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A judge’s change of heart has led a federal appeals panel to grant death benefits to the mother of a man who died of autoerotic asphyxiation. 2nd U.S. Circuit Court of Appeals Judge Barrington D. Parker Jr.’s reconsideration of the issues in the insurance case, Critchlow v. First Unum Insurance Co. of America, 02-7585, came one year after the court upheld the denial of death benefits to Shirley M. Critchlow. Critchlow’s son, David, died in 1999 after placing a noose around his neck to accomplish autoerotic stimulation — the restriction of oxygen to the brain to enhance sexual pleasure. In 2003, Judges Parker, Ellsworth Van Graafeiland and Amalya Kearse split 2-1 and ruled that the death was from a self-inflicted injury excluded from coverage by First Unum’s policy. The decision upheld Western District Chief Judge David G. Larimer rejection of Critchlow’s claim. In her appeal, Critchlow argued that her son had been a longtime practitioner of autoerotic stimulation and had never intended to inflict injury on himself. But Judge Van Graafeiland wrote that the majority was unpersuaded by her argument. “That decedent had engaged in this very activity on prior occasions without apparently serious or permanent adverse consequences does not mean that the activity did not injure him, nor does the fact that he did not intend to die make the injury any less intentional,” the judge said. Noting that about 2,000 deaths a year are caused by autoerotic asphyxiation, Van Graafeiland said both the 5th and 8th circuits also had concluded that “the deliberate constriction of one’s windpipe with the purpose of depriving the brain of oxygen” is a self-inflicted injury. Judge Kearse, who disagreed with the majority’s reading of the case law, dissented in the 2003 opinion. However, while a poll of the active judges of the 2nd Circuit was being taken to determine whether the court would rehear the issue en banc, Parker reconsidered his decision and voted to reverse the judgment. Kearse, now in the majority, wrote that “it has never been disputed” that Critchlow’s death “was subjectively unexpected and unintended,” and she cited police reports that Critchlow had escape measures built into the cords he used to bind himself. “Nor do we see any evidence in the record from which a rational factfinder could find that Critchlow’s subjective intent to survive was objectively unreasonable,” she said. “Moreover, the district court itself acknowledged that Critchlow had not intended total strangulation, as it noted that he had set up a complicated escape mechanism ‘to ensure that he did not die of asphyxiation.’” Summing up, Kearse said that “no scientific evidence before the court indicated that autoerotic asphyxiation, if practiced without accident, constitutes an injury rather than simply producing a temporary lightheadedness that the practitioner believes will increase his sexual gratification; no evidence indicated that one engaging in that practice expects to die, rather than to survive the experience and repeat it again. “Such nonserious, temporary changes in condition are not what persons of reasonable or average intelligence and experience would ordinarily understand to be meant by ‘injuries’ in the phrase ‘loss … caused by … intentionally self-inflicted injuries’,” she said. Now in dissent, Van Graafeiland wrote, “I believed then that Judge Larimer was right and I continue to believe so. “Moreover, until someone, whose opinion I respect honestly informs me that as a general proposition, he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation, I will not change my mind. “Partial strangulation is an injury,” he said. “A suicidal motive is not required.” Christopher J. Calabrese of Rochester represented Critchlow. Paul K. Stecker of Phillips, Lytle, Hitchcock, Blaine & Huber in Buffalo, N.Y., represented First Unum.

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