The Socio-Legal Regulation of BDSM in Canada

Abstract

This research examines Canadian case law and the lived experiences of BDSM practitioners articulated on the blog Reddit, using critical discourse analysis in order to understand: (i) How is BDSM framed in legal discourse? (ii) To what extent do dominant discourses produce a criminalised sexual subjectivity for BDSM practitioners? (iii) What interpretive repertoires do BDSM participants in different social locations (e.g., race, class, gender, disability) employ to describe their experiences negotiating consent? (iv) How might an analysis of people’s perspectives and policy arguments contribute to public and scholarly debates by recognizing the social value of BDSM practice? The findings illustrate several discourses, which are categorised by those found within case law data and Reddit data. The discourses found in case law include: Moral custodianship, deviance as a social contagion, biopolitical sexual regulation, state paternalism, and sexual citizenship. The discourses located within Reddit data include: Social-sexual dynamics and hierarchies, self-empowerment/confidence and self-worth, visibility of kink, consent/choice, pleasure/eroticism in kink, and counter-hegemonic pleasures/identities. The distinctions between discursive categories are often blurred as many adjudications and Reddit posts draw from multiple discursive narratives in the appeal for legal action against BDSM-related activities, and the narratives of personal experiences within BDSM communities. Consent, as a concept and practice, is present in Canadian case law and the narratives of BDSM community members within this study. Particularly, this research investigates the nuances of consent, its fluidity, and what consent means in the language of the law as compared to the practices of consent within BDSM-related encounters. Through the narratives of BDSM community members on Reddit, bloggers voice and resist dominant socio-legal discourses that frame their non-normative sexualities as immoral, deviant, and ultimately, criminal. Giving voice to BDSM practitioners contributes to a greater understanding of consent. The corollary of this research is the possibility of utilising the expert knowledge of BDSM community members in differentiating between consented BDSM play and willful sexual assault.