Fetish Friday: “Hypoxia and Euphoria” – Recent Developments In the Law of Autoerotic Asphyxiation

Welcome back to Fetish Friday here on Lawyers & Liquor and I’m just going to be honest and say I’ve completely lost track of my sponsors. So this one, folks, this one is for me, the Boozy Barrister, as we sit back and talk about a legal issue related to the after dark portions of the law. That’s right, some legal matter, precedent, or rule of law that related to when you’ve been a naughty boy, girl, or other is the purpose of our deep dives into the laws of kink and sex similar to what you might have previously seen on a websites such as twinkmovies.xxx (https://www.twinkmovies.xxx/). And this week, well, I mean, this week has just left me breathless!

So join me as we talk about the law of Autoerotic Asphyxiation here on Lawyers & Liquor!

What’s Autoerotic Asphyxiation, Boozy?

Awesome, we’ve just determine you have no clue who David Carradine is and you apparently have no access to the internet! I assume that some kind soul has printed out today’s discussion for you to read! You should definitely reward them with something as you teeter precariously on a stool with your necktie fastened to an overhead rafter and a bottle of lube in your hands. In fact, how about you go do that right now, before we get into this shit, because if the case law is any indication you’re not going to be able to give them any thanks after the fucking fact here.

In a rare instance of “I don’t have to look up medical shit for this discussion,” a review of the case law shows that, believe it or not, several panels of judges have absolutely defined what the hell autoerotic asphyxiation is in a legal sense. Now, I know you’re imagining them being amazingly serious, but I guarantee you that these judges chuckled just a little when they were reviewing the opinion as it was about to be released, and their law clerks (who write most of those opinions) were definitely walking around the office making jokes. But no matter how it happened, we have a fairly intricate definition of “autoerotic asphyxiation” that’s now been handed down from several federal appellate courts.

That’s right.

The second-highest courts in the land have legally defined jerking off while hanging yourself.

For the purposes of today’s discussion, let’s go with the definition recently promulgated by the United States Court of Appeals for the Seventh Circuit which, in Tran v. Minnesota Life Insurance Co., 7th Cir., Decided April 29, 2019, Docket No. 18-1723, stated as follows:

Autoerotic asphyxiation is a sexual practice by which a
person purposefully restricts blood flow to the brain to induce a feeling of euphoria. … The pleasurable
feeling experienced during autoerotic asphyxiation derives from cerebral hypoxia, or brain cell death from
deprivation of oxygen.

Tran v. Minnesota Life Insurance Co., 7th Cir., Decided April 29, 2019, Docket No. 18-1723.

So there you have it, a legal definition of choking yourself while jerking off so you can get a slightly (or hell, maybe better than slightly, I don’t know) more…fulfilling…ending.

I’m Gonna Go Try That Now!

DO NOT JERK OFF WHILE CHOKING YOURSELF FOR A BETTER ORGASM, WE HAVEN’T COVERED EVERYTHING YET!

With any reward comes a certain amount of risk, or as we say in law: “You have to take the sweet with the sour.” In this case, though, the “sour” is, well, fucking dying while jerking off as shown by the Tran Court which stated:

Acute to severe hypoxia can lead to loss of consciousness in ten to twenty seconds, permanent brain damage in three minutes, and death in four to five minutes.

Id.

Does that help explain it?

It’s choking yourself through some means while jerking off, and if done incorrectly it will absolutely kill your ass. I know, I can hear you pleasure driven assholes falling all over yourselves to explain how you’ll be different. You will definitely take the proper precautions to make sure absolutely nothing untoward happens to you and you don’t shuffle off this mortal coil because you wanted to choke more than your chicken. However, the fact remains that as of 1995 we were looking at somewhere between 250 to 1,000 deaths per year that were likely the cause of self-pleasure turning la petite mort into just la mort, which sounds like some white-trash trailer park french restaurant. JL Uva, Review: Autoerotic Asphyxiation in the United States, 40 J. of Forensic Sci. 574 (1995).

Frankly, we have no real clue how many of these deaths actually occur though, because…you know…they sort of come off as suicides to everyone except the people who find the body. Who are normally relatives and…well, they may just tamper with the corpse so Little Bobby isn’t found dangling with his dong in hand when emergency services arrives. Many experts (yes, there are actually experts in this field and I really want to find a reason to hire one for trial now) actually believe the numbers are much higher because families tend to make a corpse “presentable” before emergency services arrives to try and revive them or cart them away. Hell, there’s even an entire Robin Williams movie based on the premise of a father passing his son’s choking out while choking it as a suicide – garnering community support to hide the sexual shame.

