Many people are interested in bondage and discipline, domination and submission, or sadism and masochism (BDSM). A 1993 study found that 12.5% of American adults had engaged in BDSM at some point in their lives.2 In 2014, researchers in Quebec found that 47% of women and 60% of men had fantasies of dominating someone sexually, 65% of women and 53% of men had fantasies of being dominated sexually, 42% of women and 48% of men had fantasies of tying someone up, and 36% of women and 28% of men had fantasies of being spanked or whipped for sexual pleasure.
Those who prefer a vicarious experience of BDSM’s potent mix of risk, transgression, sex and power have countless options. Film classics include 9½ Weeks and The Piano Teacher. The Showtime 2016 hit series, Billions, normalizes and mainstreams a married couple’s BDSM practices. Canadian police have, since the late 1990s, pretty much stopped laying obscenity charges against distributors of adult porn, so even the raunchiest X-rated material is easy to access with a few mouse clicks. The curious can also seek out the Fifty Shades of Grey trilogy. Readers don’t hide these novels with plain book covers. They carry them into lunchrooms and onto subways. References to BDSM sexual practices have also been appropriated in fashion, advertising and music. Think of fashion designer Jean Paul Gaultier’s dominatrix-inspired clothing, Helmut Lang’s iconic fashion photography and Rihanna’s hit song S&M. BDSM, or at least the idea of it, seems to thrive without shame in popular culture.
While BDSM fantasies may be common, the controversies swirling around legal proceedings against Lori Douglas and Jian Ghomeshi make it clear that engagement in BDSM practices is still on the margins of social acceptability. Lori Douglas, then an Associate Chief Justice of the Manitoba Court of Queen’s Bench, faced a Canadian Judicial Council investigation flowing from an allegation that public confidence in the justice system could be undermined because BDSM-themed sexual photos of her had been posted online without her consent. (The nonconsensual distribution of intimate images only became a criminal offence in 2015). Douglas retired from the bench in late 2014, shortly after the inquiry panel ruled that they could view the photos, so the public confidence question was never adjudicated. The CBC’s star host, Jian Ghomeshi, was fired in 2014 shortly after he Facebooked a passionate defence of his interest in consensual “rough sex” in an attempt to meet head-on allegations of violent sexual encounters with women. He was acquitted in early 2016 of sexual assault and choking charges because three complainants failed to tell the whole truth about their post-event contact with Ghomeshi. The trial judge found that these omissions so deeply compromised the complainants’ credibility that he had no option but to acquit. Thus the question of capacity to consent to potentially life-threatening sexual activity—such as erotic asphyxiation—was not one upon which the court had to adjudicate. Thus the Douglas and Ghomeshi proceedings left important legal questions unanswered. While no legal sanctions were imposed in either case, being publicly associated with BDSM practices had career-ending consequences for both Douglas and Ghomeshi.
In this paper, I consider whether Canadians who practice consensual BDSM have reason to fear criminal prosecution for offences against the person. Some case law suggests that the answer to this question is “yes” if bodily harm ensues. In its 1995 decision in R v Welch, [1995] OJ No 2859, 101 CCC (3d) 216 (ONCA), the Ontario Court of Appeal stated:
…a victim cannot consent to the infliction of bodily harm upon himself or herself unless the accused is acting in the course of a generally approved social purpose when inflicting the harm. The consent of the complainant in this case, assuming that it was given, could not detract from the inherently degrading and dehumanizing nature of the conduct. Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.
The complainant in Welch denied having consented to rough sex. As the Ontario Court of Appeal affirmed the trial judge’s factual finding that she did not consent, the Court’s determination that, as a matter of law, one cannot consent to rough sex was answered in obiter only. However in the two decades since the Welch decision, commentators, such as Brenda Cossman, have expressed concern that BDSM practitioners in Canada risked violence against the person charges even where the participants were clearly consenting. In an attempt to determine whether Canadian kinksters need fear criminal prosecutions, we analyzed all cases reported on online databases in the last 20 years (that is, since Welch) where defendants claimed present or past consent to BDSM, “rough” or “kinky” sex in answer to a homicide or sexual assault charge. Any case where a decision was rendered between November 1995 and May 2016 was included in this study, and multiple decisions flowing from the same charges were counted as one case. Thirty-six cases were found.
