Whose Consent Matters? Sado-Masochism and Governmentality in Canadian Consent Law

Abstract

The 2011 Supreme Court of Canada decision on R. v. J.A. changed existing sexual consent law in Canada, effectively determining that consent given prior to sexual acts is vitiated if all parties are unable to maintain a state in which they can continuously express consent. J.A. involved consensual erotic asphyxiation resulting in unconsciousness. The stigma surrounding this sado-masochistic sexual act did effect the verdict, but prejudice against marginalized sexual practices only begins to explain the ruling. The vitiation of prior consent to sex is a regulatory decision that prescribes behaviour in an attempt to create a certain type of subject: specifically, one who meets both the physical and ideological needs of the state. In order to thrive the state requires workers that are physically healthy and able to productively labour. In order to ensure that workers act as appropriately productive citizens the state needs to ensure that the ideological and political orientation of workers results in complicity with the normative expectations of the state. The ultimate factor determining what kind of consent is effective and who is able to give it is based on social, capitalist utility. SM sexual practices can lead to physical harm and therefore a decrease in productivity, and can involve a critical interrogation of (un)freedom, (de)subjectivity, and power. Both factors present a threat to the needs of the state, and as a result sadomasochism is criminalized. While utilizing Foucauldian theory, and considering J.A. through the lens of capitalist utility, it becomes apparent that the question of consent and prior consent is answered in deference to creating productive and docile citizens.Keywords: R. v. J.A., sado-masochism, sexual consent law, governmentality, social utility-----Bibliography: Desjardins, Bridgette: Whose Consent Matters? Sado-Masochism and Governmentality in Canadian Consent Law, INSEP, Vol. 2, Issue 1-2014, pp. 18-30. https://doi.org/10.3224/insep.v2i2.19843