basically broken down into murder and manslaughter.
B. Murder
Murder is the unlawful killing of one human being by another with malice aforethought. Malice aforethought is shown by intent to kill, by intent to inflict great bodily injury (but not kill), by engaging in “willful and wanton misconduct” that unreasonably exposes others to serious danger, or by a killing that occurs during a serious felony such as rape, arson, robbery, or burglary.
There are two classic types of murder: First-degree murder and second degree murder. First degree murder is a murder that occurs with both premeditation (the defendant planned to kill their victim and carried out their plan) and with malice aforethought. Second degree murder is a killing that happens without premeditation but with malice aforethought. (Note that malice aforethought can be shown by “willful and wanton misconduct” not specifically intended to cause death.) Some authorities assert that all murders which are not first degree murders are second degree murders.
C. Manslaughter
Manslaughter is the unlawful killing of one human being by another without malice aforethought. As with murder, there are two classic types of manslaughter. Voluntary manslaughter and involuntary manslaughter.
Voluntary manslaughter is the intentional killing of one human being by another without malice aforethought. The legal thinking here is that some circumstance drove the defendant into such an extreme emotional state that they “weren’t thinking straight” and therefore couldn’t form malice aforethought. (Note: this is different from the legal concepts of “temporary insanity” or “diminished capacity” although it has some resemblance to both.) Two classic fact patterns associated with voluntary manslaughter are 1) finding one’s spouse being sexual with another (assume no consensual polyamory here), and 2) over-reacting in self-defense, such as responding with deadly force to a non-deadly force attack.
Involuntary manslaughter is the unintentional killing of one human being by another without malice aforethought. Such killings are generally the result of criminal negligence. While the precise definition of criminal negligence varies, it generally requires “at least a little bit more” negligence than the ordinary negligence found in a civil case requires. Whether such additional negligence was or was not present in a particular case is a jury question.
As regards a breath control play homicide prosecution, in which the defendant is asserting that they didn’t kill intentionally, a particularly interesting question for the jury to decide is the question of was the defendant’s conduct merely criminally negligent, in which case they should receive a relatively light sentence for involuntary manslaughter, or did the defendant’s conduct rise to the “willful and wanton” level, and therefore justify a conviction of second degree murder? Did the defendant act in a “merely” criminally negligent way, or in a willful and wanton way, or in some other way (of greater or lesser criminal culpability)? That’s a jury question, therefore we won’t know the answer until said jury tells us. That said, I’ve noted that jurors do not tend to give these defendants the benefit of the doubt.
D. Lesser Included Offenses
A concept that comes up fairly often in criminal law cases, perhaps especially in homicide cases, is the concept of what’s called “lesser included offenses.” In this concept, a defendant may be charged with first degree murder. Before the jury retires to deliberate, the judge may instruct them that if they don’t find sufficient facts to sustain a charge of first degree murder, they may find sufficient facts to convict of second degree murder, or of voluntary manslaughter, or of involuntary manslaughter (or, of course, the jury could find insufficient evidence to sustain any conviction and therefore acquit). What this means is that, again, a given defendant’s degree of guilt in a particular case is a jury question, and different juries could come to different conclusions on the same facts and law.
E. Battery
As is true with civil law, under criminal law a battery occurs when one person intentionally touches another person in a harmful or offensive manner. However, in some jurisdictions an unintentional touching of another in a harmful or offensive manner resulting from unintentional but “reckless” actions (remember that reckless actions are “worse” than simply negligent actions) can also be charged as a battery. In many if not most jurisdictions “simple battery” is usually charged as a misdemeanor.
The question of whether or not consent is available as an affirmative defense to the crime of simple battery is a bit more mixed under criminal law than it is under civil law. Civil law is fairly clear: validly obtained consent IS a valid affirmative defense provided that no great bodily injury results from the battery. Criminal law is more mixed and tends to vary widely by state. That said, as a general rule under criminal law, consent is also available as a defense to battery provided the battery does not produce great bodily injury. The statutory language governing this varies significantly from state to state.
According to the statutes of some states, to prove simple battery the prosecution has the burden of proving (beyond a reasonable doubt) that the touching was nonconsensual. This can sometimes lead to somewhat absurd moments during a trial such as the prosecutor asking the complaining witness (victim), “Did you consent to being hit in the face with a baseball bat?”
According to the statutes of other states, the prosecution does not have the burden of proving nonconsent but the defense can raise consent as an affirmative defense.
In still other states, the statutory language is silent on the matter of which side has the burden of consent as regards simple battery. In such jurisdictions, jury instructions and/or past cases can (hopefully) provide guidance.
In addition to arguing consent of the recipient as a defense to simple battery, a BDSM defendant charged with simple battery could argue that consensual BDSM behavior is outside the scope of legislative intent of the battery statute.
F. Aggravated Battery
As a general rule, an aggravated battery occurs when the battery causes serious bodily injury. (An attempt to cause serious bodily injury can be charged as attempted aggravated battery.) Batteries that occur as a result of hate crimes, or batteries on people such as police officers, children, pregnant women, or the elderly, can also often be charged as aggravated batteries. Aggravated battery is often charged as a felony (as is attempted aggravated battery). What constitutes a “serious bodily injury” is ultimately a jury question although, as stated above, various statutes set forth what might constitute serious bodily injury in a specific jurisdiction. The distinction between simple battery and aggravated battery matters a great deal because the affirmative defense of consent has a good chance of being available to a defendant charged with simple battery but the consent defense is NOT available if the defendant is charged with aggravated battery.