BDSM and Homicide
In the last 20 years, there have been five reported cases (R v Mcilwaine, [1996] RJQ 2529, 111 CCC (3d) 426 (QCCA), R v Hancock, 2000 BCSC 1581; R v Viner, 2010 MBQB 108; R v Deschâtelets, 2013 QCCQ 1948;
R v Barton, 2015 ABQB 159) in Canada where a victim died as a consequence of allegedly consensual kinky sex and, in all but one case, a homicide conviction ensued. In Deschâtelets, for example, the deceased had written an outline of the activities the couple would engage in over a weekend, so factual consent was not an issue. At one point, Deschâtelets stepped out for 20 minutes to buy groceries. He left his partner bound in a metal collar around her neck that was secured to the ceiling. He returned to find her unconscious and non-responsive, having suffered asphyxia by hanging. In convicting Deschâtelets of manslaughter and criminal negligence causing death, the trial judge explicitly noted the importance of safety in BDSM practices, stating that most practitioners do not recommend leaving their partners in precarious situations where they are unable to free themselves. The message from the Deschâtelets Court is clear: homicide convictions may ensue if the dominant party fails to respect the basic rules of safety or is reckless or negligent.
However, the death of a partner does not inevitably attract a conviction. Bradley Barton was found not guilty of either murder or the included offence of manslaughter in 2015 by a jury after his sexual partner bled to death in the bathtub in their hotel room from a blunt trauma wound inflicted to her vagina during manual penetration. The Crown pathologist had testified that “quite a significant degree of force” would be required to cause the wound that lead to her death. The Barton appeal, which will be heard in late 2016, raises questions about the kind of evidence necessary to establish whether the defendant took reasonable steps to ascertain the complainant’s consent to both rough sex and the degree of force used. Two feminist organizations have intervened in the case to argue (para 53) that the prejudicial portrayal by the defence of the victim as a “Native” “prostitute” invited the application of sexist and racist stereotypes that may have tainted the jury’s evaluation of the evidence. However, as the issue of legal capacity to consent to bodily harm is not before the appeal court, these interveners do not take a position on this issue.
Legal Capacity to Consent
Other than the cases where a submissive partner died, there is not a single reported case in the last 20 years in which a dominant BDSM participant has been convicted of a personal harm offence unless the evidence raised a reasonable doubt as to factual consent. In other words, the obiter from Welch cited above has never been followed. Indeed, in only one case is the decision cited in obiter with approval. In R v Vandermeulen, 2013 MBQB 118 (currently pending appeal on procedural grounds). the court accepted the complainant’s claim of non-consent, but stated that even if the complainant had consented to the harm against her (what the defendant described as consensual “adventurous sex”), her consent would have been vitiated. In all other cases, the only question asked is the factual question “did they consent?” Courts do not ask the legal question “can they consent?”
Some relatively recent cases explicitly repudiate Welch. In R v Zhao, 2013 ONCA 293, the Ontario Court of Appeal observed that “in light of how the law has developed, it is doubtful that Welch remains good law even in cases involving sado-masochism” (para 98). Following an earlier Ontario Court of Appeal decision (R v Quashie, [2005] OJ No 2694, 198 CCC (3d) 337 (ONCA)), the Zhao court confirmed that consent is only vitiated where bodily harm was (subjectively) intended by the defendant and in fact caused. If the trier of fact is satisfied beyond a reasonable doubt that the defendant did not intend to cause bodily harm, they must consider whether the complainant did not consent to the intentional application of force. Although this additional step has generally been treated as an alternative path to conviction (as stated in the Ontario Court of Appeal decision in R v Nelson, 2014 ONCA 853 at para 25), it also supports the possibility of consent to BDSM practices that may cause bodily harm, providing the submissive partner has consented to each act and the degree of force used.3
What have courts said on reasonable doubt about factual consent? Consent to sexual activity must be active (not based on assumptions), contemporaneous (not based on past acts) and continuous (and therefore revocable). While BDSM activity may appear on the surface to be non-consensual, practitioners need not worry about criminal prosecution if they have negotiated what will happen, have an agreed-upon signal whereby one of the parties can unequivocally withdraw consent, and follow the “safe, sane and consensual” credo. However, if any of these elements are missing, the dominant party risks a conviction if the submissive party makes a police complaint.
Idealizing Agency and Autonomy
In every case during the 20 year period surveyed, except obviously the cases where the complainant died, it appears that the complainant made the police report. The charges did not result from police raids or third-party complaints, nor were they tacked onto other charges such as keeping a bawdy house.4 In other words, in every case the complainant asserted non-consent and, in only one case (R v JA, 2011 SCC 28), did the complainant change her story between initial complaint and trial to later assert that the acts were, in fact, consensual.
