The Colorado Supreme Court decided on Tuesday that a Douglas County judge acted reasonably by blocking evidence of a defendant’s BDSM-related conversations with the victim in his trial for assault and false imprisonment.

While the Court of Appeals believed that the communications between Donald Louis Gerle and the victim were relevant to proving whether he intended to inflict injuries or simply carry out the talked-about sexual encounter, the Supreme Court concluded that the discussion of BDSM bore little resemblance to the assault days later.

“Here, context matters,” wrote Justice Maria E. Berkenkotter in the June 23 opinion. “To the extent that the text messages revealed a plan for a sexual encounter, the encounter described was imminent, not something planned to begin days later.”

In the prosecution’s telling, Gerle began beating his alleged victim following an argument, confined her in a closet for over two days, forced her to use drugs, and continued to assault her. There was no dispute that the victim suffered serious injuries as a result.

However, Gerle sought to show he lacked intent to commit the crime because he and the victim had extensively talked about bondage activity in the prior days. Therefore, while Gerle may have injured the victim recklessly, he did not do so intentionally.

Gerle’s attorney told jurors during opening statements 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. Then-District Court Judge Patricia Herron agreed the rape shield law applied and told the jury to disregard the defense’s comments.

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 and would be “stuck with” her answers.

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 did not have the required criminal intent for injuring and imprisoning the victim. 

A three-judge Court of Appeals panel agreed with him, finding the rape shield law did not apply and the communications were relevant.

“Thus, evidence that the couple had previously participated in BDSM role-playing encounters and had just planned another such encounter makes it more probable that the victim consented to at least some of the conduct and makes it less likely that Gerle had the requisite intent,” wrote Judge Christina F. Gomez.

At the Supreme Court, no one disputed that Herron incorrectly applied the rape shield law. But the government maintained that the extent of the victim’s injuries could not support the defense’s claim of reckless behavior.

“This victim was covered from head to toe, plate-sized bruising all over her torso, behind her ears, the tops of her feet, two black eyes, busted lip. In addition to that, she had been complaining that she was losing consciousness, that she couldn’t breathe,” said Assistant Attorney General Jaycey DeHoyos during oral arguments.

Berkenkotter, in the court’s opinion, wrote that the evidence did not show a BDSM-like encounter between Gerle and the victim at the time of the assault. Therefore, their prior communications were irrelevant to proving Gerle’s intent.

“Most significantly, the texts, unlike the charged conduct, are overtly sexual in nature,” she wrote. “Nothing suggests that this conduct, which began on Thursday and escalated on Friday and Saturday and into the early morning hours on Sunday, had anything to do with sex.”

The case is People v. Gerle.