Rough sex that inflicts pain is a murky legal area that can still lead to assault convictions in Canada, say legal experts.
The legal boundaries around practices involving bondage, dominance, sadism and masochism, or BDSM, have become part of the public discussion since the CBC and radio star Jian Ghomeshi parted ways on Sunday.
The prominent radio show host has said he was fired because of his "sexual behaviour" and has written on social media that he engaged in adventurous forms of sex that included role-play, dominance and submission, along with "rough sex (forms of BDSM)." The activities were consensual and he and his partner used "safe words" words to signal when to stop the activity, he said. Ghomeshi's lawyers filed a lawsuit against the CBC.
The Toronto Star reported that it approached Ghomeshi with allegations from three women who say he was physically violent to them without their consent during sexual encounters or in the run-up to such encounters and that Ghomeshi — through his lawyer — responded that he "does not engage in non-consensual role play or sex and any suggestion of the contrary is defamatory." The Star reported none of the women filed police complaints.
There are not a lot of clear answers when it comes to forms of BDSM and the law.
Alan Young, a law professor at Osgoode Hall Law School at York University in Toronto, says existing legal precedents may allow prosecutions for BDSM-style sex — regardless of whether consent was received — if the courts think bodily harm occurred.
A 1991 Supreme Court of Canada decision held that consent isn't a defence for a criminal act of assault where one of the perpetrators intends and causes bodily harm, he added. That decision was in the context of consensual street brawls, Young explained, and the boundary line for what's considered bodily harm is still being interpreted.
"There have been cases of convictions for what might be called rough sex, but everything will turn on the facts because you have to know the intent of the accused and the extent of the injuries," he said.
Brenda Cossman, a professor of law at the University of Toronto, said the law in Canada hasn't clearly dealt with BDSM practices such as "safe words," which are used in rough sex where the submissive partner has a code word to indicate they wish to practice to stop.
"It's a very, very murky area," she said.
In 1995, the Ontario Court of Appeal applied the Supreme Court of Canada decision to a case of sexual assault causing bodily harm and upheld a conviction, despite consent.
"It could apply in a BDSM case," she said.
"If there were ... permanent scars left, I would say that would be something the courts might consider to be bodily harm. ... No matter how much the person is consenting to it, the courts can still say, 'That's not something you're allowed to consent to.' "
But she said the possibility of fresh legal interpretations remain.
Ottawa lawyer Howard Krongold argued one of the leading cases on the limits of consent in the Supreme Court of Canada in 2011.
The appeal involved a man accused of engaging in consensual sexual activity with his spouse, some of which occurred while she was unconscious. By a 6-3 majority, the Supreme Court held that her consent was not valid and upheld the accused's conviction.
Krongold said if he were advising a client, he would urge considerable caution on practices that might be seen to cause harm, in light of existing court decisions. ...
CBC's relationship with Jian Ghomeshi, host of the cultural affairs radio show Q, has ended, the network announced Sunday.
"The CBC is saddened to announce its relationship with Jian Ghomeshi has come to an end. This decision was not made without serious deliberation and careful consideration. Jian has made an immense contribution to the CBC and we wish him well," the network said in a statement.
CBC ended its relationship with Ghomeshi earlier on Sunday, said spokesman Chuck Thompson.
Late Sunday afternoon, Ghomeshi posted a lengthy message on his Facebook page in which he claimed that he was terminated by the broadcaster because of the risk of his "private sex life being made public as a result of a campaign of false allegations pursued by a jilted ex girlfriend and a freelance writer."
In the Facebook post, Ghomeshi details a relationship with a former girlfriend that apparently included "forms of BDSM," saying that he ended the relationship at the beginning of this year.
“After this, in the early spring there began a campaign of harassment, vengeance and demonization against me that would lead to months of anxiety.”
Ghomeshi said he has “always been interested in a wide variety of activities in the bedroom” but only those that are “mutually agreed upon” and “consensual.”
