Prior Consensual BDSM Evidence Is Irrelevant to Consent/Intent in Non-Sexual Assault Prosecutions Absent a Concrete Nexus

Introduction

In People v. Carle, 2026 CO 53, the Colorado Supreme Court reviewed whether sexually explicit text messages describing prior consensual BDSM role-playing between spouses could be used by the defendant, Donald Louis Gerle, to contest (1) the victim’s lack of consent for false imprisonment and (2) the defendant’s intent for first- and second-degree assault and false imprisonment.

The charged conduct was severe domestic violence over several days, including a roughly fourteen-hour confinement in a closet and repeated beatings producing serious bodily injury (e.g., broken ribs and a collapsed lung). Three days before the charged period, the couple exchanged explicit texts about sexual fantasies and a planned BDSM sexual encounter. The trial court excluded the texts (initially invoking the rape shield statute and also finding them irrelevant). A division of the court of appeals reversed, reasoning the texts showed the “particular nature” of the relationship and thus bore on consent and intent. The Supreme Court reversed the division on relevance grounds.

Summary of the Opinion

  • Rape shield statute: The Court left undisturbed the court of appeals’ conclusion that the trial court misapplied the rape shield statute because the defendant was not charged with a sexual offense and there was no allegation the victim was sexually assaulted; the People conceded error.
  • Relevance: The Court held the trial court did not abuse its discretion in excluding the BDSM-related texts as irrelevant under CRE 401 and thus inadmissible under CRE 402.
  • Core rule: Evidence of prior consensual sexual BDSM activity is not relevant to consent for confinement or to intent for assault/false imprisonment where the charged conduct is non-sexual, arises in wholly different circumstances, and the defendant offers no evidence connecting the prior sexual conduct to the charged episode.

Analysis

Precedents Cited

1) Standard of review and trial-court discretion

  • People v. Elmarr, 2015 CO 53: Confirmed evidentiary rulings are reviewed for abuse of discretion. This framed the Supreme Court’s task as determining whether the exclusion was “manifestly arbitrary, unreasonable, or unfair,” rather than whether the justices would have made the same call.
  • People v. West, 2025 CO 61 (quoting People v. Kent, 2020 CO 85): Supplied the Court’s operative definition of abuse of discretion (including misapplication of law). Here, once the Court deemed the texts irrelevant, exclusion was not an abuse of discretion.

2) Rape shield purpose (context, but not dispositive)

  • People v. Gulyas, 2022 COA 34 (quoting People v. MacLeod, 176 P.3d 75): Explained rape shield as preventing humiliating “public ‘fishing expeditions’” into past sexual conduct. The Supreme Court invoked this policy backdrop while ultimately deciding the case on relevance, not rape shield applicability.

3) Relevance, remoteness, and speculation

  • People v. Clark, 2015 COA 44: Reinforced that evidence is relevant when it makes it more or less probable that a criminal act occurred or a consequential fact is true. The Court used this to focus on whether the texts actually moved the needle on consent or intent for the charged crimes.
  • Fletcher v. People, 179 P.3d 969: Stated that evidence “too remote in logical relation” should not be admitted. The Supreme Court treated the sexual texts as logically remote from a later, non-sexual assault and confinement episode.
  • People v. Botham, 629 P.2d 589: Warned against admitting facts that yield only “conjectural inference.” This supported the Court’s concern that admitting the texts would invite the jury to speculate that a prior sexual dynamic implied consent to later confinement or negated intent to assault.

4) Conditional relevance (the missing link)

  • People v. Dunham, 2016 COA 73 (CRE 104(b)): Addressed conditional relevance—evidence that becomes relevant only if later evidence supplies a necessary connecting fact. The Supreme Court noted the defense might try this route, but held the texts lacked any evidentiary bridge to show the charged incident was a consensual BDSM encounter or planned as one.

5) The key comparator—and why it didn’t control

  • People v. Garcia, 179 P.3d 250: The court of appeals relied heavily on this sexual-assault case where the victim’s rape fantasy and prior role-play were closely aligned with the charged conduct, making the defendant’s account potentially consistent with consent. The Supreme Court distinguished Garcia on similarity and context: in Carle, the charged conduct was not sexual and bore no meaningful resemblance to the prior explicit BDSM texting.

