There’s some fascinating stuff going on in Canada these days around the question of BDSM. I’m on the NCSF mailing list, and through that I often get news from the States about the latest pro-domme getting her business shut down by the police, suspension scenes gone horribly wrong and kinky conventions kicked out of hotels based on shitstorms of intolerance raised by the Religious Right. But I don’t often see any Canadian stories about what the public and the law do with BDSM, so it’s especially interesting that in the last week two such stories have been sent my way. Even more interesting is that they show the law going in completely different directions.
The first one is here, in a story about a guy in BC who has lodged a human rights complaint against the Vancouver police force, alleging that they discriminated against him in refusing to issue him a chauffeur’s permit because he is involved in Pagan religious practices… and BDSM. The BC Court of Appeal has ruled that the Human Rights Tribunal can hear his case based on discrimination on the grounds of sexual orientation. This is not quite the same thing as allowing BDSM to be legally defined as a sexual orientation, but it does come awfully close, and may result in that sort of jurisprudence if the guy wins his case.
The second one is here, in a story about a couple whose male half has just been convicted for sexual assault because he choked his female partner to the point of unconsciousness during sex. The two were together for eight years and have a son. They had apparently been having kinky sex for the duration of their relationship, and had an established safeword. The woman reported the incident a month after it happened, and then recanted her accusation, but the justice system would not accept her recant and pushed the case forward anyway.
It’s a tricky one – I hate it when reports of this kind of case come out, because it’s always so bloody difficult to figure out what the heck really happened. How much of what went on was truly BDSM, as opposed to abuse cloaked in BDSM terminology? Was the unconsciousness a one-time accident during play or did the guy force it to happen regularly despite the woman’s protests? Were there any kink-positive advisors called in as expert witnesses in the case? Did the judge or the prosecuting lawyer have a hate-on for sexual deviants? Did the woman initially recant because she’s a battered wife, or because she realized she’d had a momentary freak-out and called the cops when she should have just had a heart-to-heart with her honey? Did the reporter have their own anti-kink bias and so leave out any significant details that would help paint a clearer picture? With all these layers between my analysis and whatever took place, there’s no way I could tell you whether I think the guy’s guilty or not.
What I can tell you, though, is that here we have BDSM possibly about to gain human rights protection as a sexual orientation in one province, while in another province kinky behaviour is once again being equated to domestic abuse and sexual assault. The assault article concludes, “Citing a line of case law involving voluntary whippings, brandings and canings – some from England – Judge Nicholas said the courts have generally ruled that individuals cannot voluntarily invite violent acts against themselves.” Doubtless by “England” they are referring to the infamous Spanner case, in which several gay men were incarcerated for committing and conspiring to commit assault… some of them against themselves. Yes, the legal precedents for this sort of thing are that fucking absurd. On the flip side, in BC, “Though the appeal court stopped short of finding that BDSM qualifies for protection from discrimination under the Code’s sexual orientation category, it ruled that in cases such as this one, where the alleged complaint may fall under the tribunal’s jurisdiction, the tribunal should hear the case and then decide.”
So which one will it be? Ideally, some form of both. It’s ridiculous that someone should be denied employment or tossed in jail for what they get up to in bed with the full consent of all concerned. At the same time, it would be a very bad move to allow BDSM to become a loophole through which true domestic violence cases can slip, where all someone has to do is wave around the word “safeword” and show a flogger collection for an abuse case to be dismissed because don’t you know that BDSM is consensual? I’m also highly suspicious of any legislation or legal precedent that would define BDSM too rigidly. For example, if the conclusion reached in BC for the purposes of this case is that all BDSM is scene-by-scene negotiated consensual play between adults involving a safeword, then that leaves people vulnerable if they happen to not have a safeword, or if consent was established early in a relationship but a specific act was not negotiated, and so forth. We need to be careful that what protects us in one case doesn’t end up biting us in the ass in another.
