Barely Legally

Confessions of a Moot Court Bailiff

Now When You Say ‘Dangerous’…

In Chicago, a woman was arrested last week for trying to hit a police officer with a “rigid feminine pleasure device.” Apparently, Carolee Bildsten was found passed out on the side of the road after walking out on her tab at a local watering hole. When officers confronted Bildsten, she led them to her house and offered to pay her tab. The police report is everything I had hoped it would be, and more:

“She walked into her bedroom. She said her money was in her dresser drawer and she opened it and reached inside and removed a “clear, rigid feminine pleasure device” and held it over her head and approached the officer in a threatening manner. The officer knocked the device out of the way prior to being struck and placed the woman under arrest. She was then escorted out of the residence, placed in the squad car and transported to the Gurnee Police Department.”

In Illinois, this qualifies as a misdemeanor “aggravated assault” — in New York, this would have been much more serious. I can’t resist pointing out that in New York, things actually meant to be used as clubs end up being used… internally. Eek. Threatening people with sex toys is never a good idea. (But when it makes The News, it’s hilarious.)

Assault, Generally

In New York, assault is the crime of intentionally causing injury to another person. ((There are also ways to do it recklessly or negligently, but we’re going to assume that Bildsten picked up her … device purposefully.)) You’ll go from Third Degree Assault to Second Degree if you either:

  1. Intend to cause serious injury to someone, and cause serious injury.
  2. Intend to cause injury to someone, and cause it by using a dangerous instrument or deadly weapon.
  3. Commit assault on a police officer.

Second degree assault is a felony punishable by up to four years in jail, while the third degree variety is a misdemeanor, which by definition is punishable by up to a year in jail. The MSNBC article notes that this lady was charged with misdemeanor assault: in New York, if you hit a police officer, that’s a felony.

Just like you can be bumped up from Third to Second Degree Assault for hitting a police officer, you can be bumped up from Second to First Degree Assault if you hit someone with a dangerous instrument (and cause a serious injury, but we’ll get to that).

“Dangerous”

So this begs the question: can a “rigid feminine pleasure device” be a “dangerous instrument?” Depending on which side of the moral majority you fall on, you might be tempted to make the argument that … devices are dangerous, but the New York Penal Code has its own definition. I would argue that rigid feminine pleasure devices don’t kill people, guns kill people.

“Dangerous instrument” means any instrument, article or substance […] which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.

This, in turn, begs the question whether a … _device _is readily capable of causing a serious physical injury. I mean, I’ve played GTA: San Andreas; I know what those things can do. Further, I recall my mother warning me that I’d lose an eye if I ran around with something as innocuous as a pencil in my hand. Frankly, I wouldn’t want to get cold-cocked by one of those things. But again, the New York Penal Code has its own definition:

“Serious physical injury” means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

In one of my favorite cases in law school, a person’s teeth were declared not a dangerous instrument, because a part of the body cannot be a dangerous instrument. You could try to argue that a … device is little more than a plastic prosthetic body part, and so it couldn’t be a dangerous instrument. But that logic would hold up better if the Owusu case above had been based on Owusu’s dentures or something.

On the contrary, the victim in People v. McBride was struck by an unnamed blunt object, which was ruled to be a dangerous object for its capacity to knock a person unconscious and cause bleeding. Depending on just how ‘rigid’ this “rigid feminine pleasure device” is, it could be a dangerous instrument.

Wrapping It Up

Ms. Bildsten got off pretty easy with a misdemeanor assault charge; had she injured a police officer in New York, that’s at least Second Degree Assault, which is a Class D Felony: the kind punishable by up to four years in prison. Worse, if her … device were deemed a dangerous instrument that caused a serious injury, she could be charged with First Degree Assault, which is a Class B Felony, punishable by up to ten years in prison.

And that’s no laughing matter. Yes it is.