A Douglas County judge improperly limited a defendant’s ability to pursue his defense to assault charges at trial, prompting Colorado’s second-highest court to reverse his convictions and 22-year sentence this month.

Jurors found Donald Louis Gerle guilty on two counts of assault and one charge of false imprisonment in 2022. In the prosecution’s telling, Gerle began beating his alleged victim following a minor argument, confined her in a closet over two days, forced her to use drugs and continued to assault her. There was no dispute the victim suffered multiple injuries as a result.

However, Gerle sought to show he lacked the intent to commit a crime because he and the victim had extensively talked about bondage activity. Therefore, it was possible Gerle believed he had the victim’s consent to the encounter, if not to her eventual injuries.

Then-District Court Judge Patricia Herron blocked Gerle from talking about the history of role-play between him and the victim, and from cross-examining the victim about the subject. Primarily, Herron believed Colorado’s “rape shield” law precluded the evidence.

That was incorrect, determined a three-judge panel for the Court of Appeals.

“If the incident began as a consensual BDSM encounter, then Gerle may not have had the intent to cause bodily injury or serious bodily injury to the victim. Instead, the injuries could’ve been recklessly inflicted, as the defense argued at trial,” wrote Judge Christina F. Gomez in the July 11 opinion.

Initially, Gerle’s attorney told jurors in the opening statement that Gerle and the victim lived “a different lifestyle” involving drug use and “ongoing and regular sexual fantasy role-playing.”

The prosecution objected, citing the rape shield law — a framework that generally prohibits explorations of a victim’s sexual history at trial. Herron agreed the rape shield law applied and told the jury to disregard the defense’s comments about role-playing.

Later, Herron ruled the defense could ask the victim about her BDSM-related communications with Gerle, but only those connected to the dates of the alleged offenses. Gerle could not question the victim about prior consensual physical encounters.

In appealing his convictions, Gerle argued Herron had effectively torpedoed his ability to defend himself on the grounds that the planned BDSM encounter illustrated he had a non-criminal motive for injuring and imprisoning the victim. The prosecution responded that Gerle could not argue his victim’s alleged consent justified her injuries.

“If I have a friend and we both box and on a Monday I’m saying, ‘We should get in the ring. I’d love to see you knock me out. I wanna see you try,'” said Assistant Attorney General Jaycey DeHoyos during oral arguments to the Court of Appeals, “and then later that week we get into an altercation not in the boxing ring and the friend shoots me with a gun, they can’t bring in evidence they didn’t intend to injure me because we had agreed to box. They’re two completely different scenarios.”

The appeals panel sided with Gerle. It first found Herron misapplied the rape shield law, which DeHoyos also conceded. The law applies to sexual assault victims and in sex assault prosecutions, but Gerle was not charged with any sex crime. Therefore, Herron’s rationale for curtailing the defense’s opening argument was faulty.

Second, Gerle should have been allowed to question the victim about prior and planned role-playing encounters.

“Collectively, these two errors undercut the primary theory of defense Gerle had intended to raise at trial: that because they were engaging in consensual BDSM activities, the victim had consented to at least some of the charged conduct and he lacked the requisite intent,” Gomez wrote.

She added the limitations also prevented the defense from effectively cross-examining the victim, rendering the trial unfair. The panel ordered a new trial.

The case is People v. Gerle.