Background
In September 1986, Rodney Haggart was celebrating his engagement in a hotel bar near Sudbury, Ontario. Haggart had an exchange of angry words with Jules Jobidon, a young man at the bar with his brother. Haggart challenged him to a fight in the bar but it was soon broken up. They both agreed the fight was not over.
Jobidon waited outside until Haggart left to continue the fight. His first punch was with such force that Haggart was knocked unconscious. Jobidon immediately continued to punch him in the head. Haggart was taken to a hospital and later died of severe contusions to the head. Jobidon was charged with manslaughter.
At trial the judge found that though Jobidon did not intend to kill him, the possibility of serious injury was foreseeable. Jobidon successfully argued that Haggart had consented to the fight, and so he was acquitted. The Court of Appeal overturned the verdict and substituted a conviction for manslaughter.
The principal issue was whether absence of consent is a material element which must be proven by the Crown in all cases of assault or whether there are common law limitations which restrict or negate the legal effectiveness of consent in certain types of cases.
Reasons of the Court
Justice Gonthier, writing for the majority, held that the criminal law has a "paternalistic" dimension which attempts to ensure that all "citizens treat each other humanely and with respect". Nevertheless, consent would be a valid defence where the harm was trivial or where it is part of a socially valuable activity such as sports.
Justice Sopinka, in concurring reasons that agreed with the result but not with the majority's reasoning, held that the majority was expanding the scope of the criminal provision beyond what was intended by Parliament. In the current situation, Sopinka found that the beating became so severe that it would be impossible for Haggart to consent to it.
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The Crimes Act 1900, is a New South Wales statute that sets out the majority of criminal offences for the state of New South Wales in Australia. Along with the Crimes Act 1914, and the Federal Criminal Code Act 1995, these two pieces of legislation form the majority of criminal law for New South Wales.
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The relationship between BDSM and the law changes significantly from nation to nation. It is entirely dependent on the legal situation in individual countries whether the practice of BDSM has any criminal relevance or legal consequences. Criminalization of consensually implemented BDSM practices is usually not with explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights, which in principle constitutes a criminal offense. In Germany, Netherlands, Japan and Scandinavia, such behavior is legal in principle. In Austria the legal status is not clear, while in Switzerland some BDSM practices can be considered criminal. Spectacular incidents like the US scandal of People v. Jovanovic and the British Operation Spanner demonstrate the degree to which difficult grey areas can pose a problem for the individuals and authorities involved. It is very important to learn the legal status of the right of consent in the judicial statue of the country of resident for the practitioners of BDSM.
R v JA 2011 SCC 28 is a criminal law decision of the Supreme Court of Canada regarding consent in cases of sexual assaults. The court found that a person can only consent to sexual activity if they are conscious throughout that activity. If a person becomes unconscious during the sexual activity, then they legally cannot consent, whether or not they consented earlier. In addition to the two parties, the Court heard from two interveners: the Attorney General of Canada and the Women's Legal Education and Action Fund (LEAF).
In Maryland v. King, 569 U.S. 435 (2013), the United States Supreme Court decided that "when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." The majority opinion, written by Justice Anthony Kennedy, described Maryland's law as follows:
The Act authorizes Maryland law enforcement authorities to collect DNA samples from "an individual who is charged with... a crime of violence or an attempt to commit a crime of violence; or... burglary or an attempt to commit burglary."
Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned. It is then that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense.
If "all qualifying criminal charges are determined to be unsupported by probable cause... the DNA sample shall be immediately destroyed." DNA samples are also destroyed if "a criminal action begun against the individual... does not result in a conviction,... the conviction is finally reversed or vacated and no new trial is permitted "or "the individual is granted an unconditional pardon."