But for that middle road to be taken, where sexual freedom is protected and abuse brought to justice, there needs to be one helluva lot more of a nuanced understanding of how kinky sexualities work on the part of the entire Canadian legal system. And we are talking about a system whose various federal and provincial arms have legalized same-sex marriage but consistently and outrageously discriminated against queers by blocking our literature at the Canada/US border; legalized swinging and by extension queer bathhouses, but refuses to cover trans surgeries under Medicare in some provinces (resulting in a strange influx of transfolk to Alberta, of all places!); allowed women to go topless on par with men in Ontario, but is attempting to add new censorship laws to the books for government-funded film and television production; and allowed three people to become recognized as the legal parents of a single child in Ontario, but is attempting to effectively re-criminalize abortion via Bill C-484.
In other words: we’re not exactly consistent in this here fine country of ours when it comes to sexual and bodily freedom. And with laws like this already governing the way sexuality happens here, our legal acceptability as queers, women, trans folks, polyamorists and kinksters is already completely haphazard. It wouldn’t surprise me in the least if it stayed that way for a long time to come.
Sex Geek 
Actually, I doubt she had a one-time freakout and called the cops, because, if so, she waited a month before freaking out over the incident. While it is, as you note, dangerous to specualte without data, that sounds to me like there might be something ugly going on there.I also object in general to choking to unconsciousness – that can be very dangerous in ways people don’t always expect, especially if done by pressure on the neck rather than by covering mouth and nose.
Then I read about the first story, an ex-girlfriend had reported him to police for running a sex cult (so far, only member seems to be him in “his” cult”)
Name of the cult? Tarnsman of Gor.
lalouve – Yeah, I totally get that the freak-out thing is unlikely. And I too am generally opposed to choking to the point of unconsciousness, and penetrating someone while unconscious. All of these things together make me lean towards thinking it was probably not a healthy scenario. But what I’m getting at is that anytime you get the justice system and the media involved in this sort of thing, you can reliably expect that there will be a degree of prejudice against kink *as a whole* regardless of what’s happening in the specific case, and that will necessarily blur the judgement of anyone involved. How are we to know? Even if this particular case *was* categorically about abuse, there’s no way to make that distinction using the framework of the Canadian courts when they frame kink as necessarily a form of assault. Worse, the precedent set by an actual abuse case could just as easily be used to put people in jail (like in the Spanner case) who are 100% consensual but whose activities are upsetting to the sensibilities of the general public or the judges. Kink is titillating to the masses until they actually have to engage with what it might mean, and then people get self-righteous and call it all abuse. In real life the lines are not that black and white, but I’m not seeing the justice system reflect that degree of nuanced thought.
Travis – Fascinating, I didn’t realize the guy identified as Gorean. I wonder what motivated the ex to report him in the first place. If he did something non-consensual to her, then you’d think she would report him not for running a supposed “cult” but rather for committing assault. In that case he could have been dealt with through the usual routes – though of course then we’d run into the same problem as with the Ontario case (argh). The next thing to consider is whether or not he actually is approaching his kink from a cult standpoint. If he is actively trying to coerce or brainwash people into joining the Gorean lifestyle, then I think it makes perfect sense to be suspicious of his actions, but that doesn’t mean he’s broken any laws. Either way it doesn’t make sense to deny the guy a driver’s permit or bar him from employment, not to mention a little ridiculous to think he’d be recruiting for his “cult” (or anything else) from his position as a chauffeur – and if he did, why not fire him then rather than assume ahead of time? Surely someone would complain if he behaved inappropriately on the job. What a mess.
Are judges elected at any level(s) in Canada? How do electoral politics play into these cases in Canada? And is Canadian law bound by English case law precedent (e.g., the Spanner outrage)?
Too much to say about these legal implications in a short reply – except that I mistrust involving The Sheriff in my consensual sex life, especially when laws and regulations always entail definitions. Even when the intentions seem good.
It’s all enough to make me head right to the kitchen to prepare red lentil mujadarra and green salad with pomegranate molasses, conduct vegan bootblacking experiments, and practice italic handwriting with medieval ink. And maybe dream of a good consensual illegal caning.
If he did something non-consensual to her, then you’d think she would report him not for running a supposed “cult” but rather for committing assault.
Given the conviction rates for sexual assault accusations, it wouldn’t surprise me if she thought she had a better chance with the cult business. Plus, it could be that she ignored or even approved of the cult until he did something that completely betrayed her trust or terrified her.