Sex Headline of the Day
posted by on April 30 at 10:20 AM
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.
Dan, the state won't toss the victim/incapacitated person in jail, but the person performing the act in jail. So, if you get off on S&M, be prepared for the consequences if you kill, maim, or just anger your partner.
Why doesn't this apply to football players and coaches? If the quarterback receives a concussion and is sent back on the field. The coach has conspired to commit assault. Clearly, the football player could not consent to being brutally tackled while having a concussion.
I wonder why there is a distinction between consent to sexual violence and sports violence.
I agree with your analysis. Based on this ruling, it seems likely that she would consider butt-fucking a "violent assault" as well. Betcha there are a whole lotta Canucks, male and female, who would disagree with that.
I do think that there are some violent sexual acts that you can’t give consent to. I think there’s a spectrum here, of severity of violence… A person cannot give consent to have himself killed in a sexual situation (there was that case in Germany where the guy gave consent to being castrated, killed, and eaten). But, common sense would dictate, that yes, a person could consent to being spanked in a sexual context. So, with those as the extremes, where do we draw the line? Can someone consent to being castrated? To being choked into unconsciousness?
I don’t know where the line is (I have no issues with S&M, but rendering someone unconscious seems pretty close to the line to me, if not over it), but I’m not as troubled by the statement that there are some acts you can’t consent to.
I think the problem arises primarily in relationships where one party is pushing D&S a little harder than the other really wants it. It happens a lot, and the less-willing partner often acquiesces to things they don't particularly want to do out of either a wish to please their partner, to stop their partner bitching and whining about it, or sometimes, out of fear of their partner. While they may have given consent - reluctantly - to some form of edge play, it is still possible to later decide that, not only do you not want to do it in future, but you never wanted to do it in the first place.
The moral of the story, kiddies, is don't give reluctant consent, and don't pressure your partner into something that really makes them uncomfortable.
@3 - I'd think that any sex act which, by its very nature, requires permanent and significant physical damage could probably qualify as something no one of sound mind would consent to, and thus warrant legal protection from. So: castration, amputation, etc. ... out. But whips, spanking, and minor choking? Only temporarily damaging, or mildly damaging, at worst. Occasional mishaps may cause serious injury, of course, but you could say the same of any physical activity.
@5,
Choking that causes unconsciousness is not minor. Unconsciousness can quickly turn into not breathing can quickly turn to death.
And actually I find it kind of disturbing that the guy choked his wife into unconsciousness and, rather than taking special care that she's ok, he instead shoves a dildo up her ass. Um, ok. I'll admit that I'm not into the whole BDSM thing, but that strikes me as seriously fucked up.
Well, @6, that's why I didn't say "minor choking to unconsciousness". But even though choking to unconsciousness is a really bad idea, I'd still think a person of sound mind could consent to it, much as they could consent to, say, backcountry skiing.
Or, rather, I should say that I don't find any excuse to say a person couldn't plausibly consent to being choked.
Ah, consenting to choking into unconsciousness. Yup, there really are people out there who are into this. Not many, but they're out there.
@5 - Your "permanent and significant physical damage" criteria is what I was using in the back of my mind as a place to draw the line. I think the risks of permanent and significant physical damage involved in choking someone into unconsciousness are pretty high, so that's why I think it's close to the line.
It's hard to say, though, since castration/amputation definitely causes damage, whereas there's only a risk of it with choking to unconsciousness (albeit a high one).
So, what does this say about body modification? Scarification? Implanting little nubblies under the skin?
How about boxing? It's okay for me to say it's okay for you to smash me in the face with your fist but only as long as we aren't getting off on it?
I believe former Prime Minister Pierre Eliott Trudeau said it best:
“The state has no business in the bedrooms of the nation.”
Sounds like someone needs to go to Canada, get a piercing, then sue the piercing studio.
Better yet, someone should sue their parents for taking them to get their ears pierced when they were 12.
Lame. One of the best BDSM weekends I ever had was in a hotel room in Vancouver with my girlfriend. Lots of hot, hot kinky sex. Although we're not into breath play. I do, however, know people who like to get choked out.
I thought Canada was cooler than that.. but it does seem that they are getting infected by stuffy Puritan values of late.
@1 I wonder why there is a distinction between consent to sexual violence and sports violence.
Because people are uptight about sex.
Oh, and the gender thing: people don't mind if two men or two women smash the bejeezus out of each other (much), but the gender asymmetricality of sexual violence can be off-putting to closed-minded nosy-parkers.
@4 True dat, I totally agree. Don't get pushed into "consent". "You'll do it if you love me" is a manipulation to resist.
@5 What about scarring and piercing during sex play? In or out according to your rules?
One of the troubling aspects of this story is the definition of "consent". The only people who can't give "consent" are those who are under the age of majority, mentally challenged, or under the influence of a mind-altering substance, such as alcohol. Everyone else can "consent" to whatever they wish. There are so many areas in life where we consent to acts that invite bodily harm. Motorcycle riders, smokers, those involved in any kind of "extreme" sport - what's the difference? I agree that the government needs to stay out of my bedroom, until I clearly and unequivocally state that I did NOT consent to something that was done to me.
Lovingly,
Inara
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