Ghomeshi said he was open with CBC about the matter because he wanted his bosses to be aware of the situation, but has "never believed it was anyone's business" what he does in his private affairs.
"CBC has been part of the team of friends and lawyers assembled to deal with this for months," he wrote. "On Thursday I voluntarily showed evidence that everything I have done has been consensual. I did this in good faith and because I know, as I have always known, that I have nothing to hide. This when the CBC decided to fire me."
Ghomeshi added that CBC executives told him "that this type of sexual behaviour was unbecoming of a prominent host on the CBC."
He also writes in the post that the CBC received no formal complaints or allegations. ...
As more people embrace their inner kinkster, doctors need to know the details to provide quality health care. This… can be complicated.
by Heather Boerner
Recently, Claire Conrad, 36, found herself trussed up in stirrups—and not in a fun way. Conrad was at the ob-gyn to check to see if, as the Maryland resident likes to put it, “My cervix is trying to kill me.”
She’d had an abnormal pap smear, and was getting a colposcopy to make sure it wasn’t cancer. In the process, Conrad, who asked that her real name not be used, was coming out to her ob-gyn as kinky. It was plain as the purple and black caning marks on her legs.
Conrad, you see, is in an open marriage and enjoys a little submission and a little pain with her sex.
When her doctor blurted out, “Oh! You are bruised,” Conrad figured it could have been worse. Still, she left the appointment with the clear sense that the staff would be gossiping about her after she’d gone. If she ever had a caning session that broke the skin and became infected, she said she’d think twice about going back to her doctor.
“That’s a tough one,” she said. “If I had been injured, I don’t think I would be comfortable with talking to my doctor about it. Even if I did, I don’t know if I would be honest about what happened.”
Conrad’s not alone. Preliminary research finds that fewer than half of all kinksters are out to their healthcare providers about their kinks—and that’s in the San Francisco Bay Area, a notoriously kink-friendly place. Among those that are out, almost everyone anticipated being stigmatized, prompting them to hide aspects of their behavior that could impact their health. And while the medical field has gotten better about understanding sexual minorities, there’s still a distance to go before kinksters like Conrad feel comfortable in medical offices around the country.
“Up until now, it’s been a don’t-ask-don’t-tell kind of situation,” said Dr. Jess Waldura, lead investigator of The Alternative Sexualities Health Research Alliance (TASHRA), which plans to conduct a nationwide survey in 2015. “We need to destigmatize kink so providers can think straight when we’re confronted by it.”
The New Don’t-Ask-Don’t Tell
In the past year, Dr. Mike Lesniak has noticed a trend: His urgent care clinic in rural Pennsylvania was the go-to place for kinksters to get their wounds treated. He figured that was because the clinic wasn’t set up to document injuries in a way that would be admissible in court. And because he wasn’t their primary care doctor, they wouldn’t have to worry about looking him in the eye next time they needed to have a sinus infection checked out.
The experience left Lesniak in a quandary. He wanted to make sure the wounds were consensual. And he’d want to make sure that, if they were, they were being made safely.
“Sometimes, they’d say, ‘Everything’s OK,’ and you could tell it was. Other times, the response would be, ‘Everything’s OK,’ but you would get the vibe that there’s no way that everything is OK,” he said. “I try to delve into what they are doing so that I can assure myself that they are acting safely. And if not, then I can help them adjust some things to be safer.”
Kinksters’ reticence makes sense. Before 2013, people interested in bondage and discipline or sado-masochism (BDSM)—that is, getting an erotic thrill from being tied up or tying someone else up, or hurting someone or being hurt by someone—were treated in the Diagnostic and Statistical Manual (DSM), the bible of psychiatric care, as a mental disorder that could then be used in court to remove children from kinkster parents, among other things. Today, the DSM defines BDSM as a kink that only becomes a disorder if it’s causing distress or dysfunction.
