"The things that seem beautiful, inspiring, and life-affirming to me seem ugly, hateful and ludicrous to most other people. This may be the most painful part of being a sadomasochist: this experience of radical difference, separation at the root of perception. Our culture insists on sexual uniformity and does not acknowledge any neutral differences — only crimes, sins, diseases, and mistakes.”1
Written almost thirty years ago, Pat Califia’s diagnosis of society’s sexual chauvinism still applies in Canada to the more hardcore forms of BDSM (Bondage-Discipline-Sado-Masochism, referred to broadly as “kink”), in practice and in pornography. While there are no laws that explicitly target BDSM activities or representation, Canadian courts have concluded that sex deemed too risky or rough can be criminalized under assault-related provisions,2 and sexual representation that is deemed “violent”, “degrading” or “dehumanizing” can be criminalized under obscenity provisions.3 In both cases, consent to the activities does not immunize the practice or the porn from criminalization. The ostensible explanation for this interference with our sexual autonomy is harm reduction. And yet our culture tolerates a wide variety of risky and injurious non-sexual activities, from mixed martial arts to elective cosmetic surgery, while circulating a wide variety of brutal imagery and violent stories, from extreme horror films to depictions of genuine torture and killing.
What might account for this hypocrisy?
I’m going to suggest that the answer lies in our society’s paradoxical relationship to sex.
On the one hand, our society views sexual activity as special, requiring specific regulations and moral codes – an ideology that scholars have identified as sexual exceptionalism. On the other hand, sexual pleasure holds negligible worth within our culture’s value-system, while sexual desire is often seen as a dangerous force – an ideology scholars have identified as sex negativity. Furthermore, feminist concern regarding violence against women and sexual objectification has unfortunately been used to effectively advance kink-phobia in our laws. This article analyzes how these intertwining ideologies -- sexual exceptionalism, sex negativity, and certain branches of feminism -- have allowed judges to single out the risks and harms of BDSM, while ignoring the pleasure interests of kinky practitioners and porn viewers. In the course of my analysis, I will review three key areas that impact BDSM rights -- rough sex, advance consent to sex while unconscious, and kinky porn -- and compare the indicted activities to analogous non-sexual activities and representations.
Sexual Exceptionalism
Sex is seen as exceptional by law and society. From a conservative religious standpoint, married heterosexual couples should be the only ones entitled to sex, and in some faiths, only for the purposes of reproduction. Although secular society may have left such explicit strictures behind, sexuality is still seen as a rule-bound, morally-fraught activity. We can observe this in the concept of “virginity,” which suggests a fundamental ontological (and usually heterosexist) difference between those who have and have not had sexual intercourse.4 Furthermore, sexual exclusivity is constructed as the highest expression of romantic love -- it is what it means to be “true”, “committed”, and “faithful” to one’s partner. From a legal standpoint, sexual assault has been targeted as a particularly heinous crime, and carries with it a more severe maximum penalty than non-sexual assault.5 Accordingly, sexual harms are viewed as more traumatizing and qualitatively different than other types of harms, because of their putative political, symbolic, psychic or physiological effects.6
Sex Negativity
While the right kind of sex (monogamous, marital, in-the-home, in-love...) is sanctified, sex in general is regarded with suspicion in our society; it carries with it a contaminating and corrosive force, unless purified by a higher purpose. Take the example of our current criminalization of sex work, which combines sexual exceptionalism with sex negativity. First, while we can purchase intimate services like child care, cleaning, massage and pubic hair waxing, buying sexual services is a crime. Our current laws, and some branches of feminism, cast all sex workers as victims who are being violated and degraded with every transaction.7 Regardless of any claims by sex workers to agency, job satisfaction or pragmatic choice,8 their non-sentimental relationship to sex is unintelligible, evidence of coercion or false consciousness. Meanwhile, sex trade clients, who have the audacity to pay for sexual satisfaction without relational strings, have become a new category of criminal deviants, with some anti-prostitution extremists even analogizing them to rapists.9 Another example of sex negativity is reflected in the current moral panic regarding youth ‘hook-up’ culture and sexting.10 Young people who openly engage in casual sex without the expectation or even desire that it will lead to a relationship, or who share explicit sexual images for the pleasures of flirtation and exhibitionism, are seen to be engaging in inherently risky, self-objectifying and damaging activities. Sex for the sake of pragmatics or pleasure is thus viewed as inescapably problematic and, in some cases, justifiably criminalized.
