Leatherheads

Why introducing the BDSM aspect is probative

One of the thresholds the judge must determine is whether the value of evidence is more probative than prejudicial when deciding what evidence makes it to trial.  If it is deemed probative, then it helps explain the crime, and thus meets the standard.  Or the judge could say that it doesn’t shed light on the case, and would unduly influence the jury, so it would be thrown out as prejudicial.

Leather Pride Flag, a symbol of the BDSM and fetish subculture

One piece of circumstantial evidence that the Swann Street housemates will fight tooth and nail from being entered in the upcoming trial is the Bondage Discipline Sadomasochism (BDSM) lifestyle practiced by Joe Price and Dylan Ward.

The defendants claim that their private sexual habits had nothing to do with what happened on August 2nd, 2006.  They say any information about this portion of their lives is “sensational” and therefore is prejudicial, tipping the evidence see-saw in their direction, preventing it from being entered at trial.

However upon closer examination, an argument can be made that the BDSM lifestyle is actually probative.  Why?  Because it connects the dots, or rather ties the rope, in a way that more fully explains the defendants’ behavior on that simmering hot August evening in 2006.

First, let’s look at how the defendants want to be portrayed to the jury.  They want to be seen as two gay men in a committed relationship and a registered domestic partnership, who happen to have two roommates who rent a room and the basement apartment in their home.  End of story.

Now, let’s add in the additional information. Three gay men involved in a committed polyamorous relationship with two of the men involved in a Sadomasochistic relationship, and basement tenant who was a very a good friend who knew this private side of the Swann Street triangle.

A very different picture emerges.

Several arguments support the probative analysis.  First, introducing the BDSM fully explains what Robert was walking into on the evening of August 2, 2006.  Even if he is unaware of the arrangement, the Swann Street housemates could be acting according to roles proscribed by the SM relationship, especially since they are in their home, the place where the SM relationship is most likely to be lived out in the open.

Whether the relationship was as Dominant/submissive, as described in the original affidavit, or as Master/slave, these relationships are complex, and play out in all the different spheres of the lives of those involved.  They are not just contained to the bedroom or the St. Andrew’s cross.

Second, while BDSM is especially important if the charge was murder, it can still play a vital role to the current charges of obstruction, conspiracy and tampering.  The BDSM aspect provides another motive for the conspiracy, even though each of these charges begins after the murder.

While there is no moral judgment about BDSM as a practice or a lifestyle from this Web site, the fact is Joe and Dylan kept this aspect of their life very private.  Their social friends were unaware of this feature of their relationship. Joe and Dylan were not known in the BDSM community; neither of them held titles in the leather world. Whatever the reason for their privacy, whether they felt it was too radioactive to the image they nurtured, they chose to keep it a secret.  If they were well-known in the BDSM community, and had nothing to hide about their lifestyle, a stronger argument could be made that entering this portion of their life is prejudicial.

So in the end, could fear about revealing the depth of their BDSM lifestyle contribute to the decision to cover up the murder?

If that is the case then introducing the BDSM aspect is probative to the case.  It supplies a motive, while also filling out the Swann Street relationship in a way that will allow a jury to better judge what happened that night.

— Posted by David

47 comments for “Leatherheads

  1. CDinDC
    12/04/2009 at 1:57 PM

    “The defendants claim that their private sexual habits had nothing to do with what happened on August 2nd, 2006. ”

    Hmm. You would think that would go without saying if they were innocent. Seems like another kernel popping.

  2. Bea
    12/04/2009 at 2:01 PM

    Undoubtedly the prosecution will want that alt.com profile in evidence – “torture” among the words they want the jury to hear. I wish I knew all the evidence the prosecution is intending to introduce, but I’m hoping that there’s a team of smart junior lawyers charged with the task of finding caselaw to support the introduction of this “stuff”.

    Well-written post, too, guys – like you, I couldn’t care less what consenting adults do, but in this instance it’s important to scratch the surface of what the trouple ‘appears’ to be on first glance, i.e. poster boys for the gay community. For me, one of the reasons I am so drawn to this case is my ire at the “poster boys” for dragging the rest of us down with them (not to make light, in the least, of the horror Robert faced that night, nor his loved ones to this very day).

