Nunavut court lets defence query woman about kinky sex games

A Nunavut woman who accuses her spouse of attempted murder, aggravated sexual assault, forcible confinement, assault and uttering threats may be cross-examined on consensual sexual activity with him that includes bondage and sadomasochism, Justice Earl Johnson ruled May 17, after a hearing to decide the admissibility of certain evidence.

The woman, whose name may not be reported under a court order and whose community is not identified, alleges that her spouse, from whom she had been recently separated, attacked her on the evening of May 30, 2008.

The case has yet to go to trial, but the court heard evidence given at voir dire hearings in Iqaluit held this past March 22 to March 24. Voir dire hearings are held to determine if certain evidence is admissible in a trial.

At the hearing, the woman’s accused spouse told the court that for seven years prior to May 30, 2008, the couple enjoyed “a very active sexual relationship that included daily intercourse,” Johnson said in his written decision.

The accused said that in 2002, the couple started experimenting with “pseudo-rape.” In this activity, which they enjoyed about once a week, the accused would tie the woman’s hands over her head so she couldn’t move, Johnson wrote.

When engaging in their pseudo-rape game, the accused said he would often grab his spouse’s arms and pull her hair.

In 2004, the man read about the use of choking during sex to increase pleasure and his common-law agreed to try it.

“She seemed to really enjoy it and it became a regular feature of their sexual activity. The accused would sometimes use his hands and sometimes use a pillowcase. During choking, the complainant would lose consciousness for about 15 seconds,” Johnson said.

The accused told the court he did not enjoy using a pillowcase to choke her, but that he did it to give her pleasure, Johnson said.

On the evening that gave rise to the charges now before the court, the accused said he asked his spouse if she wanted to have sex after the couple had hot-knifed some marijuana.

He said in his evidence that after she performed oral sex on him, he tied her up and began to put on a condom.

But the couple got into an argument over whether she had been having sex with other men and eventually, the police got involved.

After reviewing relevant case law, Johnson ruled that for the accused “to make full answer and defence,” his lawyer may be permitted to cross-examine the woman on “the alleged sexual activity with the accused involving bondage and sadomasochism in the period 2002 to the date of the offence.”

He also ordered that no one may publish or broadcast any evidence that could identify the woman.

He also said that because he is trying the case alone, without a jury, there is a low risk of her privacy being invaded and he will be able to control the cross-examination.

Johnson also ruled that certain statements the accused made to police after his arrest are admissible in court.