Skip to content

BDSM and The Law

  • by

Are we criminals?

Recently an article posted on the Canadian Bar website was shared with me. The article is Hot for Kink, Bothered by the Law: BDSM and the right to autonomy“, written by Ummni Khan, (August 8, 2016). It is one of many books, articles and blog posts I have seen that warn the kink community that all of our beloved activities may be illegal.

BDSM

Most of these articles are alarming if read without careful consideration. They bring out the standard list of cases used to demonstrate that our consensual activites, particularly those that involve some sort of sado-masochism, are not appreciated under current Canadian Law. In this case the author draws upon R v. Welch (1995).

And while it is true that this case refuses to allow the notion of consent for the injuries maintianed, I am deeply offended that it is being used to demonstrate a legal standing against consenting adults choosing activities that are on the SM side-BECAUSE R V. Welch is about SEXUAL ASSAULT. Which makes sense, because if it was two consenting adults-how on earth did it end up in court?

The argument that Khan (and other legal writers) make, is that the judge does instruct that consent is not the issue, as consent to sexual assault causing bodily harm is not possible. I agree. One does not consent to sexual assault. The judge, of course, is not arguing a matter of language-he was instead indicating that when it is reasonable to expect bodily harm, a person cannot consent to assault, as per R. v. Jobidion 1991. Again, this type of case requires that someone sustains injuries that are foreseable and serious-both vague terms.

The writers may mean well, they may even be trying to point the legal system towards the fault in some of the laws we currently have and how they could be misused. Certainly Khan makes a case that the courts are often informed by sex negative and what he refers to as “sex exceptionalist” views.

We hear all the time that we cannot consent to bodily harm. (Except if we play sports, pay for tatoos, get surgery etc). So the real question becomes, should we be worried? Yes and No. Yes, but not about the law coming for us when we consensually spank, enjoy ‘rough” sex etc.

What troubles me is that even today, judges often struggle with the idea of affirmative consent in cases of sexual assault and many judges viewing sexual acts through a gender based, sex negative, patronizing lens. To be clear, Canada has rigorous consent laws, both through the Criminal Code and various SSC judgements that have interpreted these laws:

  • -Section 265 of the Criminal Code is the provision for assault (also used for sexual assault)
  • -Section 273.1 of the Criminal Code where the terms of sexual assault are specficially defined
  • -R. V Ewanchuk in which the judge ruled that women are not in a constant state of consenting, and therefore th absence of a “No” is not the same as consent. The Judge also defined the mens rea of sexual assault as the intention to touch AND knowing/being recklessly blind to the lack of consent of the person they are touching. This means that ”implied consent” is no longer a defense to sexual assault.
  • -AG v Bedford established that everyone has the right to choose sex work, and therefore should be protected in that work as they would be in anoy other workplace. This set the precedent for sex work no longer being a rationalization for sexual assault.
  • -R v J.A is the case that clarified that consent must be ongoing and can be withdrawn. This includes the concept that when a person is unconscious they are unable to verbalize the removal of consent, and therefore consent must be presumed to be revoked.
  • -R. v. G.F and R. B. the judge ruled that when someone is too intoxicated to appreciate the nature and quality of the activity, or to know the identity of those trying to engage in sexual activity with them, or to be able to understand they can decline or agree to sexual activity, then they are also too intoxicated for their consent to be legally meaningful.

These cases are important. They establish a clear line between enthusiastic, affirmative consent and coercion, and they also lay a framework to which BDSM practitioners (like me) can demonstrate consent (more on that in a bit). Before we get excited, however, we need to note that while the Supreme Court of Canada may have a high standard of consent, one that respects bodily autonomy, the right to enjoy sex and to refuse sex… the lower courts do not always excel at following these case law verdicts.

Where is MY voice in the law? Why is it some stranger in a court decides if I am worthy of not being assaulted, able to make choices for myself?

-J. B 2017

Some examples are a 2014 Alberta Case, where Judge Robin Camp told a rape victim that she should have kept her knees together, or where a different judge, in Calgary, told two sisters who reported their stepfather for years of sexual abuse, that because they were only speaking up now (after moving out) he didn’t believe them. Let’s not forget the judge on the east coast who deemed that a woman, so intoxicated that she had soiled her pants, likely consented to the taxi driver having sex with her unconscious body. As to ”rough” sex, there has been no determination as to what that means exactly. Is it enjoying a swat on your butt or having someone cause you lasting physical damage?

In the case of R v. Barton (SSC), the court had to hem and haw about if it was possible that Cindy Gladue, who died from the trauma inflicted upon her body by Barton, could have been consensual ”rough” sex, as if someone can legitimately consent to having their vagina and uterus stabbed and sliced as part of a consenting sex interaction. Thankfully, they found Barton guilty of manslaughter, yet less gratitude is felt that he was not found guilty of murder.

When it comes to BDSM itself, things are changing. We have come a long way from R v. Ghomeshi, where the creepy legend from radio show Q was accused by more than a dozen women of a very specific ritual of sexual assault that included choking. Ghomeshi claimed it was BDSM, not assault, which was news to his many victims. The judge’s rulings are worth a read…Due to false beliefs about sexual assault and rape victims, the judge dismissed his case. This wasn’t a new tactic, by the way. In 1993 a photographer tried to claim it was consensual BDSM after tying up underage models and sexually assualting them.

Things are, like I said, changing. Perhaps we can thank Fifty Shades for the growing understanding of BDSM and Consent, as a recent case, in 2017, R v Gairdner ruled that BDSM, when it is actual BDSM, includes negotiation, safewords, aftercare -all things that support ongoing, enthusiastic, informed consent. The judge noted that the assailant did not engage in any activities to ascertain the rules and boundaries for a BDSM related scene, where saying no could potentially mean yes. This, for me, was a beautiful legal moment, and indicated a growing understanding of consent for kink.

So, No, I am not worried that a police officer will find out I am engaging in kink. Because the kink I engage in includes all the neccessary ingredients for consent-and even when some injury happens, that injury is not something that one can reasonably expect to occur AND reasonably expect to be life threatening. YES, there are some laws that COULD potentially be used to harass kinksters-but it is unlikely. In the event it happens, I will appeal my way to the Supreme Court, where I am optimistic a judge will understand the difference between assault and consensual SM practices.

Happy spankings

Angel Sumka (they/them)

Angel is a sex educator, sex coach and soon to be counsellor with a BA in pscyhoogy, a masters in counselling psychology and a lifetyime of exploring shame free sexuality.

Leave a Reply

Your email address will not be published.

Skip to content