ALWAYS ALWAYS USE A SAFE WORD!:
(11-13-2004)
Court upholds conviction of flower shop owner in sex-torture case
LINCOLN, Neb. (AP) -- A former flower shop owner who sexually assaulted,
tortured and held a Texas man captive in the basement of his store
lost his appeal Friday.
Roger Van had asked the Nebraska Supreme Court to vacate his conviction
because his victim agreed to such treatment.
Van was sentenced to up to 30 years in prison on several counts,
including sexual assault and false imprisonment, related to the
2001 incident at his flower shop in Wayne.
Defense lawyer Melissa Wentling alleged that Van's conviction was
unconstitutional because the "Nebraska Legislature did not
intend these statutes to apply to conduct that occurs during a private,
consensual relationship" involving bondage and torture.
Van's lawyers had argued that the 36-year-old Houston man, identified
in court papers as J.G.C., consented to being beaten, bound and
branded.
Before meeting in Wayne, Van and the man exchanged scores of messages
and negotiated a no-limits relationship involving torture and bondage,
defense lawyers said.
In one e-mail message, J.G.C indicated he might try to escape and
that Van should prevent that from happening.
The man also acknowledged writing an e-mail saying that he needed
to be afraid of Van, who also sent him a photo of the small cell
where he would be kept.
Defense lawyers said the two agreed not to have a customary "safe
word" that signals to the master that the slave can no longer
stand the pain and that the session is to end.
"As stated by the United States Supreme Court, homosexuals'
right to liberty under the due process clause gives them a right
to engage in consensual sexual activity in home without intervention
of the government," Wentling said earlier.
The Texan said that after a light flogging administered the first
day in Wayne, he was ordered to write why he deserved punishment
and decided to get out.
But he said Van then refused to believe that he no longer wanted
to participate and kept him captive.
The man testified that on one occasion he was placed face down
on a table, restrained and branded with the letter "w"
on the back of one of his thighs. The pain was so intense that he
became ill and broke one of his wrist restraints, the man said.
The high court said that while the evidence presented showed that
J.G.C. initially consented to a master-slave relationship, consent
was withdrawn the day after he arrived in Wayne.
"Because J.G.C. testified that he told Van that he wished
to go home, there was sufficient evidence upon which the jury could
conclude that Van acted with the requisite knowledge and intent"
to be convicted of false imprisonment, wrote Judge Kenneth Stephan.
As for the sexual assault conviction, Stephan wrote:
"The mere fact that J.G.C. did not verbally or physically
resist is not determinative of whether he consented to the acts,"
he said. "The record includes evidence that J.G.C. was subject
to beatings for disobeying Van and that he revoked his consent to
the ... relationship prior to the acts of sexual penetration."
Police said the Texas man escaped with the help of Jerry Marshall,
an employee at the flower shop who initially participated in assaulting
the Texan but later backed out. Marshall served about six months
in jail for misdemeanor assault.
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