While some like it rough, consent isn’t always as simple as just saying “yes.”
In a statement posted to Facebook on Sunday, former Q host Jian Ghomeshi alleged he had been fired from the CBC “because of the risk of my private sex life being made public.” On his own admission, he engages in “adventurous forms of sex that included role-play, dominance and submission.”
“But with me bringing it to light … the implication may be made that this happens non-consensually. And that will be a lie.”
Consent, says Susan Chapman, a partner at Ursel Phillips Fellows Hopkinson LLP, is not just a matter of saying “yes” to a violent sexual act.
“The law is quite clear that even in a sexual context, you cannot consent to bodily harm,” says Chapman, who also teaches a course on sexual assault at York University’s Osgoode Hall. Bodily harm, she adds, is any injury that’s more than trifling — and that can include cutting and bruising.
“If you hit somebody and they suffer any sort injury, and it can be quite slight, that vitiates any apparent consent of sexual relations.”
In a Toronto Star investigation published on Sunday, three women allege that Ghomeshi “physically attacked them on dates without consent” by either striking them with a closed fist or open hand, biting them, choking them until they almost passed out, or covering their nose and mouth so that they had trouble breathing. Whether or not they consented to such alleged acts, Chapman says, can be legally irrelevant.
Moreover, to agree to one act, such as hair-pulling, also does not mean that one has consented to any subsequent aggressive behaviour.
“[I]t is truly not anyone’s business what two consenting adults do,” Ghomeshi said in his Facebook post. “Sexual preferences are a human right.”
“He may not understand what the law is in this area,” Chapman says of Ghomeshi. “There’s a limit to which consent as a matter of law applies, whether you agree with that law or not.”
On Monday, Ghomeshi filed a $55 million lawsuit against CBC, alleging the public broadcaster made a moral judgment about his sex life.