There have been some important challenges to sexual exceptionalism and negativity, both socially and legally. In broader culture, swingers, self-identified ‘sluts’, and polyamorous-identified people challenge the idea that sexual activities should be the exclusive property of committed romantic couples, or that casual sex is an intrinsically harmful practice. Legal theorists have also pointed out some of the unintended consequences of treating rape as the worst form of violence, and characterizing sexual harm as an ineradicable psychic trauma. For example, Janet Halley argues that by treating rape as a violation that ‘changes you forever’, we instruct survivors to, in fact, never recover.11 Finally, sex workers refuse to be objectified as brainwashed victims, demanding labour rights and empirically demonstrating that criminal laws based on sex negativity and sexual exceptionalism increase their risk of violence and social stigmatization.12
Rough Sex
Like sex workers, BDSM practitioners are also subject to protectionist laws that deny their agency and ignore their stated interests. The leading Canadian case that addresses the criminality of hardcore BDSM is the 1995 Ontario Court of Appeal decision, R. v. Welch, [1995] OJ No 2859, 101 CCC (3d) 216 (ONCA).13 The facts involve restraint, hitting, and penetration of the vagina and anus, which caused extensive bruising and some rectal bleeding. It is important to note that while the accused claimed all activities were consensual, the complainant maintained they were completely not. Thus the nature of the activities -- whether it was consensual BDSM, or unmitigated sexual assault -- was factually contested. However, the answer to that factual question was ultimately irrelevant. This was because, as a matter of law, the trial judge instructed the jury that, “consent is no answer to a charge of sexual assault causing bodily harm, when actual bodily harm is objectively foreseeable and caused.”14 The Court of Appeal agreed. Writing for the Court, Justice Griffiths cited R v Jobidon, [1991] 2 SCR 714,15 the precedent-setting case that established consent is not a defence to the infliction of bodily injury in the context of a fistfight, and found that the same rule should apply in the context of consensual sexual activity. At the same time, he distinguished sex that causes bodily injury from other socially-sanctioned activities that can also cause injury, like rough sports.
Justice Griffiths justifies this approach through sex negative and sexual exceptionalist reasoning. First, he essentializes the meaning of injurious BDSM sex by positing that consent will not erase “the inherently degrading and dehumanizing nature of the conduct.”16 The terms “degrading” and “dehumanizing” wield rhetorical power, but they are entirely subjective and morally-laden. First, the judicial use of these terms assumes their pejorative nature. But for submissive BDSM practitioners, feeling degraded and dehumanized may actually be the point of the sexual encounter; it’s precisely what makes them hot and happy. As for dominant BDSM practitioners, providing degrading and dehumanizing treatment that is wanted and enjoyed will be what satisfies them. But even if we assume that these words, by definition, convey unwanted experiences, what is degrading and dehumanizing to you may be empowering and dignifying for a sadomasochist. Unfortunately, because of our prevailing sexual ideology, the law does not feel compelled to protect and foster such diverse erotic pleasures.
Furthermore, pleasures that deviate from the norm are rendered not only worthless, but dangerous. The judicial disregard of sexual rights is accordingly justified by claiming there are “compelling societal interests” that trump autonomy. The exact interests at stake are never fully articulated, except for a vague inflammatory claim that if we allow hardcore BDSM, we might end up in a society of “would-be sadists.” Here Justice Griffiths betrays his ignorance of BDSM, assuming that dominants are equivalent to non-consensual sadists, and that a person who derives “sexual gratification” from bestowing desired pain would also derive pleasure from meting out unwanted pain. Furthermore, if Justice Griffiths actually meant consent-respecting dominants when he refers to “would-be sadists,” then he suggests that BDSM desires are alluring, maybe even contagious. He wants to prevent “normal” people from being contaminated by BDSM, and he’s willing to use the heavy hand of the law to do so.