A person who choked or suffocated their partner so that one or both of them could get a sex thrill runs a substantial risk of being charged with aggravated battery if any harm (short of death) results. Even if no harm resulted, it’s quite plausible that the person who choked or suffocated their partner could be charged with the felony of attempted aggravated battery — and if this were to happen then the consent of the partner would not be available to the defense. The defendant might be able to argue that their behavior was “outside the scope of the statute’s legislative intent” as discussed above.
G. Solicitation
Under the criminal doctrine called “solicitation” anybody who advises, entices, commands, or otherwise encourages another person to commit a criminal act is guilty of the crime of solicitation. (This is the charge brought against many people who are believed to be engaging in prostitution.) Further, if the solicited person then commits the criminal act because of the solicitation, then the solicitation “merges” with the criminal act and both parties are guilty of the resulting criminal act. For example, if Godfather orders Louie to kill Vinnie, and Louie therefore does kill Vinnie, then both Godfather and Louie are equally guilty of Vinnie’s murder. This doctrine could be relevant in the teaching of a class on breath play, especially a how-to class, because under the solicitation doctrine if the attendees are encouraged to engage in breath play by the class presenter, and do so as a result of this encouragement, and a death were to result, then the presenter of the class could be charged with the resultant murder in addition to the person who actually did the choking. (Note also that whoever booked the presenter to teach on this topic could be similarly charged.)
H. Aiding and Abetting
Under the criminal doctrine called “aiding and abetting,” any person who knowingly encourages or assists another person in the commission or attempted commission of a crime is just as guilty as the person who actually committed the criminal act. Given this legal doctrine, it would be very plausible for a prosecutor to argue that by teaching a breath play class, and especially by teaching how-to techniques for choking and/or suffocation that were intended to be used during erotic encounters, the presenter aided and abetted the attendees in engaging in behavior that was a criminal act, and are therefore just as liable for causing the choking death as the person who actually applied the chokehold. The people who booked the presenter would be looking at similar liability.
I will grant that this is a novel theory of prosecution (as is the solicitation theory mentioned above), but classes on “how to choke your sweetie for bigger and better sex thrills” are novel classes as well. If a dead body falls to the ground in the aftermath of such a class, then some hard questions are gonna get asked about said class. Yes, this legal reasoning is a stretch, but there is good cause to believe that it’s a “reachable” stretch. I have run these theories by more than a dozen attorneys who have years, or even decades, of full-time experience in doing criminal law as either defense attorneys or prosecutors, and the huge majority of them have agreed with me that facts necessary to satisfy the elements of such a prosecution could likely be found to be present. (Let me also note that a finding of civil liability is much less in doubt.)
The theory of aiding and abetting can also applies to allowing breath play (and other high risk practices) at events such as BDSM play parties. If the host(s) and or their delegates, such as dungeon monitors either allow or turn a blind eye towards breath play being done at one of their events, and a death occurs at that play party due to such activity, then the whole place just became a crime scene, and all documents associated with the party, including the guest list, become admissible evidence – that the cops are not required to keep private and could reveal to the media. Further, everybody who attended the party is now a potential witness to a murder. Even further, the party hosts are now looking at being named as co-defendants in any resultant criminal homicide prosecution and/or any wrongful death lawsuits The dungeon monitors who were on duty at the time are looking at being similarly named.
I. Sidebar Commentary: The Double-edged Legal Nature of the “Only Pilot Error Causes Death” Theory Regarding Fatal Chokehold Outcomes
The “judo folks” note that nobody has ever died from a chokehold that was applied during a judo match or class. They argue that because this is true then any fatal outcomes that result from chokeholds applied outside the four walls of such schools, including chokeholds done by people engaging in consensual breath play in private, necessarily must be because the person applying the chokehold applied it either incorrectly or with real-world malice, or that the person to whom the chokehold was applied must have been exceptionally vulnerable to its effects in a way that wasn’t known to the person who applied the hold.
Their reasoning goes like this:
A properly applied chokehold within the judo world has never caused a death. There is zero inherent risk.
In some cases outside of the judo world, applying chokeholds has caused deaths.
Therefore, those “outside the judo world” chokeholds necessarily must have been applied improperly.
This is a seriously double-edged conclusion. If one accepts this conclusion, then it necessarily must follow that a chokehold death cannot be due to pure accident because a properly applied chokehold is a zero-inherent-risk activity. Such a death must therefore necessarily be due to an improperly applied chokehold – due either to intentional misconduct or due to either simple or gross negligence. Given this, a person facing homicide charges is looking at being convicted of a killing that is either intentional, which the jury could conclude was first degree murder, or the jury could decide that the killing was not intentional but that the activity was so negligently applied that a reasonable person should have foreseen that choking somebody in this way would involve a risk of their dying – leading to a conviction of second-degree murder on a “gross negligence/reckless endangerment” theory or to in an involuntary manslaughter conviction on a simple negligence theory. (Acquittal on a “pure accident” theory is also a possibility, but the defendant should not expect it. Whatever the jury’s final verdict, the defendant is almost undoubtedly not leaving prison for several years. Best of luck to them in gen pop.)
If one accepts the zero-inherent-risk argument, then the conviction of involuntary manslaughter – the least severely punished form of criminal homicide — is NOT available to a person accused of criminal homicide if their partner should die during a breath play scene. The best the defendant can therefore likely hope for is the conviction of second-degree murder, which under current California sentencing guidelines is punished by 15 years to life in prison. This means that under “truth-in-sentencing” laws the convicted person must do at least 15 years before they can even appear before a parole board. Many other states have similarly severe truth-in-sentencing penalties. (Let me add here that due to the Willie Horton case, many state governors, who ultimately approve or deny all parole requests, have become markedly unwilling to parole to people convicted of murder. Unless a governor has no further political ambitions, the political risk/benefit ratio of granting parole to a convicted murderer is perceived as simply being a really bad gamble.)
