The Changing Interpretation of Consent in Canadian Judicial Decisions Within BDSM Sexual Assault Cases

Abstract

The current study examines judicial discourse about BDSM activities within decisions rendered in Canada during the past 20 years. A recent uprise in popular culture representation has resulted in a greater uptake of Bondage / Discipline / Dominance / Submission / Sadism / Masochism (BDSM) in the sexual lives of Canadians. Little research to date has been completed to analyze the implications that the uprise may have on the legal system when BDSM cases are presented. In particular, the legal system is being tasked with interpreting many different consent standards through the narrow affirmative-based definition found under Section 273.1 (1). The current study employed a qualitative analysis of all Canadian criminal court cases and appeals available in legal software that dealt with the issues of consent and BDSM (n=23) over a 20-year time frame. The study found that judges must interpret 4 different types of consent found within sexual relationships: affirmative consent, advanced consent to unconscious acts, consent to bodily harm and mistaken consent. Finally, the current study found that the way judges interpreted BDSM consent standards reflects a wider shift in governance from legal moralist thinking to a neoliberal paternalist governance.