  3. Lyn
    12/04/2009 at 3:02 PM

    Wouldn’t the existence of their BDSM relationship be relevant for the simple reason that Wone’s own DNA was found in his rectum and Ward’s electro-ejaculation device appears to be the only likely cause? Unless, that is, the defense believes that “the intruder” brought this type of probe with them to the Swann Street house when they “intruded.”

  4. Bea
    12/04/2009 at 5:12 PM

    I had posted earlier but it went into the abyss. The defense will be valiant in efforts to keep out Joe’s alt.com profile, but the appearance of “torture” and other relevant ‘pleasures’ surely has the government assigning bright junior attorneys charged with the task of finding caselaw to support introduction of that along with the rest.

    Kudos to the editors – like most, I care not a whit about what consenting adults do for pleasure (or pain!) and I recognize that MANY who list ‘torture’ or use of shock devices on a site for other enthusiasts who should NOT have such information disclosed to juries if they’re on trial for, say, burglary. It’s that the trouple was playing the part of the ‘lovely couple’ and poster boys for the gay community (profiled “fathers”!; admired attorney who worked pro bono for the homeless!) which requires that the jury be advised of the truth – and considering how Robert died, all this information’s relevance outweighs the prejudicial impact. Don’t get me wrong – it is prejudicial, but them’s the facts, Ma’am.

    Time and again I am aware of how frustrated I am that these jackasses are going to drag the gay community through the mud – mind you, NOTHING in comparison to the horror Robert faced, or what his loved ones endure to this day – but it does make me seethe.

  5. BenFranklin
    12/04/2009 at 8:25 PM

    The arguments here for the probative value of allowing in BDSM details are not all sound.

    BDSM most often IS limited to the bedroom or playroom–a weekend sport for most who play it.

    How do you know they were not known in the BDSM community? “Leather title holder” is a ridiculously high threshold for being known. It doesn’t seem like any of them ever lived in shame or fear.

    It’s too toxic & prejudicial for any jury to handle & it’s going to be a tough call for any judge.

    Ben

    • Themis
      12/04/2009 at 9:39 PM

      Ben,

      I agree for the most part. In the first instance, the BDSM community is extremely varied. Some “live the lifestyle,” others “play.” Some like to be subs in terms of power play, but have no interest in humiliation or pain. The scenarios are numerous.

      The electro-ejaculation aspect is a different story for reasons already stated.

      Also, the test is not more prejudicial than probative but rather does the prejudice substantially outweigh the probative value (which assumes the evidence is relevant).

      But that doesn’t mean the prosecution should be able to go into other lurid aspects of the D/s relationship or other “paraphelias.” The prosecution needs a theory to bring in the other aspects of the Ward/Price relationship, IMHO.

      • Bea
        12/04/2009 at 9:58 PM

        Themis and Ben,

        No introduction of the Alt.com profile (re “torture” nor the many outside the norm “pleasures” including electro-stim)? I don’t care what consenting adults do, but given that Robert’s sperm was found in his rectum (not anus) and that Dylan’s equipment was ten feet down the hall, you don’t think this probative value far outweighs a public profile anyone could find on the internet? He didn’t HAVE to post this information, yet there it was for the world to see – and respond to. To me, this goes beyond the ordinary games which people play, and given the nature of the crime with a sexual aspect, I think it comes in.

        EyeCandyDVDS.com might not, though there’s many possibilities depending on what gets opened up during the defense case (I for one DO think Joe will take the stand, narcissist that he is).

        And ARGGHH, I’ve been unable to post all day and worry this will too fall into the abyss.

    • David
      12/04/2009 at 10:18 PM

      Ben,

      I am going to have to respectfully disagree with your analysis. Garden-style BDSM play may be limited to the bedroom, however, BDSM where people are seeking 24/7 arrangements are certainly not just in the bedroom. And from the amount of BDSM material found in the house, and the amount of photographs discovered indicates that this was not just a passing fancy for the defendants.

      Furthermore, even if the actual BDSM activity is confined to the bedroom, the roles established during BDSM play easily seep into other areas of one’s life. A cursory review of the Web site that Joe Price advertised on easily answers this line of questioning.

      Secondly, after establishing the Web site a year ago, and talking with many folks who knew the defendants none were aware of their BDSM lifestyle, and not a single person from the BDSM community has reached out to us claiming they knew this about the defendants. I don’t disagree that they ever lived in shame or fear, but from all available evidence, they kept this very private.