J. Victim Impact Statements
While under criminal law the “wronged” person is society as a whole, in many jurisdictions the “complaining witness” (assuming that they are still alive) and/or the complaining witness’s family members can offer a pre-sentencing statement to the judge. Such a statement may usually be either verbal or written. Such statements are usually made only after the defendant has been convicted but before the judge passes sentence. During this time, the victim, and their family members, can describe the effect the crime has had on them and make other observations (although these statements cannot introduce new evidence). In some jurisdictions, a victim or their family member can express their thoughts to the judge as to how light or how severe a sentence the judge should impose. As regards BDSM play, should their partner be convicted of, say, battery secondary to consensual BDSM activity, their “victim” could have the right to ask the judge to impose a lenient sentence.
K. Bail
It should be noted that the pre-conviction defendant in a fatal breath play case is likely to be looking at either a very high bail (see the mention of house equity, IRAs, and stock portfolios above) or the very real possibility of being held on a no-bail condition. Given that reality, such a defendant could spend years in their local county jail waiting for their case to be resolved. Indeed, what’s called “aging the case” is often a very useful tactic from the defense point of view. Such a tactic allows time for evidence to get lost, for witnesses to either move away or die, and so forth. In the interim, however, the defendant sits in county jail day after day after day, with the days often running into years.
L. Summary of Criminal Law
Criminal law is our “most serious” branch of law. The penalties are the most severe and the burden of proof is the highest. Given that in criminal law the “wronged” person is society as a whole rather than a given person, the consent or forgiveness of the person may not affect the course of a criminal prosecution.
14. Discretion — A Major Aspect of Criminal Law
The concept of “discretion” is especially important in understanding what often happens in the real world of criminal law. Common types of discretion include police officer discretion, prosecutorial discretion, and judicial discretion.
A. Police Officer Discretion
In police officer discretion, an officer often has a range of choices regarding what to do if he or she witnesses what is believed to be criminal behavior. For example, if an officer stops a motorist who was clearly exceeding the speed limit by a great deal, the officer could 1) give the motorist a verbal warning and send them on their way, 2) give the motorist a traffic ticket and send them on their way, or 3) arrest the motorist and impound their vehicle. All of the above choices by the officer would likely be defensible under the theory of officer discretion. (Note: in many jurisdictions, officer discretion has been greatly reduced in potential domestic violence cases. Therefore, when officers respond to such an incident and encounter sufficient evidence, they now _must_ make an arrest. If you watch such incidents on reality TV shows such as “Cops” you may hear an officer say something like, “I’m sorry, sir, but I have no discretion in this matter. You’re therefore under arrest for domestic violence.”)
Note: in the world of pro-domming (and pro-subbing), people often mistakenly equate being of low priority to the local cops and being legal. This means that in some areas pro-dommes can operate for years or even decades without hassle, but in other, nearby areas prodommes get arrested on prostitution charges and shut down within a very short time. Both are examples of officer discretion.
B. Prosecutorial Discretion
In prosecutorial discretion, the prosecutor can make his or her own choice, without having to justify that choice to anybody else, about what charges to bring in a particular case out of a range of possible criminal charges that could be brought. For example, a prosecutor may believe that a defendant is guilty of first-degree murder but decide to only charge the defendant with second-degree murder because they feel that the defendant is more “convict-able” of this charge. Also, sometimes a prosecutor may choose to bring no charges at all even if a crime occurred and is clearly provable by admissible evidence. For example, if a state law requires that a firearm in a home be locked away, and yet the gun-owner’s child finds an unlocked gun in the home and kills somebody — say, another sibling — with that gun, the prosecutor may choose to not bring any charges against the gun owner on the grounds that “they’ve already suffered enough.” Prosecutorial discretion is a major player in criminal law.
C. Judicial Discretion
In judicial discretion, the judge can decide whether or not a prima facie case has been established. The judge also has substantial discretion as to whether or not to admit evidence, sustain or over-rule objections, and suchlike. In the case of a criminal conviction, the judge often has considerable discretion as to what sentence to hand down. Unless the judge’s actions rise to the “abuse of discretion” standard or are otherwise clearly in error (AND such error was harmful to the defendant and not “harmless error”) these decisions will likely be allowed to stand by any appellate court that reviews the case.
D. Further Commentary on Discretion.
Sometimes discretion has political and/or social aspects. At the law enforcement level, a police officer’s supervisor may tell him or her to emphasize or de-emphasize enforcing certain aspects of law — traffic enforcement, street prostitution, drug-dealing, whatever. At the prosecutor level, given that the head of the district attorney’s office is often an elected position, a DA may consider the social/political aspects of what charges to bring in a given case. (There is a saying in California along the lines of: “Every DA in this state is one case away from being voted out of office, and knows it.”) Also, the wishes of the victim (or, if the victim is dead, the victim’s family members) are sometimes given substantial weight by the DA’s office in determining how strongly to pursue or not pursue a given case, including such matters as whether or not to accept a plea bargain. After all, the last thing a DA who is facing re-election needs are surviving family members out there engaging in public demonstrations about how that DA callously handled their dead daughter’s homicide prosecution. Finally, at the judicial level, many trial court judges are elected to office and must therefore periodically stand for re-election — where their record can come under public scrutiny. (It is for precisely this reason that appellate court and supreme court justices are typically 1) appointed for life and 2) cannot, by law, have their salaries reduced. The thinking is that these arbiters of law must be above social and political trends and turmoils so that they can be more dispassionate dispensers of justice. FYI, federal trial court judges are also appointed for life and therefore do not have to periodically stand for re-election.)
