Autoerotic Asphyxiation in the Serbonian Bog

So, it seems that David Carradine, last seen in the 'Kill Bill' movies, may have died accidentally during an episode of autoerotic asphyxiation:

Carradine, 72, was found naked in a closet in an upscale Bangkok hotel on Thursday with cords around his neck and his genitals. The police are checking DNA found on the cords, but say they found no signs of a struggle, suggesting that Carradine might have either tied himself up or submitted voluntarily to his incapacitation.

This calls for a divagation! Way back when, when I was supposed to be studying for the bar exam, I found the material hideously dull, and scoured the library for more intriguing Lernstoff. When I saw the book Autoerotic Asphyxiation: Forensic, Medical and Social Aspects, I knew I'd hit paydirt. What was this book doing in a law library, you ask? Simple: the question whether a person committed suicide or died during an episode of autoerotic asphyxiation often determines whether a life insurance policy will be paid. Life insurance policies don't pay off in cases of suicide and "intentional self-injury."

The book wasn't just about autoerotic asphyxiation, though: the unfortunate subjects of the chapters had done themselves in using all sorts of creative props: duct tape, vacuum cleaners, and in one particularly poignant case, a record player. In that case, the respectable family man (it was almost always solid family men, usually engineers and accountants) locked himself in his master bedroom and activated a secret device designed to bring him ecstasy. It was record turntable to which was attached a live, frayed electrical wire. The turntable would brush the live wire against his nipple just long enough to cause an exciting shock, but not long enough to kill him. Then, 33 and 1/2 or 45 or (gasp) 78 rpm later, the nipple gets it again. And again. And again! Unfortunately for our hero, one of the strands of wire got stuck, somehow and refused to budge. He was dead in seconds. It all happened in his own suburban home on a weekend, just about lunchtime. I remember reading about that case and thinking: if only he had used his prodigious talents for good…

But let's get back to the question at hand: whether autoerotic asphyxiation is "intentional self-injury." This leads to some pretty intriguing legal analysis, as in this splendid case from the Maryland Court of Appeals:

There are, to be sure, countless activities that are inherently dangerous, albeit more socially acceptable, than autoerotic as-phyxiation. Skydiving, bungee jumping, white water rafting, parasailing, mountain climbing, and scuba diving are among the activities that come to mind. Several imperfect analogies may be helpful in our analysis.

When a sky diver jumps from an airplane, he or she is unlikely to survive if the parachute malfunctions. Arguably, the parachute is akin to the escape mechanism utilized by the Insured during autoerotic hanging. A skydiver's voluntary and knowing participation in an activity as risky as skydiving would not necessarily preclude a finding of death by accident, in the event that the risk of parachute failure materializes. Nor would the resulting fatal injury necessarily be regarded as inten-tionally self-inflicted, merely because the skydiver deliberately jumped from the plane and the parachute failed to operate. The same rationale applies here; the offensive or foolish nature of the conduct does not determine the result.

Similarly, if a person intentionally stands at the edge of a cliff and then falls off, he surely would have suffered an accident, however perilous or foolish it may have been to walk so close to the edge. Nor can it be said that, merely by walking close to the edge, and flirting with danger, the indi-vidual intentionally jumped.

In sum, we conclude that the injuries sustained by the Decedent were the result of an accident, and were not intentionally self-inflicted. The noose and plastic bag were not used with the intent to cause injury, and the Insured reasonably did not foresee or expect such injuries.

Unfortunately for the relatives of 'the Insured', the Maryland Supreme Court heard the appeal of this case and issued its own decision (.pdf) holding that the autoerotic asphyxiee had, in fact, died of 'intentional self-injury,' so no insurance payout. In this last-cited decision, the court mentions that to determine the difference between accident and intentional self-injury, the court must wade into the "Serbonian bog."

“Serbonian bog” is derived judicially from Justice Cardozo's dissenting opinion in Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S.Ct. 461, 463, 78 L.Ed. 934, 937 (1934) (Cardozo, J., dissenting). He explained therein that, in an insurance case, attempting to distinguish “between accidental results and accidental means will plunge this branch of law into a Serbonian bog.”

We expand, where Cardozo apparently felt no need for his assumptively more literate readership, a bit on the literary and geographic etiology and practical connotation of the “Serbonian bog” reference. Judge Karwacki, in his dissent in Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 661-62, 679 A.2d 540, 553 (1996), observed that the description emanated from Book 2 of Paradise Lost:

Beyond this flood a frozen Continent
Lies dark and wilde, beat with perpetual storms
Of Whirlwind and dire Hail, which on firm land
Thaws not, but gathers heap, and ruin seems
Of ancient pile; all else deep snow and ice,
A gulf profound as that SERBONIAN Bog
Betwixt DAMIATA and mount CASIUS old,
Where Armies whole have sunk: the parching Air
Burns frore, and cold performs th' effect of Fire.
Thither by harpy-footed Furies hail'd,
At certain revolutions all the damn'd
Are brought: and feel by turns the bitter change
Of fierce extreams, extreams by change more fierce,
From Beds of raging Fire to starve in Ice
Thir soft Ethereal warmth, and there to pine
Immovable, infixt, and frozen round,
Periods of time, thence hurried back to fire.

John Milton, Paradise Lost, bk. 2, 1.592 (1667). Judge Karwacki also pointed out that Lake Serbonis, which the bog apparently bordered, was situated in lower ancient Egypt, near Palestine. Sheets, 342 Md. at 662, 679 A.2d at 553.

Although the reference is perhaps more obscure today than it was in Justice Cardozo's time, the message is clear in context. It refers to a “mess from which there is no way of extricating oneself.” E. Cobham Brewer, Dictionary of Phrase and Fable, 1121-22 (1898).

So now you know about the legal consequences of autoerotic asphyxiation and have learned what the Serbonian Bog is. Not bad for a day's work, eh? I'll be traveling over the weekend, so blogging will be light. Cheers!

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