In the annals of the Canadian court system, anthropologists don’t rank high on the list of legal heroes. But to Canada’s queer community, University Of Calgary PhD candidate Bruce Freeman might be the exception.
In a groundbreaking move, legally speaking, Freeman’s survey on social attitudes – showing that most downtown Calgarians accept the existence of bathhouses – was instrumental in persuading Alberta prosecutors that they had little chance of success in the case against Calgary’s Goliath’s bathhouse. The charges, laid in December 2002, ended up being stayed last February.
For Freeman, the case was a chance to show that the traditional standard of “community tolerance” that is usually used in sex-related cases shouldn’t be set only by the squeaky wheels. Neither should questions of police enforcement.
“Generally it’s the people that have the loudest voices, who phone their politicians, who write letters, but who probably aren’t representative of the general population,” says Freeman.
“The police allege that they received complaints about activities in the bathhouse. The question is what most people think they should do about it.”
When he first heard of the case, after the police raid, Freeman volunteered his services to the defence, led by Calgary lawyer John Bascom.
“First, it was as an anthropologist, talking about sexuality and how bathhouses fits into gay culture. But I also recognized from the start that there would need to be a survey.”
Neither Freeman nor Bascom were able to find a similar study in legal case history.
“My hypothesis was that this type of business would be tolerated a lot more than other activity that takes place in the area,” says Freeman.
At the time of the raid, Freeman was beginning his thesis, a study of male, female and transgendered prostitutes in Calgary. But he obtained permission from his university supervisors to switch to this new topic, and began preparing a survey to mail out to residents in Goliath’s neighbourhood, an inner-city area of Calgary that includes the city’s gay village as well as areas with lots of drug trafficking and prostitution. Freeman, who was born in Philadelphia and raised in south-western Ontario, lives there.
The survey, which was mailed out to 500 households in December 2004, contained two parts. The first asked respondents for their degree of support or opposition to a range of businesses, from supermarkets to panhandling, and including gay bars and bathhouses. The second part asked how police should respond to complaints ranging from littering to homicide, and including sex in a gay bathhouse.
Freeman waited until January 2005 for surveys to be returned, and ended up using 104 in his study. The results showed that gay businesses – including bars and bathhouses – were tolerated by the community, while drugs, prostitution and panhandling were not. Freeman turned his study over to the defence, the prosecution and the police. Shortly after, the prosecution stayed the charges.
“The Crown said there were a number of reasons why they stayed the charges,” says Freeman. “This study was number one on the list. The prosecutor, in reviewing the case law, said there hadn’t been a similar case in 20 years. Another reason was the lack of major prosecution witnesses. And of course, it would have been expensive to proceed.”
Freeman says he thinks this case, and his study in particular, sends a warning to the legal establishment, and holds out hope for those currently facing similar charges.
“I do think it sends a solid message to police and prosecutors across the country. In this case, it really sounded like the police didn’t see the difference between prostitution and the bathhouses. This study is the type of thing the police should be doing before they go out and start causing trouble.”
Freeman’s study, in fact, indicated that the intolerance in the community directed at bathhouses stemmed strictly from homophobia.
“There was less tolerance than I expected. About 25 percent of the respondents, I would classify as homophobic. They didn’t distinguish between types of venues, whether it’s a gay bar or a bathhouse. They were reasonably okay with straight bars. But these same people felt the same police response should be used to a bathhouse as to a homicide.”
That homophobia, says defence lawyer Bascom, might make it harder for a prosecutor to establish community intolerance toward bathhouses or similar operations.
“If the prosecution were to lead evidence that a majority of the population were opposed to bathhouses, we’d have to look at their methodology.”
But Bascom did warn that it would be easier to prosecute a similar case outside of a major city.
“One has to look at the location,” he says. “What might be tolerable in an urban centre might not be tolerable in a smaller town.”
Freeman says that his survey sends a warning about homophobic people dwelling even in the heart of a gay village in a major urban centre.
“We knew there were people who hold these extreme views, but do they live in our midst? These people are my neighbours and they hate me.”
But Freeman also thinks that his survey is further evidence that Canada is finally starting to move away from a subjective moral basis when it comes to policing sex cases.
“That homophobic 25 percent, they’re taking it from a moral code, but within the law, we’ve moved to a risk-based assessment.”