ASSAULT & SEXUAL ASSAULT

By Uncommon Ground

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Whether a person practicing BD/SM could be charged with criminal assault depends on three variables: (1) whether the submissive or bottom consented to the activity; (2) whether the dominant or top intended to do bodily harm; and (3) whether bodily injury in fact occurred (and the degree of injury).

The consent issue is largely untested in most state courts. In Colorado, our criminal statutes provide as follows:

The consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
(2) When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in an lawful athletic contests or competitive sport, or the consent establishes a justification under sections 18-1-701 or 18-1-707.
(Note: Sections 18-1-701 and 18-1-707 deal with police officers or other public officers executing their official duties, such as making an arrest.)
Unless otherwise provided by this code or by the law defining the offense, assent does not constitute assent if:
1. It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
2. It is given by a person who, by reason of immaturity, mental disease or mental defect, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
3. It is given by a person whose consent is sought to be prevented by the law defining the offense; or
4. It is induced by force, duress, or deception.
Any defense authorized by this section is an affirmative defense.

By "affirmative defense" (see subsection 4, above), the statute means the defendant has the burden of proof.

ASSAULTS CAUSING BODILY INJURY

Our focus here is on intent and actual injury. We will let the Colorado Criminal Code speak for itself by reproducing the key provisions:

18-3-202. Assault in the first degree.

A person commits the crime of assault in the first degree if:
1. With intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon; or
2. With intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or
3. Under circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person....

Note: "Deadly weapon" is defined in section 18-1-901(3)(e) to mean any of the following if the manner in which it is used or intended to be used is capable of producing death or serious bodily injury: a firearm whether loaded or unloaded; a knife; a bludgeon; and any other weapon, device or substance.

Note: "Serious bodily injury" is defined in section 18-1-901(3)(p) to mean bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

18-3-203. Assault in the second degree.

A person commits the crime of assault in the second degree if:
1. {Repealed}
2. With intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or
3. With intent to prevent one whom he or she knows, or should know, to be a peace officer or firefighter from performing a lawful duty, he or she intentionally causes bodily injury to any person; or
4. He recklessly causes serious bodily injury to another person by means of a deadly weapon; or
5. For a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him, without his consent, a drug, substance, or preparation capable of producing the intended harm....

18-3-204. Assault in the third degree.

A person commits the crime of assault in the third degree if he knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon....

18-3-206. Menacing.

A person commits the crime of menacing if, by any threat or physical action, he knowingly places or attempts to place another person in fear of immanent serious bodily injury....

18-3-208. Reckless endangerment.

A person who recklessly engages in conduct which creates a substantial risk of serious bodily injury to another person commits reckless endangerment, which is a class 3 misdemeanor.

UNLAWFUL SEXUAL BEHAVIOR

First a few key definitions:

18-3-401. Definitions.

* * *

(1.5) "Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provision of this part 4. Submission under the influence of fear shall not constitute consent....

(2) "Intimate parts" means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.

* * *

(4) "Sexual contact" means the knowing touching of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim's or actor's intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.

(5) "Sexual intrusion" means any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.

(6) "Sexual penetration" means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.

And now, the statutory provisions:

18-3-402. Sexual assault in the first degree.

Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits a sexual assault in the first degree if:
1. The actor causes submission of the victim through the actual application of physical force or physical violence; or
2. The actor causes submission of the victim by threat of imminent death, serious bodily injury, extreme pain, or kidnapping, to be inflicted on anyone, and the victim believes that the actor has the present ability to execute these threats; or
3. The actor causes submission of the victim by threatening to retaliate in the future against the victim, or any other person, and victim reasonably believes the actor will execute this threat. As uses in this paragraph (c), "to retaliate" includes threats of kidnapping, death, serious bodily injury, or extreme pain; or
4. The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or
5. The victim is physically helpless and the actor knows the victim is physically helpless and the victim has not consented.

18-3-403. Sexual assault in the second degree.

Any actor who knowingly inflicts sexual penetration or sexual intrusion on a victim commits a sexual assault in the second degree if:
1. The actor causes submission of the victim to sexual penetration by any means other than those set forth in section 18-3-402, but of sufficient consequence reasonably calculated to cause submission against the victim's will; or
2. The actor causes submission of the victim to sexual intrusion by any means other than than those set forth in section 18-3-402, but of sufficient consequence reasonably calculated to cause submission against the victim's will; or
3. The actor knows that the victim is incapable of appraising the victim's conduct; or
4. The actor knows that the victim submits erroneously, believing the actor to be the victim's spouse; or
5. At the time of the commission of the act, the victim is less than fifteen years of age and the actor is at least four years older than the victim and is not the spouse of the victim; or
6. {Repealed}
7. The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses his position of authority, unless the sexual intrusion is incident to a lawful search, to coerce the victim to submit; or
8. The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.

18-3-404. Sexual assault in the third degree.

Any actor who knowingly subjects a victim to any sexual contact commits sexual assault in the third degree if:
1. The actor knows that the victim does not consent; or
2. The actor knows that the victim is incapable of appraising the nature of the victim's conduct; or
3. The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented; or
4. The actor has substantially impaired the victim's power to appraise or control the victim's conduct by employing, without the victim's consent, any drug, intoxicant, or other means for the purpose of causing submission; or
5. {Repealed}
6. The victim is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over the victim and uses his position of authority, unless incident to a lawful search, to coerce the victim to submit; or
7. The actor engages in treatment or examination of a victim for other than bona fide medical purposes or in a manner substantially inconsistent with reasonable medical practices.

18-3-409. Marital defense.

Any marital relationship, whether established statutorily, putatively, or by common law, between an actor and a victim shall not be a defense to any offense under this part 4 unless such defense is specifically set for in the applicable statutory section by have the elements of the offense specifically exclude a spouse.

18-3-410. Medical exception.

The provisions of this part 4 shall not apply to an act performed for bona fide medical purposes if such act is performed in a manner which is not inconsistent with reasonable medical practices