It is conspicuous that this use of the criminal law to prevent people from bodily harm does not apply to sporting activities. A closer consideration suggests that sex negativity and exceptionalism are at the source of the distinction, not an empirical evaluation of the relative risks. For example, a meta-analytic review of mixed martial arts injuries found that 66.8%-78.0% of practitioners suffer head injuries, associated with concussions and degeneration in brain structures.17 If we turn to a more “civilized” sport, like horseback riding, a study in British Columbia found that on average, three people die a year in that province alone due to equestrian activities.18 These sporting acts are legal, even though there is evidence of substantial risk of serious injury or even death. Meanwhile, BDSM that causes relatively minor bodily harm is criminalized, in the absence of any documentation of the epidemiological risks of kink, or the number of serious injuries that ensue. While the Welch decision does not elaborate on why this would be so, it does cite R v Brown, [1993] 2 All ER 75 (UK High Crt), a British House of Lords decision which, in its full reasoning, differentiated boxing from BDSM. The former was celebrated as a “manly” pursuit, while the latter was condemned as “perverted” and “depraved.”19 Thus we see that society tolerates bodily injury incurred in the service of upholding dominant gender norms, but not bodily injury incurred in the pursuit of sexual pleasure.
Risky Sex
In R v JA, 2011 SCC 28, the SCC further circumscribed the sexual freedom of hardcore BDSM practitioners by disallowing advance consent to sex while unconscious. At trial, K.D. gave uncontested evidence that she and the accused, J.A., had engaged in erotic asphyxiation, with J.A. strangling K.D. until she lost consciousness for a few minutes, during which time J.A. inserted a dildo into her anus. K.D. maintained throughout the trial that she had consented to all aspects of these activities. However, the background facts are messy, as the couple had a history of domestic violence, along with their history of consensual kink. Furthermore, K.D. had previously given a contrary statement to the police, telling them the sex while unconscious had not been consensual. Feminist commentators have invariably been convinced that K.D. must have lied on the stand with regard to her consent to the anal insertion because she is cast as a “battered woman”.20 While I have argued there is some evidence that would support the truthfulness of K.D.’s trial testimony,21 for the purposes of this discussion, it is important to focus on the legal question, as this “hard case” has created “bad law” across the board. Indeed, at the Supreme Court of Canada level, the only issue was the legal question: can one ever provide legally valid consent to sexual activity expected to occur during a period of unconsciousness?
The majority decision answered “no,” and thus inscribed a prohibition that now applies not only to a hardcore kinkster trained in breathplay, but equally to a sleeping spouse who kisses her beloved awake. The majority rationalized this interference with sexual autonomy in large part because of the perceived risks involved. In particular, the majority was concerned with the risk that the conscious partner will purposefully or mistakenly deviate from the agreed-upon activities, during a time when the unconscious partner will be unable to monitor compliance. This ruling exemplifies paternalism and a sex negativity that understands that protection from the risk of sexual assault is more important than freedom to engage in desired sexual activities. Furthermore, it should be noted that for many kinky people, risk itself is erotic. The lover who is to be rendered temporarily unconscious may be aroused by the anticipation, and even the fear, of the impending unconsciousness, and/or the thrill of regaining consciousness in the midst of a sexual sequence. Risk and danger may thus be at the heart of the erotic exchange, and an integral part of the kink. But because sexual pleasure is the only interest being trampled, the Court does not even acknowledge the erotic liberty cost to its ruling.
