McGill Law Journal Revue de droit de McGill
PLEASURE READING
A Review of Ummni Khan, Vicarious Kinks: S/M in the Socio-Legal
Imaginary (Toronto: University of Toronto Press, 2014), pp 376.
ISBN 978-1-4426-1551-9
Dana Phillips*
Introduction
To write a book in support of sadomasochism (s/m) is a risky under-
taking for a legal academic. To succeed, she must establish scholarly cred-
ibility for a cause that has been either ignored or treated with suspicion
by most of her colleagues, all the while staying true to the prioritization of
sensual pleasure at s/ms heart. Canadian law and sexuality scholar
Ummni Khan rises brilliantly to the challenge in her recently released
monograph, Vicarious Kinks: S/M in the Socio-Legal Imaginary.1
Khan does not provide easy answers about how we ought to under-
stand, or legally regulate, s/m. Instead, she examines, in her first three
chapters, how the meaning of s/m is constructed by three intersecting so-
cial discourses: the psychiatric definitions of the American Diagnostic and
Statistical Manual of Mental Disorders (DSM), and other medical dis-
course; the political claims of the feminist sex wars; and the cultural rep-
resentations of film. The final two chapters of the book look at how these
discursive constructions play into the judicial treatment of s/m pornogra-
phy and practice in Canada and abroad. Khan skillfully weaves together
* LLM and PhD Candidate, Osgoode Hall Law School. JD, University of Victoria, Faculty
of Law. Thank you to Professors Dayna Scott and Susan Drummond for running the
workshop that kick-started this project, and for offering feedback and encouragement. I
am grateful to Professor Benjamin Berger for his helpful comments on the first draft,
and for his support and guidance in seeking publication. I also wish to thank my anon-
ymous peer reviewer for a thought-provoking assessment of the piece, as well as the ed-
itorial board of the McGill Law Journal for its diligent engagement with the text
throughout the editing process. Finally, I wish to note that it was my pleasure to work
briefly with the author as a research assistant for a different project, and to perform a
piece of spoken word poetry at the launch of this book.
Dana Phillips 2015
Citation: (2015) 61:1 McGill LJ 221 Rfrence : (2015) 61:1 RD McGill 221
1 Ummni Khan, Vicarious Kinks: S/M in the Socio-Legal Imaginary (Toronto: University
of Toronto Press, 2014).
222 (2015) 61:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
her analysis of each discursive framework to paint a rich picture of the
stories we tell about s/m, and how those stories influence the legal inter-
ests of its practitioners.
I. Theoretical Framework
To advance her argument, Khan deploys a robust theoretical frame-
work. The centrepiece is Michel Foucaults theory of how knowledge and
power work to produce pleasure, an insight that plays out with respect to
s/m in at least two ways. In one sense, the condemnation of s/m within
dominant social discourses has the side effect of heightening its illicit al-
lure. While this theme reappears throughout Vicarious Kinks, even more
central to the book is Foucaults claim that the pursuit of objective truth,
including the truth about sexuality, is pleasurable in itself.2 Applying this
idea to the s/m context, Khan argues that the attempts of psychiatry, fem-
inism, and film to pin down the truth about s/m actually serve as an in-
citement to discourse,3 amplifying the phenomenon of s/m in social con-
sciousness even while warning of its dangers, and taking pleasure in the
voyeuristic assessment of s/m representations and practices, even while
denying the pleasures of s/m practitioners themselves.
Theories of abjection and disgust provide a secondary grounding for
Khans work. According to her, s/m finds pleasure in the abject
unstable spaces where categories of identity, meaning, and social ordering
break down. In opposition, anti-s/m discourses invoke disgust as a strate-
gy to police and thereby reinforce the boundaries of sexual normativity.4
However, as Khan notes, the denigration of s/m through the rhetoric of
disgust also serves as a device[ ] of excitation and incitement, offering
vicarious pleasures to those who stand in judgment.5 In other words, even
those who speak out most vehemently against s/m get off on doing so. At
the same time, efforts to stamp out s/m sexuality contribute to the abject
status of its practitioners, allowing them to revel in their outlaw status
and producing new fodder for s/m fantasies.6
2 Michel Foucault, The History of Sexuality (Toronto: Vintage Books, 1990) vol 1 at 71,
cited in Khan, supra note 1 at 17.
