21 August 2012


One of the zanier ideas embraced by some legal theorists is holotropic breathwork, with people supposedly 'connecting' with their 'past lives' or with the 'consciousness' of inanimate objects if they modify their breathing.

A hoary old cynic such as myself would note that if you stop breathing long enough you are dead, but that is apparently not a problem for enthusiasts who espouse the notion that dead are still alive, just "not in a familiar form" ... a notion that collides very uncomfortably with Australian evidence law. The ghost, rather than the butler, did it?

There is of course another breathwork, that practiced by some aficionados of S&M. 'Asking for it: Erotic Asphyxiation and the Limitations of Sexual Consent' [PDF] by Ingrid Olson in 4(1) JGLR (2012) 171-200 comments that -
The contentious practices of the sadomasochism (S/m) community provide a template for investigating consensual sexual practices that are often deemed excessive. A recent Supreme Court of Canada (SCOC) decision convicted the defendant in an assault case regarding sexual activity performed during a sex partner’s brief loss of consciousness due to consensual erotic asphyxiation. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant’s argument of prior consent. That is, despite prior consent for sexual activities the SCOC ruled on the legal parameters of sexual autonomy. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent, and subsequently, one’s sexual autonomy. Legal parameters on sexual practices often conflict with the contemporary community standards of sexuality. This article argues that the autonomy to consent to the sexual practices one desires should not be limited by consciousness. There is a new sexual movement underway, fuelled by the discourses of feminist, sexuality, and queer theorists that seek to shift anti-porn and sexual assault dialogues to a positive project of sexual empowerment and queer sexualities. It is a call for sexual agency, the autonomy to negotiate sexual boundaries and pursue one’s sexual desires. This sexual liberation movement desires a revaluation of sexual values, and the right to say ‘yes’. Sexual autonomy, borne from negotiation and enthusiastic consent, is a re-imagination of the term ‘asking for it’.
Olson states that -
In a May 27 2011 Supreme Court of Canada (SCOC) decision, the defendant in an assault case, R. v. J.A., was convicted regarding sexual activity performed during a sex partner‘s brief loss of physical consciousness. The brief loss of consciousness occurred during breath play, or erotic asphyxiation, which involved a tempered amount of manual choking9 during a consensual sadomasochism scenario. The SCOC cited law that requires continual consciousness for sexual consent and rejected the defendant‘s argument of prior consent. That is, despite consent prior to specific sexual activities, the SCOC ruled on the legal parameters of sexual autonomy. 
The upheld conviction of the J.A. case in Canada comes almost two decades after a group of sadomasochism (S/m) practitioners in England had their convictions upheld on charges of assault causing bodily harm despite claims of consent. Both cases involved relationships of consensual S/m, that took place in private homes and did not require medical attention. Nor were the police summoned during or immediately following their S/m activities. Neither case received police attention until well after the events with which the defendants were charged. Our sexual relationships are perhaps our most intimate ones. I suggest that sexual intimacy is an integral part of human life; most persons desire some form of sexual relationship, regardless of their placement in the plethora of diverse demographic classifications. Human sexuality denotes physically intimate activities that often involve touching other persons, caressing, kissing, and engaging in various sexual practices for the purpose of sexual pleasure. Furthermore, this level of intimacy has the capacity to create an emotional or spiritual bond between persons. Sexual consent is constitutive of sexual agency. It is the negotiation of intentional sexual activity and should not be limited by the loss of physical consciousness where prior consent exists. 
This article addresses the most intimate level of safety: the negotiation, trust and consent between persons within the context of sexual relationships. Specifically, I address the linkage between consciousness and consent in the SCOC judgement in the R. v. J.A. decision and argue that sexual autonomy means that consent does not cease with loss of consciousness. Several contemporary court decisions regarding S/m practices in England and Canada have placed legal limitations on the permissible level of sexual consent and, subsequently, one‘s sexual autonomy. Legal parameters on sexual practices conflict with contemporary discourses of feminist and sexuality movements seeking to shift anti-pornography and sexual assault dialogues to a positive project of sexual empowerment. This article interrogates the restriction of sexual consent based on legal decisions of S/m practices and argues that the impact of these laws negatively effect sexual autonomy. 
There are three legal cases regarding sadomasochism that I examine here. They are, in both chronological order and their order of appearance in this article, the 1993, England, House of Lords R. v. Brown (sadomasochism) assault case. Second, the 2004 British Columbia (Canada) provincial court, R. v. Price (pornography) obscenity case. My explanation of the British Columbia R. v. Price case includes an abbreviated explanation of Canada‘s obscenity law, generally referred  to in Canada as the ‘Butler decision‘. This explanation is included because it is a vital part of the contemporary community standard of sexuality for which I argue. Third, the 2011, SCOC, R. v. J.A. (sadomasochism) assault case that centred on the issue of sexual activity following loss of consciousness. I examine these three cases together because they represent significant legal decisions on S/m practices in the contemporary secular, industrialised West. These cases also work together in highlighting the distinction of the public/ private divide and how legal decisions of S/m are influenced, or not, by contemporary S/m practices and the community standard of sexualities and tolerance. What I argue through these three separate legal decisions is that what the court understood and applied correctly in R. v. Price and what the courts failed to recognise in the Spanner and J.A. cases, is the contemporary community standard of tolerance regarding sexuality and the significance of autonomy and self-determination in adjudicating sexual consent.
'Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory' by Lucinda Vandervort in 23(2) Columbia Journal of Gender and Law (2012) meanwhile
examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.