The problem, said Dr. Charles Moser, a San Francisco-based internal medicine physician and perhaps the leading researcher on kink in healthcare, is that it’s up to a doctor to determine if a kink is causing distress. If the doctor is biased, he may still classify it as a disorder that can lead to legal repercussions.
It’s a shame because, though because the majority of the 120 self-identified Bay Area kinksters Waldura recruited for the initial study said it’s important to be open with one’s providers about one’s kink, fewer than half actually were. And many said they had physical and mental health needs associated with their kinks.
Those needs varied depending on where respondents were in the kink universe. You’d expect submissives and masochists to sustain more injuries than dominants and sadists—but neither tend to bring their concerns to physicians, said Moser.
Moser had made a practice of treating the kinky. Sometimes this means talking about hepatitis A and B vaccines and risk for hepatitis C infection with someone participating in blood play, or talking about how to reduce risk of infection if someone is playing with needles. More often, thought, it’s high blood pressure, diabetes and other typical health needs that go unaddressed when kinksters delay care to avoid provider bias.
“I always say that people have more accidents on the way to and from the play party than at the party,” said Moser, author of Healthcare Without Shame.
Avoiding care can lead to the same kind of health disparities experienced by anyone who delays care: unchecked diabetes, for instance, or undiagnosed high blood pressure, which put people at higher risk for major health problems like kidney failure or heart attack.
And while other research indicates that kinksters may be more mentally healthy than their vanilla counterparts, the TASHRA participants said they experienced fears around talking to therapists about their kinks. ...
The BDSM site halts its most extreme offshoots in hopes of pushing into the mainstream
by Tracy Clark-Flory
In a surprising move, BDSM porn company Kink.com has suddenly stopped production on two of its most “extreme” sub-sites. CEO Peter Acworth tells Salon the company is halting filming on the wildly popular Public Disgrace and Bound in Public. Both series were shot with a public, and often participatory, audience — and as such, generated attention and criticism. (You can read about my experience witnessing a Public Disgrace shoot here.) The company is also rebranding HardCoreGangBangs as FantasyGangBangs, while putting a stronger emphasis throughout the series on consent.
At the same time, Kink is ramping up its educational efforts, in the form of video demonstrations of and sexuality workshops on everything from fellatio to dirty talk to rope restraint. Increasingly, Kink will be welcoming the public into The Armory, the company’s historic castle-like building in San Francisco, for events kinky and otherwise. Their massive drill court? Acworth is hoping the NSFW venue will become host to SFW conferences.
It’s hard to know what this story is really about. The proliferation of free online porn? (After all, with porn profits plummeting, alternative revenue streams are a smart move.) The success of activists in putting pressure on pornographers? Censorship through political pressure? The coming-of-age of a popular porn company? The mainstreaming of BDSM? Whatever it is, it certainly seems reflective of the time we’re living in.
This decision comes after a spot of bad press. Last summer, former porn performer Cameron Bay tested positive for HIV after filming a Public Disgrace shoot. The transmission did not happen on set, but the incident amounted to a lot of negative P.R. for Kink and the porn industry as a whole — especially after Bay reported that her costar got a cut on his penis during filming but the shoot continued. Acworth says the decision to bring the series, along with Bound in Public, to a halt isn’t driven by that, alone, though. Instead, he says it’s an attempt to be more inclusive, and to better fulfill the company’s aim of “demystifying alternative sexualities.” It’s also part of a new push to turn Kink.com into a lifestyle brand à la Playboy.
I spoke with Acworth by phone about the future of the porn industry, condom activism and turning Kink’s naughty logo into the contemporary equivalent of the Playboy bunny.
Tell me about this recent decision to shut down two of your sites.
