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newone11 -> RE: Legal Questions (8/9/2008 8:03:23 AM)
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quote:
ORIGINAL: DavidS8ist
quote:
ORIGINAL: Alumbrado
Lack of consent is one of the elements of assault in US law, which is why consensual hitting of other people is perfectly legal....<snip>
It's generally better to argue from fact rather than opinion. Because, frankly, you're dead wrong. For example, let's just look at one case and see the number of citations of both statute and case law which disprove your assertions:
"Penal Law § 120.05(2) provides that a person is guilty of second-degree assault when, '[w]ith intent to cause physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument', in this case by scalding the complaining witness with hot wax. Further, Penal Law § 120.00(1) provides that a person is guilty of third-degree assault when '[w]ith intent to cause physical injury to another person, he causes such injury to such person', here by biting the complaining witness. As the majority correctly notes, neither statutory section provides for a consent defense, nor do these sections list lack of consent as an element to be proven by the prosecution (cf. Penal Law 120.05[5] ['without consent' is an element of the offense]; " (emphasis added)
These citations are from People v. Jovanovic, NY Supreme Court Appellate Division. In fact, the footnotes to that decision add additional citations: "(5) There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] (contrast, Penal Law § 120.05[5] [where lack of consent is an element). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v Duffy, 79 NY2d 611), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v Brown, 381 A2d 1231, 1232 [NJ Super]; People v Samuels, 58 Cal Rptr 439, 447, cert denied, 390 US 1024; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051; Iowa v Collier, 372 NW2d 303). And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury (see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law Article 120, at 119), we need not address here whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured. Defendant's claim that there is a constitutional right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such conduct were to result in serious injury, the consensual nature of the activity would not justify the result."(emphasis added)
I never said what we do is very dangerous, nor did I intend to incite hysteria. I have stated, and both statute and case law support my assertions, that prosecution is 1) possible, not inevitable and 2) it's highly dependent upon circumstances and the whims of a prosecutor. It's very nice to disagree with a post, and I suppose you enjoyed yourself. But you really should look at the law before you make public proclamations to the contrary. People might take your opinions as fact.
D.
Now I'm curious...what's the cite for the case you're quoting. Although I do agree with you--unless the statute specifically says (or incorporates by reference) that consent is a defense it can not be used as one. Barring consent being used as the defense you're left with a risky, and well hidden, plea for nullification.
newone
*Because I have to---This is not legal advice. Do not rely on the opinion expressed.
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