Two very different narratives are circulating about the once-mostly-loved, now-mostly-condemned former CBC host Jian Ghomeshi. They describe a he said/she said scenario – or more accurately, he said/they said. As of this writing, I have read reports of 10 people alleging violence through various media and social networking outlets. Police are now investigating.
On the “they said” side, women and one man attest to being victims of a disturbing array of nonconsensual acts of violence and harassment (sexual and otherwise) at the hands of Ghomeshi. If true, he is a serial assaulter who has abused his positions of power and influence to commit serious crimes with impunity.
On the “he said” side, Ghomeshi claims in a Facebook posting that he has only engaged in consensual BDSM activity. He further suggests in a statement of claim that the CBC was prepared to accept that his private activities had been consensual, but nevertheless fired him simply because of his interest in and association with BDSM. If Ghomeshi maintains this position in a grievance or other legal proceedings, questions of human rights and freedoms may be raised.
Is BDSM a Sexual Orientation? In Canada, at the federal, provincial and territorial levels, we have human rights laws that prohibit discrimination on the basis of certain listed grounds, such as gender, race, disability, and significantly for Ghomeshi, sexual orientation. Traditionally, sexual orientation has referred to being, or being perceived to be, gay, lesbian or bisexual. However, a ground-breaking human rights case from British Columbia (Hayes v. Vancouver Police 2010) leaves open the possibility that the term could be read more broadly to also prohibit discrimination based on the practice of BDSM.
In 2005, Mr. Hayes filed a human rights complaint on the basis of sexual orientation, alleging the Vancouver Police denied him a chauffeur’s license, in part, because of his BDSM identity. While the respondent made a preliminary attempt to have the case dismissed on the grounds that BDSM was not a ‘sexual orientation’, the B.C. Human Rights Tribunal found that the issue was not obvious, and could only be decided after hearing all the evidence on the subject at a full hearing. Both the B.C. Supreme Court and Court of Appeal upheld that ruling.
The B.C. Tribunal eventually issued its final decision in 2010, dismissing Mr. Hayes’ complaint. However, its conclusion was based on issues of evidence and credibility, rather than the scope of the protection provided by the ground of ‘sexual orientation’. Indeed, in that regard, the Tribunal stated that, “For the purposes of our decision, we have assumed, without deciding, that BDSM could constitute a ‘sexual orientation’ protected by the Code.”
A fence-sitting decision of this kind is not a binding precedent, and different outcomes could be reached by other human rights decision-makers. However, at a minimum, the case lays a foundation for future arguments that basing employment decisions on private BDSM activities may reflect negative prejudices and stereotyping about kink practitioners, and be a violation of protected human rights.
Of course, bearing in mind the number and nature of the allegations that have come forth over the past week, Ghomeshi’s self-portrayal as a victim of BDSM prejudice seems at first glance to be disingenuous and opportunistic. If this is the case, then he has misappropriated a BDSM identity to camouflage serious nonconsensual violence. Furthermore, his strategy actually risks further entrenching stigma and prejudice against those who practice fully consensual (and therefore genuine) BDSM, by associating them in the popular imagination with predatory violence, harassment and exploitation. The Public’s Rejection of Ghomeshi’s BDSM alibi
When you are connected to a community that is subject to stereotyping, it is always worrisome when someone claiming membership in that community is said to have committed heinous acts that reinforce those stereotypes. Such is the case with the BDSM community and Jian Ghomeshi.
However, the good news is that, despite Ghomeshi’s plunge into infamy, it does not appear that kinksters have been dragged down with him. For the most part, it appears that commentators and the public have been able to separate consensual BDSM from non-consensual violence. This, along with Ghomeshi’s approach of seeking sympathy as an alleged kinky practitioner, reflects – at least to some extent — how far BDSM tolerance has advanced in the public imaginary.
In this regard, Ghomeshi claimed that his consensual BDSM activities were the sole basis upon which the CBC fired him. In making this claim, he suggests two things: one) that kinky people are subject to stigma and discrimination; and two) that his readers would sympathize with the cause of sexual freedom to engage in consensual acts.
