The Morality Squad We Don’t Need
What’s the Criminal Code doing in bed with you?
Bawdy Work
Getting the Criminal Code out of your sex life
An ongoing series by Xtra, Xtra West and Capital Xtra on Canada’s silly sex
laws.
Xtra,
May 29, 2003
491 Church Street, Suite 200, Toronto, Ontario M4Y 2C6, Canada
416-925-6665 or 1-800-268-9872
info@xtra.ca
By Brenda Cossman
It’s time to change Canada’s antiquated sex laws.
Why? Because the government and the police have no
business regulating sexual morality. Because they are still used to target
queer people. Because the sex laws are bad laws.
In the aftermath of the high profile police raid on the
Montreal strip club Taboo this month, the police raid on the Calgary gay
bathhouse Goliath’s last December and not so very long ago, the 1999 bust of
the Bijou porn bar in Toronto, there is good evidence that the cops still use
these laws to harass gay men. And that’s to say nothing about many low
profile cases we never hear about involving the ashamed men who suffer police
harassment or plead guilty to having sex in parks just to make charges go
away.
Police say the laws are on the books, so they have to
enforce them. So it’s up to politicians to take the plunge and force change.
And maybe, just maybe, Canadians are actually ready for a
change. Sex is everywhere in our society: on TV, on billboards, in magazines,
in newspapers and of course, on the Internet. The shame that people might have
felt about pursuing and having the sex they want is evaporating. And they care
less about how other people get off. So now’s the time for Canada’s sex
laws to catch up with the 21st-century.
The Brits, whose laws form the basis of our own, are
leading the way. The UK has undertaken a major review of its sex laws, and
decided that now is the time for major overhaul. It is getting rid of
victimless morality crimes, focussing criminal law where it should be: On
non-consensual sexual activity. Here, many consensual adult sex acts remain
illegal under the Criminal Code Of Canada.
Anal sex, indecent acts—which basically means sex in a
public place of any sort—indecent performances, obscenity and prostitution
are all criminalized, even though the sex in all these cases is consensual.
Consenting adults can still go to jail if they have the wrong kind of sex, if
they have it in the wrong kind of place or if they let somebody else—even
willing voyeurs—see it.
Canada’s sex laws were written in Victorian England,
and haven’t changed much since then. In 1968, then-prime minister Pierre
Trudeau’s famous amendments to the criminal law were aimed at getting the
state out of the bedrooms of the nation, including decriminalizing homosexual
sex between two consenting individuals.
But there’s lots of sex, gay and straight, that
wasn’t decriminalized. Where to start?
Anal sex is still targeted. It’s prohibited between
people under the age of 21 and between more than two people. Anal sex is only
okay if you and your partner do it in private, but not if you bring anyone
else along.
It’s discrimination based on orifice. There’s no law
against three or more straight folks getting together in private for sex, as
long as there’s no anal penetration. And there’s no law against three or
more gay folks getting together in private and having lots of oral sex. But if
anyone puts a penis near an anus—well, now that’s criminal.
As well, the age of consent is higher for anal sex than
for other sex. Penises into vaginas and mouths are okay at 14, but anuses have
to wait until 21. While the law applies to straight folks, too, it’s
impossible to escape the historical legacy of these prohibitions on anal sex.
It’s really all about regulating gay male sex.
A constitutional challenge to the anal sex laws was
successful in the Ontario courts—police in this province don’t charge on
it—but the law is still on the books and remains enforceable in most other
provinces.
Other laws do even more harm to the gay and lesbian
community.
Section 163 of the Criminal Code—revealingly still
entitled “Corrupting Morals”—prohibits, amongst other things, publicly
exhibiting “a disgusting object or an indecent show.”
In fact, indecency is criminalized 17 ways to Sunday.
Section 167 prohibits immoral, indecent or obscene performances. Section 175
prohibits people from exposing or exhibiting an indecent exhibit in a public
place.
These laws can capture any public display of sex and
sexuality, from art shows to live performances including burlesque, strip
shows, performance art or theatrical productions, limiting our freedom of
expression. Madonna got in trouble in 1990 in Toronto because of them.
But it’s not only about shows and performances. Section
173 criminalizes “indecent acts” performed in a public place in the
presence of one or more persons. This law is intended to capture everything
from flashers to sex in public places.
The strange thing about indecency, the concept that binds
all these charges together, is that it’s not defined in the Criminal Code.
The courts have said that indecency should be defined
according to a community standard of tolerance: An act is indecent if the
community would not tolerate it taking place. The courts have said that the
only community that counts is the national one from sea to sea. The community
standard is considered the same regardless of whether one is in the gay ghetto
in Vancouver or the countryside of Prince Edward Island, though we all know
that the community standards of these two places are quite different.
The courts have also said that indecency is to be judged
according to the social harm that it is likely to cause. Is it degrading or
dehumanizing? Will it cause people to act in an anti-social manner? This
definition hits all sexual activity in public: oral sex, anal sex, mutual
masturbation, lap dancing, sexual touching, masturbation, exposing yourself,
you name it. But in downtown Toronto, these activities may be seen as more
social than anti-social.