We’ve essentially stopped shoots on both sites that would have a public audience. That is to say, Bound in Public and Public Disgrace, and we are changing Hardcore Gangbangs to be much more explicitly the fantasy of the female participant. It’s a rebrand. Behind the scenes, these larger scenes with lots of people were quite frankly controlled, but nevertheless they look like they’re not controlled. We’ve been attacked in that manner in the past. It’s difficult to defend, as much as if you would actually speak to the people who were there, or speak to the crew, we could explain how the situation is controlled, but the outside view may be a little more difficult at first view. The mission of the company is to demystify alternative sexuality. Most people are just figuring out what their sexuality is, so we want to open the door to them. If the first thing they see is super-extreme, it doesn’t fulfill our mission as well.
What kind of criticism were you facing, was it mostly in the condom debate?
Certainly. We know that the people concerned didn’t actually contract HIV on set, nevertheless, the last shoot that the individuals last summer were in happened to be at Kink. We suffered a great deal of negative P.R. over that whole issue, and the fact that Kink.com was one of the companies that signed up to fight that new legislation. It made us a scapegoat for a lot of negative publicity.
I wouldn’t say that’s necessarily the primary driver behind this. In general, we’re wanting to become a lifestyle brand and that’s been the vision for some time, even before these things last summer. We’re in the process of rebuilding our backend infrastructure and the engine that powers the sites and it’s entirely possible to sell products — for instance, you can click on a movie and see what items we used on a movie and put them in the shopping cart and check out. We’re wanting our logo to be sort of more of a lifestyle brand than just known for the movies we make. ...
Several years ago, I raised the question on this blog about whether kink could be considered a sexual orientation. Since that time, the issue has gained traction, due in large measure to the notorious "Fifty Shades Effect". Slate writer Jillian Keenan wrote this blog post in the affirmative, which prompted Huffington Post to do an online video conversation on the subject, and the discussion has been picking up steam ever since.
Of course, no conversation about human sexuality wouldn't be complete without a few folks waving their hands frantically and raising objections. And just saying "kink is an orientation" doesn’t by itself make it true. So, in this blog post, I'll address some of the more common objections to the idea of a kink orientation, and then present a new model of sexual/affectional orientation for consideration.
Objection # 1: Sexual orientation is about gender
Basically this constitutes a tautological argument that, since certain authorities have officially defined sexual orientation as "an enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes," then anything outside of this definition should not be equated as an orientation by, um, well, definition. Essentially, this is the same as saying that a nontheistic religion is not really a religion because, well, religions must believe in a deity "by definition" – similar to an argument a Texas official used to try to deny recognition for Unitarian Universalist congregations in that state.
Aside from that parallel (and the fact that there are more expansive definitions of sexual orientation) there are two other reasons for overruling this objection. The first is the reality of asexual people, who experience no sexual attraction to anyone. They don't necessarily hate sex – indeed, not all asexuals are celibate – they just don't feel the same way about it as the rest of us. Asexuality is being regarded as a sexual orientation, a sort of "none of the above" category, and the asexual community has asserted that sexual orientation is distinct from affectional or romantic orientation (including an aromantic identity). Which raises the question: How do we reconcile both tying orientation to gender or sex and recognizing an orientation where one may be attracted to neither/none?
The second reason is rooted in a challenge of the gender binary, including the idea that we are strictly divided into "male" and "female" categories of biological sex. Both intersex and genderqueer identities defy such categorization, as well as being distinct from one another (a genderqueer person may be born biologically male or female, yet refuse to accept either gender; an intersex person may not "fit" into medical definitions of male or female biological sex, while presenting and identifying as either or none). Now imagine someone who does not feel attracted to people who present clearly as masculine or feminine, but who does experience attraction to individuals who present as androgynous or genderqueer? Do we create a new gender label for non-male/non-female people, and a new orientational label for people who are attracted to them? What about genderqueer folks who are attracted only to men, or to women, or either one but not other genderqueer people? The fact is that there are people who, recognizing their attraction to multiple genders and not just two, identify as pansexual, polysexual, omnisexual and/or just plain queer. But this raises a question similar to the previous one: How do we reconcile tying orientation to gender or sex when even these categories are not as cut-and-dried as we originally thought?
