(concurring in part and dissenting in part). While I agree with the majority’s conclusion that a new trial is required because the trial court misapplied the Rape Shield Law when it precluded material evidence which may have affected the conviction on the kidnapping and sex abuse counts, a different perspective informs my analysis. Further, I would affirm the defendant’s conviction on the assault charges.
I agree, for the reasons set forth in the majority opinion, that the introduction of the full text of the Spectator article was improper. I share the view that the erroneous admission of this evidence had an enormous prejudicial impact on the defense. With respect to the redacted e-mails, I would also find that the complainant’s statements concerning her interest in sadomasochistic practices should have been admitted, because the Rape Shield Law (CPL 60.42), which is designed to preclude introduction of “[e]vidence of a victim’s sexual conduct,” is not meant to exclude statements of interest in sex (see, People v Kellar, 174 AD2d 848, 849, lv denied 78 NY2d 1128; People v Hauver, 129 AD2d 889, 890). Further, even were these statements to be covered by the statute, I would find that they should have been admitted under the interests of justice exception set forth in CPL 60.42 (5), because they are relevant to both the complainant’s state of mind and defendant’s perception of her thinking. The complainant’s discussion of these topics in her electronic conversations with the defendant preceding their date was necessary to provide the jury with an accurate factual narrative.
However, I disagree with the majority that the complainant’s conversations concerning sex with other individuals were improperly excluded under CPL 60.42, and I would also find that the third redacted November 20th e-mail was properly *205redacted because it concerned a direct statement relating to the complainant’s prior conduct, her sadomasochistic relationship with her boyfriend. This redaction was also appropriate because the transmission described behavior which would serve only to disparage the complaining witness’s reputation.
The defense argues that the third redacted November 20th e-mail should have been admitted in its entirety pursuant to CPL 60.42 (4), to support a claim that the complaining witness’s boyfriend could have been the source of her injuries. I disagree. The defense was not prevented from putting this theory before the jury as it was allowed to question the complaining witness’s boyfriend himself as to whether he had inflicted any bruising upon the complainant in the days preceding the incident. This is the only bruising relevant to this case. The determination to limit inquiry to this issue was not an improvident exercise of discretion, and again comports with the purpose of the Rape Shield Law. This is especially true when viewed within the context of the main theory articulated by the defense, which is that the alleged violent acts did not take place. Based on this position, details of prior consensual, violent behavior were properly redacted from the e-mail as they would be irrelevant to the defense on the kidnapping and sexual abuse counts.
Unlike the majority, I would not find the third redacted November 20th e-mail admissible under CPL 60.42 (5), the interest of justice exception to the Rape Shield Law. Since CPL 60.42 (5) is designed to allow the introduction of material which has been deemed presumptively inadmissible, the proffered evidence merits careful scrutiny (see, Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 34). Given the complainant’s right to sexual self-determination, I would find that the inflammatory nature of the evidence of her prior sexual conduct would, in the eyes of the jury, outweigh the probative value of this evidence. Presenting this information could mislead the jury to conclude that the complainant was more likely to consent to the charged sexual offenses because she had previously consented to similar, violent acts (see, People v Williams, 81 NY2d 303 [precluding evidence that complainant had formerly engaged in group sex in a gang rape prosecution]).
Further, the majority states that, “the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that *206consent was withdrawn” (emphasis in original). I strongly disagree. The encounter should be evaluated on the basis that the complainant, as any person engaging in sexual activities, had a continuing legal right to withdraw her consent to any of the actions taking place in Jovanovic’s apartment. The only evidence relevant to that issue is that which relates to the events in question.
