Fear of Daisychaining
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,
July 10, 2003
491 Church Street, Suite 200, Toronto, Ontario M4Y 2C6, Canada
416-925-6665 or 1-800-268-9872
info@xtra.ca
By Garth Barrierie
When Concordia University professor Thomas Waugh
researched pre-Stonewall gay sex graphics, he was struck by how many of them
involved group sex. Is that fact just a reflection of what gay men did back
then, a reflection of the artists’ fantasies or a bit of both? Did the
decision to draw men having sex in groups represent, as Waugh suggests, a
utopian dream of community created through our sexual gatherings?
Whatever the answers to those questions, gathering in
groups to have or to watch sex will continue to be popular because it makes us
feel good; syrupy gay weddings are not going to change that. The problem is
that the society in which we live has never been interested in helping us feel
good. Quite the opposite; active steps have been taken to prevent and punish
us for reaching that pleasure. The 2002 raid on Calgary’s only bathhouse and
the 2000 raid on Toronto’s only lesbian bathhouse event are depressing
reminders that those actions continue.
Two obstacles stand in the way to getting the police out
of the bars, bathhouses, strip clubs and parks where we have sex. First, the
law does not like to give up its right to be a moral opportunist when it comes
to sex. Second, we may not believe in our own sexual culture enough to face
down the first obstacle. We, or some of us, are society’s convenient enemy
within.
There are dark moments when I believe those obstacles are
insurmountable. Other times I think I can see a light through the mist as I
suck and fuck my way through yet another intense three-way in the steam room
at my local bathhouse. Before we can press parliamentarians for change, we
must understand from where those obstacles come.
The law has attacked gay sex, and in particular group gay
sex, because gay sex was considered obviously harmful. People believed that
there is something wrong with a man who would choose to engage in those
activities and that it was too dangerous to allow other men to be exposed to
that harmful activity. Even in the 1960s, a male who persisted in committing
private, consensual sex acts with other men could be found to be a dangerous
offender and sent to prison indefinitely because of the perceived danger he
posed to other men that might be inspired to have sex with him.
This irrational fear has not gone away.
In the late 1960s, Parliament provided a defence to the
offence of buggery—anal sex—if it was carried out in private between
consenting persons who were either married or over the age of 21. However, the
act was not considered to be carried out in private if more than two persons
took part or were even present. No daisy-chaining, boys.
In the early ‘80s, the law was again changed and the
age of consent for anal intercourse was dropped from 21 to 18, still four
years higher than the age of consent for all other sexual acts. However, the
definition of private was not changed at that time.
That
definition, which remains with us today, has allowed one judge to suggest that
any gay porn depicting group anal intercourse would be automatically harmful
and thus obscene. That judge also found that depictions of anonymous sexual
encounters were depictions of non-human relationships, which are obviously
harmful and thus obscene.
In defending the anal intercourse law against
constitutional challenges, prosecutors tried to argue that this law protected
persons from psychological harm. Despite that offensive characterization of
what we do, the appeal courts in Quebec and Ontario did the right thing and
struck down the anal intercourse law as discriminating on the basis of age,
sexual orientation and marital status. Prosecutors in those provinces didn’t
appeal the decisions to the Supreme Court Of Canada, which allowed prosecutors
in British Columbia to lay charges against people having anal intercourse as
recently as 1999.
Prosecutors have been no better with bawdy-house charges
against bathhouses. To get the evidence they need to prove that indecent acts
take place there, undercover, straight-identified police officers cruise the
halls and then testify about what they see. Back in the ‘80s, one police
officer testified that the men at the bathhouse were walking around like
zombies. We all know what he is taking about—those painful but inevitable
lulls in the sexual energy of the crowd—but, to a judge who has never
enjoyed what bathhouses have to offer, such evidence can create a disturbing
picture. That, of course, is exactly why evidence of that nature is submitted
by the prosecutors for our benevolent Crown.
***
I don’t mean to be overly pessimistic. In his 2002
ruling on the police visit to the 2000 Pussy Palace, Justice Peter Hyrn ruled
that participants had a reasonable expectation of privacy to explore their
sexuality in a safe and supportive environment. There is some reason to hope
that, with the right evidence, a court may once and for all tell the state
that they have no place in the bathhouses of the nation.
What about the ever-popular gathering spots of parks and
washrooms? If my recent experience presenting on this issue to a group of
civil libertarians is any clue, those are the scariest of all sexual
gatherings of gay men and we are going to encounter a whole lot of resistance
from parliamentarians to any changes to the laws against indecent acts.
Those squeamish parliamentarians may be our biggest
obstacle to this call for law reform but they are not the only one. We will
also have to face our own unease regarding our sexual culture. That unease
flows in part from our own sad reluctance to recognize what we have created as
gay people: our gay culture.
The push for recognition of our relationships through
marriage is a good example. Those who choose to marry cannot or will not
accept that we already have the capacity to recognize our relationships and
the often unique way we structure them, including keeping them open to other
sexual experiences. And I fear that now that we have access to marriage, it
may be even more difficult to publicly celebrate and defend those parts of our
sexual culture which are far removed from the narrow expectation of marriage
or which may today be deemed criminal.
An example of the unease many gay men have with their own
sexual culture could recently be seen in the columns of US sex guru Dan
Savage, where he ranted about the dangers of bathhouses, sex clubs and gay
promiscuity generally. Of course he made an exception for the level of
promiscuity that he decided is appropriate for himself (he met his lover in a
bathroom).
Perhaps Savage’s opinions are informed by his
experience as a US citizen. He talks about gay men recreating the pre-AIDS
sexual culture of promiscuity that allowed HIV to spread within the community.
My experience as a Canadian is that gay male sexual culture has changed very
little as a result of the AIDS crisis, with the important exception of the use
of condoms for fucking among most gay men. I believe that sexual gatherings of
gay men have became even more important to gay men and their evolving sexual
habits since the awareness of HIV.
In the context of the Canadian law, this spectre of the
transmission of disease has its own irony. In San Francisco, the health
authorities insist that all activity in gay sex clubs be in the open so
monitors can ensure that no fucking without condoms is taking place. At
present in Canada, it seems, sex in the open at bathhouses is what makes
everyone in the place a criminal.
And so it comes as no surprise that the predictable TV
show Queer As Folk has recently dealt with the police shutting down gay sex
spaces such as backrooms and bathhouses, with the gay community divided on the
issue.
When I look back at the collection of historic gay sex
graphics in Waugh’s collection, I am struck by the ordinary joy radiating
from the sexually satisfied faces of the characters. The fact that many of the
graphics involve group sex just reminds me that part of my own sexual
fulfilment falls within a tradition as long and unbroken as the law’s
terrible disrespect for our sexual choices.
True, some gay men are happy to have sex within marriage,
or at least at home in their bed. But gay sex culture has also evolved other
alternatives for so many others, who enjoy bathhouses, group sex, park sex,
washroom sex and open relationships.
Make no mistake, by asking for the law to respect our
sexual gatherings, we are asking for a revolutionary change to the law, one
that is not even supported by many members of our own community. But why not?
We are not going to stop gathering to have sex. So let’s make sure we can do
it without the undeserved fear of ending up on the wrong side of the law.
* Garth Barriere is a Vancouver writer and lawyer.
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