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Harm is the new indecency test

Supreme Court okays sex clubs, orgies

NOBODY'S GETTING HURT. The Supreme Court has scratched community standards as a way to decide what sexual activity is indecent and what isn't. Credit: David Hawe

On Dec 21 the Supreme Court Of Canada issued a pretty decent decision on indecency.

The case, called R Versus Labaye, involved a swingers’ club whose owner had been charged with running a common bawdy house. A bawdy house is defined as a place where acts of indecency occur (or where prostitution occurs, though prostitution was not an issue in this case). The question was whether the activities going on at a swingers’ club, like group sex in front of spectators, were indecent.

The Quebec Court Of Appeal had said yes, but the Supreme Court disagreed. In the process, it rewrote Canada’s laws regarding indecency.

The old test of what was legally indecent focussed on the community standard of tolerance. This was supposed to be national — the same standard in small town New Brunswick and downtown Toronto. Judges could make decisions on this community standard virtually without evidence.

The community standard has been widely criticized as an exercise in fiction, allowing courts to simply apply their own subjective morality. In Labaye, the Supreme Court decided it was time to say goodbye to that test. Instead, indecency should be based on a harm test. The court set out a fairly elaborate two-part test that judges must use to establish harm and so decide if an activity is indecent.

First, the conduct must cause harm or present a significant risk of harm to individuals or society. This harm cannot simply be based on a court’s subjective morality, but must be based on some harm that has been formally recognized.

The court divided the kind of harm into three categories:

1. Conduct that confronts members of the public in a way that undermines their autonomy and liberty. Here, the court is talking about the fact that some folks do not want to be confronted in public with explicit sexual acts. “People’s autonomy and enjoyment of life can be deeply affected by being unavoidably confronted with debased public sexual displays.”

This kind of harm comes from conduct happening in places where a member of the public simply cannot avoid being confronted by it, like the corner of Yonge and Bloor. But commercial establishments that make efforts to exclude people who want to avoid such contact are not included in this idea of a public place.

2. Conduct that predisposes others to act in an antisocial manner. This harm is a little harder to pin down. It includes the idea of “attitudinal harm.” According to the court, conduct that “perpetuates negative and demeaning images of humanity is likely to undermine respect for members of the targeted groups” and may then “predispose others to act in an antisocial manner toward them.”

The court doesn’t give us any examples, but it’s an idea that has long informed obscenity law: Watching certain kinds of acts (like sex) may cause some folks (like men) to treat other folks (like women) badly.

3. Conduct that physically or psychologically harms those who participate in it. Here, the court has particular physical harms in mind, whether they happen in public or private. “Women may be forced into prostitution or other aspects of the sex trade. They may be the objects of physical and psychological assault.” The court says that consent is often the dividing line here, although it also says that sometimes consent may be “more apparent than real.” (The court acknowledges that some people see sexually transmitted disease as a possible harm of sex clubs, but wrote “this must be discounted as a factor because it is conceptually and causally unrelated to indecency.”)

The second step of the new test is whether the degree of harm is “incompatible with the proper functioning of Canadian society.” It’s hard to say what this means exactly. The court says it means more than the subjective values of the judge. There must be evidence, like that from experts.

The response to the decision has been a kind of collective hysteria. Even The Globe And Mail, usually a supporter of more modest expression laws, decried the end of community standards and the slide into sexual libertarianism.

This panic is absurd. The court has simply taken a very outdated and thoroughly discredited legal test and brought it up to date. It’s a much improved test. It says that sometimes the sex that goes on behind closed doors doesn’t hurt anyone. That’s good news for gay bathhouses, backrooms and other places where queer folks may gather to have sex.

But this is not the end of indecency law. There is still a lot for a court to hang its hat on. The threshold may be a little higher, but there are a lot of harms that would qualify sexual activity as indecent.

The hysterics are being, well, hysterical. We are a long way from orgies in the street. In fact, we are a long way from unregulated consensual sex.

But consensual sex between consenting adults in private clubs is now okay. That is a step forward, not a step down the slippery slope to sexual chaos.