State v. Van

688 N.W.2d 600

268 Neb. 814

STATE of Nebraska, appellee, v. Roger VAN, appellant.

No. S-03-1106.

Supreme Court of Nebraska.

November 12, 2004.

Melissa A. Wentling, of Wentling Law Office, for appellant.

Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

Roger Van was charged in a five-count information with sexual assault in the first degree, assault in the first degree, assault in the second degree, first degree false imprisonment, and terroristic threats. All of the charged offenses were alleged to have been perpetrated upon J.G.C. in Wayne County, Nebraska, from December 8 to 17, 2001. Following a jury trial in the district court for Wayne County, Van was convicted and sentenced on each of the five counts. He perfected this timely direct appeal.

I. BACKGROUND

This case arises from what began as a consensual homosexual relationship involving bondage, discipline, and sadomasochism (BDSM). The record reflects that in such relationships, one person is a "master" who exerts control over the life of another, who is referred to as a "submissive" or "slave." Generally, persons entering into such a relationship negotiate its limits and decide on a safe word or signal that can be used to stop the master when the submissive becomes too uncomfortable. The record further reflects that rarely do people enter a BDSM relationship without limits, in which no safe word is used and the submissive yields completely to the control of the master.

In the summer of 2001, J.G.C. resided in Houston, Texas, with F.B. The two men were involved in what they characterized as a "master/slave" relationship. F.B. acted as J.G.C.'s partner, friend, companion, and "master," generally dictating all aspects of J.G.C.'s personal life, but not his professional life. For example, F.B. required J.G.C. to perform most household chores and dictated what clothes J.G.C. would wear outside of work. In addition, J.G.C. wore a collar around his neck and was required to walk behind and slightly to the right of F.B. J.G.C. was not allowed to remove the collar without permission from F.B.

F.B. testified at trial that he and J.G.C. focused on a "master/slave" relationship and did not generally engage in sadomasochistic activities. They did, however, engage in some bondage and discipline activities, including floggings and the use of restraints and gags. F.B. and J.G.C. had a safe word that J.G.C. could invoke if the physical discipline became too intense, but J.G.C. did not invoke the safe word at any time during the relationship.

J.G.C. testified that prior to his relationship with F.B., he had been involved in other BDSM relationships, including a relationship that was initiated over the Internet. In the summer of 2001, he felt that he was not getting enough structure, pain, and discipline from F.B., and he therefore began searching the Internet for a new partner who could give him, in his words, "the treatment that I thought that I deserved for fundamentally being a bad person." J.G.C. stated he was looking for a "very physically and mentally abusive punishment relationship." J.G.C. conducted this search using a computer at his workplace.

In September 2001, J.G.C. responded to an Internet advertisement posted by Van. After that initial contact, the two exchanged approximately 300 e-mail messages. J.G.C. estimated that he spent approximately 125 hours from September until early December either reading e-mail messages from Van or responding to them. At the beginning of this correspondence, J.G.C. informed Van that he wanted to become a total slave. Over the course of the correspondence, this relationship was defined and understood by both parties to be without limits, to have no safe word, and to be permanent. J.G.C. testified at trial that a submissive cannot end a "no limits" relationship and that he expected to be tortured, humiliated, and to eventually die as a result of his relationship with Van.

Specific punishments were discussed in the e-mail correspondence. J.G.C. stated in one message that he needed to be afraid of Van. In another, J.G.C. mentioned the possibility of being branded by Van and suggested where a brand could be applied to his body. He mentioned his fantasies about being restrained and raped. During their e-mail correspondence, J.G.C. specifically told Van that he may try to escape, but that Van should never allow him to do so and should keep him restrained. In various e-mail messages which he transmitted to Van during this period, J.G.C. indicated that he wanted to be flogged, whipped, beaten, restrained, gagged, shaved, tattooed, pierced, blindfolded, injected with saline, and locked in a cell. He also asked that hot wax be dripped on him, that clothespins be placed on his body and ripped off, and that electronic stimulation be used on him. J.G.C. wrote to Van: "The `rules' shouldn't apply to true Masters; they should be allowed to do whatever they want whenever they want...." He expressed his anger that "our society today doesn't recognize those rights." In another message, J.G.C. listed "affirmations" that he identified as being important to him with respect to the anticipated relationship with Van, which "affirmations" included the following: "[t]o know that You are the kind of man who will get special pleasure out of flaunting the law; a man who believes that You have the right, and OUGHT to have the right, to do whatever You want without being punished for it."