In summary, the concept of discretion at various levels — officer, prosecutor, and judge — often plays a truly huge role in determining how a particular legal case turns out.
15. Working As An Expert Witness
A. Overview
About ten years ago, I was contacted by an attorney who had as a client a defendant that had been charged with murder and was facing the death penalty. The defendant was asserting that the deceased had suffocated suddenly and unexpectedly while the two of them were engaged in consensual sex that involved bondage and a gag. The prosecution, on the other hand, was asserting that the defendant intentionally killed the deceased. I was hired to work as an expert witness in that case, and thus began my career as an expert witness. I have since worked as such an expert in several more homicide prosecutions, including another death penalty case, that may have had a breath control aspect. I have also worked as an expert witness in cases where the question before the court was whether the defendant engaged in nonconsensual violence or in consensual BDSM.
What is an expert witness? In law, an expert witness is a person who by reason of “training, education, and experience” possesses knowledge that the average person does not possess. Expert witnesses exist in an essentially unlimited variety of subject areas, but are commonly associated with subject areas that involve criminal or civil litigation. There are expert witnesses in firearms, aviation practices, automobile design, first aid, police use of force practices, toxicology, and so on — to a virtually infinite degree. Expert witnesses often have advanced academic degrees in a particular field. For example, in homicide cases that might involve breath play, the expert witnesses, especially for the prosecution, are often board-certified forensic pathologists. That said, an academic degree in a particular subject area is not necessary to be regarded as an expert in that area. Significant personal experience can be sufficient. For instance, there is a legal aphorism that goes, “Someone who has been a rutabaga farmer for 20 years qualifies as an expert witness in rutabaga farming.” In cases that involve chokeholds, people with substantial training in a martial art that includes choking techniques may be involved as expert witnesses.
The key difference between an expert witness and an ordinary “lay” witness is that lay witnesses can testify to the jury regarding matters such as what they saw or heard, but they generally cannot express an OPINION to the jury regarding such matters. For example, a lay witness can testify that he saw the defendant “driving a car past a stop sign at a high rate of speed at night without the lights on” but the defendant cannot express an opinion that this driver was engaged in reckless driving.
By contrast, an expert witness CAN express an opinion to the jury. Was the bridge that collapsed adequately maintained? Was the toaster involved in a fatal electrocution designed with reasonable safety? Did the victim receive reasonable first aid for their injuries? Did the shipping company whose ship caught fire follow proper storage practices regarding flammable cargo? A lay witness could not express an admissible opinion on such matters to a jury, but an expert witness could. (As the above examples imply, expert witnesses do not usually get contacted because something good has happened.)
Let me add here that it’s accepted in law that expert witnesses don’t always agree and in fact may outright disagree. For example, psychiatrists (expert witnesses as regards mental health) often completely disagree in their answer to the question of whether a defendant was sane or insane at the time the defendant committed the crime they are accused of. A complete disagreement does not imply that either or both parties are not experts.
There are two basic categories of expert witnesses — consulting experts and testifying experts. A consulting expert witness is person who has been contacted by a lawyer so that the lawyer can use the expert’s special knowledge in understanding the facts of a particular case. There is no particular qualification process for a person to become a consulting expert witness. Basically, if the lawyer regards someone as an expert, then they are such an expert. Consulting expert witnesses can share their knowledge and advice with the lawyer, but they cannot testify to the jury because they have not yet been “qualified” to so testify.
By contrast, to become a testifying expert witness, and therefore be allowed to offer an opinion to a jury in a given case, the expert must first satisfy the judge in that case that the proposed expert in fact has an adequate degree of expertise. This is done in a formal court proceeding, held out of the presence of the jury, in what’s called a “qualification hearing.” In such a hearing, the attorney that has hired the expert first offers facts and argument to the judge as to why the proposed expert should be ruled qualified to testify, and then the other side’s attorney offers facts and argument to the judge as to why the proposed expert should not be ruled qualified to testify.
In making the final decision, the judge looks at two questions: First, does the proposed expert in fact have “by reason of training, education, and experience” knowledge that the average person does not have? Second, would the sharing of such knowledge with the jury be helpful to the jury members in deciding the matter before them? If, and only if, the judge decides that the answer to both of these questions is “yes,” then the judge will likely rule that the proposed expert is qualified to testify to the jury.
Judges typically have a great deal of discretion in making the qualified/not qualified decision. Given this reality, it’s possible that, on the basis of what’s offered by both sides in the same qualification hearing, one judge might rule that the proposed expert was not qualified to testify while a different judge might rule that the proposed expert was indeed qualified to testify, with both decisions likely being legally defensible.
One judge’s decision as to whether or not a proposed expert is qualified to testify is not binding on other judges. That said, in actual practice, once a proposed expert has been accepted as qualified to testify in one court, being subsequently accepted in other courts is much more the rule than the exception. Given this, while a proposed expert’s initial qualification hearing may be hotly contested one (mine certainly was), future qualification hearings are usually much less strongly contested (as mine have been).
Further, and this is extremely important, once an expert has been qualified to testify to the jury, said jury is NOT obliged to agree with or defer to the expert’s opinions. Each jury member makes his or her own independent determination regarding a given expert’s knowledge and credibility, and decides for themselves how much weight to give that expert’s testimony.
Some people have asserted that becoming a court-qualified testifying expert witness is no big deal and that “anybody” can accomplish this. In reply, let me state that to go through a qualification hearing is not an easy thing and the outcome of such a hearing is always doubtful, especially the first time one is attempting to become qualified. Let me also state that to successfully complete a qualification hearing is one thing, while to actually work as an expert witness on an ongoing basis on numerous cases, especially working in numerous homicide cases and other major felony cases where the stakes are huge and “getting it right” seriously matters, is most definitely something else again.
