3 min

Judges need a lesson in sado-masochism

SM sex shouldn't be a crime if there's consent

When you’re having sex, do you like a little spanking? Perhaps you like your nipples twisted or bitten? Maybe you’re into being handcuffed and blindfolded? Grabbed by the ears? Or you like to give or take a rough fucking on occasion — or regularly?

Maybe you and your regular sex partners have worked out a routine including a safe word to stop a good paddling when you’ve had enough. After all, you’re into it, you consent to it, and you want a way to stop when it gets too much.

If you like any of the above, you’re at least an occasional participant in SM sex. And that means you may be a sex criminal. Really.

The Supreme Court of Canada set the tone in the Little Sister’s ruling. Among other things, the bookstore argued that gay porn plays an important role in reaffirming sexuality and practices among gay men (duh!).

But the Supremes were having none of it. Gays need protection from being degraded, ruled the court, and rejected the idea of consent.

Wrote the majority of judges: “[An intervener] took the position that sado-masochism performs an emancipatory role in gay and lesbian culture and should therefore be judged from a different standard from that applicable to heterosexual culture. The portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable.”

SM sex is “dehumanizing,” they wrote. We need protection from images of it.

Since then, some Canadian courts ruled that SM sex itself is dehumanizing and that a person cannot consent to SM sex. This may surprise you, given how often you’ve probably not only consented to being spanked while getting fucked, but actually asked — begged? — for it.

But it’s true. Some courts are ruling that consent doesn’t count and that SM or even rough sex is a violent sex act. Justice Dianne Nicholas recently convicted a man of sexual assaulting his female partner during a rough sex session in which he choked her into unconsciousness and then stuffed a dildo up her ass.

The sex was consistent with their regular sex practices; the couple had regularly engaged in SM for years and had a safe-word. The difference this time? Embroiled in a custody battle, she told cops she hadn’t consented to the anal sex — an accusation she later retracted. The judge took the contradictions as evidence that the woman did not consent.

It’s not the first case of its type. But notice how the courts dismiss consent. If they’re uncomfortable with a sex act, they’re far too quick to infantalize consenting adults, dismissing their ability to make decisions for their own bodies. It’s like a woman’s right to abortion and the legalization of gay sex never happened — both are anchored on an adult’s right to decide what they want to do with their own bodies.

But some courts actually get it. A Vancouver judge ruled in 2004 that SM videos seized by police are not obscene and that the practice of SM is a “normal and acceptable” form of human sexuality. Judge Raymond Low allowed the defence to present evidence about the nature of SM and heard from experts, doctors and play-party participants. The judge came to understand the nature of consent in SM play, and he accepted a doctor’s testimony that SM practices, including golden showers, are not demeaning.

For now, SM is treated by the courts the way vanilla gay sex was treated before 1969 when the Trudeau government — not the courts — partially legalized it. There’s little chance that any of the major parties will go near this — they’re gutless on sex matters. That leaves education, which worked in the case of Judge Low. We need to find a way to educate judges about SM, help them get past their personal shock at the practice to see the underlying connection between the participants — and the concrete nature of consent.

Meanwhile, it seems to me that the least we can do on an individual basis is to think of our misguided and uninformed judges while we’re getting spanked.

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