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3 min

Taking perversions public

There's a lot of grey in the laws on black & blue

HOT WAX. Slave hance endures Master Punisher's ministrations at last year's Church Street Fetish Fair. Credit: (RJ Martin)

This weekend thousands of leatherfolk and other kink-inclined individuals are expected to descend on the gaybourhood for the third annual Church Street Fetish Fair. Put on by the Church-Wellesley Village Business Improvement Area, the street fair is a chance to put a public face on a historically subversive subculture.

The event comes at a time when kinksters elsewhere in the world are facing increasing pressure to keep their predilections private. In October 2005, US Attorney General Alberto Gonzales announced a crackdown on obscenity related to “sadistic and masochistic behaviour.” Both textual and visual depictions of BDSM and fetish-oriented websites in particular have been targetted, with SM-related obscenity indictments carrying heavier punishments under US federal sentencing guidelines.

In the wake of targetted harassment, many well-known and relatively mainstream artists and websites have shut down, including well-known bondage instructor Fetish Diva Midori whose Beautybound.com now contains only a thank-you letter to visitors stating that with “the current political climate with the Communication Decency Act and the increased demands of the recordkeeping requirements, it has become nearly impossible for many artists to publish beautiful erotic work.”

Other US-based kink websites, including 18-year veterans Bound And Gagged (Boundand-gagged.com), have chosen to self-censor. Even Suicide Girls (Suicide-girls.com), which features punk, goth and alterna-girls lusted after by cyberpunk boys and bois everywhere, has toned down content for fear of prosecution.

Could it happen here? Just how legal are fetish-infused practices even when conducted in private? Frustratingly, there is a gap in Canadian law where SM is concerned.

“The laws are antiquated, judgmental and do not take account of human practices that have been around for many hundreds, if not thousands of years,” says Trevor Jacques, sex researcher, educator and author of the SM manual On The Safe Edge. “They’re starting to do so, but they haven’t been encoded.”

Some may recall the debate generated by the 1994 “bondage bungalow” trial of Terri-Jean Bedford in which the question of whether bondage and other SM activities are sex became the main point of public discussion. Although Bedford was ultimately convicted on prostitution-related charges, the ruling sidestepped the issue of whether sadomasochistic activities, commercial or otherwise, are legal.

Jacques points to the British Law Commission’s 200-page consultation paper on consent and assault law as the most advanced legal look at SM practices in the world.

“They asked everyone, the police, the SM community, the tattooing and piercing federation…. They took all input in completely dispassionately and put out a very well-balanced report that looked at law all over the world.”

The document, produced in the mid-1990s, was born out of a case involving a group of players charged with assault and aiding and abetting assault in connection to consensual genital piercing. Ultimately, the commission recommended that SM play, short of causing serious or permanently disabling injury, should be legal. The recommendation has yet to be enshrined into British law.

“You can have a genital piercing but if you get an erection while it’s happening you can get thrown in jail,” says Jacques, of the legal situation in the UK. “Canada’s system is not too different. That’s why the law commission framework is so important.”

The commission report recommends a series of tests including whether or not the person assaulted had the ability and information to consent, whether they gave consent freely and whether the act consented to was deemed illegal under the law.

Back at home, Jacques notes that several Canadian legal decisions show promise that the country “is moving toward liberalism in its best form.”

“The Supreme Court Of Canada unexpectedly changed the basis for determining obscenity from community standards to harm, harm of the individual and harm to the community,” says Jacques of the 2005 decision involving a private swingers club in Quebec. “The same argument can go for assault of this sort [consensual assault], that is: was there any lasting damage?”

Ultimately, Jacques recommends that players use common sense, though he stresses that when in doubt one should seek out legal advice.

“Think about your partner and do what is reasonable and you probably won’t get into trouble,” says Jacques. “But probably is the operative word.”