B. Working In Actual Cases
Given that the huge majority of legal cases, both civil and criminal, are settled out of court, the huge majority of expert witness work therefore similarly takes place out of court. For me, doing such work typically starts with my receiving a phone call from a defense attorney who says something like, “Mr. Wiseman, I’ve got a client who is charged with murder and you’re not gonna believe what he’s telling me actually happened.” At which point I’ve been known to reply, “Actually, I just might.” Still, I can understand their puzzlement. During my own time in law school, the subject of consensual erotic asphyxiation did not come up with appreciable frequency. This initial exchange with the lawyer is typically followed by about a 30 to 60 minute conversation about the case. Let me add that, as is common for experts, I don’t charge for an initial consultation.
Following this conversation, the attorney makes a decision as to whether or not to retain my services. Roughly half of them do. Once I get retained, I usually get sent the case file, look it over, and get back to the attorney regarding my impressions of this particular case. Things proceed from there. My work often involves helping an attorney “understand what sort of cards they’ve been dealt” in the case. (As I mentioned, many have never even heard of this thing called “breath control play” before.) I educate them on such matters as the fact that a notable number people do indeed engage in such behaviors as part of consensual sex, and that there are even Internet resources devoted to it and how-to classes given on the subject. I talk about the various ways in which it’s done, what participants find rewarding about it, and what the risks are. Given my legal background, we also frequently discuss case strategy.
Let me add here that in general I find doing expert witness work to be draining and depressing, especially the homicide cases. I earn a professional fee when I do such work, yet I have often said it’s “my least favorite way to make money.” During the days that I rode around on ambulances, I responded to the scene of more homicides than I can remember. Now I work in homicide cases on a more ongoing basis. There is something about a homicide that makes it uniquely awful as a crime. A homicide “tears a hole in the fabric of humanity” that other serious crimes, though clearly themselves horrible and traumatic, don’t do. There is an inherent and irreparable “wrongness” about homicides that makes it hard to be around them. My energy level goes down and my alcohol consumption goes up when I’m working on a homicide case. When I started doing this work I was told that one of the reasons expert witnesses get paid at the fairly high rate that they do is, in part, to compensate them for the stress of enduring the litigation process. I didn’t really appreciate that at the time. I do now.
C. The Difficulty in Establishing the Defendant’s State of Mind At The Time of the Act
An absolutely crucial issue in these cases is the defendant’s state of mind during the time when he was actually choking or suffocating the now-deceased person. In particular, did the defendant intend to kill or did they merely intend to enhance the erotic pleasure that one or both of them was experiencing? Unfortunately, the defendant’s immediate “post-death” behavior is often not particularly useful in answering this question. Immediate post-death behavior by a defendant can range widely and is often sub-optimal in its wisdom. (A psychologist friend of mine observed that such people are often in something of an altered state of consciousness.)
Such defendants, “now in the biggest trouble of their life,” might do any number of things, including but not limited to immediately call 911 and attempt CPR, or try to hide the body off-site, or drag the body into their back yard, or leave the body in the house for as long as several days while they try to decide what to do next. (Such “in the house with the corpse” post-death decisions have ranged from calling the authorities to committing suicide.) NONE of these post-death behaviors is particularly revelatory regarding the question of what was defendant’s state of mind (what was their intent) during the time when they were actually choking or suffocating the other person.
There is not necessarily any relationship at all between the defendant’s state of mind during the choking or suffocation and their post-death behavior. An “innocent” (of intentional killing) defendant might nonetheless try to hide the body afterwards, while a “guilty” defendant might immediately call 911 and engage in sham CPR as a cynical effort to disguise an intentional killing as an unintentional one.
One particularly troublesome aspect of these cases is that surviving defendants often claim that engaging in breath control play was the deceased person’s idea, and there is often nothing about the facts of the case that clearly contradict this assertion. The victim often has little in the way of injury beyond that shown by the strangulation, and even in strangulation death cases the injuries to the victim’s neck may not be particularly severe (further, as I noted earlier, people who survive real-world strangulation assaults may have quite dramatic injuries). For example, the hyoid bone in the front of the victim’s neck, often broken in strangulation cases, may still be intact, yet fracture of the hyoid bone is not in and of itself a fatal injury and many people have survived sustaining such a fracture. Also often absent in these cases are “collateral” injuries that one might see in an assault such as a black eye, a broken nose, knocked-out teeth, or other damage to the victim’s face. Additionally, should collateral injuries be present, it may be impossible to determine if such injuries occurred a significant amount of time before the time of death, during the time of death, or a significant amount of time after the time of death.
Indeed, even if the actual killing had been witnessed, such a witness might not be able to tell the difference between an intentional killing and a horrible accident. The facts in these cases are often far from conclusive. As I mentioned to the defense attorney in one case I worked on, “It’s not like he shot her nine times.”
D. The Dubious Nature of Media Reports
One aspect of my doing expert witness work is that, because I get to see the actual case files, I often have access to a great deal more information than is released to the public. (I also get to see information that, because it does not meet the rules of admissibility, the jury does not get to see.) A lot of very significant information regarding a particular case is not released to the public. A fair amount of such information is what’s called “privileged” and therefore usually cannot be disclosed. Having access to this information, I’ve compared media reports regarding a particular case with the information in that case’s confidential file. Further, I sometimes get told about additional information that for one reason or another isn’t in the case file. I can tell you that almost every media report of a case I’ve worked in has contained very significant “errors and omissions” in the reporting. Given these very significant discrepancies, I would strongly advise you to “draw in pencil” any conclusions that you come to regarding what did and didn’t occur in given case based on media reports you see or hear. There is ALWAYS more to the story than gets reported in the media, and what does get reported in the media often contains significant mistakes.