3 Khan, supra note 1 at 71.
4 See ibid at 1718.
5 Khan, supra note 1 at 19, citing Foucault, supra note 2 at 48.
6 Khan, supra note 1 at 154.
PLEASURE READING 223
II. Khans Situated Epistemology
One of the most striking aspects of Vicarious Kinks is Khans unfailing
self-reflexivity. As she acknowledges at the outset, her book is itself a
source of vicarious kink7we all want to read it, even if only to dismiss,
or actively condemn, the argument it advances. Regardless of whether
you agree with her stance on s/m, Khans steadfast commitment to situat-
ing herself as a researcher and author is commendable. Moreover, the
risks she takes in doing so create a sense of intimacy and trust with the
reader. The autobiographical screenplay that opens the book is a case in
point; we first meet Khan not as an objective academic narrator, but as a
conflicted university student grappling with her own private sex wars.8
(We also meet her as a somewhat cheesy creative writer.) The dramatic
genre underscores the books engagement with law and film, and appeals
to the reader at a visceral level. As Khan readily admits in the opening
lines of her introduction, she hopes that the screenplay will have a seduc-
tive effect on the reader.9 This aspiration resonates with the validation of
carnal responses and desires in other pro-s/m works that Khan discusses,
drawing upon what she refers to as the corporeal epistemology of pro-
s/m politics.10
Khans personal reveal about the evolution of her own thinking and
experience with respect to s/m piques a gut curiosity, inviting the reader
to take a similar intellectual (and perhaps also sexual) journey. In a clever
segue into the book, she goes on to use her creative storytelling as an il-
lustration of how narrative constructions are inherently value-laden (in
her case romanticiz[ing] sexual alterity)a lesson to be applied to social
constructions of s/m.11 However, her most telling comments about the
screenplay appear later on, when she explains it as a response to her
struggle to situate herself as both an unbiased researcher and a credible
insider to s/m culture12a theme that pervades the entire book.
On the one hand, Khan casts doubt on the purported objectivity of
mainstream scientific claims about s/m, such as those advanced by the
provisions of the DSM (Chapter 1) and the expert evidence of a number of
health professionals in s/m-related cases (Chapter 5). Instead of support-
ing such attempts at clinical detachment, she champions the blurring of
7 Ibid at 13.
8 Ibid at 3.
9 Ibid at 10.
10 Ibid at 94.
11 Ibid at 10.
12 Ibid at 27980.
224 (2015) 61:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
distance between researcher or expert and object of study as a con-
sciously political epistemology. For example, in her discussion of pro-s/m
research that challenges the pathologizing gaze of psychiatry (as reflect-
ed in the DSM),13 Khan praises the work of Staci Newmahr, who chroni-
cles her own participation in the s/m activities of a community in Eng-
land. For Khan, Newmahrs personal involvement radically breaks down
the binary between scientific observer and s/m participants as objects of
knowledge, and thus continues the project of destigmatization.14
On the other hand, Khan seems eager to shore up her academic credi-
bility by offering a fair and comprehensive account of her subject. For in-
stance, while she begins her chapter on feminism by frankly stating, I of-
fer no pretensions of neutrality (she is on the side of the sex-radicals), she
hastens to assure her reader: That being said, however, I endeavour to
interrogate the truth-claims about s/m that were put forth from every side
of the debate.15 Moreover, while Khan rejects claims to scientific objectiv-
ity, this seems incongruent with some of her own arguments. Khan her-
self frequently points to empirical evidence (or a lack thereof) as a way to
challenge mischaracterizations of s/m, thereby affirming an objective
standard of truth on the matter.16 At one point, she even laments that the
Provincial Court of British Columbia, in the 2006 case of R. v. R.D.W.,17
did not consult the DSM or any medical experts to help determine when
s/m behaviour becomes pathological (the court in that case simply as-
sumed that s/m activities were unhealthy).18 Khan also appears anxious to
back her own claims empirically, going so far as to use the work of
Charles Darwin to support her interpretation of one of Vince Vaughns fa-
cial expressions in the film Wedding Crashers.19
The problem is that the entire thrust of Khans project seeks to decon-
struct objective knowledge claims about s/m, including her own. This
goal, however, sits in tension with Khans pro-s/m politics, which cannot
be advanced without some non-relativistic claim to truth. Khans princi-
pled answer to this dilemma is to privilege marginalized and insider
13 Ibid at 49.
14 Ibid at 50.
15 Ibid at 55 [emphasis in original].
16 See e.g. ibid at 51 (citing a medical study concluding that there is no empirical evidence
that s/m causes personal distress or dysfunction); ibid at 199200 (noting how the Su-
preme Court of Canada in R v Butler ignores social science evidence that shows no link
between pornography and violent crime); ibid at 245 (noting how a Manitoba court im-
plied that s/m leads to sexually violent tendencies without any empirical evidence).
17 2006 BCPC 300, 2006 BCPC 300 CanLII.
