SM ‘normal and acceptable’: judge

In a potentially precedent-setting case, a Vancouver judge ruled last month that SM videos seized by police two years ago are not obscene-and that SM itself is a “normal and acceptable” form of human sexuality.

SM players and queer anti-censorship activists are hailing the decision as a groundbreaking victory.

“I lit up in a big smile,” says Reive Doig, who stayed up until 4 am on Apr 23 so he could read the decision the minute it appeared online.

“This comes a long way towards legitimizing SM in the view of the judiciary and the eyes of the public,” says Doig, who runs monthly SM play parties and workshops through his group BIO.

“The judge recognized, for what I believe is the first time in a Canadian judicial decision, that BDSM activities are an entirely normal sexual pursuit.”

The case dates back to 2002, when the Vancouver Police Department (VPD) raided Sweet Entertainment, a local manufacturer of SM porn videos for the Internet. In March 2002, and again in November 2002, police raided the company’s Downtown Eastside studio and seized 11 videos and several computers. The Crown later charged the company’s president, Randy Price, with 20 counts of making, possessing and distributing 11 obscene videos.

Last month, provincial court Judge Raymond Low acquitted Price on all 20 charges.

The evidence suggests that the Canadian community might tolerate other Canadians viewing the 11 videos, Low essentially ruled. And that means the materials cannot be considered obscene.

According to Section 163 of Canada’s Criminal Code, materials can be considered obscene if they depict the undue exploitation of sex, or sex plus violence. What constitutes “undue exploitation” has been the subject of much legal debate.

In 1992, the Supreme Court of Canada set out some tests to gauge the undueness of a material’s sexual depictions. The key test is called the community standard of tolerance test. Judges are supposed to assess how likely the community “of Canada as a whole” would be to tolerate the material in question.

In other words, if the judge thinks the community as a whole would not tolerate the material, then the material is considered obscene.

Until now, this test has generally left minority sexual practices-particularly gay sex and SM-out in the cold, misunderstood and rejected by the dominant culture and therefore criminalized as obscene.

Until now.

Last month’s ruling charts a potentially new course in the justice system’s understanding and treatment of SM expressions, and possibly of minority sexual practices in general.

“This is a wonderful judgement,” says Lorraine Weir, who testified in defence of freedom of expression in both the Little Sister’s and Robin Sharpe court cases.

Judge Low has opened the door to extend legal rights to sexual practices generally regarded as radical, Weir explains.

And if a judge is now willing to see SM as falling within society’s parameters of normal behaviour, “then it may be possible for the justice system in the future to extend its understanding of the gay and lesbian community in a variety of other contexts” as well, she continues.

Though the 11 videos in this case contained primarily heterosexual SM scenes, Weir says Low’s ruling will likely benefit gay expressions of sexuality as well. “It really opens the door to enabling the justice system to reconsider its own construction of the norm,” she says.

Gay lawyer Garth Barriere agrees. Any decision which deals with a stigmatized part of human sexuality in a positive way is a step forward for everyone, he says.

This is a groundbreaking decision, Barriere continues. Not just because the judge found the videos not-obscene, but because of the path he took to reach that decision.

Judge Low allowed defence lawyer Paul Kent-Snowsell to present evidence about the nature of SM, Barriere explains. The judge listened to evidence from SM experts, from doctors describing SM as normal and from play party participants. And he used that evidence to assess the community’s level of tolerance towards the practice of SM.

That is so important, Barriere continues, because the court leaves the decision of what the community will tolerate in the hands of the judge. Had the judge refused to listen to evidence from the SM community, how informed would his decision have been? Barriere asks.

The judge may not have had any prior knowledge of play parties or SM practices, Barriere points out. He may have lacked the tools to accurately assess SM and its place in society, and instead allowed his own personal preferences to influence his decision. But that’s not what happened here. Judge Low listened to the evidence-and applied the community standard of tolerance test in the best possible way, Barriere says.

Kent-Snowsell agrees. “The judge, as the community’s arbiter of tolerance, has to know what’s out there,” he says. “He can’t do it in a vacuum. There was a certain educating that had to be done.”

Of course, Kent-Snowsell notes, convincing the judge to listen to expert SM testimony was no easy matter. It took days of legal arguments, he says, and the Crown resisted.

But in the end, Kent-Snowsell won and the defence called its witnesses. And the judge listened to them carefully, as his ruling now reflects.