And what is a public place? The courts have interpreted
it as any place to which the public has access by right or invitation. It
doesn’t include your home (unless maybe you are having an open house or
block party). It doesn’t include a locked hotel room, and it probably
doesn’t include a locked bathhouse cubicle. Sometimes it includes a car, but
sometimes it doesn’t.
A public place definitely includes a public park or
washroom or the back room of a gay bar or porn theatre.
The laws against indecent acts means that people cannot
have sex on at the corner of Yonge and Dundas. Most people would consider this
a reasonable limitation—though inhibitions and good manners, rather than the
law, probably prevents most people from doing this.
But the law against indecent acts also means sex is
prohibited in somewhat less public places. Owners and performers at strip
bars, for example, are at risk of being charged with indecent acts or indecent
theatrical performances if the show gets too risqué. So are bathhouses if
there’s any hint of sex occurring outside of a locked cubicle. So are sex
clubs.
But most people would agree that strip bars, bathhouses
and sex clubs just aren’t the same as the corner of Yonge and Dundas. Their
patrons are not there by accident nor to shop at The Gap. They are there
because they want to watch erotic performances, they want to have sex, they
want to watch other people have sex or because they want other people to watch
them having sex. The sexual activity in these places is most often consensual,
but the law covers them as the same as Yonge and Dundas.
And if these indecent acts routinely take place in a
particular place, like a strip bar or a bathhouse, then the folks running the
place can be charged with running a common bawdy house. Most of the time, the
bawdy house laws are used for prostitution. But a bawdy house also includes
places where indecent acts routinely occur. And patrons can be charged as
found-ins, like what happened at Remington’s strip bar in Toronto in 1996
and at Taboo in Montreal in May.
(You’ll note that in this piece and in Xtra’s call to
repeal many sex laws in the Criminal Code Of Canada, we haven’t asked for
the repeal of laws governing prostitution. To be honest, Canada’s laws
around prostitution are pretty bad—prohibiting commercial sex is based on
the same old tired values as the indecency laws. But the legal regulation of
sex work raises many other issues—the oppression of women, questions of
health and safety—that should be addressed at another time, with other
arguments.)
The big picture is this: The law has no business
regulating sexual morality, as long as the folks engaging in it and watching
it are doing so by consent. In any and all cases where adult people having sex
have created a reasonable expectation of privacy, there’s no reason for the
law to concern itself.
The only argument in favour of these laws is morality.
Victorian sex laws were based on the idea that sex was bad, dangerous,
corrosive, always verging on out of control and taking social control with it.
All sex had to be carefully policed. Only private, marital, monogamous sex was
tolerated.
Sexual norms have changed. The laws are no longer
appropriate, nor do they reflect the way many modern people live. The state
does have a role in regulating non-consensual sexual activity and in
protecting people from sexual interference and exploitation—there are many
laws that give such protection, especially to children. But the state
doesn’t have a role in prohibiting sex just because it doesn’t take place
in private, isn’t monogamous or isn’t to everyone’s taste.
* This is the first of a series, calling for reform of
Canada’s sex laws. Brenda Cossman is on the board of directors of Pink
Triangle Press, which publishes Xtra.
WHAT WE PROPOSE: APPEAL TO REPEAL
As government has no business regulating the sex life of
consenting adults, the federal government should:
• Repeal the anal sex laws (Section 159)
Your neighbour complains about sex noises coming from
your apartment. The police arrive to find a three-way you’re having with
your lover and someone you picked up on the Internet. Anal sex with more than
two people is a no-no, a restriction discriminating against gay sexuality.
• Repeal the indecent theatrical performances law
(Section 167), the indecent exhibition law (Section175) and prohibition
against exhibiting a disgusting object or exhibiting an indecent show (Section
163)
In 1996, police raided the Toronto strip bar
Remington’s for its Sperm Attack Mondays, where the performers jerked off on
stage for the pleasure of an audience who had come to the club to see it.
Among other charges, club management and performers were charged under Section
167. Laws prohibiting an indecent show and disgusting objects are used to
target art and porn—they shouldn’t be.
• Reform the indecent acts law (Section 173)
Last spring, Belleville police arrested nine men during a
sex sting in a city park—though in most cases no one saw the sexual acts
except the police officers who were looking for them. Sex in the back room of
a bar, sex in an otherwise empty public washroom and sex in the steam room of
a bathhouse are all criminal offences if anyone—even a willing voyeur—can
see. In 1999, police arrested 19 men at the Bijou porn theatre for indecent
sexual acts even though they occurred behind closed doors. The law needs to be
reformed so that if people have created reasonable conditions and expectations
of privacy, consensual sex should be legal.
• Remove the references to indecency from the bawdy
house laws (Sections 197 and 210)
In police raids in 1987, 1981, 1996 and most recently in
Calgary in 2002 and in Montreal in May, men have been arrested for having sex
in bathhouses and other gay sex spots, and the owners of these places have
also been charged. Governments have no business regulating consensual sex in
any place of business.
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