18 Khan, supra note 1 at 252.
19 Ibid at 126.
PLEASURE READING 225
perspectives, particularly those of s/m practitioners themselves. She seeks
to challenge the fact that, [f]rom the laws perspective, sadomasochists
are not proper cartographers of their own desires.20 Thus, while she is
careful to acknowledge that all narratives invoke a normative agenda, she
tends to challenge those that reflect dominant, negative understandings
of s/m culture, and tends to validate those that present alternative per-
spectives or speak from lived experience (or both). For instance, after can-
vassing the anti-s/m norms operating within mainstream psychiatric dis-
course, Khan goes on to cite with approval the work of Charles Moser and
Peggy Kleinplatz, two pro-s/m health professionals who conclude that the
pathologization of s/m has no basis in evidence.21 Even here, however,
Khan acknowledges that this stance, of course, attaches truth to rational-
ity, objectivity, and empiricism,22 once again demonstrating her acute
awareness of the normative values underpinning her own arguments. She
justifies the pro-s/m scientific research, however, as an effective counter-
hegemonic strategy that challenges the mainstream psychiatric discourse
on its own terms.23
Khan is remarkably self-critical, but she does not always adhere per-
fectly to her epistemological principles. Despite emphasizing the need to
listen to the voices of s/m participants themselves, and to women in par-
ticular, at times she can be uncharitable to experiential accounts that do
not reflect her own politics. For instance, in her discussion of anti-s/m
feminist discourse, she strongly criticizes the narratives of two women,
Marissa Jonel and Elizabeth Harris, who describe negative personal expe-
riences with s/m, accusing them of perpetuating notions of s/m as violent,
addictive, and dysfunctional.24 It is ironic, given her general validation of
first hand sexual knowledge, that she dismisses Jonels account as mere
anecdotal experience.25
20 Ibid at 217.
21 Ibid at 51, citing Peggy J Kleinplatz & Charles Moser, Is SM Pathological? (2005) 6:3
Lesbian and Gay Psychology Rev 255.
22 Khan, supra note 1 at 52.
23 Ibid.
24 Ibid at 7376 responding to Marissa Jonel, Letter From a Former Masochist in Robin
Ruth Linden et al, eds, Against Sadomasochism: A Radical Feminist Analysis (San
Francisco: Frog in the Well, 1982) 16 and Elizabeth Harris, Sadomasochism: A Per-
sonal Experience in Linden et al, supra note 24, 93.
25 Khan, supra note 1 at 153.
226 (2015) 61:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
III. Dominant Portrayals of S/M
Despite Khans occasional lack of charity to those with whom she dis-
agrees, Vicarious Kinks remains impressively balanced, offering a thor-
ough and nuanced mapping of the dominant cultural messages about s/m
and how they are reiterated and resisted within various forms of social
discourse. Khan also illustrates how representations and interpretations
of s/m reinforce stereotypes of gender, race, class, and sexual orientation.
Not surprisingly, the political, cultural, and legal denigration of s/m is
particularly acute where the activities at issue subvert other norms of
gender and sexuality, such as through the involvement of male submis-
sives, female dominants, or LGBT-identified participants. Of particular
interest is the link that Khan illuminates between the criminalization of
s/m and sex work.26 Given her observation that sex work has taken the
spotlight in recent feminist scholarship,27 this connection points to the
broader implications of her work.
Within her rich analysis, Khan underscores two particularly problem-
atic elements in feminist and legal interpretations of s/m: (1) the misin-
terpretation of s/m scenes as literal imitations of real world hierarchies;
and (2) the failure to recognize the salience of consent in s/m encounters.
Her discussion of the factum submitted by feminist intervenor organiza-
tion LEAF in the obscenity case R. v. Butler28 illustrates the first cri-
tique.29 In opposition to the literalist understandings of s/m advanced by
LEAF and accepted by the court, Khan describes s/m as a re-
appropriating practice, one that perverts hierarchy, takes advantage of
hierarchys sexual residue, and prioritizes pleasure at the expense of or-
der and coherence.30 She goes on to note the irony by which legal hierar-
chy [the criminal law] is called in to protect the sanctity of social hierar-
chy and to disavow its sexual leakages.31
Khan also highlights how anti-s/m discourses tend to blur the distinc-
tion between consensual s/m and sadistic violence. For example, she notes
26 See e.g. ibid at 100 (noting the historical criminalization of s/m under anti-prostitution
laws); ibid at 154 (discussing the conceptual link drawn between the criminali-
ty/immorality of prostitution and s/m in the film Nine and a Half Weeks); ibid at 27071
(discussing the criminalization of a professional dominatrix under anti-prostitution
laws in R v Bedford (2000), 184 DLR (4th) 727, 143 CCC (3d) 311 (Ont CA) [Bedford
Ont CA]; R v Bedford, [1998] OJ No 4033 (QL) (Ont Ct J) [Bedford Ont Ct J]).
