Sunday, March 28, 2010

It'll take your breath away.

In a recent Ontario court ruling that should be of interest to kinksters everywhere, the province has decided that providing sexual consent in advance, that is, prior to the actual fucking, constitutes valid consent overall.

This may seem like a no-brainer, but consider the appeal which led to this conclusion:

In 2008, a submissive Ontario female kinkster (only identified as "J.A.") was in the fifth year of her common-law, kinky relationship with her dominant male partner (whose identity remains protected under court order). Part of their kink included breath play, and it would seem that their consensual agreement included such play to the point of J.A.'s losing consciousness while her partner continued to do his thing.

For most people, a scenario like this is pretty heavy-duty, even by bdsm standards. The larger majority of kinksters would never normally consent to such a level a submission where consciousness becomes compromised, much the same way that it's taboo to leave a partner placed in bondage alone in a room. Such practices, while potentially hot for many people, are clearly dangerous (and, in the case of breath play, potentially life-threatening).

Evidently, J.A. was also a newbie to anal sex, and it would seem that while she and her "partner" had discussed exploring ass fucking, evidence presented in court would suggest that J.A. hadn't exactly completely opened up to the idea.

This is because she accused her "partner" of sexual assault when she awoke after a session of (consensual?) breath play, and instantly uttered her safeword, "Tweety Bird," when she realized that her "partner" had completed the backdoor act while she was out of consciousness. J.A. wasn't ready, she argued, and her "partner" should have known and accepted this. One wonders if she was in the process of invoking her safeword before her consciousness was actually lost. Her "partner" was convicted of sexual assault.

But the Ontario Court of Appeal has since overturned the conviction of her (former, one might hope) "partner" in a 2-1 decision, with Justice Janet Simmons arguing that in situations "where a person consents in advance to sexual activity expected to occur while unconscious or asleep is entirely consistent with the principles of human dignity and autonomy... and (if such a person) does not change their mind, (fails to demonstrate) how the Crown can prove lack of consent."

Dissenting, Justice Harry LaForme had argued that acquiring sexual consent under such circumstances would be impossible, and would be "negated when she was choked into unconsciousness."

But both Justice Simmons and Justice Russell Juriansz drew comparisons between the couple's kink-related consent agreement and arguably similar agreements normally and regularly made between medical patients and physicians, where consent-in-advance (such as prior to surgery) is standard practice.

Such are the decisions made in a world where argued precedence sometimes trumps common sense.

This decision is extremely relevant for kinksters, and most especially for submissives and bottoms who know how to think, because it behooves us to be vigilant about whom we trust with our sexplay. One might have expected that J.A.'s "partner" would have respected J.A.'s limits, but tragically in her case, her willingness to explore erotic asphyxiation to the point of lost awareness also resulted in nonconsensual anal sex.

And could possibly have been worse.

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