Legal Reasoning

  1. Identify the “facts of consequence.” The Court treated as consequential: (a) whether the victim consented to being confined (false imprisonment), and (b) whether the defendant had the requisite intent for the assault and false imprisonment charges.
  2. Compare the proffered evidence to the charged episode. The November 8 texts described an imminent, sexually arousing BDSM encounter (including “lashes,” “SUB / DOM contract,” and explicit arousal statements). The charged conduct began days later as an argument about an ex-boyfriend, escalated into property damage and then non-sexual violence, and culminated in prolonged confinement and beating to force the victim to write down the ex-boyfriend’s name.
  3. Require a concrete nexus, not an inference chain built on propensity or stereotype. The Court reasoned that without evidence the parties “planned or were otherwise engaged in a consensual sexual BDSM encounter during the charged incident,” the texts did not make it more likely the victim consented to confinement, nor less likely the defendant intended to confine and assault. Admitting them would improperly invite speculation—precisely what Botham cautions against.
  4. Reject “Garcia-by-analogy” when similarity is absent. In Garcia, the prior fantasy/role-play mirrored the charged sexual conduct, making consent meaningfully disputable through that lens. Here, the Court found “stark differences” between the sexual texts and the later domestic violence, rendering the analogy unsound.
  5. Clarify doctrinal boundaries on consent as to serious bodily injury. In a footnote, the Court emphasized that “Consent is not a defense to assault that causes serious bodily injury as a matter of law,” citing § 18-1-505(2). This constrained the defense’s ability to recast extreme injury as “consented-to” conduct, even apart from relevance.

Impact

  • Narrowing the reach of relationship/sexual-history evidence in non-sex cases: The decision signals that courts should be skeptical of attempts to use prior consensual sexual behavior—especially BDSM evidence—to negate intent or establish “consent” for non-sexual crimes like assault or false imprisonment, absent proof the charged incident was itself part of a consensual sexual scenario.
  • Limits on extending sexual-assault precedents to non-sex prosecutions: Garcia remains relevant where the charged conduct is sexual and closely resembles the prior consensual conduct. But Carle cautions against importing that logic into cases where the charged conduct is non-sexual and arises from different motives and circumstances.
  • Practical litigation consequence: Even when rape shield does not apply, trial courts can (and likely will) exclude sexually explicit prior-conduct evidence under ordinary relevance/remoteness principles (CRE 401/402), and potentially under CRE 403 (though the Supreme Court resolved this case at relevance).
  • Domestic violence context: The opinion helps prevent “BDSM” from functioning as a misleading narrative that can obscure coercion and violence, by requiring an evidentiary link between consensual sexual role-play and the charged events rather than permitting generalized inferences from a couple’s sexual history.

Complex Concepts Simplified

Relevance (CRE 401)
Evidence is relevant if it makes a consequential fact (like consent or intent) even slightly more or less probable. If it does not, it stays out.
Irrelevant evidence is inadmissible (CRE 402)
If evidence does not clear the relevance threshold, the judge must exclude it—no balancing required.
Remoteness
Evidence can be excluded when it is too far (logically, not just in time) from the disputed issue and would produce only guesswork. Here, the “distance” was the difference in context: sexual role-play texts versus later non-sexual violence driven by an argument.
Conditional relevance (CRE 104(b))
Some evidence becomes relevant only if another fact is proven first (e.g., “these texts were part of the plan for what happened during the charged weekend”). The Court found the defense offered no supporting evidence to supply that missing connection.
Consent vs. serious bodily injury
Colorado law limits “consent” as a defense where the assault causes serious bodily injury. Even a willing participant cannot legally consent to certain levels of harm.

Conclusion

People v. Carle establishes a clear evidentiary boundary: prior consensual sexual BDSM communications are not automatically relevant to whether a victim consented to confinement or whether a defendant lacked intent in later, non-sexual assault and false imprisonment charges. Without a concrete evidentiary nexus—such as similarity of conduct and proof the charged incident was actually part of consensual sexual role-play—such evidence is logically remote and invites conjecture, making it inadmissible under CRE 401 and CRE 402. The decision simultaneously underscores that, even when rape shield does not formally apply, courts retain robust tools to prevent sexual-history evidence from distorting the fact-finding process.