So back to that whole “Don’t fucking do it because you will absolutely run the risk of dying despite however many precautions you may take” to be safe thing – or at least be aware you can fucking die pretty easily doing any type of breathplay and should engage in it, if at all, in the company of someone who can monitor you and save your horny ass should shit go awry. Other people, and if you’re reading this drivel likely smarter people, than you have tried the whole safety thing. Like, you know, the D.C. area blacksmith, husband, and father of three who was experienced in such acts but:

. . . was attempting, while masturbating, to induce partial asphyxia by means of a hangmen’s noose attached to a pulley which he could control by means of a separate rope. It is well documented that partial loss of oxygen intensifies the sensations of orgasm. The pulley system was designed . . . to protect him from asphyxiation if he lost consciousness since he would then lose his grip on the separate rope and the pressure on the noose would abate, allowing his autonomous nervous system to restore his breathing. Apparently the pulley system jammed … and failed to release pressure from his neck.

We’ll get to where this is from later.

If fucking blacksmiths who are considered experts on pulley systems can’t guarantee a 100% “won’t fucking die” rate, you, a person who knows more about pud-pulling than pulleys, likely can’t either.

Okay, Fine, I’ll Jerk Off the Boring Way.

You should do it secretly while sobbing, staring into a mirror and whispering “I’m pretty” like the rest of us perfectly well-adjusted people, thank you very much.

How did this become a thing anyhow, Boozy?

Oh yeah. You can blame the law for that.

Seriously.

Back in the day, when public hangings were a thing, people gathered to watch the expiration of human life like the sick and wretched creatures we were and remain. However, not all of this good, clean “executing a person” family fun was appropriate for all ages. Over the course of many hangings, it became obvious that some of the deceased were going into the other realm being very visibly happy to see Saint Peter and turn the pearly gates into a pearl necklace gate (you all have access to Urban Dictionary. I’m not explaining this joke). Given that the stiffs were, to be blunt, stiff at the time of death, some medical professionals got the idea that cutting off the oxygen supply – but leaving out the “death by sexual smothering” part at the end – would be a pretty good cure for erectile dysfunction, thank god men have medication for such troubles now! You can check it out here, if you wish.

And, much like many people, it grew from there to non-medicinal, purely recreational use. You know. Like opioids. Orgasm opioids.

Seriously, why do we keep risking death for mind-blowing orgasms?

Is that the legal part? Cause…

No, no it isn’t. That was all the build-up to the legal part, because in this modern year of 2019 we’ve had life insurance and Accidental Death & Dismemberment policies for a pretty goddamn long time. And wouldn’t you know it, some people who have met their maker with their babymaker firmly in grasp have had spouses and survivors that have sought insurance benefits as a result of the death. Those insurance companies, however, have tended to frown upon paying out when the death was the result of an intentional act of self-injury, and really have a habit of limiting their policies not to cover such acts…being “intentionally inflicted injuries.” For a lot of you, you might recognize this as a “suicide clause” that bars the payment of life or AD&D insurance where a person offs themselves.

But, the law being what the law is, the surviving kin have had a habit of, well, suing the insurance companies on these denials, saying that the deaths were not intentionally self-inflicted injuries because the deceased intended only to get their rocks off, not get their rocks off of this plane of existence. And, as many of these policies are actually governed by the Employee Retirement Income Security Act (“ERISA”) since a whole fucking lot of people have their insurance of almost every type through their employer, that makes these cases -in many circumstances – federal disputes under the interpretation of law. Likewise, even where there haven’t been ERISA issues, some cases end up in federal court because of diversity jurisdiction – meaning the sexy dead and the insurer are located in different states and therefore the matter should be heard in a federal court.

Which, you know, has now resulted in some interesting case law specifically in regards to choking yourself to death while masturbating.

I went to law school for this shit, folks. Years of education, $120,000 in student loan debt, and many sleepless nights to talk about the legality of people dying while pleasuring themselves. You’re welcome.

Okay, wait. If someone intentionally chokes themselves while jerking off, isn’t that…you know…intentional injury?