The persuasiveness of this narrative is a cultural sign of the times. As Andrea Zanin’s nuanced blog on the topic states, “It says something about the success of the BDSM/kink/leather community’s public education work of the last decade-plus that Ghomeshi would take the gamble that the “it was consensual kink” argument would outweigh the “you’re a filthy pervert” reaction in the court of public opinion. In a sense, this is a major triumph for us pervs.” (https://sexgeek.wordpress.com/about/ October 27, 2014). It also says something about the normalization of certain kinds of BDSM in the cultural arena. For example, the film Secretary, and more recently Rihanna’s #1 song S&M and the Fifty Shades trilogy, have all contributed to the intelligibility of the BDSM subject as non-pathological, acceptable and even desirable.
Indeed, Ghomeshi’s Facebook post capitalizes on the mainstreaming of kink by comparing his sexual activities to those portrayed in Fifty Shades of Grey, and – demonstrating his high culture credentials — providing an oblique reference to Lynn Coady’s Giller Prize-winning collection Hellgoing (apparently, in specific relation to a short story entitled “An Otherworld”). In his Statement of Claim, Ghomeshi further cites Pierre Trudeau’s famous words, “There is no place for the state in the bedroom of the nation”, drawing a link between historic discrimination against gays and lesbians, and his own supposed oppression.
Ghomeshi thus painted a dramatic picture of himself as a victim of kink-phobia, a sexual dissident, and a roguish character in a spicy story – a strategy that initially had some success, based on the number of supportive comments posted to his Facebook page. However, as numerous allegations subsequently came forward, asserting that he had in fact committed non-consensual, non-negotiated acts of violence and harassment, the court of public opinion appeared to reject his BDSM alibi.
What is promising in all this is that the major papers, along with incisive blogs like the one cited by Andrea Zanin, have for the most part refused to throw BDSM out with the dirty bathwater. Indeed, Ghomeshi’s story has spurred numerous articles that seek to dispel misconceptions about BDSM, and define its dynamics. These pieces make clear that genuine BDSM is about negotiated and mutually desired activity, and does not involve surprise attacks.
They refer to the use of a “safe signal”, an agreed-upon word or gesture that will halt the activity. They explain how the “bottom” or “submissive” is the one who is truly in control, despite outward appearances. They emphasize that consent is the crux of all BDSM play. While some feared that Ghomeshi’s kink-identification strategy would tarnish the community, it may have actually had the reverse effect; it created an opportunity for public discourse on the difference between BDSM and assault.
Employment Discrimination and Defamation
Despite this promising turn of events, it is important to note that there are other cases where an interest in BDSM has been taken as a sign of deviancy and incompetence. Take the example of RCMP Corporal Jim Brown, who posted consensual BDSM photos on Fetlife, a social media site for kinksters, where the content is restricted to members who agree to its privacy terms. When the photos went public in 2012, Corporal Brown was put on administrative duties, underwent a Code of Conduct Investigation, and was subjected to a public smearing by high-profile commentators who suggested he was a twisted deviant and unfit to do his job. One prominent lawyer even suggested in a blog that Corporal Brown, who had been involved in the investigation of Robert Pickton, might somehow have been personally linked with the killer. Within the logic of this moral panic, an interest in BDSM was enough to connect someone to the most horrifying serial murderer in recent Canadian history. Corporal Brown is suing for defamation, rightfully so in my opinion.
And it is not just men who are subject to such discrimination. A witch-hunt has been launched against Justice Lori Douglas for posing in racy sexual pictures, some involving bondage, that her husband then posted on the Internet. She was further accused of sexual harassment in relation to the photos. The Canadian Judicial Council ordered a review panel that has been ongoing since 2011. In October of this year, the review panel dismissed the sexual harassment complaint, yet the case is proceeding because, it is maintained, “The photos could be seen as inherently contrary to the image and concept of integrity of the judiciary”, and “The confidence of individuals appearing before the judge, or of the public in its justice system, could be undermined.” In other words, discriminatory attitudes towards kink may be sufficient to justify removal from office.
Employment discrimination is just one area of life where BDSM associated people are vulnerable. There are child custody cases where a parent loses all or most access to her child because she practices BDSM. There are pornography cases where possessing, creating or importing BDSM material deemed “violent” or “degrading and dehumanizing” by the police or border officials will result in an obscenity charge or censorship. There are professional dominatrices who have been criminalized by Canada’s harmful prostitution-related laws. And of course, as discussed below, practitioners who engage in more “edgy” consensual play, such as that involving skin piercing, bruising, breath control or erotic asphyxiation, can still be caught by assault-related provisions.
