Rethinking the “Rough Sex Defence” in Canada: Replies to Sheehy et al.
Abstract
This article critiques the arguments advanced by Elizabeth Sheehy, Isabel Grant, and Lise Gotell in their 2023 Alberta Law Review article, “Resurrecting ‘She Asked for It’: The Rough Sex defence in Canadian Courts.” Sheehy et al. trace a rise in both “rough sex” and “sex games gone wrong” defences in cases involving bodily harm and death in Canada and the United Kingdom, equating these defences to an updated version of the “she asked for it” defence. They argue that consent should not be a valid defence for bodily harm resulting from sexual activity unless such harm was unforeseeable, emphasizing that those engaging in violent sex acts should bear the risk of serious injury or death to their partners. Concurring with Sheehy et al. on the gravity of gender-based violence, this article problematizes their broad conflation of Bondage-Discipline, Dominance-Submission, and Sadism-Masochism or Sadomasochism (BDSM), rough sex, and sexual assault. Drawing primarily on queer theory, anti-carceral feminism, and the insights of BDSM subcultures, the authors argue — separately and among other points — that Sheehy et al.’s framing of “rough sex” perpetuates a carceral, paranoid, and partisan approach to sexual justice and stigmatizes BDSM practitioners, scapegoating them for failures in sexual assault prosecutions. Interrogating the limits of their position, this article advocates a more complex understanding of sexual consent, accountability, and harm.
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