E. Summary Regarding Expert Witness Work
In summary, expert witnesses are hired based on their exceptional knowledge. They are paid for their time, and NOT to testify in a particular way. For an ethical expert witness, and I believe that the huge majority of experts are indeed ethical, it really doesn’t matter whether they are hired by the plaintiff side or the defense side. (Given this, in some justice systems experts are hired by the court rather than by one side or the other.) The knowledge is the knowledge. The testimony is the testimony. An expert witness can use their knowledge to help see that justice is done. In a criminal case, for example, an expert can use his or her knowledge to help ensure that a given defendant is neither over-charged nor-undercharged regarding their degree of criminal culpability. An expert can contribute to a very meaningful degree in either seeing that a not-guilty defendant is set free or in seeing that a guilty defendant is convicted of their appropriate level of criminal wrong-doing. It’s hard and stressful work, but every now and then an expert witness can believe that they helped justice be done.
16. The Dicey Nature of Doing Breath Play “Education”
Given both the exceptionally risky nature of doing breath control play, and that “sex choking games” are activities that are judged by mainstream society as having essentially zero social utility (or even less than zero social utility), doing “education” on these activities is seriously problematic. While providing education on choking techniques by properly credentialed instructors would be socially and legally acceptable in someplace like a police academy or martial arts school, “unofficial” instruction on how to engage in breath control play is likely to be judged very differently. Remember that any harm that results from engaging in “sex choking games” is completely legally indefensible.
First of all, one would have to ask how one might assess the qualifications of a breath control play instructor. When I wrote the first edition of SM 101, I wrote “If you can’t [define the following list of medical terms]….then you have no business telling anybody anything about breath control play except to stay away from it.” As I write this, I have attended several programs on breath play education. With one possible exception, ALL of the instructors were seriously uneducated on how a human body reacts to being suffocated or strangled. Many presented highly incomplete or outright wrong information.
(The one exception was someone who said they were “a nurse” but provided no further information on what type of nursing degree they had, or how much training, education, and experience they had in intensive care nursing or other areas in which substantial knowledge of cardiopulmonary anatomy and physiology is essential. Further, they provided almost no information about the relevant anatomy or physiology and instead devoted almost all of the class time to demonstrating techniques and applying them to volunteering class attendees. When asked about possibly losing brain cells from doing breath play the presenter replied, “People lose brain cells from all sorts of things, including driving to work.”)
Given that the vagus nerve is such a major player in this area, after years of discussion about this topic, I came up with the following saying: “The more somebody can tell me about the vagus nerve – where it comes from, where it goes, what it does when it gets there, and how it does it – the more willing I am to believe that they have an opinion worth listening to regarding breath control play.”
I’ve now attended about six programs on breath play where it appeared that the presenter didn’t even know that something called the vagus nerve existed. THAT is the typical current level of education among those who hold themselves forth as qualified to teach – on this subject of potentially life-and-death importance. This typical presenter, woefully lacking in even basic education in anatomy and physiology (to say nothing of the legal aspects associated with engaging in breath play), proceeds to give a roughly 90-minute “how to” program in which they demonstrate chokeholds, gas masks, suffocating someone with a plastic bag, and so forth. This is often accompanied by encouragements to “be careful” – but exactly how one would go about being careful, what specifically one would look out for, is rather vague. On the basis of THIS length and quality of instruction, people are encouraged to go home and do something potentially life-threatening to their partners. The mind boggles.
A. Author Liability Regarding Writing a How-to Book About Breath Play
From time to time, someone proposes writing a how-to book on breath play. An author contemplating creating such a manuscript would run into the same problems of high risk and low social utility that a lecturer faces. Also, in a book contract (I recently signed a contract for my twelfth book), the author typically warrants that nothing in the manuscript is dangerous – a highly questionable warranty as regards a book on breath play. Further, in a typical book contract, the author agrees to defend the publisher in the event that a lawsuit results. Writer’s insurance is available, but whether or not it would even be offered to a book of this nature is dubious – and if it were offered, the price of the premiums could be so high as to make the book commercially impractical.
The issue of author liability as regards a how-to book on “sex choking games” is significant. Authors can be held liable for harm caused by their writings if their writings are considered “incitement” to an illegal activity. A leading case in this regard is the case of Herceg v Hustler Magazine, in which the mother of a 14-year-old boy sued Hustler Magazine for wrongful death after it published a how-to article on the joys of auto-erotic asphyxiation titled “Orgasm of Death.” The boy’s body was subsequently was found hanging with a nearby copy of Hustler open to that article. In this case, the court ruled that Hustler Magazine was not liable in part because it the article was preceded by a very clear DO NOT ATTEMPT warning just before the body of the article. Had such a warning been absent, it is very plausible that the court would have held that Hustler Magazine was in fact liable for the boy’s death.
Potential authors might therefore consider using an attempted disclaimer such as “Now I’m not saying that you should engage in breath play but if you choose to do it then here is how you might do it in a relatively safe manner” but this is not likely to be useful. Given that the court has held that only an explicit and unequivocal “do not attempt” message provides some protection, such a lesser warning is likely to fail to shield the author from liability.