On December 5, 2001, J.G.C. staged his own abduction by driving his car to New Orleans, Louisiana, leaving it at a restaurant, and taking a bus to Omaha, Nebraska. Prior to "disappearing," J.G.C. deleted all e-mail correspondence with Van from his workplace computer. Jerry Marshall met J.G.C. at the bus station in Omaha on Friday, December 7. Marshall was employed by Van as a delivery driver and maintenance person, and he was also the submissive in a BDSM relationship with Van. When Marshall and J.G.C. arrived in Wayne, J.G.C. was taken through a back entrance into the lower level of Van's floral shop located in that city. After J.G.C. disrobed, he was restrained, blindfolded, and led through several rooms. He was eventually placed face up on a specially designed table and secured by his hands and ankles. He and Van then discussed the context of their relationship, and J.G.C. understood it was to include the punishment, humiliation, and torture they had discussed in their e-mail correspondence. Van then beat J.G.C. lightly and shaved parts of his body. J.G.C. was then taken to a 4-by 6-foot cell, where he was restrained on the floor until the next morning.

Marshall woke J.G.C. on the morning of Saturday, December 8, 2001, and took him to a small basement apartment to use the bathroom, shower, and shave. Marshall then returned J.G.C. to what was referred to as the "dungeon room" and secured him to the aforementioned table located there. Van entered the room, gave J.G.C. a notebook and pen, and instructed him to write down everything he had done wrong in his life. J.G.C. understood that what he wrote was to be the basis of his future punishments. J.G.C. testified that as he worked on this writing assignment, he began to realize that he was not a bad person, as he had previously believed, and did not need to be punished. He described this as a "huge catharsis" which caused him to decide that he wanted to return to his life in Houston. J.G.C. testified that at this point, he decided to end the relationship with Van, and he therefore told Marshall that he needed to speak with Van.

When Van came into the dungeon room approximately 20 minutes later, J.G.C. informed him that he had made a mistake and no longer wished to continue their relationship. J.G.C. described Van's demeanor at this time as "very calm" and testified that Van mentioned their prior e-mail correspondence in which J.G.C. had directed Van not to allow him to escape if he attempted to do so. At the end of the conversation, Van said he was not sure what to do and returned to his floral shop upstairs. Marshall testified that at that point, Van told Marshall that J.G.C. "had had a moment or a slip." The two then reviewed the e-mail correspondence between Van and J.G.C. to confirm that J.G.C. had instructed Van not to allow J.G.C. to leave, even if he requested to leave.

J.G.C. testified that after about 20 minutes, Marshall came into the dungeon room and dragged J.G.C. back to the cell, indicating that if J.G.C. "screwed up" again, he would be killed and buried in the cell. Marshall then took J.G.C. to another room and beat him with a belt. Van then returned, and he and Marshall took J.G.C. to the dungeon room where they strapped him to the table. At that time, Van informed him that he would be severely punished for trying to escape. Van and Marshall then gagged and blindfolded J.G.C., beat him, ripped clothespins off his body, stuck him with pins, and flogged and whipped him. After approximately an hour, he was returned to the cell.

On the morning of Sunday, December 9, 2001, after permitting J.G.C. to shower and shave, Marshall returned him to the dungeon room and locked him down on the table. Some time later, Van entered the room and told J.G.C. that he hoped he had learned his lesson and would never try to escape again. J.G.C. replied that he was sorry he had disappointed Van. Van then forced J.G.C. to listen to an audiotape of Van's voice repeatedly telling J.G.C. that he was a bad person and needed to be punished. J.G.C. had suggested such an audiotape in one of his e-mail messages. Van also informed J.G.C. that a video camera in the room enabled Van to watch J.G.C. at all times and that if he continued to be disobedient, Van would kill him. After listening to the audiotape for most of the day, J.G.C. was returned to the cell and shackled.

On the morning of Monday, December...