Furthermore, it is important to mention that choosing which risks to single out as legally intolerable, and which to accept as part of life, reflects sexual morality, not empirical fact.22 For example, the law allows patients to consent to unconsciousness with their doctor without a chaperone despite the fact that the medical community has identified doctor perpetrated sexual abuse of patients as a serious problem that plagues the profession.23 A recent example is a former New York physician facing criminal charges for sexually abusing four patients, including one he is alleged to have overly sedated before ejaculating on her face.24 Another high-profile case involves a Toronto anesthesiologist who was sentenced to ten years in prison for sedating and then sexually abusing 21 patients.25 A recent article published in the Annals of Internal Medicine discloses more information about everyday sexual misconduct and demeaning treatment perpetrated by doctors on unconscious patients.26
We can therefore see that the risks involved for patients undergoing sedation are similar to those the Supreme Court flagged in the context of BDSM breathplay. In both cases, the doctor or the conscious BDSM lover might sexually assault the patient or lover by not sticking to what has been consented to, be it a medical procedure or a specific sexual activity. Moreover, the patient or unconscious BDSM lover will be totally unaware of the violation unless they revive while the assault is ongoing, or notice physical evidence on their bodies after the fact. While one might argue that we must allow medical sedation for doctors to perform life-saving procedures, this, of course, makes a moral claim that prioritizes medical health over sexual freedom. But even if we concede that medically-necessary treatment must be allowed, why do we permit people to undergo sedation for elective cosmetic surgery, like jaw augmentation or breast enlargement, and thus risk sexual abuse by their doctors? The reason can only be that in our culture, vanity is a more legitimate excuse than sexual pleasure to consent to injury and risk complications, sexual abuse, and even death.27
I resent this sexual exceptionalist stance. Many of us place much greater trust in our lovers and spouses than we do in doctors. But under the current laws, we are not only prevented from engaging in planned unconscious sex after erotic breathplay, but we are not even allowed to provide advance consent to casual sexual contact while the other is asleep. While I suspect this law is violated on a regular basis across the bedrooms of the nation, the judicial interpretation that has criminalized a kiss on a sleeping lover demonstrates the sex negative ideology that pervades our caselaw.28
Many feminist commentators support the Welch and J.A. decisions, not because they are morally opposed to rough or risky BDSM, but because, from their perspectives, the trial judges arrived at the correct verdicts. As stated, in both cases, there is information to suggest that the complainants did not, in fact, consent. Accordingly, a legitimate concern is that if you allow the “rough sex” or “advance consent” defence, the Crown will have to prove lack of consent beyond a reasonable doubt, and it will be harder to secure a conviction. Under the current regime, if injuries are sustained, or if the sexual contact happens while one is unconscious, the Crown will not be burdened with having to prove non-consent. At the same time, the corresponding reductions to legal autonomy are rationalized on the notion that so long as no one complains to police, consensual rough or risky BDSM practitioners will have nothing to fear. However, I believe this pragmatic approach to the law does not adequately take into account all the different ways that consensual BDSM practitioners can come to the attention of the criminal justice system. For example, BDSM lovers might have consensual sex in public, they might make recordings that are discovered by third parties, or if they do require medical treatment, a doctor may report them to the police. Furthermore, as infrequent as it might be, not all complainants are always truthful. ‘Always believe’ may be a great slogan for activists, but it makes a terrible legal doctrine. Ultimately, this approach is vested in securing more convictions for sex offenders, no matter if a few BDSM practitioners get thrown under the bus to achieve this goal.
Kinky Text
Sexual autonomy encompasses not only the right to engage in kinky activity, but also to access representation that affirms and arouses us. Unfortunately, R v Butler, [1992] 1 SCR 452, the precedent-setting SCC decision that interprets the obscenity provisions, effectively deems BDSM text to be criminal. This is old law, but technically, it’s still good law. In this case, the Court relied on a “community standard of tolerance” test, which asks if the community would tolerate others accessing the material, based on whether it is perceived to cause harm. The Court determined that representation of sex with violence, or that is perceived to exploit sex in a “degrading or dehumanizing” manner, will generally be found prima facie obscene. Obliterating the line between sexual assault and BDSM, the decision specifically states that representation of consent to activities deemed degrading or dehumanizing will not only fail to save the text, but in fact may amplify its obscene nature. Examples that the decision gives of “degrading” and “dehumanizing” themes include explicit reference to BDSM sexuality, such as domination, submission and pleasure from pain, along with some more common pornographic (and real-life) events, like women joyfully swallowing semen. Casting such a wide net, it is not surprising that the case law after Butler regularly deemed stories, films and even music with kinky themes to be obscene.29
As many have noted, criminalizing representation based on an assertion that “the community would think this is harmful” is really just a rhetorical sleight of hand that replaces morality with harm.30 As the judges themselves admitted, there is no persuasive evidence to link porn with harm, nor any obligation for a trial judge to canvass what the “Canadian community” actually believes when determining if a text is obscene. Furthermore, if the perception is that violent text will desensitize the viewer, we must question why extreme horror films, dubbed ‘torture porn’ by aficionados, are not censored.31 Even more disturbing, many mainstream horror films use camera angles to induce the viewer to take on the perspective of the killer.32 The legality of such films demonstrates the sex negative perspective that the community is more accepting of entertainment that aims to titillate, shock or frighten, and even to invite identification with homicidal maniacs, than it is of material that aims to incite sexual arousal.