Some commentators, including Ummni Khan and Rosie DiManno, point to the JA case as an example of judicial denial of kinksters’ agency. The complainant had initially told the police that after being strangled by J.A., she passed out; when she came to, he was anally penetrating her. But even though she swore at trial that all activities, including erotic asphyxiation, were consensual, J.A. was convicted. The Supreme Court of Canada upheld J.A.’s sexual assault conviction, ruling that a sexual partner could not consent in advance to sexual activity. Thus, for example, if she was asleep before contact started or became unconscious during the activity, the element of ongoing continuous consent was missing, which transformed the sexual activity into a sexual assault. However, as there was no evidence that the consequences for the complainant of having been strangled into unconsciousness were more than fleeting, the issue of capacity to consent to bodily harm was not before the Court. In fact, the Court expressly declined to rule on the issue of whether one could consent to sexual activity such as erotic asphyxiation that could result in bodily harm and, remarkably, noted that it would like to hear from interested groups before adjudicating this question.
The very limited information available about the relationship between J.A. and the complainant in this case suggests that the police and Crown pursued this charge because they were concerned about the complainant and her toddler’s safety. As the sentencing report revealed, the defendant had a long list of convictions for violence against the complainant and other women. He had only recently been released from prison for charges related to assaulting the same complainant and, in addition to the sexual assault conviction, he was also convicted of violating a probation order to stay away from the complainant.
One troubling trend observed in the case law is that defence counsel idealize sexual autonomy and appropriate BDSM notions in order to mask their clients’ violence. Evidence of close-in-time negotiation between the parties was only present in three of the 36 BDSM cases reviewed, and in all of these cases, the submissive party died. A safe word had been agreed upon in only one case (JA). As already noted, a conviction ensued there because the submissive party had passed out and therefore was incapable of consenting to the sexual acts that occurred while she was unconscious. Immoderate alcohol use was present in most of these cases, belying a claim of a safe practice. Yet judges, who may know little about scene negotiation, safe word use or the “safe, sane and consensual” credo, are sometimes willing to believe that violence against partners is, in fact, consensual pleasure. Either more has to be done to educate judges about BDSM or expert evidence on BDSM practices should be presented in court.
Sexual History Evidence
A complainant’s sexual history is frequently relied on in cases where a defendant raises consensual BDSM as a defence and, as often as not, no formal sexual history admissibility application is made before the defence questions the complainant. Moreover the probative value of sexual history evidence is questionable: previous consent is not perpetual consent, so it shouldn’t matter whether the complainant has consented on a previous occasion to participating in BDSM. What matters is whether the parties have negotiated and agreed upon what will happen on this occasion and whether there is a clear way for the parties to indicate withdrawal of consent. Yet in some cases, judges seem to infer that past consent was enough to support current consent. For instance, in R v Ross, 2015 SKQB 150, the defendant, who was charged with assault and sexual assault against his former girlfriend, was able to cross-examine the complainant on their “unconventional” sex life—rough sex, role playing, and acts of dominance/submission. The trial judge characterized the circumstances of this case as “unique,” agreeing with defence counsel that to disallow this evidence would essentially “handcuff the accused” (para 38). He stated: “the acts forming the subject matter of the charge could be argued to be a part of the overall sexual activity of this couple, or to be the next logical step in a progression of expression of their sexuality” (para 39). How the “next logical step” of sexual activity relates to contemporaneous consent is troubling, especially in the absence of any evidence of explicit agreement on what will happen or how consent can be withdrawn.
In contrast, the Crown rarely tries to raise a defendant’s propensity to violence. For example, according to media reports, the police searched Barton’s computer and found he had visited websites depicting non-consensual extreme penetration and torture. The Crown did not tender this evidence at trial. Some reports indicate the search might have been illegal and, therefore, the evidence obtained from it was not admissible. As well, evidence of propensity to engage in certain behaviour is rarely admissible unless it is highly unusual and very fact-specific. For example, evidence that Barton had caused bodily harm to another woman in circumstances similar to those in this case might have been admissible. But evidence that he might enjoy depictions of such behaviour likely would not support the inference he would engage in such behavior had such an application been made.
