People v. Gerle (2026 CO 53): Prior Sexual BDSM Texts Are Irrelevant to Consent/Intent in Non-Sexual Assault and False Imprisonment Absent Similarity and a Case-Specific Nexus

Introduction

People v. Gerle addresses a recurring evidentiary problem: when, if ever, evidence of prior consensual sexual conduct between a defendant and a complaining witness can be used to contest consent and intent in a prosecution that is not for a sexual offense. Donald Louis Gerle was charged with first degree assault, second degree assault, and false imprisonment arising from a multi-day episode of domestic violence in November 2021. The defense sought to introduce text messages exchanged three days before the charged incident describing the couple’s consensual “BDSM” sexual role-playing.

The key issue was not whether such texts were embarrassing or inflammatory, but whether they were relevant—i.e., whether they made it more likely the victim consented to confinement, or less likely Gerle intended to confine and assault her during the charged episode. The court of appeals ordered a new trial after concluding the texts were relevant to show “the particular nature” of the relationship and thus probative of consent and lack of intent. The Colorado Supreme Court reversed, holding the trial court did not abuse its discretion in excluding the texts as irrelevant because the sexual texts were materially dissimilar to the charged conduct and unconnected to the incident.

Summary of the Opinion

The Colorado Supreme Court held that the BDSM-related text messages were properly excluded under the ordinary rules of relevance. Although prior acts can sometimes illuminate disputed facts, these texts described an explicitly sexual, imminent role-play encounter involving a “soft whip,” erotic fantasy, and sexual arousal. The charged crimes, by contrast, arose from an argument about the victim’s ex-boyfriend and escalated into prolonged physical violence and a 14-hour closet confinement during which the defendant demanded the ex-boyfriend’s name.

Because the texts had “no resemblance” to the charged conduct and would invite speculation, they did not make it more probable the victim consented to the confinement, nor less probable that Gerle intended to confine and assault her. The court therefore reversed the court of appeals’ decision ordering a new trial.

The Supreme Court did not decide the rape-shield issue because the People conceded the trial court’s rape-shield ruling was erroneous; the court of appeals’ conclusion that the rape shield statute did not apply (given the absence of a sexual offense charge) was left undisturbed.

Analysis

1) Precedents Cited

• People v. Elmarr, 2015 CO 53: Cited for the deferential abuse of discretion standard governing evidentiary rulings. The Supreme Court framed its task as determining whether exclusion of the texts was “manifestly arbitrary, unreasonable, or unfair,” rather than deciding admissibility anew.
• People v. West, 2025 CO 61 (quoting People v. Kent, 2020 CO 85): Provided the controlling articulation of abuse of discretion—especially that an evidentiary ruling is reversible if based on a misapplication of law. This matters because the court of appeals had treated Garcia as essentially controlling on relevance; the Supreme Court treated that as an erroneous extension rather than a faithful application.
• People v. Gulyas, 2022 COA 34 (quoting People v. MacLeod, 176 P.3d 75): Used to describe the policy underlying Colorado’s rape shield statute: preventing humiliating “fishing expeditions” into past sexual conduct. Although the Supreme Court ultimately did not adjudicate rape-shield applicability (because of the People’s concession), it used these cases to situate the statutory framework and the trial court’s initial (but conceded erroneous) instinct to restrict sexual-history evidence.
• People v. Clark, 2015 COA 44: Cited for the general proposition that evidence is relevant if it makes it more or less probable that the criminal act occurred—reinforcing that the relevance inquiry is tied to the charged conduct and contested elements.
• Fletcher v. People, 179 P.3d 969 and People v. Botham, 629 P.2d 589: These cases supply the “logical remoteness” principle. Even if evidence has some superficial thematic connection (e.g., “whipping”), it is inadmissible if it bears too remotely on disputed issues and yields only “conjectural inference.” The Supreme Court used this principle to characterize the BDSM texts as inviting speculation rather than supporting a grounded inference about consent or intent during the charged incident.
• People v. Garcia, 179 P.3d 250: This is the opinion’s central comparator. The court of appeals relied heavily on Garcia to deem sexual fantasy evidence relevant to consent and intent. The Supreme Court distinguished Garcia on a key factual axis: in Garcia, the excluded fantasy/role-play evidence was “almost identical” to the charged sexual assault scenario, thereby making consent materially more plausible on the defendant’s account. In Gerle, the Supreme Court held that the court of appeals incorrectly extended Garcia without grappling with the lack of similarity and absence of sexual context in the charged conduct.
• People v. Dunham, 2016 COA 73: Cited for CRE 104(b) conditional relevance. The Supreme Court acknowledged the defense could try to characterize the texts as conditionally relevant—if later evidence connected them to the charged episode—but found there was no such connecting evidence and no identified “missing condition” that could be supplied.

