Without an expert witness, Kansas City jurors might not understand how someone could consent to some extreme sadomasochistic behavior, a lawyer told a federal judge Thursday.
U.S. District Judge Dean Whipple said at the end of a hearing that he would rule soon on whether the court will pay for an expert witness on that culture for defendants Edward and Marilyn Bagley.
The couple will go to trial early next year on charges that they sexually enslaved a young woman for several years in their Lebanon, Mo., mobile home.
Lawyers representing the Bagleys have argued that the young woman consented to the relationship and that it conformed to the practices of those who adhere to the bondage, discipline and sadomasochism, or BDSM, lifestyle.
Lawyer Susan Dill, who represents Edward Bagley, said a defense expert would help alleviate the “ick factor” for jurors, who could be asked to view photos and videos of some very extreme sexual practices, such as waterboarding, electric shock, piercings and mutilation.
“They need to be educated by an expert that while this behavior seems extreme to you, a lot of people enjoy it and practice it safely,” Dill said. Assistant U.S. Attorney Cynthia Cordes already has retained her own expert on the BDSM lifestyle but has said she will withdraw his testimony on the issue if other testimony on the acceptable standards of the subculture is ruled inadmissible.
“It comes down to consent,” Cordes said, “whether the victim consented or not.”
If the standards and practices of the culture loom large at trial, Cordes said, she will argue that the Bagleys discussed BDSM with the victim as a “veil” to engage in sexual torture.
Whipple appeared concerned that BDSM issues could permeate even the most technical areas of the case, perhaps requiring lawyers to write a jury instruction defining what is acceptable conduct for a BDSM practitioner.
“I don’t think (federal court in) the Western District of Missouri should be the forum for publicizing the standards for the BDSM lifestyle,” Whipple observed.
Dill said such a jury instruction would not be necessary. She even speculated that potential jurors could include several BDSM adherents. That raised another issue for the judge.
Whipple asked whether he should ask about that in jury selection.
“Yes,” Dill replied.
Whipple exhaled: “Jesus …”
