Court-Martial Trial Practice Blog
Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes.
He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.
Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.
The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.” I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of. Wikipedia goes on to suggest the following.
Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:
Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior.
Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience.
A belief that it can induce a brief sense of euphoria (a rushing sensation or high).
The prospect of intoxication, albeit brief, at no financial cost.
Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.
Here’s the Trial-Craft. The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape. But, that’s all they talked to the expert about during their interviews and preparation. When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young. So when it came to trial I was able to make their expert my expert – to great effect.
The choking game defense in my case did result in acquittals on the rapes.