Master faces 85 years in prison;consent defense ruled out
The arrest also brought to light Van’s past criminal record. He had been an art teacher in Howells, Nebraska, but resigned that job in 1987 after being charged with “debauching” a minor, for which he served a year in jail.
After his time in jail, Van moved back to his mother’s home in Wakefield, and opened the florist shop in Wayne, where he also purchased some downtown buildings that held offices and apartments. Van had a good local reputation as a floral designer and a responsible businessman. But Van had another existence, as “Master Van” on the Internet and in his basement dungeon.
According to trial testimony, the Houston man was in a master/slave relationship with a slightly older man, Frank Bonner, for the past three years. Bonner, who testified at the trial, described their relationship as “pretty vanilla,” but said it included flogging, gagging, and bondage at his discretion. The men used a “safe word” in their activities, and Bonner would immediately stop what he was doing whenever his partner used the word.
The victim, not named in court records or newspaper accounts of the trial, was described as a “college-educated Army National Guard veteran.” He testified that he had been feeling “depressed and worthless” last summer, and was looking for somebody to punish him. He searched for an S/M master on the Internet and located Master Van. They exchanged about 300 emails over a period of three months, discussing in detail what the man was looking for and what Master Van would do for him.
Finally, they agreed that the man would come to Wayne. He had not discussed any of this with Bonner, and actually staged things to look like he had been kidnapped, then showed up in Wayne on December 7. Marshall, who lived in an apartment in the basement of the florist shop, did odd jobs for Van, and apparently was Van’s S/M partner, participated with Van in the scene.
According to the testimony of all parties, Van, Marshall, and the victim agreed that they would use no “safe word” and that Van would ignore any request by the victim to terminate the scene.
The victim also agreed that Van could mark him as a slave and do just about anything he wanted to him. The victim was immediately commanded to strip, was bound to a ten-foot-table, had his body shaved, was branded on his buttock, and received a light beating at the hands of Van and Marshall.
On the second day, Van ordered the victim to make a list of all the bad things he had done in his life. While making the list, the man testified, he concluded that he really hadn’t been such a bad person.
“Maybe I’d made the same mistakes as a lot of other people,” he said.
The victim told Van he had decided he didn’t want to go on with their arrangement, but Van responded by beating him with whips and floggers and refusing to let him go. The victim testified that some of this additional punishment was provoked by his attempt to use Van’s computer to seek help in escaping. Van testified that he was just doing what had been agreed upon by continuing the scene, which continued with more beatings and forced sex for another week, until Marshall, concluding that the man really wanted to end it, helped him to escape.
According to the victim’s testimony, during the course of his captivity he was told that he would be killed if he tried to escape, and that he would be required to dig his own grave.
After escaping, he made his way back to Houston and rejoined his partner, then contacted the Nebraska State Police. Marshall cooperated with the police investigation, pled guilty to a misdemeanor a few weeks before the trial, and testified against Van. All felony charges against Marshall were dropped in exchange for his plea. After the trial the court sentenced him to six months, the time he had already been held in jail pending the trial, and he was released from custody.
The police impounded all of Van’s dungeon equipment, much of which was introduced as evidence at the trial before Wayne County District Judge Robert Ensz. In addition to the victim, Bonner, Van, and Marshall, the jury heard from a psychologist with the Los Angeles Police Department who testified as an expert on the psychology of sadomasochistic activity.
At the close of the trial, prosecutor Chris Connolly told the jurors that Van experienced pleasure from inflicting pain on the victim, branding a “W” into his buttocks, injecting him with saline solution, raping him twice, beating him continuously, and discussing how to kill him if things “didn''t work out.”
Pointing his finger at Van, Connolly said, “There’s a very genuine evil in this case, right over there. He needs to be convicted.”
Connolly also told the jury that consent was not a defense for assault and false imprisonment charges, only for sexual assault.
Van’s defense attorney, Jim McGough, told the jury that no crimes had been committed because the victim consented to everything that was done to him and had not been harmed. (Despite all the physical abuse he took, the victim testified that he had not required medical attention when he returned to Houston, and no evidence was introduced about any actual injuries, so evidently Van is a very careful S/M master.) According to McGough, the entire incident was part of a fantasy that the victim had “concocted” in order to “save face” with Bonner, his master back in Houston.
“You are here in a manipulation of the court system,” McGough told the jury. “These were the actions of a responsible individual, a 37-year-old who got himself in a situation where exactly what he expected to happen to him happened.”
McGough charged that the victim lied to the jury when he claimed he hadn’t consented to being branded, pointing to an email message in which he had stated that he needed to have his body marked as a slave “however you want it, sir.” McGough also said that the victim was an “aspiring writer” who may have been doing this in order to get material for a story. He also tried to discredit Marshall’s testimony, pointing out that his plea agreement gave him an incentive to lie.
But the jury took just a few hours (including lunch) to reach a unanimous conclusion, finding Van guilty of first-degree sexual assault, first- and second-degree assault, false imprisonment and making terrorist threats. Van was taken into custody following the verdict, but posted ten percent of a $100,000 bail later that afternoon, and vowed to appeal his sentence.
The question whether consensual S/M is subject to criminal prosecution is a matter of slight disagreement among the courts, most of which have rejected a consent defense. The Texas Journal of Women and the Law recently published an article titled “Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex,” by Monica Pa, which reviews recent court decisions and advocates that consensual S/M should not be the subject for criminal prosecution. Pa argues that courts have misconceived the nature of consensual S/M, believing it to be about violence and injury when actually it is about sexual expression, with a core principle of “safe and sane.” Pa concedes, however, that in situations where consent is withdrawn, it may be appropriate to criminalize continued S&M conduct.
State courts in the U.S. have not been won over by the position Pa advocates, though a recent decision in New York suggests some degree of legal toleration for consensual S/M. That is the case of Oliver Jovanovic, the Columbia graduate student prosecuted and convicted of sexual assault and kidnapping on the complaint of a female Barnard student. Jovanovic and the woman established contact via the Internet, discussed their mutual interest in S/M, and made a date to meet.
During the date, Jovanovic took the woman to his apartment, bound and blindfolded her, and initiated S/M activity, which she later claimed was non- consensual. At trial, the court excluded evidence that the woman had engaged in S/M activity with a third party prior to her date with Jovanovic, although it allowed testimony that Jovanovic and the woman had discussed S/M activities via email before they met. The appellate court reversed his conviction on both the assault and kidnapping charges, ruling that Jovanovic was entitled to have the jury hear about the woman’s past activities since it was relevant to his testimony on the issue of consent.
A dissent pointed out the incongruity of the majority decision, since under existing precedents a consent defense, while applicable to a kidnapping charge, is generally not applicable to an assault charge.
