Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes.
He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.
Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.