A potentially groundbreaking case on BDSM began hearings in BC’s Human Rights Tribunal Mar 30. The case could determine whether BDSM qualifies for protection as a sexual orientation under the province’s Human Rights Code.
  
The case stems from an almost four-year-old complaint made by former Vancouver resident Peter Hayes, who alleges the Vancouver Police Department (VPD) denied his application for a chauffeur’s permit based on allegations that he was involved in a “cult-like” relationship “based on a master/slave dynamic.”
  
The VPD tried to stop the tribunal from hearing the case on the grounds that the BC Human Rights Code doesn’t protect BDSM players from discrimination. Both the BC Supreme Court and the Court of Appeal dismissed the VPD’s argument and sent the case back to tribunal for a hearing.
  
The tribunal will now determine whether BDSM players deserve protection in BC and, if so, whether any discrimination took place in this case.
  
In her opening submission, Hayes’ lawyer Lindsay Waddell told the tribunal that her client went to the VPD’s taxi unit on the advice of a prospective employer, Imperial Limousine, to obtain a chauffeur’s permit.
  
Waddell said Hayes, dressed in a black suit, black shirt and a tie, showed up May 18, 2003 at the taxi unit, completed a Vancouver geography quiz and was told to wait until called. Waddell said her client waited for about an hour and a half before Const Kevin Barker invited him into a small meeting room.
  
Hayes followed Barker into the room “at which point Mr Hayes said Const Barker closed and locked the door behind him and promptly asked Mr Hayes why he was wearing black,” Waddell said.
  
Hayes told Barker that he had been advised to “dress the part” when applying for the permit, Waddell told the tribunal.
  
Shortly thereafter, Barker handed Hayes a letter rejecting his permit application because Hayes was “unfit” to be a chauffeur, Waddell said.
  
When Hayes asked why he had been rejected, Waddell said Barker referred “almost exclusively” to a complaint made by a former girlfriend of Hayes alleging that he was “involved in a sex cult.”
  
The officer refused to give specific details when Hayes asked for more information, Waddell told the tribunal.
  
“Mr Hayes then asked what was meant by cult and how that might possibly relate to the issuance of a chauffeur’s permit.”
  
In response, Barker cited Hayes’ identity as a pagan and his participation in domination and submission, Waddell told the tribunal.
  
“Mr Hayes states that Const Barker told him that he thought that Mr Hayes might recruit passengers into his cult if granted the chauffeur’s permit,” Waddell told the tribunal.
  
The encounter with the VPD left Hayes “shocked but also angry and upset,” she said.
  
Waddell explained to the tribunal that her client identifies as a BDSM lifestyler.
  
"His identity as a BDSM lifestyler means that he not only participates in BDSM activities, but that BDSM practice is a core part of his identity and being,” she said. “His intimate relationships must include this and his most fulfilling relationships are with those who not only participate in BDSM but are also lifestylers themselves.”
  
Hayes also identifies as a pagan, Waddell noted, adding that he is “primarily known to friends and colleagues as Purple Crow.”
  
Hayes’ identity as a BDSM lifestyler and his identity as a pagan “in his view are intertwined,” Waddell said.
  
VPD lawyer David Hill told the tribunal that Const Barker was concerned about Hayes’ personality and suitability as a limousine driver.
  
The police had a record on Hayes, Hill said, pointing in particular to an incident involving a former girlfriend.
  
According to Hill, Barker thought the incident showed signs of abuse, as the girlfriend indicated she had to be “frequently punished” by Hayes.
  
“The record indicated that she fought her way out of the relationship, and that’s what Const Barker put to Mr Hayes,” Hill said, adding that Hayes’ reaction to having his record put to him was “distressing.”
  
Waddell told the tribunal that Hayes had three encounters with police. The first in 1994 ended up in court where Hayes was acquitted of charges related to sexual touching and sexual assault. The second in 2003 involved a neighbour’s allegation that Hayes was posing naked in his apartment, but no charges were laid. The third, also in 2003, was a domestic incident involving Hayes and a former girlfriend but neither laid any charges.
  
In cross-examining Hayes, Hill pointed to the 2003 domestic incident which he said led Hayes’ former girlfriend to tell police her relationship with Hayes was of a cult-like nature involving a group called Gor based on a master/slave dynamic.
  
Hayes testified that when Barker asked him if he was involved in a “sex cult” called Gor, he told the officer that that there’s no such cult in Vancouver and that he’s “not involved in anything like that.”
  
“[Const Barker] didn’t want to hear about that, he didn’t want me to explain anything,” Hayes testified Apr 3. “He just wrote me off. He said I was involved in a sex cult, that’s it, end of discussion.”
  
Hill said Barker didn’t know anything about Gor and was only trying to figure out if Hayes was involved in a sex cult.
  
Hayes accused Barker of being “completely irrational, unprofessional [and] aggressive,” adding that he wished there was a video of the meeting.
  
Hayes testified that he asked Barker if he was under investigation. “He said no,” Hayes said. “I said, ‘Then maybe you should. Maybe you should look into this. Do you want to read my website?’ He said, ‘I don’t have time for this.’
  
"I offered him everything I possibly could,” Hayes told the tribunal, his voice beginning to rise and his lips trembling.
  
“I just wanted my job. I just want to drive a limousine, that’s all,” he said.
  
