Quote From: liatsunami Are you sure this is correct? The participants are WILLINGLY engaging in this behavior. They are CONSENTING to being chocked by another person. Isn't this along the same lines as prosecuting participants of S&M if their partner is hurt? There's a sexual fetish that also deal with choking that I believe is along the same lines as the S&M argument. I know for a fact criminial suits like that have been thrown out. If i had access to my university's law library right now I'd go try and find the case and ruling for you.
I can understand how a wrongful death suit could insue from this, but a criminial charge? I'm not sure that would hold up in court. Of course it may depend on state laws and precedents for that sort of thing.
Yes, I am sure this is correct. The fact the victim "WILLINGLY" engaged in this behavior or that they "CONSENTED" by being choked has nothing to do with the elements of the crime. You CANNOT "consent" to being murdered. Why do you think Dr. Kevorkian is in prison.
Additionally, you are right about it being a part of S&M sex, however if you kill or injure someone during the sex act, you will be charged with a crime. For example The Preppy Murderer in New York City. He was choking his girlfriend during sex and he went to jail for murder. The elements of a crime the State must prove have nothing to do with the victim. Suicide although " willingly" done and "consented" to by the victim, is still a crime. Once again you cannot "consent" to being murdered.
I think the defense your looking for is "assumption of the risk" and as a criminal defense attorney I would definitely present that to the jury, however from the many cases I've studied, juries don't find that argument persuasive. If your child was murdered and the Defendant stated that he's not guilty because your child "asked for it" how persuasive would you find that argument?
