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.
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