Leave your bondage gear and floggers at home if you're headed up to Canada for the weekend. Check out this headline in today's Globe and Mail...
People can't invite violent sex acts, judge rules
Okay, before we look at the judge's ruling: The details of this particular case are... troubling, to say the least, even for a kink-positive writer like me. ("Kink-positive" does not equal "anything goes." Never did.) A man choked his wife into unconsciousness and when she came to a few minutes later, she was bent over the bed, her hands tied behind her back, a dildo buried in her ass. A month later the woman reported her husband to the police, and he was arrested and charged with assault. But before going to trial the woman "changed her mind," and claimed she hadn't been assaulted.
The woman insisted in her testimony that they had engaged in similar activities in the past, and that she routinely consented to being choked....
Judge Nicholas noted that the couple—who have a son—had regularly engaged in sadomasochistic behaviour over the years. They even had a codeword—"tweety bird"—which either could use at any time to indicate to the other that a particular sex act must stop immediately.
Okaaaaay. I don't know what the hell was going on in this marriage. And for the record I'm opposed to erotic "choking games" during sex—particularly during solo sex. (Here's an excellent Control Tower on the subject. On the subject of "breath play," as on so many others, I agree with and defer to the Mistress.) It's also possible for one half of a kinky couple to assault his or her other half despite the couple having engaged in "similar activities" in the past—hell, the activities could be identical. A lack of consent the second, third, or millionth time a couple indulges in any form of sex play makes the act assault and/or rape—and that's the case whether the couple enjoys a thoroughly vanilla sex life or, as the Globe and Mail gratuitously and inaccurately put it about this particular couple, "a raunchy sex life." (Note to G&M reporter Kirk Makin: "raunch" is its very own kink, one that that involves bodily filth—stanky pits, dirty buttholes, rank piss, vomit, etc. Next time, Kirk, keep your disgust to yourself, eh?)
Why did this woman wait a month before going to the police? Dunno. Why did she recant? Dunno. But we do know this: Many women have hesitated to report sexual assaults due to shame and fear—particularly when the perp is a spouse. And many, many women with physically abusive partners have recanted in the past. Again, I don't know what was going on in this marriage or this woman's head. But the circumstances are, as I said, deeply troubling, and I'm not opposed to an investigation or, indeed, a prosecution under the circumstances.
But here's what I do know and really want to address: The judge found the husband guilty of assault—but, according to details in the Globe and Mail, her ruling was not so much based on the particulars of this case (although the judge did point to "contradictions in the woman's testimony"), but on disgust for BDSM and a willful cluelessness about human sexuality. For the judge didn't merely rule that, regular BDSM players or not, this woman had been assaulted by her husband on that particular night. She ruled—and ruled broadly—that BDSM is always assault. Back to the G&M:
"Even if she had consented previously—or on that night—she cannot legally consent to sexual activity that takes place when she is unconscious," the judge said.
Citing a line of case law involving voluntary whippings, brandings and canings—some from England—Judge Nicholas said the courts have generally ruled that individuals cannot voluntarily invite violent acts against themselves.
Oh, man. So an adult—in Canada or England—cannot "invite," or give consent to, an erotic thrashing? Having a cigarette extinguished on his chest? Being punched in the gut—hard, over and over again, until he's bruised and gasping for air? (Yes, all kinks.) This judge's ruling doesn't just rest on a finding about the absence of consent in this instance—and wouldn't that have been enough to find guilt?—but on previous cases that criminalized spankings, for crying out loud. It sets a precedent that defines eroticized, controlled, mutually consensual sexual "violence" as sexual assault, regardless of consent. Here's the prosecutor:
Crown counsel Mihael Cole successfully contended that an individual cannot consent to bodily harm, such as being choked to the point of unconsciousness.
That "such as" really troubles me—it implies that this prosecutor has a list somewhere of other non-fatal, non-permanently-injurious sex acts that he thinks are illegal because a person cannot consent to "bodily harm." And you know what they say about bodily harm: One couple's "bodily harm" is another couple's "tender lovemaking." (They don't say that—but they should.) Short of permanent and irreversible bodily harm—amputations, castrations, beheadings—courts and police and prosecutors shouldn't interfere in or try to limit adult consensual sex expression. Period. It's about the right to control your own body and pursue your own pleasures without having to worry about the state tossing you into prison for the crime of being kinky.