**

“First, I have accepted Dr Moser’s opinion that consensual BDSM is part of normal and acceptable adult sexual behaviour,” Judge Low writes in his 25-page decision.

The judge also accepts Moser’s testimony that pain and pleasure are closely related facets of human sexual experiences. “Pain giving rise to sexual pleasure is a normal sexual experience and is the basis for practicing BDSM,” Low writes.

“Dr Moser testified there are many different levels of BDSM. For example, a person biting another person on the neck during love play is an example of a low level of sadomasochism. On the other hand, the scenes portrayed in the 11 videos are portrayals of high level of sadomasochism,” Low continues. “Dr Moser testified that, providing all parties involved consent, all of this is normal and appropriate sexual behaviour.

“He was of the opinion the procedures portrayed in the 11 videos were part of normal and appropriate human sexual behaviour.”

Judge Low then goes on to accept Moser’s testimony that SM players “derive erotic pleasure” from watching such videos-and that contrary to appearances, the submissive players in those videos are not actually participating under duress.

“According to Dr Moser, a key element for enjoyment of BDSM videos, by BDSM participants, is the knowledge that the subservient party, despite what is being portrayed, is actually consenting to the procedures.

“Moreover, according to Dr Moser, BDSM procedures are not meant to be demeaning to those taking part. Both the dominant and subservient parties in BDSM procedures derive a ‘sense of accomplishment and feeling good and a whole variety of other emotions.’

“Even the BDSM videos involving one person urinating on another are not regarded as demeaning in the BDSM culture. Rather, the subservient party sees themselves as receiving the distillate of the dominant party’s body,” Low writes.

This is a “huge paradigm shift,” says Barriere.

In the past, courts have described SM as violence, Barriere explains; some have even gone so far as to call it assault. This judge was willing to look more deeply and see that SM is not violence-it’s consensual role playing.

Kent-Snowsell agrees. This ruling has demystified SM, he says. This judge understood that players consent and that the submissive player is actually in charge of the scene.

Many people have a visceral reaction to SM, Kent-Snowsell continues, but they have to understand that SM players agree to participate in advance, and then negotiate and set ground rules and safe words before they play.

“If only so much thought went into ordinary, everyday sexual encounters,” he adds.

After listening to the evidence, Judge Low also found that Canadians have access to a wide variety of SM materials that are widely available in stores and on the Internet.

And Low notes that “most larger urban centres in Canada have facilities where BDSM activities are regularly carried out.

“Adult members of the public may attend these facilities upon payment of a modest fee,” he adds.

“I am satisfied from the evidence I heard about BDSM events taking place throughout Canada that BDSM is not an obscure practice,” Low continues.

“These venues are well known to the police who take no interest in preventing these public activities from taking place,” he adds.

**

Based on all this evidence-the availability of SM materials and play parties, and the experts’ testimony that SM is based on consent not violence and is, in fact, a normal part of human sexuality-Judge Low ruled that the Canadian community likely can tolerate the 11 videos. Specifically, he ruled that “this evidence leaves me with a reasonable doubt that the contemporary Canadian community would not tolerate other Canadians viewing the 11 videos.

“I must resolve that doubt in favour of Mr Price. I acquit him of counts one through 20.”

Kent-Snowsell says he’s “delighted” with the ruling and he’s hoping it sets a precedent in cases to come. Though he knows it’s only a lower-court ruling, and therefore not binding on other courts, he’s hoping other judges will follow Low’s lead.

And he’s hoping the police will follow his lead, too, next time they’re thinking about seizing SM materials and calling them obscene. He’s even hoping the ruling will push Canada Customs to reconsider its own guidelines on what can and cannot enter the country. (Canada Customs is scheduled to go to court this fall to defend its seizure of several SM comics destined for Little Sister’s.)

Barriere is cautiously optimistic about the ruling’s potential precedent-setting power. “It may make the police and the Crown think twice before laying obscenity charges,” he says.

But Crown spokesperson Geoffrey Gaul isn’t making any promises.

The Crown has decided not to appeal this case, he says-but that doesn’t mean it won’t press similar charges again in the future.

“This is the decision of a single provincial court judge” based on a specific set of facts and circumstances, Gaul explains. The Crown has reviewed the evidence and decided it has no foundation upon which to launch an appeal. But that doesn’t mean the Crown won’t proceed with similar charges in this area if another case warrants it, he says.

The battle isn’t over, Barriere warns. “The battle for free expression never ends.”