Nature of the Case
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Facts
D is an ophthalmologist. Through his hobby of photography, he participated in the production of several films on the east coast. Three of these films depicted bound individuals being whipped. D wielded the whip in two of the films and acted as the cameraman, producer, and director for the third film. D claimed that the apparent force of the whippings was 'faked' and that cosmetics were used to supply the marks of the apparent beating. D produced one of these films at the trial. D met Kenneth Anger, who was a self-employed film director who had made such films as 'Fireworks' and 'Scorpio Rising.' He had also been a close friend of Dr. Kinsey from the institute by that name, had been a buyer for the Institute for a period of seven years, and had an authorization to send material through the mails. D told Anger that he himself had made two or three rolls of film dealing with sadomasochistic activity and was interested in having them developed. Anger volunteered to have the films developed and told D that he believed that the Kinsey Institute would be very interested in examining the footage and might want the films for their collection since they were then studying the subject of sadomasochism. D mailed the three rolls to Anger who sent the rolls to a local film service laboratory and picked up the developed film several days later. One of the rolls was badly underexposed and nearly black. The other two rolls were visible, although slightly underexposed. Anger mailed the latter two films to Dr. Gebhardt of the Kinsey Institute. Dr. Gebhardt returned the films and Anger then mailed them to D. Anger and D met again, and D stated that he intended to make more films of a sadomasochistic nature. Anger again volunteered to have them developed and told D to mail them to Anger's San Francisco address. Anger received two rolls of film from D. One roll of film had been sent by the camera shop to the Eastman Kodak Company for processing. The company contacted the Palo Alto Police Department and projected the film for certain police officers and prosecuting attorneys, who confiscated the film. A dummy roll of film was left at the Camera Store. Anger picked up this film and was apprehended by the police of San Francisco. Anger was taken to the Hall of Justice where he was questioned concerning the D and the films. The film shows a gagged and naked man strung up in an unfinished room, receiving a beating with whips and lashes administered by a man whom Anger identified as D. There are marks on the victim's buttocks, the small of his back and further up on his body. The film contained no splices. Police got a search warrant on D's home. They confiscated the films and then arrested and charged D. D was charged with assault by means of force likely to cause bodily injury. One film showed a naked man who was constrained, strung up, and whipped by D. D testified that the man volunteered for the film. D testified that the force of the whippings was faked and that cosmetics were used to simulate the lash marks. Qualified film experts who examined the film in detail testified that the injuries progressively developed, that there were no splices in the film and that the camera was never stopped to apply cosmetics. They concluded that no retouching was done and that the film was an accurate depiction of what was actually happening. D was found guilty in part of aggravated and simple assault. D appealed contending that the man’s consent was an absolute defense to the charge.
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