2) Legal Reasoning

A. The court narrows the dispute to relevance (CRE 401/402)

Because the People conceded rape-shield error, the case turned on the ordinary evidentiary gateway: CRE 401 (relevance) and CRE 402 (irrelevant evidence is inadmissible). The Supreme Court’s reasoning emphasizes that the defense’s proffer must do more than supply “relationship background.” It must connect to a fact “of consequence” in a non-speculative way—here, whether the victim consented to confinement, and whether the defendant possessed the requisite intent for assault and false imprisonment.

B. Dissimilarity defeats relevance: “context matters”

The Supreme Court treated the text messages as a coherent, explicitly sexual exchange: erotic novel references, discussion of sexual fantasies, statements of arousal, and an imminent role-play encounter with a “soft whip.” By contrast, the charged crimes were rooted in an escalating argument over the victim’s inability (or refusal) to name an ex-boyfriend, culminating in severe injuries and a prolonged closet confinement used to coerce information.

The court’s key move is analytical, not moral: it does not say BDSM evidence is inherently inadmissible. It says that without similarity between (1) the prior sexual role-play and (2) the charged non-sexual violence and coercive confinement, the inferential chain collapses. The jury would be asked to jump from “consensual sexual whipping fantasy three days earlier” to “consent to a 14-hour closet confinement during a coercive beating”—a jump the court labels speculative and thus irrelevant.

C. Conditional relevance is not a workaround without a connecting offer of proof

The court acknowledged CRE 104(b) (conditional relevance) in principle: evidence may become relevant if additional proof supplies a missing link. But here, the defense could not point to evidence that the couple planned or engaged in sexual activity during the charged incident, and the victim affirmatively testified they were not engaged in BDSM “during [those four] days.” Without a concrete proffer establishing a nexus, the texts remained logically remote.

D. Reframing the “consent” and “intent” theories

The defense theory implied: (1) the victim may have consented to being confined as part of BDSM; (2) if it began consensually, the defendant may have lacked intent to unlawfully confine; and (3) injuries could have resulted from reckless escalation rather than intentional assault.

The Supreme Court rejected these inferences as unsupported by the record’s context. The court effectively requires the defense to show at least a plausible bridge between the sexual scenario and the charged conduct—something beyond generic evidence that the couple had engaged in BDSM in the past. On this record, the texts did not make consent to confinement more probable, nor intent to confine/assault less probable.

3) Impact

A. A relevance-centered limitation on “relationship evidence” in non-sexual prosecutions

The opinion supplies a meaningful constraint on a common defense strategy in domestic-violence and confinement prosecutions: characterizing violence as misunderstood “kink” or “role-play” based on prior sexual communications. After Gerle, courts in Colorado are likely to scrutinize whether the offered sexual-history evidence is:

• Similar in kind to the charged conduct (not just sharing an isolated feature like “whipping”);
• Connected in time and circumstance by evidence, not suggestion;
• Non-speculative in the inferential steps needed to reach consent or lack of intent.

B. Clarifying (and limiting) reliance on People v. Garcia

Gerle does not overrule People v. Garcia; it confines it. Garcia remains persuasive where the prior fantasy/role-play is substantially identical to the charged sexual conduct and directly informs a contested consent question. But Gerle signals that Garcia cannot be used as a broad license to admit prior sexual communications whenever “consent” or “intent” is disputed in non-sexual charges.

C. The practical interplay with rape-shield arguments

Although the court did not decide the rape-shield question (because the People conceded error), the case’s posture provides a practical lesson: even when rape-shield protections do not apply (because the case is not a “sexual offense”), defendants still must clear ordinary relevance hurdles. Trial courts can exclude sexual-history evidence without relying on rape-shield statutes, provided they properly apply CRE 401/402 (and, where appropriate, CRE 403).

Complex Concepts Simplified

• Relevance (CRE 401): Evidence is relevant if it nudges the probability of an important fact up or down, even a little. But “important fact” means an element or disputed point in the case—not a general impression about the relationship.
• Irrelevant evidence is inadmissible (CRE 402): If evidence does not affect any consequential fact, the jury does not get to hear it.
• Logical remoteness: Even if evidence is interesting, it may be too far removed from the charged events to support anything but guesswork. Courts exclude evidence that invites conjecture rather than reasoned inference (as discussed in Fletcher v. People and People v. Botham).
• Conditional relevance (CRE 104(b)): Some evidence matters only if another fact is shown first. But the proponent must identify and support that missing link; otherwise, the evidence stays out.
• Consent vs. intent in this case: The defense tried to use prior BDSM texts to argue consent to confinement (relevant to false imprisonment) and reduced intent (relevant to assault/false imprisonment). The Supreme Court held those inferences fail without similarity and a factual nexus to the charged incident.

Conclusion

People v. Gerle establishes a clear evidentiary principle for Colorado courts: prior consensual sexual BDSM communications are not relevant to consent or intent in prosecutions for false imprisonment and assault when the charged conduct is non-sexual in context and the proffered sexual evidence lacks a concrete, case-specific connection. The decision reins in expansive use of “relationship nature” evidence, cabins People v. Garcia to scenarios of close factual similarity, and reinforces that relevance demands more than thematic overlap—it demands a non-speculative inferential bridge to the charged elements.