      David, co-ed.

      • JusticeForRobert
        12/05/2009 at 2:00 AM

        David: I am following what you are saying, however, if it were true that J and D wanted to keep things private, then perhaps the last place to do that would be on the Internet. After all, you ended up finding them there. Nothing on the Internet is private, especially on a website where you are including pics of yourself and are hooking up with other people and giving out your real address to a total stranger, if in fact they were “hosting” events at their home. Based upon the amount of “items” discovered in Dylan’s room, we could easily assume that they were hosting. Once a potential hookup took place or an address was given out, anyone with a computer could have ran a search on the address and found out who the owner was. There simply is not that much anonymity to be had if your going to play online. I am hard pressed to believe that the entry of their entire BDSM life would not be viewed in court with prejudice since it is evident that it has been viewed this way right here. I want justice for Robert but the end does not always justify the means.

        • cdindc
          12/05/2009 at 4:06 PM

          JFR says: “if it were true that J and D wanted to keep things private, then perhaps the last place to do that would be on the Internet.”

          The internet is vast. Even if you entered “Joe Price Arent Fox” into a google search, his alt.com profile wouldn’t appear. Joe Price presented himself anonymously on alt.com. Yes, he exposed himself (pardon the pun) to individuals that he hooked up with, but people tend to be open about their personal proclivities within groups of people of like minds.

        • cdindc
          12/06/2009 at 12:03 AM

          JFR, the internet is vast. Even if you run a google search on “Joe Price Arent Fox” you still wouldn’t have come up with his alt.com profile (until after the murder). Yes, Joe was revealing his bdsm/sexual particulars to the alt.com community, but it was done anonymously (whether you include pics or not). And most people feel comfortable revealing their proclivities to people of like mind.

  6. Clio
    12/04/2009 at 9:41 PM

    Did the “basement tenant who was a very a good friend who knew this private side of the Swann Street triangle” know about the alt.com extremism pursued by the Arent Fox partner and his particular friend? Did Victor or even Michael Price know about those outer limits?

    Extremism in the pursuit of pleasure is no virtue; moderation, then, is no vice. It is the hedonism without boundaries that is at issue here; BDSM just was its particular expression.

  7. Tom
    12/04/2009 at 11:57 PM

    This posting feels BDSM-phobic to me. Speaking as a member of the leather community, I can say it would be almost unthinkable for a BDSM couple to force a sex scene on a straight house-guest. Such a thing would inevitably go very, very badly! Why would the couple bring that on themselves? They’d have to be monsters. Something monstrous did happen to Robert that night, but it goes too far to suggest that a straight man is walking into a risky situation by spending the night in the home of two leathermen.

    if his hosts are into BDSM.

    • Themis
      12/05/2009 at 12:11 AM

      Tom,

      I think in some ways you are falling into some of the same fallacies (no pun intended) of some of the earlier posters, i.e., that BDSM describes a known set of sexual relationships. Not to get too deep into it (the shit as some would say), but BDSM describes a whole host of relationships only some of which involve leather.

      This will repel some (I won’t pass on whom those may be), but there are aspects of BDSM that fulfill psychological voids for otherwise healthy people. It’s just that those aspects vary.

      • CDinDC
        12/07/2009 at 1:53 PM

        Themis says: “BDSM describes a whole host of relationships only some of which involve leather.”

        Agree 100%, Themis. In fact, some relationships don’t even involved sex.

    • L.
      12/06/2009 at 6:48 PM

      What on earth is the “leather community”?
      Is this a group of people who are connected b/c of the sexually provocative clothing that they wear or is it more than that?

      • CDinDC
        12/07/2009 at 2:03 PM

        L, there is, indeed, a leather community.

        There are organizations such as the Black Rose that hold seminars, elect officials to their Board, hold parties and conferences. There is a yearly conference here in DC that hosts thousands of participants.

        BDSM is still a bit taboo in our society, so in order to safely meet like-minded people there is a need to pipeline, so to speak. And when I say pipeline, I don’t mean alt.com. The people I’ve met in this community would never participate in unsafe activities such as advertising on alt.com. Unsafe behavior is 100% frowned upon. The Black Rose holds safety seminars where you learn safe techniques to everything from wax play to spanking. (Did you know you should never use a bees wax candle?)

