Courts need to reconsider laws around kinky sex

It was all kinky talk at the University of Toronto yesterday when a panel of experts discussed BDSM sex and consent in the context of Canadian law.

Canada has ‘a long and misguided history of using the heavy hand of the criminal law to target non-normative sexualities,” says Kyle Kirkup. (Photo: Yamri Taddese)The discussion was, of course, triggered by l’affaire Jian Ghomeshi and the public’s piqued interest in how the courts treat the defence of BDSM where it’s resulted in someone’s injury.

According to UofT law professor Hamish Stewart, consent is irrelevant if someone suffers what’s considered “non-trivial” bodily injury during BDSM activities.

That’s because in 1995, the Ontario Court of Appeal in R. v. Welch found consent in BDSM “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 court said.

The decision is rooted in R. v. Jobidon, a Supreme Court of Canada ruling that found consent was irrelevant in the context of a fistfight that led to the death of one of the participants.

To Stewart, the law as it relates to BDSM could use reconsideration.

“I don’t find the reasoning satisfactory at all,” he said of Welch, adding there wasn’t a lot of argument in the case about why an activity would be dehumanizing if someone had consented to it.

Stewart added the courts should hear evidence about the culture of BDSM before they make an informed decision.

Andrea Zanin, a BDSM educator and author of the blog Sex Geek, agreed.

“You know how it didn’t work to make gay illegal? It wouldn’t work to make kink illegal,” she said.

The courts make exceptions to consensual bodily harm in the context of sports and other activities known to have “social utility.” But in Welch, the appeal court saw no social use in BDSM sex, something that could be challenged in the future.

According to Kyle Kirkup, a Trudeau Scholar at UofT’s Faculty of Law, Canada has “a long and misguided history of using the heavy hand of the criminal law to target non-normative sexualities.”

But this context must be considered along with Canada’s historic failure to treat gender and sexual violence seriously, Kirkup said, adding BDSM has been used to mask male violence.

The complexity of making laws around BDSM could be “symptomatic of much larger contradictions in the criminal law,” he said. “These are contradictions that cannot be papered over but rather must be critically engaged, exposed, explored, and acknowledged.”

Some BDSM practitioners use detailed written contracts about their sexual relationship and the limits around them, Zanin said, adding perhaps that’s something that could help in the face of producing evidence on BDSM consent.

Last year, nearly a decade after Welch, the Ontario Court of Appeal rendered another decision around BDSM that seems to distance itself from the original ruling.

“The social utility of intimate sexual relationships is significantly different from that of consensual bar fights, as such, the underlying policy reasons for the ruling in Jobidon cannot be generally applicable in a sexual context as suggested by the ruling in Welch,” the court said in R. v. Zhao, leaving open the possibility of challenging Welch in the future.

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