Sex negativity and exceptionalism also colour the “internal necessities” defence. Under that defence, a text that is otherwise sexually violent, degrading or dehumanizing can be saved, if it can be shown to have an artistic, literary or scientific purpose. But one might ask, why isn’t a masturbatory purpose a sufficient defence? The moralistic reason lies in the Supreme Court`s decision to contrast texts that have “serious” intent and merit, and those that represent “dirt for dirt’s sake.” The judicial metaphor is telling. Both the representation of hardcore sexuality, and the pleasure it affords, are denigrated as “dirt.” But if we understood sexual pleasure as a worthwhile right and a core aspect of our liberty, then a text that had arousal merit would be just as protected as one that has artistic merit.
It should be noted, however, that today, criminal obscenity convictions are rare, likely because the hypothesized link between porn and harm has been so thoroughly discredited. For example, the 2004 trial decision in R v Price, [2004] BCJ No 814 (BCPC),33 acknowledged that the internet affords access to an unprecedented amount of hardcore material, yet there has been no documented increase in sexual violence since the advent of online porn.34 There is also something absurd about targeting tangible pornography when anyone can access the same or ‘worse’ from any computer. Nonetheless, censorship of BDSM materials persists through Canada Customs seizures, as the two Supreme Court of Canada Little Sisters decisions show. Unfortunately, the cases also show a continued commitment to sex negativity and exceptionalism on the part of our highest Court. In the first decision, the gay and lesbian bookstore Little Sisters demonstrated that Canada Customs regularly seized BDSM texts headed to their store, even when the exact same books could safely arrive at mainstream bookstores, or were on the shelves at the Vancouver Public Library. While the Court acknowledged there had been discrimination at the implementation level, it largely upheld the underlying legal regime, and reaffirmed Butler as a precedent based on the harm principle. Writing for the majority, Justice Binnie further demonstrates kinkphobia, when he specifically singles out the portrayal of a dominatrix “degrading” a willing “sex slave” as dehumanizing and harmful, and thereby rightfully censored. In the second Little Sisters decision, the bookstore demonstrated overwhelming evidence that Canada Customs had continued its discriminatory targeting of Little Sisters, despite an earlier ruling that had ordered them to cease targeting gay and lesbian texts. The bookstore applied for an award of advance costs, to permit an appeal with respect to four books with queer BDSM themes deemed obscene by Canada Customs, and a systemic review of Customs’ practices.35 A majority of the Supreme Court ruled against Little Sisters, basically finding that censorship of gay and lesbian BDSM material was not a matter of sufficient public interest. The Supreme Court thus sent a message that freedom of expression, and equality rights of gays and lesbians, are less worthy of protection in cases flowing from censorship of material produced for the purposes of sexual pleasure. Unfortunately, it appears this discriminatory sex negative censorship continues to this day. A review of the “Quarterly List of Prohibited Materials” published by Canada Customs shows that BDSM books, comics and DVDs continue to be targeted and prohibited from entry.36
Feminist legal interventions in these debates have evolved. Back in the early 90s, the feminist advocacy organization LEAF was firmly wedded to an anti-porn position. Its factum for Butler provided much of the “harm” discourse adopted by the Supreme Court, whereby kinky material was argued to violate sex equality -- particularly if women were portrayed as enjoying sexual submission or force. The LEAF factum for Little Sisters modified this position, perhaps in light of growing evidence that Butler was being used to disproportionately censor gay and lesbian material. The factum essentially argued that lesbian pornography supplied a specific affirmation and visibility function for the lesbian community, so should not be censored. As stated, the Supreme Court was not convinced. Today it seems that for most feminists, the pornography debate has been shelved for other, more contentious issues, like sex work. But the legacy of feminist anti-porn discourse unfortunately continues to provide ammunition to the claim that suppression of explicit sexuality -- specifically kinky sexuality -- will advance the equality rights of women.37