Another case of note as regards author liability is the case of Rice v. Paladin Press. In this case, Paladin Press published a book titled, “Hit Man: A Technical Manual for Independent Contractors” which set forth step-by-step instructions as to how to commit a murder and get away with it. Perhaps predictably, a fellow (whose name was James Perry) bought the book and followed its instructions to murder three people, including an eight-year-old handicapped boy. (He was caught and given the death penalty.) The relatives of the murdered victims filed a wrongful death lawsuit against Paladin Press in federal court on the grounds that their book “aided and abetted” those murders. The trial court dismissed the lawsuit, but upon appeal this dismissal was reversed and the appellate court ruled, rather pointedly, that the trial could go forward on its merits against Paladin Press. At this point, being unwilling to risk the wrath of a jury, Paladin Press settled out of court.
B. Presenter and Organizational Liability Regarding Holding Classes and Workshops on Breath Play
One could present a program on the relevant anatomy and physiology of breath play, along with educating on the legal risks associated with it (I’ve put on such a program several times), but the moment a presenter starts giving how-to instruction they “cross the line” and put themselves in a very perilous legal position. Further, and as I’ll discuss shortly, whoever booked this presenter to teach on this topic faces similar risks, both civil and criminal.
Civil and Criminal Liability
Given that breath control play/sex choking games have basically zero recognized social utility (or even less than zero social utility), any harm that results from engaging in these activities is legally indefensible and can result in both civil and criminal prosecution. To the surprise of some people, this liability extends not only to the person who engaged in the act, but also to anyone who encouraged them to engage in this behavior. The two basic theories of such criminal liability are called “solicitation” and “aiding and abetting.” I wrote a long essay on this topic a few years ago titled Liability Aspects of BDSM Clubs and Presenters Regarding Teaching “Do Try This At Home” Presentations. It’s available at www.jaywiseman.com. I wrote about the doctrines of solicitation and aiding and abetting earlier in this writing and I’ll briefly recap them here.
As I discussed in the criminal law section, anybody who advises, commands, or otherwise encourages another person to engage in a criminal act is guilty of the crime of solicitation. This guilt applies even if the person so solicited does nothing about it in response. In a common example, if a prostitute offers a potential customer sex in exchange for money, that prostitute is guilty of solicitation even if their offer is rejected. On the other hand, if the solicited person acts in response to the solicitation and engages in a criminal act, then the solicitation MERGES with the criminal act and both parties are equally guilty of the act. Remember, if Godfather commands Louie to kill Vinnie, and Louie does, then both Louie and Godfather are equally guilty of Vinnie’s murder.
Anybody who actually helps another person commit a criminal act is guilty of the crime of aiding and abetting. Under current law in the United States, if the person “aids and abets” before or during the criminal act, then they are just as guilty as the person who actually commits the act under an “accomplice liability” theory — even if they are not present themselves at the crime scene. (After-the-fact aiding and abetting is generally punished less harshly.) For example, if a bank employee teaches someone how to open the bank’s safe, and does so with the knowledge that the other person wants this knowledge because they intend to rob the bank then, if the robbery actually occurs (or is even attempted) then the bank employee is just as guilty of the bank robbery as the person who actually opened the safe.
While a debate about whether engaging in breath control play/sex choking games is itself a criminal act could reasonably come to either conclusion (might it be attempted aggravated battery?), there’s really no debate that if any serious harm or death results from doing so then the defendant is looking at being found guilty of a criminal act. Given this, it would be very easy for a prosecutor to argue that anybody who taught the defendant how to engage in “sex choking games” would also be guilty of the resultant harm under a solicitation theory and/or an aiding and abetting theory. (Note that this would also apply to anyone who arranged for the class to held, such as the organizers of a BDSM conference which booked a class on breath control play.) Comparable civil liability would likely also be present.
Note: If you doubt the potential civil liability of someone who teaches a class on breath play or books a class on breath play for any damage that results therefrom, I urge you not only the “incitement” theory of liability as described above, but also to consider the successful lawsuit brought by the Southern Poverty Law Center against the KKK in the case of Jordan Gruver, which held that the Klan was liable for Mr Gruver’s injuries on a far more tenuous basis than is likely to occur in a civil suit resulting from a death or serious injury due to a presenter’s teaching how to engage in sex choking games.
In addition to researching this question on my own in the law library, I have consulted on this point of law with over a dozen lawyers who specialize in criminal defense and also with a few prosecutors. All of them have concurred with my analysis and conclusions on this point. If this conclusion seems a bit far-fetched to you, invite you to consider the potential criminal and civil liability of someone who was traveling around the country teaching “safer choking games” to groups of kids.
It keeps coming back to the fact that mainstream society members assign zero social utility (or less than zero social utility) to engaging in breath control play/sex choking games. Given this stark reality, any resulting harm is legally indefensible, and anybody associated with causing that harm, directly or indirectly, is looking at being held fully accountable for causing that harm in both criminal and civil court.
C. What About “They’re Going To Do It Anyway?”
It’s sometimes argued that BDSM clubs or conferences should teach a how-to class on breath play techniques because “they’re going to do it anyway” (here, the “they” is some percentage of BDSM enthusiasts and others) and therefore “we” should teach them how to do it as safely as possible. While this has a certain initial plausibility, such plausibility dissolves under analysis. Let me explain.
First, the fact that others choose to engage in risky behavior creates no obligation whatsoever (in legal-ese, no “duty”) for a given person, in the absence of any other duty to those others, to in any way warn them or reduce their risk.