Objection #2: Sexual orientation is about who you are and/or who you love, not what you do
Okay … In order to address this, I'm going to have to engage in some rather frank mention of sexual/erotic activity. If that offends you, I suggest that you skip over to the last paragraph of this section. That warning now said, let me present a couple of somewhat hypothetical examples. I am a heterosexual cisgender man. My romantic/sexual partners are thus women who are attracted to men (and hence self-identify as either hetero-, bi-, pan-, poly- or omnisexual). Such attraction includes the desire to spend time with one another, to hold hands, to kiss and cuddle, and specifically to engage in vaginal intercourse. Now, if orientation is in no way about "what we do," then how is my desire to put my penis in my partner’s vagina, or her desire to have my penis inside her vagina, separate from each of us being attracted to members of the other sex/gender?
Similarly, I identify as kinky, and more specifically as a dominant or service top. As a hetero kinky dominant male, I am most attracted to kinky women who identify as submissives, bottoms or switches, and who are attracted to men. Our mutual desires may include a whole range of activities including bondage, spanking, fantasy role-play, et cetera. But that raises the question of why we’d want to engage in such play, especially when it meets such strong social disapproval. If "what we do" is not based in "who we are" and who we're attracted to, then why do we fantasize about them?
Folks may be exposed to certain things, but that doesn't necessarily mean they are going to like them; some people hate the taste of cilantro, while others clearly enjoy it. Likewise, people who are exposed to something later in life may enjoy it even when they have been raised to find it distasteful; a generation ago, sushi was considered not just exotic but potentially hazardous and "just plain gross," and even after being more widely embraced there are still Americans who dislike it. So if our gustatory tastes transcend our cultural upbringing, and thus are likely rooted in our individual makeup, then why not our erotic tastes as well? In short, "what we do" depends very much on the totality of who we are.
Objection #3: While some kinksters think their sexual desires are an orientation, others do not.
This may be true, but by the same token, some people do not regard their gender-based attraction as an orientation. The question is what paradigm best explains the range of experiences that people report. For gender-based attraction (gay/lesbian, bisexual, heterosexual) a continuum paradigm not only explains the range of desires, but the relative fluidity with which people perceive and interpret their inner experiences. So a person who is primarily heterosexual with incidental same-gender attractions may engage in same-gender eroticism "experimentally" or "for fun" while still identifying as "straight" or "heterosexual". Also, many non-heterosexual people have often said that, while they were not consciously aware of their same-gender attractions, they were aware at an early age of feeling “different” from other people, making the connection only later on.
Likewise, an individual may experience incidental desires towards certain activities labeled as "kinky" and enjoy engaging with them on occasion or even on a fairly regular basis, yet not consider their desire for kink at the same level as someone with a more deep-seated desire for such interactions. Also, some people may have learned to suppress certain desires or fantasies, or may not have been able to connect a need for intense sensory input and/or role-based relational models with specific fantasies until later in life. Combine this with the significant number of kinksters reporting explicit fantasies or other awareness of their desire at an early age, and we have to consider one of four models:
That kink is not an orientation, despite the strong resemblance of experience with non-heterosexual people;
That kink is “an orientation for some but not for others,” again in spite of the resemblance with gender-based attraction;
That kink is either an orientation like gender-based attraction, suggesting that people have multiple sexual/affectional orientations;
That sexual/affectional orientation is a multifaceted phenomenon, of which both gender-based attraction and kink desires are recognizable elements.
In my mind, this last model is the most parsimonious explanation that fits with the growing body of evidence. And with that said …
A holistic model of sexual/affectional orientation
Alfred Kinsey originally proposed sexual orientation as a two-ended continuum, with exclusive heterosexuality at one end, exclusive homosexuality at the other, and a range of intermediary positions in between. Later researchers, such as Fritz Klein, proposed a more multidimensional paradigm of orientation and identity. The emerging awareness of asexuality as an orientation added even more complexity to the concept of orientation well before members of the BDSM/kink/fetish and polyamory communities began to propose that the orientation model as an explanation behind their respective experiences.