Fifty Shades of Sexual Autonomy
The criminalization and censorship of rough sex, risky sex and kinky text exposes how moralism infects our jurisprudence. In each case, we see that the law tolerates comparable rough activities, risky procedures and violent texts, so long as sexual pleasure is not the primary goal. Furthermore, the pragmatic policy approach, which assumes existing criminal laws will not capture consensual rough and risky lovers in practice, is not only unprincipled, but does not accord with my experience. Since my book on BDSM in Canada was published in 201438, I have been contacted every few months by a lawyer trying to assist a kinky client who is facing employment sanctions, the loss of child custody, or criminal charges, all because of BDSM activity said to be consensual. Most of these cases will conclude without being reported in a legal database, either because the type of case is confidential, or because the civil matters settle, or the accused accepts a plea bargain. As a result, it is hard to track the true discriminatory impact of our current legal regime. We need to also realize that kinkphobic discourse has far-reaching consequences on our cultural imagery that go beyond the specific issues addressed in the case law. For example, we might consider how anti-BDSM sentiment contributed to the vicious and misogynistic persecution of former Manitoba Justice Lori Douglas, simply because she had posed for kinky pictures for her husband.39
While the reaction to that incident may demonstrate that sex negative ideology is pervasive in our culture, surely our laws should not serve to further entrench it. Instead, we need to recognize that sexual autonomy includes not just protection from violation, or equality on the basis of gay, lesbian and bisexual orientation, but freedom to explore different sexual practices, either directly or through pornography. As with sports, or elective surgery, we should be granted the right to choose our own levels of sexual risk and injury. As with extreme horror films, we should be granted the right to choose what sexual media to consume. Indeed, for many of us, sexual pleasure is just as important as sporting activities, artistic appreciation or intellectual advancement -- if not more so! And if this sexual pleasure appears degrading, dehumanizing, too risky, or too rough for you, as Califia stated in the opening quote, it may be “beautiful, inspiring, and life-affirming” for me. It’s time the law understood that there are many different shades of autonomy.
1 Patrick Califia, Macho Sluts: Erotic Fiction (Boston: Alyson Publications, 1988)
2 R v Welch, 1995 CanLII 282 (ON CA); R v JA, [2011] 2 SCR 440, 2011 SCC 28 (CanLII)
3 R v Butler, [1992] 1 SCR 452, 1992 CanLII 124 (SCC); Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 SCR 1120, 2000 SCC 69 (CanLII); Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), [2007] 1 SCR 38, 2007 SCC 2 (CanLII); Criminal Code R.S.C., 1985, c. C-46 s. 161
4 Hanne Blank, Virgin: The Untouched History, (Bloomsbury USA, 2007)
5 Criminal Code sections 266 (Assault) v. s. 271 (Sexual Assault)
6 Jessica Clarke, unpublished manuscript (on file with author).
7 Criminal Code sections 286 (1) (purchasing offence), 286 (2) (material benefit offense), 286 (4) (advertising offence), 286(5) (immunizes from criminal liability those who sell their own sexual services regarding the part they play in purchasing, material benefit, procuring and advertising offences), 213 (1)(c) (communicating offense); “Factum of the Intervener Women’s Coalition” (Ontario: Court of Appeal for Ontario, n.d.)
8 Leslie Ann Jeffrey and Gayle Macdonald, “‘It’s the Money, Honey’: The Economy of Sex Work in the Maritimes,” Canadian Review of Sociology/Revue Canadienne de Sociologie 43, no. 3 (August 2006): 313–27; Victoria Love et al., Selling Sex: Experience, Advocacy, and Research on Sex Work in Canada, Sexuality Studies Series (Vancouver: UBC Press, 2013).
9 Melissa Farley and Emily Butler, “Prostitution and Trafficking - Quick Facts,” Prostitution Research & Education, 2012; Melissa Farley et al., “Men Who Buy Sex Have Much in Common with Sexually Coercive Men, New Study Shows,” Prostitution Research & Education, 2015.