Second, finding a person who is actually qualified to discuss the specific medical risks of breath play (not to mention the legal risks) and is also willing to do so is fairly difficult. As I’ve mentioned, a major player involved in breath play is the vagus nerve, and I’ve attended breath play workshops by at least six allegedly qualified presenters who didn’t seem to know that something called the vagus nerve even existed. There are a fair number of people who are willing to teach the “how” aspect, but if you ask them anything about the underlying anatomy and physiology involved you typically get “the blank look” in reply. They simply don’t know. They are ignorant — dangerously, staggeringly ignorant — regarding issues of literally life-and-death importance.
Third, and most compelling, while various teachings may in fact reduce the risk, none of these teachings are likely to be regarded by vanilla jurors as reducing the risk down to a legally defensible degree should any harm nonetheless result. In particular, none of these teachings are likely to be regarded as reducing the risk level from “gross negligence” — which is legally indefensible — to “ordinary negligence” — which sometimes can be legally defensible under the assumption of risk and contributory/comparative negligence theories described above. This is rather unfortunate, because if techniques that reduced the risk from the level of gross negligence down to the level of ordinary negligence could be shown, then such classes would make sense and have a great deal of merit to recommend them, but under the current legal climate the teaching of any sort of “how-to” techniques regarding sex choking games is likely to accomplish little except to subject both the teacher and whoever booked the presenter to potential civil and criminal liability.
In summary, classes that describe the anatomy and physiology of what’s involved in breath play, along with the legal aspects, can be taught with reasonable safety, the moment the presenter teaches any how-to techniques they “cross the line” into a zone of legal risk.
17. Final Summary
Breath control play, AKA erotic asphyxiation, AKA sex choking games, may well be the single most argumentative and divisive topic in the entire spectrum of erotic activities that involve adults. On the one side, you have informed people arguing that it can indeed be done with reasonable safety “if you just do it right,” and in fairness there are methods that do seem to be fairly low risk — at least as regards very specific populations of people under very specific circumstances. On the other side, you have informed people arguing that some risk of causing a sudden and unpredictable death always exists regardless of how “safely” you do it, and that should such a sudden death occur then whoever caused that death has no legal defense whatsoever.
Candidly, there are days when I dearly wish I could convince myself that the pseudonymous posters on the Internet who argue that breath play is acceptably safe “if you just do it right” were correct. I have tried to do so. I really have. I have tried to convince myself that their side has the better argument. Among other things, I have been subjected to a large amount of highly unpleasant flak for very publicly taking the position that I have taken, and I would just as soon not go through that anymore. When I consider the evidence that they offer, such as the exemplary safety record of chokeholds applied during judo classes and matches, then their argument seems plausible.
However, I notice that there is a potential trap in what they say. Under their logic, any bad outcomes necessarily must be because “that person did it wrong.” Thus, they attempt to create a perfect little zero-inherent-risk paradise for themselves. I also notice that they advocate that others engage in these activities and yet they themselves are not willing to be stakeholders in any outcome that they are not personally involved in.
If someone were to accept their argument, act on it, and have a bad outcome, then that unfortunate person cannot come back to, “Well, Pseudonymous Posters on the Internet told me that this would be completely safe! Get them into this courtroom too!” It’s more a matter that said Pseudonymous Posters propose a game of “Let’s you and you take a serious risk with your futures.” In the aftermath of this tragedy, the pseudonymous posters get to sit on the sidelines and loudly, self-righteously proclaim, “Well, given that there is zero inherent risk if you just do it right, that fool who killed their partner must have done it wrong!” The pseudonymous posters themselves put no skin in the game.
When I step back and consider a broader, more general picture of what happens in the world as a whole as regards chokeholds and other aspects of breath play, then I can no longer reasonably conclude that breath play can be done in reasonable safety — especially when being done by two people who are alone in their bedroom and gripped by the throes of intense erotic passion. I keep coming back to what one breath play enthusiast herself observed: “It’s easy to go too far.”
The risk model is comparable to the risk model of Russian Roulette, although admittedly with a “gun” that has a much larger number of cylinders. That said, one can never be completely sure that the “gun” has been unloaded, and one cannot make Russian Roulette safer by pulling the trigger more slowly. No matter how “careful” one thinks one is being, the risk of utter and indefensible catastrophe remains.
The core of the safety issue regarding breath play is that, unlike almost all other forms of BDSM play, breath play doesn’t go “just a little bit” wrong. If the unexpected happens, we’re not talking about causing a bruise, welt, laceration, or a burn. We’re talking about causing the complete destruction of a human life and, so to speak, choking off everything that person might have done with their life had they not been killed. Further, we’re talking about killing someone in an utterly legally inexcusable way. This is a pass-fail test, and the minimum passing grade is 100%, 100% of the time. The people who engage in breath play cannot ever be wrong or have an exception. Not once. Not ever. The containment fields must never fail. Not once. Not ever. The minimal acceptable standard is nothing short of complete perfection all the time.
Given all of the above, I see no plausible reason to change my position, and if that means that I must continue to endure a substantial amount of highly nasty flak from some people, then so be it. Given the life-and-death stakes of what’s involved, the cost/benefit ratio of continuing to do this work makes sense — a LOT of sense — to me. Still, there are days…
The occurrence of a breath play death is like a bomb exploding, and exploding bombs have a blast radius. If the worst happens, then one life is over medically, another life is over legally, and all the people who loved and cared for both of those lives are heavily damaged. As I mentioned, in the expert witness work that I do, I sometimes have to look into the faces of the people who love and care for either the deceased victim or the surviving defendant. It is utterly heart-wrenching to do this, and it is inconceivable to try to convince these grieving people that the risk was worth the benefit.
The pseudonymous people who try to convince others, at no risk to themselves, that breath control play can be done with reasonable safety are absolutely correct, right up until that medically unpredictable, legally indefensible, life-destroying catastrophic moment when they couldn’t possibly be more wrong.