How to bring it all together? Let me propose a metaphorical parallel. Imagine that your understanding of music is based on vocal performance. You recognize a range of vocal types – soprano, contralto, tenor, baritone and bass – with finer gradations within each general category, and even some individuals able to express themselves outside of a single range, or to shift in range over time. But music is not limited to vocal range, just as sexual desire is not limited to gender-based attraction. Even vocalists more often than not perform with instrumental accompaniment, adding another dimension to our experience of music. Thus a holistic model of orientation would embrace the full range of sexual desire and experience, not just gender-based attraction, just as an orchestral score includes layers of vocal and instrumental melodies and harmonies.
With that in mind, we may see gender-based sexual attraction as one dimension of this holistic model, often in line with a gender-based affectional/romantic attraction. Another dimension (or "stave" if we follow the musical metaphor) would be the level of sexual attraction, from asexual through demisexual and onwards; similarly, there would be a dimension for levels of affectional/romantic attraction. BDSM, kink and fetish sexuality would most likely be expressed in multiple staves – intensity and/or type of sensation, attraction to power-based roles, foci of attraction, and so forth. Even monogamy and polyamory may be rooted in a continuum of some type.
Some may object to such a paradigm as overly deterministic, yet I would argue that it provides a balance with individual volition. Each of us has a multitude of desires, just as an orchestral score reveals a carefully harmonized arrangement. How we act upon those desires, and identify with them, is our choice. We may deny some dimension of ourselves at a cost, or we may find a way to express it in accompaniment with others. Thus how our orientation is “scored” provides the foundation for how those desires may be expressed, which relies on (if you'll pardon the pun) how we conduct ourselves in the world.
A poly partner who now wants monogamy, an accidental triad, and more
by Dan Savage
QI'm a married 28-year-old male. My partner and I are conflicted over the level of openness in our relationship. She describes herself as "postmononormative." I consider myself GGG. While I know that she wants me to be her life companion, she has expressed a need for novel experiences that may not include me. While I accept that there is no essential link between erotic love and long-term partnership, I reject the polyamorous notion that love is limitless—when she's misinterpreted conversations and transgressed boundaries, it has always coincided with the neglect of our own relationship. I have given up seeking the moral high ground and just want to find a solution. Should I have polyamorous relationships of my own? Or should I focus on cultivating shared erotic experiences with my partner? And do her transgressions mean that the boundaries we've set are not explicit or generous enough? —Nonnormative Problems
AI don't think retaliatory polyamory is healthy or sustainable. ("I don't want to have other partners, but if you're going to have other partners, then so am I! Let's see how you like it!") And while you can focus on cultivating shared erotic experiences, NNP, your partner has made it clear that she needs—and intends to have—novel experiences that don't include you. And while her transgressions may mean the boundaries you've set aren't explicit or generous enough, NNP, it's likelier that your partner gets off on transgression. Some people do.
I think you're confused, NNP, and your confusion stems from the fact that your partner is negotiating with you about her nonnegotiable terms. She's going to do who and what she wants whether you like it or not, and she's going to hide behind "postmononormative" labels and claims that conversations were misinterpreted if that's what it takes. Accept her terms or divorce her ass, but stop deluding yourself. ...
This landmark law mandates that both partners issue "an affirmative, conscious and voluntary agreement to engage in sexual activity." It acknowledges that fear or other factors may prevent a potential victim from saying "no" to sexual activity, so it shifts the burden to obtain consent to what would be the possible perpetrator.
So what does this mean, and what are the implications of the law? The Huffington Post's Senior College Editor Tyler Kingkade and HuffPost Live's Marc Lamont Hill on Tuesday spoke with Julia McCarthy, a sophomore at UCLA, and Northwestern University student William Altabef about how to make consent sexy, and what the law means for students.
Despite criticism, students like Altabef believe it's totally realistic to ask for consent in a sexy way, as he explains in the video clip above. ...