10 R. Danielle Egan, Becoming Sexual: A Critical Appraisal of the Sexualization of Girls (Malden, MA: Polity Press, 2013); Lara Karaian, “Lolita Speaks: ‘Sexting,’ Teenage Girls and the Law,” Crime, Media, Culture: An International Journal 8, no. 1 (April 2012): 57–73; Amy Adele Hasinoff, Sexting Panic: Rethinking Criminalization, Privacy, and Consent (University of Illinois Press, 2015).
11 Janet E. Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton, N.J: Princeton University Press, 2006).
12 Robyn Maynard, “Carceral Feminism: The Failure of Sex Work Prohibition,” Robyn Maynard, July 15, 2012; Native Youth Sexual Health Network, “Indigenous Peoples In the Sex Trade – Speaking For Ourselves,” INCITE! Blog, July 15, 2011; A. Krusi et al., “Criminalisation of Clients: Reproducing Vulnerabilities for Violence and Poor Health among Street-Based Sex Workers in Canada-a Qualitative Study,” BMJ OPEN 4, no. 6 (2014).
13 R v Welch, 1995 (ON CA); “Amnesty International Publishes Policy and Research on Protection of Sex Workers’ Rights,” Amnesty International, May 26, 2016.
14 R v Welch, 1995 citing trial judge instructions.
15 R v Jobidon, [1991] 2 S.C.R. 714, 1991 CanLII 77 (SCC).
16 Welch, 1995 at para 88.
17 Reidar P Lystad, Kobi Gregory, and Juno Wilson, “The Epidemiology of Injuries in Mixed Martial Arts: A Systematic Review and Meta-Analysis,” Orthopaedic Journal of Sports Medicine 2, no. 1 (January 2014).
18 J M Sorli, “Equestrian Injuries: A Five Year Review of Hospital Admissions in British Columbia, Canada,” Injury Prevention : Journal of the International Society for Child and Adolescent Injury Prevention 6, no. 1 (March 2000): 59–61; see also C. G. Ball, “Equestrian Injuries: Incidence, Injury Patterns, and Risk Factors for 10 Years of Major Traumatic Injuries,” Am J Surg 193, no. 5 (May 2007): 636–40.
19 R v Brown, [1992] 2 All E.R. 552 (U.K. High Court)
20 Karen Busby, “Every Breath You Take: Erotic Asphyxiation, Vengeful Wives, and Other Enduring Myths in Spousal Sexual Assault Prosecutions,” Canadian Journal of Women and the Law 24, no. 2 (2012): 328–58; Lise Gotell, “Governing Heterosexuality through Specific Consent: Interrogating the Governmental Effects of R. v J.A,” Canadian Journal of Women and the Law 24, no. 2 (2012): 359–88; Elaine Craig, “Capacity to Consent to Sexual Risk,” New Criminal Law Review 17, no. 1 (January 2014): 103–34; Jennifer Koshan, “Sexual Assault and Advance Consent: A Feminist Judgment in R v JA,” (forthcoming)
21 Ummni Khan, Vicarious Kinks: S/m in the Socio-Legal Imaginary (University of Toronto Press, 2014)
22 Mary Douglas, Risk and Blame: Essays in Cultural Theory (New York, London: Routledge, 1992).
23 Christine E Dehlendorf and Sidney M Wolfe, “Physicians Disciplined for Sex-Related Offenses,” JAMA 279, no. 23 (June 1998): 1883–88; Kevin Donovan, “Task force report on medical regulatory bodies kept secret over defamation concerns,” The Toronto Star, July 13, 2016; Laura Armstrong, “Ontario health minister to review secrecy involving doctors,” Toronto Star, October 10, 2014
24 James C. Mckinley Jr, “Former Mt. Sinai Doctor Charged With Sexually Abusing 4 Women,” The New York Times, March 24, 2016
25 Alyshah Hasham, “Dr. George Doodnaught Sentenced to 10 Years in Prison for Sex Assaults on Women during Surgery | Toronto Star,” The Toronto Star, February 25, 2014
26 Anonymous, “Our Family Secrets,” Annals of Internal Medicine 163, no. 4 (August 2015): 321, For example, a medical student recalls how he observed a doctor who rubbed the labia of an anesthetized patient with a cotton ball and then said, ‘I bet she’s enjoying this’ while winking and laughing. In order to address patient vulnerability, one patient advocacy organization dedicated to addressing medical sexual misconduct suggests, “If you are going to be put under anesthesia, you should insist that you have a family member or a friend present for your procedure to protect you. Patients who are under anesthesia are very vulnerable because they have no control over what happens. Many patients are unnecessarily stripped naked for surgeries. One female hand surgery patient had her gown and underwear removed after she was put under anesthesia. The only reason she found out was because she woke up in middle of the surgery.”