"Nobody knows the goddamn frustration I went through that day. You weren’t there. None of you were there. You have no idea what it was like,” he continued.
  
“They don’t even want to hear my side of the story. I don’t get a fair trial. I get told to get out of the office. That’s how I was treated.
  
“I fought my ass off just to sit here, just to have the right to be heard.”
  
Hill questioned Hayes at length about a master/slave contract bearing Hayes’ more commonly used name, Purple Crow, obtained from a former girlfriend.
  
He referred Hayes to the contract’s rules of punishment for slaves, and asked him if punishing a slave was okay as long as the punishment didn’t exceed the stated limits — causing drastic loss of circulation that could lead to loss of an extremity or internal bleeding.
  
Hayes said that that’s what that particular contract seemed to be saying, though he denied ever having used it himself.
  
Hill said the former girlfriend (whose name can’t be published due to a publication ban) will testify that Hayes encouraged her to sign the contract but she refused.
  
Hayes said he didn’t remember having the former girlfriend “sign any contract like this, no.”
  
In addition to filing a human rights complaint, Hayes also appealed the VPD’s denial of his chauffeur’s permit to the city of Vancouver. He won that appeal in October 2005 and was awarded the permit.
  
But when he contacted Imperial Limousine, he was told that the full-time chauffeur’s position had already been filled.
  
Hayes wants the tribunal to find that the police conduct was discriminatory under the BC Human Rights Code.
  
He is also seeking compensation for injury to dignity in the amount of $25,000 and compensation for lost wages in the amount of $43,000.
  
The tribunal hearing is expected to resume Jun 22.


TESTIMONY FROM THE BC HUMAN RIGHTS TRIBUNAL

Dr Charles Moser, a San Francisco-based sexologist with expertise in sadomasochism and sexual minorities, told the BC Human Rights Tribunal Mar 31 that he can say "fairly emphatically" there is no study showing there is a connection between BDSM and criminal activity.

Lindsay Waddell, Peter Hayes' lawyer, introduced Moser as an expert witness.

Here is an excerpt from Moser's testimony on that question:

With BDSM, we know there is a huge amount of sexually explicit media related [to it], so someone has to be consuming it.  If BDSM was associated with criminal activity, we would have found that out. We'd be arresting all these people, they would have all this BDSM paraphernalia and/or images around and we would start looking and making that association. In general, we don't see that and in fact some people tried to find it and they can't find it.

Moser also testified that there are about six characteristics people identify when they say they have a sexual orientation — their interest is lifelong or chronic, it is immutable, there is a fluidity to it, there is a sense of fulfillment in doing it or participating in it, there is a specificity about it and there is the element of "hotness" or lust to it.

Moser said these criteria are not essentialist, meaning that a person doesn't "have to have all six."

"The judgment has to be how important that behaviour or interest is in the person's life," he said.

Here is an excerpt from his testimony about BDSM and sexual orientation:

When I talk to someone who is identifying as BDSM and ask them have you always felt this way, and they almost always report that 'This has been the way I was all along. I didn't realize it. I thought I was interested in more traditional male/female relationships but now I realize that I really like the power and control aspects of relationship. I like taking care of my partner, I like doing all these things, and now I realize that this is really a long term, lifelong interest of mine, that when I'm treated more on an egalitarian basis, I don't like that.

It's immutable because often especially when you look at the effect of the women's liberation movement, where women were being challenged not to be in that 1950s household mentality, but to be their own person and to demand a more egalitarian place within the relationship and not wind up... coming home from work and doing all the housework and not have any help from their partner,' often they [will say] I couldn't change that. I really like doing that.

By the way, the opposite is the man who really put their partner on a pedestal. 'I want to take care of her. She should never have to wash dishes. I'm always going to wash the dishes... It pleases me to run around the car and open the door for her every time.'

You can see that there's a pattern and it's often very difficult for that person to change. They say, 'I don't want to change. I don't like that change. I want to do this. I like to do this.' 

There is fluidity. The number of people, especially in BDSM, who come in and say, 'I came out as dominant but now I'm really submissive. I came out as submissive but now I'm really dominant. After having experience in these roles, I like doing both.' They often are very specific. 'I'm dominant with men, I'm submissive with women.' Or 'the only person who dominates me is my partner, and everyone else, I'm dominant.'

They often have very specific issues, but there is often a fluidity to it. As they get involved, they find and add and learn new sexual patterns.

They are very clear often that, 'my relationships which were vanilla were not fulfilling. I always felt like there was something missing. Now that I'm doing BDSM, I am fulfilled. This feels really right to me. This really gets me to my core. It's who I am.'

There is a lust to it. 'When my partner takes out the shackles and I see them I get turned on right away. When my partner says we're going to have a scene tonight, we re going to do S/M play I immediately get aroused.  Just hearing that commanding voice on the phone, I get aroused. Having that person, my partner say, I have violated some rule, you need to punish me or discipline me later, is enough to turn me on.'

And so in the same way as someone who is homosexual, they couldn't really change — they somehow felt fulfilled in the same-sex relationship —  similarly in a BDSM relationship or scenario, they similarly feel the same factors, and in my mind, that allows me to classify people who fit that as a sexual orientation. I cannot change someone who's into BDSM to not be BDSM.

- Natasha Barsotti
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