CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, January 21, 2022

Zaccour on The BDSM Defense in Sexual Assault Cases

Suzanne Zaccour (University of Oxford, Faculty of Law) has posted an abstract of ‘I’m Telling You, She Likes it Rough’: Sexual History Evidence, Consent and the BDSM Defense in Canadian Sexual Assault Trials ((2021) Child and Family Law Quarterly, Vol. 4) on SSRN. Here is the abstract:
 
When a violent sexual assault is caught on video or results in injuries, defendants sometimes claim that the sexual activity was consensual BDSM or 'rough sex'. This article seeks to understand the impact of this strategy when the complainant has previously engaged in atypical sexual activity.

The study of Canadian admissibility rulings and trial decisions shows that sexual history evidence is primarily used to support the legally prohibited inference that because a woman consented to rough sex in the past, she is more likely to have consented to the sexual activity in question. Defendants rely on the argument that repeated sexual activity is less likely to be criminal: if it is routine, then it is not rape. This strategy relies on and reinforces myths and stereotypes about sexual violence, particularly partner/marital sexual violence.

https://lawprofessors.typepad.com/crimprof_blog/2022/01/zaccour-on-the-bdsm-defense-in-sexual-assault-cases.html

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