Sex
3 min

BDSM and the law

Lawyers and educators say affirmative consent is key

Credit: N Maxwell Lander

Is BDSM more like a fist fight or a hockey fight?

That’s just one of the questions at the heart of the legal debate over BDSM — one that some sex educators and community members didn’t even know needed to be had, until University of Toronto law professor Brenda Cossman wrote an article in The Globe and Mail about the fact that when it comes to consenting to serious bodily harm, it doesn’t matter if you say yes: the consent is rendered null.

Though she wrote the article to address some of the questions raised by the initial reports around the firing of CBC Radio host Jian Ghomeshi, Cossman says it seems clear now that those allegations stem from abuse and the BDSM piece doesn’t apply. However, for many, the questions around the legality of BDSM remain.

Shelley Taylor is the owner of Venus Envy, a queer-friendly sex shop in Ottawa that offers sex workshops on such topics as do-it-yourself sex toys and fellatio tips and tricks.

“I think that was a shock to a lot of people,” she says of learning about where the law on BDSM stands — as a sex educator she was surprised to learn that legally you cannot consent to being physically harmed.

Cossman says that since the article came out, interest in the legal issues around BDSM has been piqued, from both lawyers and people in communities that are interested in non-normative sexuality. It’s why she, along with lawyers Kyle Kirkup and Hamish Stewart and sex educator Andrea Zanin, will take part in a panel about BDSM and the law at the University of Toronto on Nov 13. “We thought we could get more into the minutiae of legality and have a deeper conversation than one could have in 800 words in The Globe and Mail,” Cossman says.

Kirkup, a Trudeau scholar at U of T’s law school, has been studying how criminal law regulates LGBT people and non-normative sexualities and genders.

He believes there are two competing histories that have created the grey area around BDSM — first, the history of laws that target non-normative sexualities and second, of society not taking sexual-assault complainants seriously. “I think the concern [is] that BDSM is being used to cover what is really just violent assault and sexual assault,” he says, adding that he believes this is the source of the tension and debate.

“Over time, the Supreme Court of Canada has tried to make the law a little bit better,” Cossman says, noting that recent decisions have made it easier for women to come forward and have established that consent is an ongoing process — just because you have consented to one act doesn’t mean you’ve agreed to all that follow. However, Cossman notes there are still very real and continuing concerns about the law surrounding sexual assault.

“The problem is that it has only come up in law when someone has been accused of sexual assault and their defence is that it was consensual BDSM,” she says.

In the cases where it has been raised, Cossman says, they are decided on the absence of consent. “BDSM gets implicated in this but not really,” she adds. In a case where a person was rendered unconscious through autoerotic asphyxiation in 2011, the Supreme Court determined that you cannot consent in advance to something that might happen when you are unconscious — you must be able to actively give your consent. But that doesn’t clear up all the questions about BDSM and the law.

If a case on BDSM did come forward, part of what the court would have to determine would be whether BDSM has “social utility.” Courts in Canada have found that sports like hockey and boxing — which regularly feature fighting and blows to the head — do have value, whereas a fist fight does not, therefore you can’t really consent to it. “It’s trying to figure out whether or not the courts want to slot this in the pure violence category or whether they want to put it into the more protected category of activities that have social value and utility,” Kirkup says.

In Taylor’s workshops at Venus Envy, she often talks about how certain forms of bodily pain are more acceptable than others, like in the realm of sports. “I think there’s a lot of stigma and shame attached to anything sexual, and the farther you get away from reproductive sex, the more shame and stigma you’ll find attached to that kind of sex,” she says.

But the perception of BDSM as including pain needs to be corrected, Taylor says. “There’s a lot about BDSM that’s fantasy play, role-play — basically stuff that is completely legal,” she says and that doesn’t involve hitting anybody.

Kirkup also says the focus should be on whether there was affirmed — not implied — consent throughout the entire experience.

Taylor says Venus Envy will now be adding a caveat before their workshops — that no one can consent to be struck. But for her, consent is the key to any relationship. “Without consent, it’s abuse,” she says. “Consent is the focus of everything we talk about when it comes to BDSM.”