2025 ONSC 435<\/a>. The accused, Marcus Pearson, met the complainant, S.L., on a popular kink dating app, and the pair engaged in a wide range of BDSM activities in the Fall of 2018. On one occasion, Mr. Pearson asked S.L. to penetrate herself vaginally with the wide end of a baseball bat. When she failed to apply sufficient force, Mr. Pearson used his hands to slowly twist the bat and push it inside her. The relationship ended soon after, and the complainant reported Mr. Pearson to the police. He was charged with various sex-related offences including sexual assault causing bodily harm.<\/p>\nThe issue at trial was whether S.L. had consented to the sexual activity and whether Mr. Pearson had intended to cause her bodily harm. S.L. testified that she had not consented, but the court rejected her testimony as unreliable and lacking credibility. There was likewise insufficient evidence to establish that Mr. Pearson had intended to cause bodily harm. He was acquitted of all charges.<\/p>\n
Recognizing the broader issue at play, the trial judge went on to give a postscript on \u201cBDSM and Social Value\u201d. He noted that both the Crown and Defence had called experts on whether the law should be changed to exempt certain BDSM practices from the category of activities to which a person cannot consent to bodily harm. Defence presented the Crown expert with the example of spanking that leaves redness for several days, which the expert conceded was unworthy of a criminal sanction. Yet, as the trial judge pointed out, such conduct would meet the definition of bodily harm and warrant a sexual assault conviction with all its serious long-range repercussions.<\/p>\n
The Defence also led evidence about the social benefits of BDSM, practiced commonly through the population, including mental health benefits and the expression of sexuality and identity. The judge noted that other socially valuable activities, such as mixed martial arts (MMA), remain unsanctioned. Yet an MMA fighter will intentionally inflict extreme injuries to win a fight\u2014and for the public\u2019s entertainment.<\/p>\n
The Judge observed finally that both the English and Canadian Law Reform Commissions proposed to have Parliament enact legislation that recognized consent as a defence to an assault, except in cases of serious or long-term injuries.\u00a0 He also noted that the American Model Penal Code proposed consent as a defence where the harm is \u201cnot serious\u201d, and the conduct and harm are reasonably foreseeable hazards of joint participation in a lawful activity. Having reviewed the expert evidence and public trends, the judge suggested that \u201cperhaps it is time for Parliament or the appellate courts to consider the issue afresh.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"
Michael Bury & Nick Whitfield Under current Canadian law, an individual cannot consent to the infliction of bodily harm in the context of a sexual relationship.\u00a0 \u201cBodily harm\u201d is defined in s. 2 of the Criminal Code as \u201cany hurt or injury to a person that interferes with the health or comfort of the person […]<\/p>\n","protected":false},"author":1,"featured_media":16709,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[21],"tags":[],"class_list":["post-16708","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized-en"],"_links":{"self":[{"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/posts\/16708","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/comments?post=16708"}],"version-history":[{"count":0,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/posts\/16708\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/media\/16709"}],"wp:attachment":[{"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/media?parent=16708"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/categories?post=16708"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nrlawyers.com\/6ixDev-v2\/wp-json\/wp\/v2\/tags?post=16708"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}