        I, personally, am not into S&M, but I’ve had the pleasure of meeting many people from The Black Rose community. And I’ll be the first to say they are a fine group of people.

        Joe and Dylan? They were a bit rogue.

    • Friend of Rob
      12/07/2009 at 12:04 PM

      “BDSM-phobic”? I thought fear was the essence of BDSM.

  8. Grizzle
    12/05/2009 at 12:32 AM

    I guess that the DC media isn’t showing the whole story…but the Washington State media isn’t showing the story at all! Any thought about alerting the Tacoma News Tribune (Ward’s hometown Paper) to spark something??
    Im from Tacoma, and I just learned of this story while researching our recent troubles.

    • David
      12/05/2009 at 12:16 PM

      Grizzle,

      I have been posting alerts about this case on the Tacoma Web Site, the New Tackhoman, and asking for more information about Dylan Ward and his family. Did you read about it from there?

      David, co-ed.

    • AnnaZed
      12/06/2009 at 1:27 AM

      Do you mean the Knox case?

      • Clio
        12/06/2009 at 9:12 AM

        Yes, wasn’t “Foxy Knoxy” from Washington state? She and now Dyl are not reflecting well upon that region’s bourgeoisie, although I cannot see Maria Cantwell, their Democratic senator, pleading on behalf of Mr. Ward, as Senator Cantwell plans to do for Amanda. Di’s possible contributions to Republicans probably wouldn’t help either!

        • Violet
          12/06/2009 at 1:28 PM

          Please don’t put Amanda Knox in the same category as Dylan Ward. The American legal analysis I’ve read concludes that Knox wouldn’t have been tried in this country because of lack of evidence.

          • cdindc
            12/06/2009 at 2:47 PM

            The similarity in the two cases are quite remarkable.

            Although Knox wouldn’t have been tried for murder, as Violet indicates, she may have been tried for conspiracy, etc. like Price et al.

  9. L.
    12/06/2009 at 6:45 PM

    The BDSM evidence could also be relevant with respect to the possible involvement of people outside of the 3 defendants being involved in the murder.

  10. Clio
    12/06/2009 at 9:32 PM

    A hypothetical: what if Joe and Dyl were both Mid-Atlantic “sash queens” adorned with awards for their menacing, if theatrical, looks and clothing? Assume also that Victor and others (who were not tricks) — even their relatives — knew about their ardent pursuit of the outer limits of BDSM. How would that public knowledge make this evidence more prejudicial than if it was seemingly on the DL — as it really was?

    The probable use of BDSM instruments such as the electrostim explains the odd placement of the bodily fluids. Period — regardless of whether Joe and Dyl were open or closeted about their sordid affair.

    • David
      12/07/2009 at 9:40 AM

      Clio,

      Not sure if you are directing your hypothetical at me since I authored this post, but I will respond.

      If we travel back in time to say the forties and fifties in the State or CIA department being found out as gay was reason for dismissal. Why? Not because it was morally wrong but because one could be susceptible to being backmailed.

      Now replace “gay” with “BDSM” in this instance. If you are secretive about it, whether its morally wrong or not, you want it to remain private. If they were as you say “sash queens” then they would have nothing to hide. If that was the case, to bring this up at trial would be more predjudicial because it is not shining additional light about what is known about them and could be just trying to embarrass them in front of a jury, but if we are revealing a secret, whether that secret is morally wrong or not, brings additional evidence to bear. And did hiding that secret contribute to the drastic need to cover up?

      Furthermore, did the pyscho/sexual dynamics of Joe and Dylan’s BDSM relationship play out in any way that evening in the cover up? Did Master Dylan say to slave joe, “Oh you found my mess, now clean it up?” I don’t think it played out that simplisticly, but BDSM relationships are complex and comprehensive, and should not be underestimated.

      And as you point out, yes, certianly the equipment used in BDSM especially the electrostimulator, should definitely be entered as evidence.

      David

  11. AnnaZed
    12/07/2009 at 12:20 PM

    As to all of this, specifically: “So in the end, could fear about revealing the depth of their BDSM lifestyle contribute to the decision to cover up the murder?”