You’d think so, but the federal circuit courts split on the matter really. See, the key phrases in many of these policies is whether the death was “accidental,” “intentional,” or the result of a self-inflicted injury and how we define those phrases. Back in 1981, for instance, a the United States District Court for the Southern District of Iowa, relying on guidance from the Iowa Supreme Court in a state law claim, determined that:


[I]f the insured does a voluntary act, the natural, usual, and to be expected result of which is to bring injury upon himself, then a death so occurring is not an accident in any sense of the word, legal or colloquial[.]

Sigler v. Mutual Ben. Life Ins. Co., 506 F.Supp. 542, 545 (S.D. Iowa 1981)

In essence, at least in that case, the Court was saying “Hey, if this dipshit was aware that this act had a pretty goddamn good chance of harming or killing him, we’re not going to call the resulting death an accident!” In that case, when the insured died of an alleged accident the court looked at the circumstances and went “No, you see, anyone with two brain cells would have realized that death was not only a possibility but a probability by engaging in this behavior, so…you know…fuck off.”

Then, also in 1981, an appellate court, the United States Court of Appeals for the Fourth Circuit, addressed the same line of reasoning and came back with the same determination – you can’t willfully engage in an activity that has a high likelihood of death and then have your survivors say it was an accident. In that matter, the Fourth Circuit stated:

[The decedent] is bound to have foreseen that death or serious bodily injury could have resulted . . .[h]aving decided that the death was not due to an accident

Intern. Underwriters, Inc. v. Home Ins. Co., 662 F.2d 1084, 1087 (4th Cir. 1981).

Shit, the court in International Underwriters even cited directly to the then-recently decided Sigler case in making that determination, despite being in a completely different circuit!

Oh, and both of those cases from 1981? Autoerotic asphyxiation deaths. In fact, the decedent (dead person) in the International Underwriters case is actually our blacksmithing pulley expert from earlier. In fact, in his specific case the court determined that the fact he took such precautions meant he was aware of the inherent and substantial risk of the activity in the first place and therefore knew it was likely to result in death if even the smallest thing went wrong.

So it all seems pretty cut and dried, right? Play stupid sex games, win eternal stupid sex game prizes. Thus hath the courts spoken, and so it shall be done!

We literally just said that.

But you’re still wrong because, as I said at the beginning of the last section, there’s a circuit split!

While International Underwriters was based on Virginia law, and Stigler was based on Iowa law, several insurance policies aren’t governed by any state law in denial determinations. Those are the insurance policies taken out on you by your employers, which are generally determined under ERISA as being an employee benefit! Those are considered and decided under federal law, and that’s a whole different ballgame. See, a federal court presiding over a diversity case with no federal question, meaning they have jurisdiction based solely off the different state citizenship of the parties (and the amount in controversy but fuck you, I’m not a Civil Procedure professor), is bound to determine the case based on the law of the state in which the claims are governed by. So, in both of the cases cited above the issues really are “What does Iowa law say is an accidental death?” and “What does Virginia law say is an accidental death” and not “What do we define as an accidental death or self-inflicted injury for the purposes of ERISA – this federal law here.”

And when it comes to federal law in relation to autoerotic asphyxiation, the standard was first set by the United States Court of Appeals for the Fifth Circuit (which includes Texas, home of God, guns, and apparently choking yourself to completion for pleasure). In the case entitled Todd v. AIG Life Insurance, 47 F.3d 1448 (5th Cir. 1995), the three judge panel was presented with the following facts:

” Richard A. Todd was found dead at his home in Rockwall, Texas, on April 25, 1991. The cause of death was determined to be autoerotic asphyxiation, the practice of limiting the flow of oxygen to the brain during masturbation in an attempt to heighten sexual pleasure. When found, Todd was lying on his bed with a studded dog collar around his neck; the collar, in turn, was attached to two leather leashes of differing lengths, one of which passed over Todd’s back and attached to an ankle. Apparently, Todd gradually tightened the collar around his neck by pulling on the leashes, thereby reducing the supply of oxygen reaching his brain. Instead of simply restricting the flow of oxygen enough to increase his sexual gratification, however, Todd tightened the collar to the point at which he passed out. Todd apparently designed the system of leashes to loosen the ligature in the event he became unconscious; unfortunately, the collar failed to release and ultimately terminated the flow of oxygen permanently. The autopsy report listed the cause of death as ‘asphyxia due to ligature strangulation,” ruling the manner of death “accidental.’ “

Todd, 47 F.3d at 1450.