The Kink You Can’t Consent To
The Supreme Court of Canada has set down limits about what kinds of forceful interactions are allowable. Whether a fistfight in a bar, or a whipping in the bedroom, any activity resulting in physical interference or injury that is more than “transient and trifling” will support a charge of assault causing bodily harm – regardless of whether the participants consented to the activity.
So what’s the worry? As Brenda Cossman states in her insightful article on the relevant law, “This is pretty problematic from the perspective of the BDSM community. Carefully negotiated consent is rendered irrelevant, and effectively criminalizes all those who derive sexual pleasure from activities that involve physical pain, if it leaves a mark.” (October 27, 2014; Globe and Mail http://www.theglobeandmail.com/globe-debate/the-ghomeshi-question-the-law-and-consent/article21315629/)
While those who champion the cause of sexual freedom will thus object to this limit on consent, there are policy arguments that may support it. A leading case is R. v. Welch, a 1995 decision of the Ontario Court of Appeal. In that case, the accused claimed consent, but the complainant maintained throughout that she never consented to the activities, which involved restraint, hitting, and aggressive penetration of the vagina and rectum. From the complainant’s perspective, this had nothing to do with kink; this was a violent sexual assault.
While non-consent is often difficult to prove in sexual assault cases, the trial judge here instructed the jury that the defence of consent could not apply in light of the nature of the activities, and the defendant was convicted. The Court of Appeal upheld the trial judge’s jury instruction and the jury’s verdict. Based on this case, some scholars and activists have suggested that removing the defence of consent in cases involving bodily harm properly prioritizes the rights of victims of violent sexual assault.
If we bring this back to Ghomeshi, this perspective arguably has some traction. Media reports suggest that at least some alleged victims were reluctant to come forward because they had initially expressed some willingness to engage in fantasy role-play, and feared this would be used as evidence of consent to the greater levels of violence they later claim to have experienced. Such fears are reasonable when we take into account the larger societal culture of victim-blaming and slut-shaming, the stringent “beyond a reasonable doubt” standard in criminal courtrooms, and low conviction rates in sexual assault cases, particularly where the parties involved were dating.
However, the media has reported that an internal CBC memo says Ghomeshi was fired because of “graphic evidence that Jian had caused physical injury to a woman.” We don’t know yet what Ghomeshi has to say about that evidence. On the approach outlined above, this evidence could be sufficient to negate any possibility of a consent-based defence. If the evidence was adduced at trial, and a judge accepted that Ghomeshi had in fact caused the graphic injuries depicted, all the elements of assault causing bodily harm would be present, with or without consent.
Many might view this legal approach as progressive, because it spares the victims from being interrogated about their non-consent, and the Crown from having to meet the onerous reasonable doubt standard on that challenging question. As for BDSM’ers who might injure one another in the course of consensual activities, the response is: so long as no one complains, the more ‘extreme’ SM play will never come to the attention of the police or before a judge – so they have nothing to worry about.
In my view, this is overly simplistic. There are still things to worry about. Even without a complainant, police can come across consensual activity causing injury in a variety of ways. For example, the police may stumble upon evidence of BDSM activities in the course of another investigation; photos or videos of consensual activities can fall into the wrong hands and be given to the police; or a neighbour complaining about noises can bring the police to one’s door. Additionally, in certain circumstances, medical practitioners who treat persons for injuries received during consensual BDSM activity may feel compelled to report such injuries to the police.
A further issue to note is that the judicial discourse in this area has not limited itself to policy analysis, but has also slipped into dangerous moralizing. For example, the Court of Appeal judge in the Welch decision states, “the consent of the complainant, assuming it was given, cannot detract from the inherently degrading and dehumanizing nature of the conduct.” In the more recent R v JA decision at trial (2008), the judge determined that the complainant “was not legally capable of consenting to the sexual degrading acts that occurred to her.” The buzz words of “degrading” and “dehumanizing” make a moral judgement about the “inherent” badness of the activities, which can lead to further stigmatization of those associated with kink in a wide variety of legal and regulatory arenas.
At the end of the day, the question of how best to balance the denunciation of violent assault with the freedoms of sexual minorities is a complicated one, particularly given larger structures of gender inequality, erotic hierarchy and the prevalence of sexual assault and harassment. There are no obvious or easy answers. Regardless of which side finds more favour, I do feel it is worthwhile to emphasize that each policy choice or advocacy approach carries with it both dangers and opportunities.
This blog was first published on November 11, 2014 on the University of Toronto Press website, here.