    Surely, no matter how inebriated they were they can’t have thought that Dylan’s room would not be searched? They can’t have thought in a million years that his props would not interest the police, that Joe’s collection of images of Dylan and himself could be concealed or that the nature of their relationships would not immediately be discernible, surely not.

    As a motive for obstructing justice, tampering with the crime scene, lying to the police and (most damning) failing in any way to provide and help or comfort to Robert I don’t buy it.

  12. Hoya Loya
    12/07/2009 at 2:06 PM

    AZ: I think you have hit on something. I agree that they were not afraid of (inevitable) exposure. I think they knew all too well that the lifestyle evidence would be seen as connecting them to the crime and therefore tried to alter the scene to fit the “intruder” scenario. This could be true whether or not they are guilty of the murder and whether or not their BDSM lifestyle was known to anyone on the outside. The evidence comes in.

    • Mike
      12/07/2009 at 10:49 PM

      Hoya Loya – I’m not understanding you. You seem to agree w/ AnnaZed, then say “…they knew…that the lifestyle evidence would be seen as connecting them to the crime and therefore tried to alter the scene to fit the ‘intruder’ scenario. This could be true whether or not they are guilty of the murder….”

      What AnnaZed wrote is that their fear of exposure does NOT explain their criminal actions that night. Whether or not their ludicrous burglar yarn held up, their lifestyle would still have been exposed. I agree (w/ Anna), it is insane to think they would go so far, & w/ such little human compassion, just to avoid having their secret life skew the investigation.

      If an intruder really had murdered Robert, don’t you think the “boys” would have left the culprit’s evidence as they found it instead of drawing attention to themselves w/ a patently obvious tampering job? Or are you suggesting that Robert died during consensual sex and they are therefore not technically guilty of “murder”?

      Either way, I thought we’d moved beyond these kinds of theories long ago.

      • Hoya Loya
        12/08/2009 at 12:28 PM

        Sorry if I wasn’t clear Mike. I agree with Anna that fear of exposure of their BDSM activities (to Arent Fox, Virginia Equality, family, friends) does not convincingly explain the defendants’ actions. But fear that the police would connect their lifestyle and the accompanying paraphenalia to the circumstances of the murder would. In fact, this goes without saying if they indeed committed the murder.

        But remember, this is a conspiracy/evidence tampering trial, not a murder trial. The prosecution does not need to prove that the trouple committed the murder, just that they messsed with the scene. Fear of the police making the obvious connections (if they did it) or of being “railroaded” because of their lifestyle (assumming, for argument’s sake, that they did not do it) provides a motive for the cover-up either way. The question posed in the original post was essentially “Can the defendants exclude evidence of their BDSM activities?” For the reasons I’ve stated, I think the answer is “No.”

        • Mike
          12/08/2009 at 10:25 PM

          Thanks Hoya, I was trying to look at it from the jury’s point of view. No matter what the charges are this go-round, it has to be looming in everyone’s mind that the trouple altered the crime scene for only one reason. (Nothing else comes close to convincing me.) And Joe & Dylan’s extreme pain-torture obsession and hunger for extra partners are undoubtedly relevant to it.

          Pretending we’re only talking about the clean-up? Assuming they’re innocent of the murder, someone in that house did sexually assault, smother, and kill Robert in a manner highly reminiscent of Joe & Dylan’s toy chest. A pick-up, a “friend” who got out of hand? Whatever. The trouple’s lifestyle and promiscuity are the best explanation for this particular line of BS, so cannot be excluded. So, I agree with you 100%.

  13. CDinDC
    12/07/2009 at 2:07 PM

    L says: “What on earth is the “leather community”? Is this a group of people who are connected b/c of the sexually provocative clothing that they wear or is it more than that?”

    L, there is, indeed, a leather community.

    There are organizations such as the Black Rose that hold seminars, elect officials to their Board, hold parties and conferences. There is a yearly conference here in DC that hosts thousands of participants.

    BDSM is still a bit taboo in our society, so in order to safely meet like-minded people there is a need to pipeline, so to speak. And when I say pipeline, I don’t mean alt.com. The people I’ve met in this community would never participate in unsafe activities such as advertising on alt.com. Unsafe behavior is 100% frowned upon. The Black Rose holds safety seminars where you learn safe techniques to everything from wax play to spanking. (Did you know you should never use a bees wax candle?)

