Consensual bondage, domination and sado-masochism is legally fine as long as it doesn’t involve choking, law prof says

The recent firing of Jian Ghomeshi by the CBC has raised the question of whether Canadians who practice consensual bondage, domination and sado-masochism (BDSM) have reason to fear criminal prosecution for sexual or physical assault.

I’ve read through court cases in which BDSM formed an allegation of assault, and find these fears unfounded. What is interesting, however, is some of the allegations against Ghomeshi have involved choking. In consensual BDSM, strangulation is a no-go zone for good reason, and this is something jurists should understand as well.

An exhaustive review of judges’ reported decisions in all such cases over the last 20 years reveals that other than two cases where a submissive consenting partner died, there is not a single reported case in the last two decades in which a dominant BDSM participant has been convicted of a personal harm offence unless the evidence raised a reasonable doubt as to consent.

The issue in all of the recent BDSM-related sexual assault cases is not the legal question of whether people can consent, but the factual question of whether they did consent.

Consent to sexual activity must be contemporaneous and continuous; parties have to be capable of granting or revoking consent. While BDSM activity may appear to be non-consensual, practitioners need not worry about criminal prosecution if they have negotiated what will happen, have an agreed-upon signal whereby one of the parties can unequivocally withdraw consent, and follow the “safe, sane and consensual” credo.

There are, however, other troubling trends in the case law.

Defendants often assert that their activities were consensual BDSM. Evidence of negotiation between the parties was only present in two of the 22 BDSM cases I reviewed, but in both of these cases the submissive party died. A safe word had been agreed upon in only one case. A conviction ensued there because the submissive party had passed out and therefore was incapable of consenting to the sexual acts that occurred while she was unconscious. Immoderate alcohol use was present in most of these cases, belying a claim of a safe practice.

Yet judges, who may know little about scene negotiation, a safe word or the “safe, sane and consensual” credo, are sometimes willing to believe that violence against partners is, in fact, consensual pleasure. Either more has to be done to educate judges about BDSM or expert evidence on BDSM practices should be presented in court.

Strangulation is not taken seriously, even though it carries with it the danger of life-threatening or permanent injury and is a known precursor to homicide. Defendants often suggest they were participating in consensual erotic asphyxiation even though this practice is denounced by almost all BDSM practitioners as inherently and unacceptably dangerous. If someone is being strangled, it is well-nigh impossible for them to use a safe word to withdraw consent.

Asphyxiation was the cause of death in two of the three reported cases in the last 20 years where the submissive party died.

A complainant’s sexual history is almost always relied on in cases where a defendant raises consensual BDSM as a defence. It shouldn’t matter whether the complainant has consented on a previous occasion to participating in BDSM. What matters is whether the parties have agreed on what will happen on this occasion and whether there is a clear way for both parties to indicate withdrawal of consent.

Prior evidence of violence by the defendant against the same complainant is admissible if it might explain delayed reporting or counter a claim asphyxiation was consensual. Yet the 20-year review of reported cases shows it is rare for the Crown to raise the issue of prior violence.

Twenty years of jurisprudence strongly suggests Canadians who are interested in exploring BDSM are free to do so without fear of criminal prosecution, as long as consent is clearly established and no one dies.

At the same time, police, prosecutors and judges must recognize idealized visions of sexual autonomy and appropriated notions of BDSM can mask potentially deadly violence and vicious sexual assaults.