Getting spanked by the law: BDSM sexual practices continue to hover in a legal grey area

JULIA HUNTER
The Martlet (University of Victoria)

Unfortunately "the man's" handcuffs aren't this much fun.

VICTORIA (CUP) — “Consent is a critical tool in western legal traditions,” says the University of Victoria’s own Dr. Maneesha Deckha in her article “Pain, Pleasure and Consenting Women.”

However, BDSM (Bondage, Discipline, Dominance, Submission, Sadomasochism) sexual practices hover in a legal grey area where the law states that people cannot consent to physical harm unless it’s in the context of “socially useful activities.” Acceptable activities have been recognized by Canadian common law as sporting activities, body piercings and tattoos, surgical interventions, and stunts. S/M sexual practices, in the eyes of the Canadian Court, do not fit the bill.

Pat Califia, gender outlaw, sexual anarchist, and revered LGBTQ writer and activist, writes that it’s hard to talk about sadomasochism in feminist terms because some of the slang S/M people use to talk about their sexuality is characterized by words like ‘roles,’ ‘masochism,’ ‘bondage,’ ‘dominance’ and ‘submission.’

In an anti-S/M feminist context, these meanings differ greatly from their significance to S/M folks. Califia also argues that the mass media, clinical psychology, and the anti-pornography movement have sullied the term “sadomasochism” and that minority sexual behavior has been distorted throughout time.

Because media usually depicts BDSM as violent or dangerous, people without a lot of exposure to kink may not think there is much difference between rape culture and bondage enthusiasts. The 1987 British Spanner trials, for example, convicted a group of gay men for assault occasioning bodily harm for their involvement with S/M practices. The courts ruled that consent was not a valid defense.

Dr. Georgia Sitara, sessional lecturer in the women’s studies and history departments at UVic, states that the law, in the case of the British Spanner trials, ignored some of the key elements of S/M like safe words that ensure the safety of participants.

“In the case of the law,” Sitara affirms, “consent is immaterial and irrelevant.”

With particular regard to BDSM practices, the state can take the position that it is in its mandate to protect citizens from bodily harm, and inflicting bodily harm is illegal.

Sitara also advances the argument of Ummni Khan, who worked on the Bedford case in Ontario, where police raided an S/M dungeon in residential Toronto. Khan suggests that the state has monopoly on humiliation and degradation.

“The police were very brutal with the women,” Khan relayed, “The women were strip searched, and the police demanded demonstrations.”

Sitara also suggests that there is a heterosexual privileging that occurs within the courts and that sentencing is often harder on queer S/M practitioners. The Spanner Trials of the UK are a reflection of this. Where men in play parties who practiced S/M in the privacy of their own homes were sent to trial after a homemade video fell into the wrong hands, the dominants were charged with assault, and according to scholar Chris White, the men who participated as submissives were convicted of aiding and abetting assaults upon themselves. On the other hand, the court of appeal argued during another case that a married heterosexual couple in which the husband branded his initials onto his wife’s buttocks, with her consent, was not a matter of criminal prosecution.

Califia argues that BDSM is not a form of sexual assault but a consensual activity that involves polarized roles and intense sensations. A scene is always preceded by a negotiation between the participants — who will play which roles, what activities are likely to occur or not occur, and how long the scenes will last. According to Califia, the key word to understanding BDSM is fantasy. S/M culture is a theatre in which sexual dramas can be acted out and appreciated.

Good BDSM requires the same qualities as every other good relationship — trust, honesty, safety, risk-taking, creativity, personal growth, mutual respect and affection.

Pain and pleasure are both subjective experiences and depending on the context it may frighten you, anger you, urge you on or get you hot. And for S/M practitioners, it is all about the pleasure, baby.


Photo: Tess Forsyth/The Martlet