27 Khan, supra note 1 at 115.
28 [1992] 1 SCR 452, 89 DLR (4th) 449.
29 Khan, supra note 1 at 18489.
30 Ibid at 187.
31 Ibid.
PLEASURE READING 227
a recurring theme within psychiatry, radical feminism, film, and juris-
prudence that masochists are inherently self-destructive, helpless victims
whose purported enjoyment of submissive sexuality reflects mental and
emotional instability rather than genuine sexual agency. Sadists on the
other hand, are widely portrayed as violent and aggressive abusers with
no concern for the pleasure or well-being of their masochist victims.
These discourses, most notably feminist and legal discourses, often fail to
ascribe significance to the presence of clear and informed consent in s/m
scenariosan important line that separates them from situations of sex-
ual violence. Although the law purportedly values consent, consent does
not redeem activities that violate other norms of gender and sexuality,
and indeed may be damning in such circumstances. In Butler, for in-
stance, the Court finds that consent cannot exculpate material that has
already been found to be degrading or dehumanizing, and may even
make it worse.32 In the notorious British s/m case of R. v. Brown,33 the
House of Lords finds that the law will tolerate rough horseplay as part
of male social life, but not explicitly consensual gay s/m.34 As Khan astute-
ly observes, the provision of negotiated and informed consent is precisely
what makes gay s/m unmanly, separating it from normal (i.e., violent)
male physical aggression.35
While Khan places rightful emphasis on consent as an overlooked or
improperly weighted factor in normative evaluations of s/m, her analysis
would be enriched by a deeper engagement with the extensive feminist
literature that has critiqued consent as a complex and problematic stand-
ard.36 Khan does not define her understanding of consent, or explain why
32 Butler, supra note 28 at 479, cited in Khan, supra note 1 at 197.
33 [1994] 1 AC 212, [1993] 2 All ER 75 (HL).
34 Khan, supra note 1 at 232.
35 Ibid at 23233.
36 See e.g. Lise Gottel, Governing Heterosexuality Through Specific Consent: Interrogat-
ing the Governmental Effects of R v JA (2012) 24:2 CJWL 359 (critiquing the individu-
alized and decontextualized framing of consent in a recent Supreme Court of Canada
case); Deborah Tuerkheimer, Sex Without Consent (2013) 123 Yale LJ Online 335,
online:
agency that recognizes both sexual self-direction and social constraints on sexual
choice as the touchstone value of American rape law); Robin West, Sex, Law, and Con-
sent in Franklin Miller & Alan Wertheimer, eds, The Ethics of Consent: Theory and
Practice (Oxford: Oxford University Press, 2009) 221 (arguing that the liberal legal fo-
cus on consent legitimizes the harms that may arise from consensual sex); Kathryn
Abrams, From Autonomy to Agency: Feminist Perspectives on Self-Direction (1999)
40:3 Wm & Mary L Rev 805 (considering how feminist theory has modified traditional
liberal notions of autonomy); Catharine A MacKinnon, Toward a Feminist Theory of the
State (Cambridge, Mass: Harvard University Press, 1989) (questioning the meaning of
consent in a male-dominated society); Carole Pateman, Women and Consent (1980)
228 (2015) 61:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
she positions it as such a central sexual value, which seems like some-
what of an oversight given the rich body of scholarship on this issue. She
does, however, acknowledge that there may be good policy reasons to be
skeptical of alleged consent to s/m in sexual assault cases.37 She also ad-
dresses feminist concerns about structural constraints on agency in her
discussion of R. v. J.A.,38 a sexual assault case involving a relationship
marked by both s/m and domestic violence. Khan advocates a view of the
recanting complainant in J.A. as someone who negotiates both pleasure
and danger in her relationship,39 thereby presenting a more nuanced un-
derstanding of consent that still privileges sexual agency and s/m pleas-
ure.
IV. Resistant Discourses, Social Justice, and the Celebration of S/M
In addition to demonstrating the pervasiveness of anti-s/m sentiment
and the power of gender norms within mainstream discourses, Khan pulls
out examples of works and decisions that go against the grain of dominant
stereotypes. These include: the challenges raised to the medical pathologi-
zation of s/m by Moser and Kleinplatz;40 the resistance discourse of pro-
s/m authors and activists such as Gayle Rubin and Patrick Califia;41 the
nuanced portrayal of a budding female dominatrix in the 2007 indie film
Walk All Over Me;42 and Ontario Justice Wolders context-sensitive as-
sessment of an intergenerational s/m relationship in the 2011 criminal
case of R. v. M.(P.).43 In response to the plethora of anti-s/m views she en-
counters, Khan draws upon these and other moments of resistance to
challenge common misconceptions and portray s/m sexuality in a more
positive light.
