Brenda Cossman is a professor of law at the University of Toronto.
A Canadian celebrity, an iconic Canadian institution and four anonymous women have produced a Canadian sex scandal the likes of which we haven't seen in decades. Jian Ghomeshi, host of Q, has been fired by the CBC, because of something to do with sex. The million dollar question – or in this case – the $50-million question – is what. Mr. Ghomeshi says he was fired because of his private sexual proclivities. More specifically, he says, because he engages in BDSM – bondage, dominance, sadism and masochism for the uninitiated. Mr. Ghomeshi claims that he had rough but entirely consensual sex, and it shouldn't be the business of the public broadcaster.
The CBC has not commented. But in an article published Monday, the allegations of the four anonymous women have been set out. Acccording to the article three of the women allege that he physically assaulted them – that he "struck them with a closed fist or open hand; bit them; choked them until they almost passed out; covered their nose and mouth so that they had difficulty breathing; and that they were verbally abused during and after sex." And that all of this was allegedly without their consent.
On the one hand, this is the classic he said/she said of sexual assault. Consent is the dividing line between sex and sexual assault, and its presence or absence is often the linchpin of sexual assault prosecutions.
But Ghomeshi-gate puts a twist on this plot, because BDSM has a more complicated relationship with the law. BDSM practices span a broad spectrum, from fantasy play, light bondage to the infliction of increasing severe physical pain. The one thing that all of the practices have in common amongst its practitioners is that it is heavily negotiated. Consent, limits and safe words are all carefully worked out in advance.
But, when it comes to BDSM – or at least its more intense versions – the law doesn't actually care about consent. The Supreme Court has said that a person cannot consent to an assault that causes bodily harm. While the cases have typically arisen in the context of bar room brawls or hockey violence, other courts have applied the same reasoning to the sexual context. So, if a sexual activity causes bodily harm, a person cannot consent to it.
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. But, it's the law.
The Supreme Court has said that consent that is given only in advance isn't determinative – consent is an ongoing process and a person must be in a state of consciousness to be able to withdraw that consent at any time. The case involved what's known as erotic asphyxiation – basically, where a person is choked to the point that they lose consciousness. It's a controversial practice within the BDSM community. But, those who practice it do so with carefully negotiated consent in advance.
So, lets assume for a moment that Mr. Ghomeshi's side of the story is true (no, I am not saying that the women are lying – this is just a thought experiment). Let's say he engaged in rough sex, very rough sex with consenting partners. According to the law, if it was rough enough to cause bodily harm, then he has still committed assault, regardless of consent. If he did hit, punch, bite or choke them – even if it was consensual – the law would very likely say that he committed assault.
Let's assume a modified version of the contested facts. Let's say that the women consented in advance to the sexual activity. According to the published article, this appears to be one of the reasons that they have not come forward. Say that in e-mails or texts or phone calls, they agreed to engage in some kind of BDSM. Then they showed up, and the sex was rougher than they had anticipated. The consent in advance doesn't matter – at all. There has to be ongoing consent. The law might well declare that Mr. Ghomeshi has committed assault.
BDSM sexuality still lives on the margins of legality in Canada. Fifty shades of grey is actually a pretty good description of its legal status. This isn't to say that the CBC should or shouldn't have fired Mr. Ghomeshi for it. Simply that Mr. Ghomeshi's defense that the sex was consensual – even if it is true – is not the end of the story.
Since the news broke, sides have been drawn, nasty name-calling has begun – everything from the CBC is sex phobic to Ghomeshi fans are slut-shaming his accusers. But, none of us know the facts. We barely know the allegations. We could take a step back, let the contested facts come to air and reflect on the state of the law of consensual and non-consensual sex, including its traditional mistrust of sexual assault complainants. But, alas, such is not the way of sex scandals.
Editor's Note: An earlier online version of this article said the Supreme Court has ruled that a person cannot consent to assault. In fact, the court has said a person cannot consent to an assault that causes them bodily harm. This online version has been clarified.