Taking Strangulation Seriously
Strangulation is not taken seriously by judges in many of the cases reviewed, even though it carries with it the danger of life-threatening or permanent injury and is a known precursor to homicide. (It should be noted that while strangulation and erotic asphyxiation might spring from different intentions—violence versus heightened sexual intensity—the method, neck compression to prevent blood flow to the brain, is the same.) This trend may be because, overwhelmingly, the charge is sexual assault simpliciter rather than aggravated sexual assault or choking to overcome resistance, and therefore there is no need for judges to comment on the added violence other than to note such acts are inconsistent with either consent or mistaken belief in consent. Moreover, defendants often suggest they were participating in consensual erotic asphyxiation even though in no case, other the homicide cases, is there any evidence that the complainant had agreed to participate in this practice at the time of the events giving rise to the charges. (In JA there was no evidence that the complainant had agreed to erotic asphyxiation at the time of the events giving rise to the charges, although she had agreed at a prior time.) Judges rarely note that this practice is inherently and unacceptably dangerous or make the observation that if someone is being strangled, it is well-nigh impossible for them to use a safe word to withdraw consent.
R v Lavergne-Bowkett, 2013 BCSC 1737 demonstrates how difficult it can be to establish the required intent for a choking to overcome resistance charge. L.B. denied engaging in rough sex and claimed the acts were consensual, although his counsel later asserted the harm induced was from rough sex—a claim discredited by the defendant’s own testimony. The judge accepted the complainant’s testimony (supported by expert medical evidence) of strangulation, finding that that the defendant had “applied a strong force to A.B.’s neck” and had left bruises. However the judge acquitted the defendant of the choking charge, stating (para 109) that, “I have accepted the complainant’s evidence that this [application of strong force] was part of the reason she did not resist the sexual touching by the accused. There is no evidence, however, that [L.B.] had the intention of choking her to render her unconscious or incapable of resistance.” This reasoning raises the question: with the defendant’s outright denial of rough sex, what other purpose does choking serve in the context of a sexual assault?
Conclusion
Even in consensual BDSM, strangulation/erotic asphyxiation should be a no-go zone for good reason: it is just too dangerous. Asphyxiation was the cause of death in three of the five reported cases in the last 20 years where the submissive party died; another went into shock after experiencing high voltage jolts and, as already noted, Barton’s partner bled to death from a vaginal wound. Otherwise twenty years of jurisprudence strongly suggests Canadians who are interested in exploring BDSM are free to do so without fear of criminal prosecution, as long as contemporaneous and continuous consent is clearly established and no one dies. At the same time, police, prosecutors and judges, as well as academic and media commentators, must recognize that sexual history evidence is still pervasively relied upon and idealized visions of sexual agency and autonomy and appropriated notions of BDSM can mask potentially deadly violence and vicious sexual assaults.
1 Professor of Law & Director, Centre for Human Rights Research. I would like to acknowledge the excellent work of Katie Kidder, currently a law student at the University of Manitoba, Helen Fallding, manager at the Centre for Human Rights Research for their work on this paper. Dayna Steinfeld, now a lawyer at Filmore Riley in Winnipeg, worked on an earlier iteration of the systematic case law review. The research was supported by the University of Manitoba Under Graduate Research Award program and a grant from the University of Manitoba Legal Research Institute. While I have worked on many interventions with the Women’s Legal Education and Action Fund (LEAF) in sexual violence cases, the views expressed in this paper should not be attributed to LEAF.
2 Samuel S. Janus, Cynthia L. Janus, The Janus Report on Sexual Behavior (New York: John Wiley and Sons, 1993).
3 See the intervenor factum filed by the Women’s Education and Action Fund (LEAF) and the Institute for the Advancement of Aboriginal Women in the Barton appeal for a more detailed analysis.
4 We did not systematically review laws impacting sex clubs such as criminal charges related to the performance of indecent acts in a bawdy house or administrative offences other liquor code or public health regulation violations. However criminal charges are unlikely following two SCC decisions in 2005 (Kouri and Labaye (2005 SCC)) and I am unaware of any administrative charges against sex clubs in Canada in the last decade.
Karen Busby has been with the Faculty of Law at the University of Manitoba since 1988 and is the founding director of the Centre for Human Rights Research. She teaches Constitutional Law, Administrative Law, Human Rights Law and Gender and the Law. She has worked extensively with the Women’s Legal Education and Action Fund (LEAF) and Egale Canada.