Canada
3 min

Knives out for poly peeps

Laws enforcing sexual norms on private relationships are antiquated

If “not everyone’s cup of tea” and “criminal” were synonyms, what kind of country would we have? If anything that made people squidgy or uncomfortable were illegal, would we be better off?

Gay sex would be illegal. So would anonymous sex. The inventories of sex shops, porn stores and art galleries would be decimated.

Well, Canada used to be that place, and I have no interest in returning there.

Yet, the legal battle where this principle — personal and sexual freedom — is most under attack is a place many fear to tread.

Indeed, the trial of a cultish leader of a tiny religious sect could very well be one of the most important legal battle of the next decade for gays and lesbians — and all people who have flirted with unconventional sexual expression. Will we be brave enough to tackle it?

Winston Blackmore and James Oler were each charged with one count of practicing polygamy Jan 7. Those charges are the culmination of 20 years of allegations and rumours about all manner of depravity at the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) compound in Bountiful, BC.

At best, the polygamy charge is a stand-in for unproven allegations, especially spousal and child abuse. The RCMP’s sleuths haven’t been able to make the case that these guys are abusing their wives and kids, so they’ve slapped them with a polygamy charge. At worst, BC Attorney General Wally Oppal is seriously planning to get tough on polygamists in some throwback to 19th century prudishness. Either way, it’s an embarrassment.

Canada’s poly law should have been taken off the books 40 years ago. It prohibits all kinds of multiple, simultaneous relationships: “any kind of conjugal union with more than one person at the same time — whether or not it is by law recognized as a binding form of marriage.”

Gays and lesbians are all too familiar with the reasons why laws enforcing sexual norms on private relationships are antiquated. As I wrote in my last column in Capital Xtra, we’ve used civil libertarian arguments (“get the state out of my bedroom”), feminist arguments (“my body, my choice”) and the SM code of ethics (“safe, sane and consensual”) to argue for the end of policing of consensual activity.

Ultimately, prosecutors will be trying both Bountiful’s top dogs and Canada’s polygamy law at the same time, no matter how they break up the factums. That’s bad luck for anyone interested in sexual freedom or social tolerance. The spectre of Bountiful’s other rumoured offences will hang heavily over the trial and its inevitable appeals.

It will almost certainly go all the way to the Supreme Court of Canada. There, they will have to test the constitutionality of a flimsy, seldom-used law — using, as its test subject, a blackguard of religious totalitarianism. Not exactly a sterling martyr for sexual freedom.

Still, they must chuck the law, since it fails the most basic test of constitutionality. That’s because, if it is intended to protect vulnerable women, it’s doing a piss-poor job. The law catches all kinds of multiple relationships (especially gay and lesbian ones) that are not coercive or exploitative. Meanwhile it fails to address the thousands of sick, abusive relationships that involve just one man and one woman. So, it’s both overbroad and insufficiently specific. Since wifebeaters and child abusers can already be charged elsewhere in the code, the poly law should simply be dropped.

If it isn’t, we’ve got a harder road to hoe on our own issues. There are a dozen offences to “public morals” that need to be taken off the books. They include the separate, higher age of consent for anal sex, the prohibition against gay threesomes, “corrupting morals,” “immoral theatrical performance” and so on.

Perhaps most importantly, there are several, concurrent challenges to Canada’s bawdy house and solicitation laws winding their way through the courts. Those laws put sex workers in danger and make our bathhouses vulnerable to raids and police intimidation. In each case, we need cool heads to prevail over prudery.

If the Supreme Court uses the “icky” test in R v Blackmore, lord help us all.