Rough, painful, consensual sex is 'murky' legal area: experts

CBC radio host Jian Ghomeshi is shown in a handout photo. (THE CANADIAN PRESS / CBC)

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.

"Causing pain that lasts a little while or that is intense might be illegal, even with the explicit consent of both parties," he said in an email.

"The line between the kinds of 'rough' sex people can consent to is pretty difficult to articulate: you're pretty safe with handcuffs, but in a lot of danger with riding crops."

Andrea Zanin, a 36-year-old blogger who says she is a member of the BDSM community in Toronto, says it's a complicated issue.

People who are dominant in a BDSM relationship -- sometimes called "tops" -- often worry about the limits they face, she said.

"It's every top's worst nightmare that something they did they thought was OK would be misinterpreted and they would get in a lot of trouble," said Zanin, who publishes the Sexgeek blog.

"We talk about consent a lot and it's a huge concern," she said.

"And there is also a huge concern in the sado-masochistic community at the same time about people who use what we do as a cover for assault."