Indeed, the normative undercurrent of Vicarious Kinks celebrates s/m
as a site of pleasure, empowerment, and resistance against sexual hegem-
ony. At the same time, Khan offers a compelling portrayal of s/m as a so-
cial justice issue. Here is where her disciplined and nuanced theoretical
analysis links up with her politics. Khan persuasively argues that deni-
grating social narratives about s/m carry significant material consequenc-
8:2 Political Theory 149 (tying a critique of political consent theory to how consent oper-
ates in womens everyday lives).
37 Khan, supra note 1 at 249.
38 2011 SCC 28, [2011] 2 SCR 440.
39 Khan, supra note 1 at 267.
40 Ibid at 5052.
41 Ibid at 92.
42 Ibid at 15051.
43 2011 ONCJ 401, 2011 CarswellOnt 8292, cited in Khan, supra note 1 at 28890.
PLEASURE READING 229
es for practitioners. The most striking evidence for this appears in the last
chapter of the book, which addresses the laws treatment of s/m practice.
Here we learn how those who transgress norms of gender and sexuality
through s/m have been subjected to lengthy imprisonment (R. v. Brown,
R. v. J.A.), abusive and degrading treatment by the police (R. v. Bed-
ford44), loss of parental rights (Smith v. Smith45), psychological or psychi-
atric interventions (R. v. R.D.W., Smith v. Smith) and, of course, social
stigmatization (R. v. J.A., Mosley v. News Group Newspapers Limited,46
the Corporal James Charles Brown lawsuit47). As Khan compellingly ob-
serves: The cruel irony then is that the dominant script in the socio-legal
imaginary casts s/m as violent, while the violence imposed by the law up-
on the bodies and subjectivities of s/m practitioners happens offstage, out-
side of the narrative.48
While Khan advocates for greater understanding and acceptance of
s/m, she is not blind to the costs of normalization. As she demonstrates in
her analysis of a number of films including the popular 2002 film Secre-
tary, as well as in her discussion of the popular literary trilogy Fifty
Shades of Grey, positive portrayals of s/m sexuality often purchase main-
stream credibility through adherence to other privileged social forms,
such as monogamy, heterosexuality, whiteness, and physical attractive-
ness. And, while some s/m practitioners have started using the law to
seek positive recognition of their sexual identities in ways that Khan
views as both promising and inspiring, she also notes that the cost of
casting oneself as a liberal legal subject can be to reify identity, uphold
the sexual chauvinism of the status quo, and displace abjection onto other,
more marginalized subjects.49 Indeed, these are the same issues that
arise with increasing social and legal acceptance of almost any previously
marginalized group. Although not discussed in the book, another potential
cost more particular to s/m begs consideration: as a form of sexuality that
derives pleasure from abjection, taboo, and the re-appropriation of social
hegemonies, does the erotic power of s/m depend on its illicit status?
44 Bedford Ont CA, supra note 26; Bedford Ont Ct J, supra note 26.
45 This American case was discussed in Marty Klein & Charles Moser, S/M (Sadomaso-
chistic) Interests as an Issue in a Child Custody Proceeding (2006) 50:2&3 J Homosex-
uality 233. Klein and Moser anonymized the parties to protect their identities, noting
only that the case was published in 2003.
46 [2008] EWHC 1777, 2008 WL 2872466 (Westlaw) (QB).
47 This is an ongoing lawsuit. RCMP Corporal Brown launched a civil lawsuit in 2012 al-
leging defamation and breach of privacy after he was exposed and castigated in the me-
dia for s/m-themed photos that he allegedly posted on the kink site Fetlife. See Brown
v Ward (1 November 2012), Vancouver S-127697 (BC Sup Ct).
48 Khan, supra note 1 at 305.
49 Ibid at 302.
230 (2015) 61:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
It would be easy for an academic project as rigorously intellectual as
Khans to inadvertently kill the visceral eroticism that makes s/m worth
celebrating in the first place. However, Khans unorthodox use of pictures,
poetry, vivid descriptions of film, and of course, her own salacious screen-
play, all work to create a decidedly sexy ambience, while her prose ampli-
fies thrilling tensions in the elusive search for sexual truth. In this way,
Khan manages to bring the reader back to her own body, allowing her to
access the vicarious pleasures of an especially captivating story about s/m.
