After days of incredible testimony, the sexual harassment complaint against Manitoba judge Lori Douglas appears to be lacking in substance. Had the Canadian Judicial Council's inquiry committee followed the advice of the preliminary review panel and the independent counsel not to hear Alex Chapman's complaint, this entire spectacle could have been avoided.
Now, the most serious allegation against Associate Chief Justice Douglas is that sex photos of her will live on forever on the Internet. The inquiry will determine whether this is "inherently contrary to the image and concept of integrity of the judiciary such that the confidence of individuals appearing before the judge, or of the public in the justice system, could be undermined." The pictures, taken by her husband at their home, were described by one columnist as "grotesquely embarrassing nude bondage photos," although her rather nasty point seemed to be that middle-aged women who think they are still sexy enough to pose for such shots deserve to be ridiculed.
A 2008 U.S. survey found that one in five teens had electronically shared nude or semi-nude images of themselves and that almost 50 per cent of teens had participated in "sexting," the electronic sharing of sexualized images and texts. Ask young adults whether there are sex pictures of them or their close friends floating around online somewhere and the answer most will give is "Oh yeah." Unless the photo was taken by a peeping Tom or the subject is being blackmailed, it probably is not a criminal offence to upload a compromising photo of an adult without their permission. If Judge Douglas loses her place on the bench simply because someone distributed nude photos of her – after promising to destroy all paper and electronic copies – many leaders of tomorrow will live in fear that they could face the same fate.
Does it matter that these photos apparently show a judge in bondage gear? Research indicates that interest in bondage is higher than one might expect. A 1993 U.S. study found that 12.5 per cent of adults had engaged in sexual sado-masochism (S&M) at some time in their life. More recent studies indicate growing interest. A 1999 Canadian study found that 65 per cent of university students have fantasies of being tied up, whereas 62 per cent fantasize about tying up a partner. A 2009 British study on sexual practices found that 38 per cent of those randomly surveyed by phone had used handcuffs, 41 per cent had participated in spanking and 24 per cent had tried bondage.
Those who prefer a vicarious experience of S&M's potent mix of risk, transgression, sex and power can simply visit the cinema, where S&M has been a staple for years. Examples include 91/2 Weeks (1986), the Oscar-winning The Piano Teacher (2001) and just about anything starring Madonna. Venus in Fur (adapted from a novella by the father of S&M, Sacher-Masoch) recently enjoyed a very successful Broadway revival. Canadian police pretty much stopped laying obscenity charges against distributors of adult porn in the late 1990s, so even the raunchiest X-rated material is easy to access.
Or, like millions of others, they can satisfy their curiosity by reading the Fifty Shades of Grey trilogy. Readers don't hide these novels with plain book covers. They carry them conspicuously into lunch rooms and onto subways or flash them while lying around hotel pools.
References to S&M sexual practises have also been appropriated into fashion, advertising and music. Think of fashion designer Jean Paul Gaultier's dominatrix-inspired clothing, Helmut Lang's iconic fashion photography and Rihanna's hit song S&M. The idea seems to thrive shamelessly in popular culture.
If S&M expressions are mainstream and ubiquitous, how can it be concluded that the integrity of the judiciary is undermined just because a judge, prior to appointment, permitted her spouse to take photos of her wearing bondage gear? Moreover, when someone maliciously publishes photos for which there was a reasonable expectation of privacy, surely it is that person, and not the subject of the photo, who deserves public humiliation.
Karen Busby is a professor of law and the academic director of the Centre for Human Rights Research at the University of Manitoba.