27 “Liposuction Danger -- Death,” MedicineNet, 2002; Dr. Nalini Chilkov, “25 Reasons Not To Get Breast Implants,” The Huffington Post, February 1, 2011
28 See, Joshua Sealy-Harrington, “Tied Hands? A Doctrinal and Policy Argument for the Validity of Advance Consent,” Canadian Criminal Law Review 18, no. 1 (March 2014): 119
29 See for example, R v Scythes, [1993] O.J. No. 537 (Ct. J. (Prov. Div.)) (QL); Glad Day Bookshop v Deputy Minister of National Revenue, [1992] O.J. No. 1466 (Ct. J. (General Div.)) (QL); R v Erotica Video Exchange Ltd.; R v Emery (1991), 4 O.R. (3d) 344 (Ct. J. (Prov. Div.); R v Emery, [1992] O.J. No. 640; 8 O.R. (3d) 60 (Gen. Div.).
30 Brenda Cossman, Bad Attitudes on Trial: Pornography, Feminism, and the Butler Decision (Toronto, Ont: University of Toronto Press, 1997); Leslie Green, “Pornographies,” Journal of Political Philosophy 8, no. 1 (March 2000): 27–52
31 Mark Trammell, “The Top 13 Torture Porn Flicks Actually Worth Seeing,” Film Equals, December 6, 2012; Prominent examples include: See Faces of Death (1978), Hostel (2005), The Human Centipede (2009)
32 See Bob Clark, Black Christmas, film (Warner Bros. Pictures, 1974); John Carpenter, Halloween, film (Sony Pictures Entertainment, 1978) and more recently Franck Khalfoun, Maniac, film (IFC Films, 2013).
33 R v Price, [2004] B.C.J. No. 814 (Prov. Ct.) (QL).
34 Statistics Canada, “Canada’s Crime Rate: Two Decades of Decline,” Statistics Canada, January 21, 2015; CBC News, “Police-Reported Crime Rate Falls to Lowest Level since 1969, Statistics Canada Says,” The Canadian Press, July 22, 2015; Sarah Boesveld, “Sexual Assaults on the Decline but Are Still Severely under-Reported: U.S. Study,” National Post, April 21, 2015; C. J. Ferguson and R. D. Hartley, “The Pleasure Is Momentary ... the Expense Damnable? The Influence of Pornography on Rape and Sexual Assault,” Aggression and Violent Behaviour 14, no. 5 (September 2009): 323–29
35 Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] 1 SCR 38, 2007 SCC 2
36 Canada Customs does not publicly publish the list, but one can get an email with the list. See, for example, Prohibited Importations Unit, HQ, “Quarterly List of Admissible and Prohibited Titles” (Canada Border Services Agency, 2011)
37 See for example, MP Joy Smith calling for a boycott of the film, Fifty Shades of Grey based on feminist objections to the film: Michael Woods et al., “Conservative MP Calls for Fifty Shades of Grey Boycott,” Ottawa Citizen, February 14, 2015.
39 Supra note 21.
40 Chinta Puxley, “Former Manitoba Judge Compares Disciplinary Hearing to ‘Torture,’” CBC News, January 5, 2016
Ummni Khan is an Associate Professor at Carleton University in the Department of Law and Legal Studies, and the Joint Chair of Women and Gender Studies at Carleton and the University of Ottawa. Her book, Vicarious Kinks: Sadomasochism in the Socio-Legal Imaginary, examines the regulation of BDSM in law and culture.