    I, personally, am not into S&M, but I’ve had the pleasure of meeting many people from The Black Rose community. And I’ll be the first to say they are a fine group of people.

    Joe and Dylan? They were a bit rogue.

    • Clio
      12/08/2009 at 11:37 PM

      CD, “a bit rogue” is like being “a bit pregnant.” The trouple’s probable jailhouse-book title: Staying Rogue Until the Bitter End.

      On a different note, there is also the Mid-Atlantic Leather Weekend in downtown Washington, sponsored by the Centaur Motorcycle Club, usually in mid-January. Perhaps, the editors could send a cub reporter to cover this event, placing Joe’s alt.com profile and/or Dyl’s toy chest into their proper historical and sociological contexts.

      • Clio
        12/10/2009 at 9:42 PM

        For more information on leather communities and their cultures, see also the Leather Archives and Museum in Chicago, Illinois; indeed, a visiting research fellowship was set up just this year for a scholar to use the Museum’s collections of personal papers, oral history transcripts, and back issues of such “classic” magazines as Drummer and Bound & Gagged. Thankfully, Dyl was not chosen as the research fellow.

  14. 12/24/2009 at 7:12 PM

    There are four different paths you can take, and you select a path based on which fetish you would like to begin exploring. Fetish Wholesale

    • AnnaZed
      12/25/2009 at 2:43 AM

      I don’t know, that post looks like spam to me. weirdly relevant spam, but spam nonetheless.

    • CDinDC
      12/25/2009 at 6:51 PM

      Eds, you should delete this. This is nothing but gratuitous advertisement at the expense of this website.

      • Clio
        12/25/2009 at 8:36 PM

        I agree. Delete it. It may give Dyl an idea for a home business.

        • Craig
          12/26/2009 at 2:12 PM

          Maybe the spammers have gotten more sophisticated… It sure seemed oddly appropriate.

          • CDinDC
            12/26/2009 at 4:25 PM

            Wow. Free advertisement. Can I post my partner’s website business here? LOL

            • Clio
              12/26/2009 at 7:10 PM

              The advertised studded leather masquerade mask (with its lavender shields over each eye) might be just fey enough for Mardi Gras, but, I already have a pair. Next!

            • Craig
              12/27/2009 at 7:51 PM

              CD – Call the wmrw.com Advertising Department to inquire on rates and schedule. XXOO 🙂

              • CDinDC
                12/27/2009 at 9:44 PM

                ROFL! Will do, Craig.

                Maybe it could be a pop-up.

  15. themis
    12/24/2009 at 7:26 PM

    I don’t know where Fetish_Wholesale posted, but I had to respond. I have a female relative who is a (s)ub but doesn’t indulge. Based upon my conversations with her, there are many more than four paths. Right or wrong, she doesn’t indulge because the literature she has read leads her to believe that hetero Doms tends to have “issues.” But she has explored the area in depth, and from what she has communicated to me the BDSM community is quite varied.

    The sad thing is that much of this thread has been a distraction from the true objective–finding Robert’s killer–without tarnishing the LGBT community in the process.

    Also, I can’t help but note once again that “fetishes” are not in and of themselves pathological. The psychology that “fetishizes” everything is the same psychology that deemed homosexuality aberrant.

    To the extent that it’s relevant to this case, let’s discuss. But please don’t generalize.

    • Bea
      12/24/2009 at 8:13 PM

      Kind of don’t want to go there (AGAIN) but frankly I don’t care what consenting adults do. These issues are relevant to this case in my mind only to the extent that:
      1. the “equipment” may have been used on Robert against his will;
      2. the good boy image Joe gave the world, including close friends, seems incongruous to his darker side – including the relationship with Dylan, advertising he/Dyl’s desire for torture and various other activities.

      In other words, if Robert were alive and well, and celebrating the holidays, I would say “nobody’s business” in relation to whatever the trouple did behind closed doors (though I might whisper to Victor – WHY DO YOU PUT UP WITH THIS MAN WHORE AND HIS MISTRESS?).

  16. themis
    12/24/2009 at 8:22 PM

    Agreed, Bea.

    But that is putting things in context. Many want to paint with a broad brush.

    That tendency, without reflection regarding the particulars of this case, is ” “, fill in the space.

Comments are closed.