In this case, Todd was covered by an Accidental Death & Dismemberment policy provided as an employee benefit from his employer. When his widow found her husband tied up and dead, she, after I assume an appropriate grieving period, filed a claim stating that his death was accidental. A claim that the insurer, AIG, immediately denied with a big old “Oh come the fuck on” in reliance on the prior court determinations saying deaths of this sort weren’t accidental because of…you know what, scan back up, we just talked about the fucking logic there.

Dead bang winner, right?

Well…

“In summary, we hold that Todd’s death resulted from a “bodily injury caused by an accident” within the meaning of the accidental death insurance policy at issue; we AFFIRM the district court’s judgment on this point. “

Id., 47 F.3d at 1459.

Wait, but in the other two…

The other two were based in state law, not in federal law! ERISA is a completely federal statute with the authority to determine the claims and interpret the law resting with the federal courts, and that means, unlike when a court is sitting in diversity this shit is a whole new ballgame! A ballgame that, in 1992, specifically said (at least for the Fifth Circuit), that engaging in auto-erotic asphyxiation and dying was an accidental death under federal law for insurance purposes!

The whole idea behind this determination was a two-parter: (1) did the person actually have a substantial certainty they would die and (2) how common is death? The court, reviewing a number of cases on the topic (because of course there are literally a shit ton of these decisions out there) and after looking at the decedent himself, determined that death, while a significant risk, was not a substantial certainty (more likely than not to happen) that could be expected, and therefore the resulting death was an accident under ERISA even though the act itself was voluntary! A new day is born, bring on the choke collars and elaborate pulley mechanisms, you can buy the farm while flogging the bishop and receiving last rights from it and still make sure your family gets a payout so long as it’s an ERISA governed policy!

Likewise for the case of the father who told his wife he was going to get some dry cleaning and found dead in the back of a van with porn and “sex devices” when he didn’t come home for several days. Loaded with poppers and choking himself out with his necktie, this fellow moved on to the great beyond in the family’s soccer van (which probably made the trip to the pizza party later in the year uncomfortable as hell). However, even in those circumstances the United States Court of Appeals for the Eighth Circuit stated that ERISA demanded the family receive benefits because:

“The undisputed evidence in this case requires us to conclude that Mr. Padfield’s death was “accidental,” and was thus not a “suicide” within the meaning of the policy. Autoerotic asphyxiation practitioners expect to survive the experience, and there is nothing to suggest that Mr. Padfield subjectively expected otherwise. Though the record is limited, it appears that Mr. Padfield had a history of engaging in this autoerotic behavior and surviving it. Moreover, there is no evidence that he was distraught or experiencing any personal problems. Because death by autoerotic asphyxiation is statistically rare, his expectation of survival certainly was reasonable. “

Padfield v. AIG Life Ins. , 290 F.3d 1121, 1127 (8th Cir. 2002)

So we can say at least one circuit has come down and said “Yeah, no, these totally are accidents.”

That’s a 2002 case. You said this was a recent development.

But note that not all deaths are excluded for “accidental” deaths. Some are determined to be “self-inflicted injuries,” and that distinction is pretty big too. See, someone can inflict an injury on themselves and die, even if that death was an accident. For example, if I jump off a one-story building – which I wouldn’t do unless one of you retained me – I may not expect to die. But I certainly would have been inflicting an injury on myself! So, in the context of ERISA, the insurance companies moved away from seeking exclusions for “it wasn’t an accidental death, the guy was literally suffocating himself for sexual gratification” to “the guy was literally suffocating himself for sexual gratification” and started pushing for denials of claims based on the idea the death was the result of a self-inflicted injury.

This made the rounds first in Padfield, of course, and turned the question into whether or not the intent of the person was to inflict an injury on themselves in acting, and was death a reasonable result of that injury. In other words, Padfield treated a self-inflicted injury as a voluntary act where the person intended to injure themselves, not merely an act where someone did injure themselves. And two years later this logic was applied again by the United States Court of Appeals for the Second Circuit in Critchlow v. First Unum Life Insurance Co. of America, 378 F.3d 246 (2d Cir. 2004). In that case a mother applied for benefits from an ERISA policy based on the following facts:

In the early morning hours of February 27, 1999, Critchlow, age 32, was found dead in his bedroom. He was unclothed, lying on the floor, with ligatures tying various parts of his body. The coroner’s report concluded, and it is undisputed, that his death resulted from his practice of autoerotic asphyxiation, i.e., the practice of limiting the flow of oxygen to the brain during masturbation in an effort to heighten sexual pleasure.

Id.

