• A. Sandhu (law student)

Who’s Going Down? – Rupaul’s Drag Race - Episode 4

Editor's Note: In her "Who's Going Down" series of posts, Robson Hall Law Student A. Sandhu looks at episodes of popular television shows and analyzes them through a criminal law lens for an insightful, comical and fun application of criminal law to popular culture. The analysis assumes events took place in Canada

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Who’s Going Down? – Rupaul’s Drag Race Episode: Season 3 Episode 4

*Spoilers Ahead*

What makes great reality television? The drama of course! However, sometimes reality stars can get a bit too heated and physical altercations can ensue. There is no doubt that this creates entertaining television, but could it also create a criminal case? On the show Rupaul’s Drag Race1 a camera crew captured a possible assault on HD film - sounds like evidentiary and ratings gold!

Rupaul’s Drag Race is a competition show in which America’s fiercest "drag queens" vie for the title of "America’s Next Drag Superstar". At the end of each episode, two queens face-off in a lip sync battle in order to showcase their charisma, uniqueness, nerve and talent, and save themselves from elimination.

One of the most iconic lip syncs in Drag Race herstory was a face-off between Mimi Imfurst and India Ferrah to Thelma Huston’s "Don’t Leave Me This Way". Mimi’s performance started off strong, but it wasn’t long before she got jealous of India’s boogie and decided to stand directly in front of India to block her from the judges’ view. This prompted India to walk down the stage and continue lip-syncing right in front of the judge’s table. Not wanting to be outshined, Mimi followed India, proceeded to lift her up and slung her over her shoulders in a horizontal position. India screamed “Get her off of me!” as guest judge Latoya Jackson watched in horror while Mimi walked back up the stairs carrying a flailing India in tow. Mimi finally put India down when they were back on the stage. Had this incident occurred in Canadian jurisdiction, could Mimi be convicted of assault?

The offence of assault is outlined in s. 265(1) of the Criminal Code2 and includes the intentional application of force to another person without that person’s consent.

While India was not substantially physically harmed by the lift, an infliction of substantial harm is not necessary for an assault conviction. There simply needs to be an intentional application of force. Mimi did lift India intentionally, but is lifting someone considered “applying force”? Yes gawd! In the Alberta case of R v Cam3, the court stated that lifting is sufficient to constitute assault in circumstances where the lift occurs without consent.

Keeping in mind that this is a reality show, we cannot discount the possibility that this entire incident might have been staged and that India did consent to being lifted. However, in an interview, India said that the lift was unexpected and that she was fearful when Mimi lifted her. India did sound frightened as she screamed, “Get her off of me”. No T no shade, but considering India’s poor performance in the acting challenge that took place the episode prior, I’m going to assume that her fear was genuine and that the lift was unexpected and unplanned.

Proceeding with the assumption that this was not a consensual, planned stunt, Mimi may be able to use the defence of implied consent if the court finds that there was implied consent to the lift because it occurred in the context of a lip sync battle.

When one consents to certain activities, it can be said that they consent to a reasonable level of potential physical contact. For instance by agreeing to play hockey, the player consents to being body checked. In the case of R v McSorley4, the court determined that “some forms of intentionally applied force will clearly fall within the scope of the rules of [a] game, and will therefore readily ground a finding of implied consent”.5 By participating in a lip sync battle, would a reasonable person expect to be subjected to the application of force by others? I would argue no.

In an earlier lip sync battle, contestant Venus D Lite purposefully pushed fellow contestant Shangela.

Rupaul was not pleased and told all the contestants, including India and Mimi, that there should be no physical force used against other contestants during lip syncs. After the Mimi’s lift, Rupaul again stated, “Drag is not a contact sport”. India did not give implied consent to being lifted by participating in the lip sync.

Section 265(4) of the Criminal Code6 states that in the context of assault, if an accused claims to have had an honest believe that the complainant consented to the conduct in question, this may constitute a defence if the trier of fact finds that their belief was reasonable.

This defence was used in the case of R v Donohue7. In this case, a defendant lifted the complainant upside down. Donohue had consensually lifted the complainant in a joking manner in the past. On this particular occasion, they had been joking around prior to the lift, and during the lift the complainant continued laughing. The court decided that it was therefore reasonable for the defendant to believe the complainant was consenting to the lift because she continued to laugh and seemed to still be playing along with the joke. Donohue was able to rely on the defence of honest mistake.

Mimi can use the defence of mistake if she honestly believed that India consented to the lift, and that a reasonable person placed in the same circumstance with the same knowledge as Mimi could also hold this mistaken belief. It is unlikely though that a reasonable person in Mimi’s circumstance would have believed India had consented to the lift. As soon as Mimi lifted India, she began flailing. She also screamed in a panicked voice “Get her off of me!” It was quite clear that India felt very attacked! India continued to scream and flail until Mimi was back on the stage and finally put her down. Given this, along with the fact that Rupaul specifically told the queens that physical contact would not be condoned during lip syncs, it is unlikely that Mimi would be able to use the defence of mistake.

After the lip sync, Rupaul told Mimi that she lost the lip sync, and had to sashay away. If the Crown decided to charge Mimi with the assault of India, Mimi would also be sashaying away to Tuckahoe Prison. Stay tuned for my next blog post in which I will explore whether Trixie Mattel could be convicted under section 322 of the Criminal Code8 for stealing the crown from Shangela in the All Stars 4 finale (JK, donut come for me, I am from Chicago).

Endnotes

1 Rupaul’s Drag Race, 2009, VH1 (New York, NY: World of Wonder 2009).

2 Criminal Code, RSC 1985, C-46, s. 265(1).

3 R v Cam 1999 ABPC 141, 1999 CarswellAlta 1245. .

4 R v McSorley 2000 BCPC 116, 2000 CarswellBC 3297.

5R v McSorley 2000 BCPC 116 at para 68, 2000 CarswellBC 3297.

6 Criminal Code, RSC 1985, C-46, s. 265(4).

7 R v Donohue 2015 CM 4004, 2015 CarswellNat 4882.

8 Criminal Code, RSC 1985, C-46, s. 322.