Court upholds attempted-murder conviction of asphyxiation fetishist

The Massachusetts Appeals Court ruled today that even if it bought John Carey's argument that the ex-wife of a friend wanted him to wrap a necktie around her neck and pull it tight enough to cut off her breathing, he'd still be guilty because neither state law nor a Supreme Court ruling on the privacy of sexual acts lets somebody assent to an act that could kill them.

Carey, a Braintree resident, was convicted in 2007 after his Hamilton victim denied the two had ever had a close relationship and that she - and her 12-year-old son - had to fight him off when he showed up at her house one night with a necktie and began to strangle her. Prosecutors introduced photos and a video from Carey's computer showing he had a strong interest in asphyxiation during sex.

On appeal, Carey repeated his claim the act was consensual - and therefore protected under a 2003 Supreme Court ruling that overturned a Texas sodomy law on privacy grounds.

The appeals court, however, said that not only does Massachusetts law reject the notion that an individual can give his or her consent to potentially fatal acts, the Supreme Court itself noted its ruling "does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused." The court detailed the struggle between Carey and his victim and her son - at one point, she managed to yell to her son to get a knife and stab Carey, and the son tried, only to have the knife blade break off.

Two of the three justices also said that while the photos and videos might be inflammatory, as Carey argued, they also helped show the jury what might have led him to his actions. One justice, however, said Carey deserved a new trial because the judge allowed the video without screening it first.

• Complete ruling in Commonwealth vs. John Carey