The Rape Shield Law was expressly drafted for the purpose of protecting those persons who are sexually active outside a legally sanctioned relationship. It serves the very important policy objective of removing certain impediments to the reporting of sex crimes. Specifically, the law was drafted to encourage victims of sex offenses to prosecute their attackers without fear that their own prior sexual activities, regardless of their nature, could be used against them at trial. In enacting the Rape Shield Law, the Legislature sought to prevent muddling the trial with matters relating to a victim’s prior sexual conduct which have no proper bearing on the defendant’s guilt or innocence, but only serve to impugn the character of the complainant and to prejudice the jury. To limit its applicability and protections as the majority holds would only serve to turn the clock back to the days when the main defense to any such charge was to malign the complainant. Here, where a victim’s sexual preferences are widely disapproved, it is crucial that evidentiary determinations be made with heightened concern that a jury may act on the very prejudices that the statute seeks to exclude.
Additionally, I would affirm the defendant’s convictions for second- and third-degree assault. Penal Law § 120.05 (2) provides that a person is guilty of second-degree assault when, “[w]ith intent to cause physical injury to another person, he causes such injury to such person * * * by means of a deadly weapon or a dangerous instrument,” in this case by scalding the complaining witness with hot wax. Further, Penal Law § 120.00 (1) provides that a person is guilty of third-degree assault when “[w]ith intent to cause physical injury to another person, he causes such injury to such person,” here by biting the complaining witness. As the majority correctly notes, neither statutory section provides for a consent defense, nor do these sections list lack of consent as an element to be proven by the prosecution (cf.Penal Law § 120.05 [5] [“without * * * consent” is an element of the offense]; Penal Law § 130.05 [consent established as a defense to various degrees of sexual abuse crimes]). While several New York cases, decided over 25 *207years ago, have indicated that consent, if intelligently given, can be a defense to a charge of assault (People v Steinberg, 190 Misc 413, 416-417 [assault charge sustained where nurse purported to vaccinate people against smallpox but injected only water]; see also, People v Freer, 86 Misc 2d 280 [third-degree assault charge sustained in altercation between football players which took place after players got up from a pile-up]; People v Lenti, 44 Misc 2d 118 [indictment for third-degree assault after fraternity hazing was sustained since the students did not consent to physical harm]), this rule has not been crystalized in this State. Moreover, a number of cases from other jurisdictions have held that the consent defense is not available to an assault charge in the context of sadomasochistic activities (see generally, People v Samuels, 250 Cal App 2d 501, 58 Cal Rptr 439, cert denied 390 US 1024 [defendant charged with assault arising from sadomasochistic activities could not rely on consent defense]; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051 [same]; State v Collier, 372 NW2d 303 [Iowa] [same]). Given the facts of this case, I would find that the court’s instruction that consent was not a valid defense to the assault charge was not error.
Further, despite the evidentiary errors which require a new trial on the kidnapping and sexual abuse counts, I would find the complaining witness’s testimony was sufficient to support both of these convictions (People v Arroyo, 54 NY2d 567, cert denied 456 US 979), and, in the circumstances, hot candle wax was appropriately considered a dangerous instrument (Penal Law § 10.00 [13]). Moreover, the complainant’s testimony was corroborated by a neighbor who heard sounds as if someone were “undergoing root canal” from defendant’s apartment at the time in question, by the complaining witness’s prompt outcries to five individuals, some of these individuals’ observations of the complaining witness’s injuries, the lab results as to her clothing, and the e-mails sent between the complaining witness and defendant subsequent to the incident. I find no basis to disturb the jury’s determination to credit this testimony (People v Prochilo, 41 NY2d 759).
In addition to dissenting from portions of the majority opinion, I am compelled to write separately to emphasize the fundamental importance of the Rape Shield Law, which is designed to assure that a defendant is not allowed to evade responsibility for his criminal acts by impugning the reputation of a complainant.
Motion seeking leave to file an amicus curiae brief denied.
*208Rubin and Andrias, JJ., concur with Saxe, J.; Mazzarelli, J. P., concurs in part and dissents in part in a separate opinion.
Judgment, Supreme Court, New York County, rendered May 29, 1998, reversed, on the law, and the matter remanded for a new trial. Motion seeking leave to file an amicus curiae brief denied.