Not Safe For Wone
Last week’s filing of the Government’s Notice of Uncharged Conduct I generated a fair amount of light and heat in the Robert Wone case. The ‘light’ column features highlights of the government’s position – that the murder investigation “…continues”, that the “…killer is someone know [sic] to and being protected by the defendants,” and that the “…government may (emphasis ours) seek to introduce this theory of incapacitation…”
Leather Pride Flag, a symbol of the BDSM and fetish subculture
In an overwhelmingly accusatory document, the key word here is may, suggesting the government fears its biggest hurdle remains the apparent absence of positive proof that Robert was chemically incapacitated.
But it was the 10-page “Attachment A” – squarely on the ‘heat’ side of the equation – that led to a squirming, car-crash, ‘ick’ response for many. Well, ‘ick’ mixed with ‘…wha?’ A Wartenberg wheel? Padded fist mitts? (“…beautifully made…” says this cheery retailer.)
A CB-3000? (now in a helpful plastic version for traveling by air!) A urethral sound device?
Are you kidding me? A What?
Look, none of these four editors are ingenues or all that naive. We’ve collectively seen our share. And to be clear, a fair share of the many, many items seized from 1509 Swann hardly rise to the level of a cocked eyebrow.
Harnesses, chains, arm bands, hoods, black leather jock, leather blind fold, paddles, collars, ‘Industrial-style’ knee pads…yawn. The list goes on, and yes, some of the items go well beyond bland sex play. But they are all legal, and possessing one or all of them does not constitute a crime.
Frankly dwelling on this S&M shopping list (or inventory for eyecandydvds perhaps?) seems more hathos than trying to gain a better understanding of the crime.
That it is cited in such detail serves two serious purposes. First, let’s be frank: it was an effective way for the prosecution to keep pressure on the defendants and garner a little more press (got you all to come here, didn’t it?) The second is far more important, and much more dull. Collectively, the items of Attachment A strongly argue for their admission in trial by way of Johnson v. United States.
Johnson strikes to the heart of what evidence is admissible, and the variance between that which is probative vs. prejudicial – already a key battleground in the Wone case. It involved a rather limited question of whether a bullet-proof vest could be admitted as evidence in the gun-possession trial of one Lamont Jones. Without getting into the legal weeds, Johnson amplified 1964’s Drew v. United States and set a new DC Court of Appeals standard.
“Specifically, Drew does not apply where such evidence (1) is direct and substantial proof of the charged crime, (2) is closely intertwined with the evidence of the charged crime, or (3) is necessary to place the charged crime in an understandable context.”
To this non-lawyer, test #3 is a no-brainer, and a strong case can be drawn in the Wone murder for test #2. But direct and substantial proof of the charged crime? After all, Johnson involved a murder with a gun. The argument could, and may well be made of the differences between a gun – an inherently lethal item – and a black leather jockstrap.
But according to homicide investigator Dallas Drake of the Center for Homicide Research, some perfectly legal objects or activities:
“There are some aspects of S&M culture that are inherently dangerous. Of course, S&M is highly stigmatized, and I don’t want to add to that. But the reason we call some behaviors inherently dangerous is because the have a high possibility of causing death.”
For example, Drake cites breath-control play, where one person temporarily asphyxiates their sex partner to increase the sex “high.” Such behavior may not be illegal, but it is inherently dangerous, because it runs so close to accidentally taking the life of another. Similarly, possessing a gun may not be illegal, but picking it up is inherently dangerous because of the high probability of injury or death.
So in a crime where the victim was apparently restrained, sexually assaulted or tortured, and ultimately “…dominated in the worst possible way: he was killed,” the fact that dozens of restraints, items used for sexual torture, and any number of books and other objects aimed specifically at dominating and degrading another seems clear to meet the Johnson test.
-posted by Doug
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