In Critchlow, the court looked at it in a two-fold analysis, stating first that they had to determine whether Critchlow himself subjectively didn’t expect to suffer death as a result of his breathplay and, afterward, if that subjective lack of expectation was reasonable from his experiences and perspective. If so, then there could be no finding of a self-inflicted injury that would bar coverage under ERISA, because – and this is important – “self-inflicted” in this context would mean that he intentionally undertook to cause the injury with the knowledge the injury suffered would or could be a substantially certain result!

Of course, in this case the court said “Nah, he just wanted to jerk off, and we can tell because he’d done it before and had all these safety precautions built in. He didn’t mean to hurt himself, and therefore we’re not going to allow this to be a self-inflicted injury. Pay the mother who walked in on her son jerking off for the final time.”

…So under most state law, there would be no payout, but as long as someone dies while jerking off and strangling themselves under ERISA…

One, it’s a fact intensive determination.

Two, there’s a circuit split!

See, federal circuit courts do not have to agree on the meaning of a federal law. The Second Circuit could interpret a statute one way, while the Third Circuit could interpret the statute an entirely different way In those circumstances, both interpretations are correct within their own circuits, but not nationwide. And literally four days ago the United States Court of Appeals for the Seventh Circuit created an actual circuit split on the issue of how ERISA governed life and accidental death and dismemberment policies should be treating deaths that result from autoerotic asphyxiation because the law is fucking wild as hell sometimes!

In this case, titled Tran v. Minnesota Life Ins. Co. and which we talked about right at the very beginning of this article, a dude named Linno Llenos suffered the following fate:

“The facts are not in dispute. In August 2016, while home
alone in Wilmette, Illinois, Llenos hung a noose from a ceiling beam in his basement, stood up on a stool with the noose around his neck, and stepped off. Llenos died as a result. When Tran came home, she found her husband’s body hanging in the basement and immediately called police. Though his death was initially reported a suicide, the medical examiner subsequently concluded from sexual paraphernalia on Llenos’s body that he died performing autoerotic asphyxiation.

Tran, 7th Cir. Docket No. 18-1723, Decided April 29, 2019.

Relying on Padfield and Critchlow, the widow, having been denied the insurance claim for a self-inflicted injury clause, sued under ERISA to state it wasn’t self-inflicted. And the Seventh Circuit came back with a big old “Nope” to rule that slipping a noose around your neck and beating off was most definitely a self-inflicted injury for ERISA purposes in their circuit. And in doing so, it basically stated that the Second and Fifth Circuits had created a legal fiction to justify paying out.

See, in both Critchlow and Padfield, the courts had basically said that the deceased had only intended to engage in a partial strangulation, and not a full strangulation – essentially, they only meant to choke themselves enough to get off, not enough to die. As death and serious injury can’t result from only a little choking, both of those courts ruled the deaths weren’t the result of a self-inflicted injury. However, the Seventh Circuit has taken a different view saying “there’s no such thing as intending to only hang yourself a little.” In essence, the Seventh is saying that where you intend to choke yourself to any degree, and you die as a result, the death is an injury that is self-inflicted because you meant to choke yourself, period.

Or as the Court put it:

“Strangling oneself to cut off oxygen to one’s brain is an injury,
full stop. When that injury kills, it is ‘an intentionally
self-inflicted injury which resulted in death,’ regardless of
whether it was done recreationally or with an intent to survive.”

Id,

Which, I mean, seems common sense to some extent.

Why is this a big deal?

Do you know where circuit splits get resolved?

The Supreme Court of the United States. Whenever there is a circuit split on the interpretation or application of a federal law, the place for resolution is SCOTUS. The reason is otherwise we end up with wildly different interpretations of law that should be uniform depending on where in the country you are. And the issues in this case are much greater than “should autoerotic asphyxiation be covered” because it isn’t just that. This line of cases could impact the determination of what is an “accident” and what is a “self inflicted injury” for many different types of ERISA claims. It’s almost an issue that has to be clarified.

Not to mention the fact that, and I didn’t say this earlier, cases of exactly this nature are not uncommon! While I’ve mainly stuck with Circuit opinions here, there are so fucking many District Court cases out there on this exact issue that have been decided one way or the other way. This is a genuine area of dispute and disagreement on a foundational and important question of federal law that will directly affect the benefits of millions of Americans!

And it all arises from people choking themselves while masturbating.

And god, I hope that’s how this case goes before SCOTUS, cause I want to listen to that argument live if I can.

Until next time my legal kinksters,

-BB

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