Canada
5 min

Sex police are still with us

What's the Criminal Code doing in bed with you?

Police bust a bathhouse in Calgary just before Christmas 2002, then another in Edmonton just a couple of months later.

It can’t get much clearer than that: the sex police are still very much with us. Consensual queer sex, along with other consensual erotic activity, remains criminalized. In a time of talk of lesbian and gay respectability, assimilation and same-sex marriage, Canada’s Criminal Code still allows police to arrest us for consensual queer sex. And they act on it.

There are deep roots for this on-going criminalization, some archaic and some more contemporary.

Christian history sees church law bound up with state law, resulting in prohibitions and taboos against non-reproductive forms of erotic activity. Sodomy originally referred to someone who engaged in any form of non-reproductive sex and was not specifically a same-gender offence. But in the latter 19th-century, as historian and philosopher Michel Foucault tells us, the emergence of sexual science and its classifications of “normal” and “pathological” sexualities turns the sodomite into a specific type of being with distinct gender and sexual characteristics.

New criminal legislation is passed in the late 19th- and early 20th-centuries to deal with what is viewed as new troubles and dangers emerging in urban centres. Some of this criminal legislation, and the sexual policing it mandated, specifies the homosexual as a distinct type of criminal.

True, the morally conservative and Christian-based social purity movement in Canada agitates for many of these new pieces of criminal legislation against prostitution (which they call “the social evil”) and against sex between men (labelled “gross indecency”). But some of these notions are imported from Great Britain.

The offence of gross indecency, which criminalizes all sex acts between men, is picked up from UK legislation inspired by a desire for social purity. Homosexual sex also more generally gets constructed as an “act of indecency.” Laws against prostitution, including laws against “common bawdy houses,” are broadened during these years.

In 1917, Canada’s bawdy house legislation, initially directed at prostitution, is expanded to include “acts of indecency” to make it easier to convict sex workers who work in massage parlours. But by the 1970s this allows the police to use the bawdy-house legislation against sex going on in gay bathhouses and bars.

Much of this sexual legislation has a morally conservative character to it, defending reproductive, married and heterosexual sex from perceived social and sexual threats. Moral conservatism is an approach that argues there is only one right sexuality – if not Christian based, then at least religiously based – and generally argues for a rather repressive approach to erotic activity outside marriage and heterosexuality.

Canada’s Criminal Code sections referring to sex-related offences are originally referred to as “offences against morality” until they are moved into a new section called “Sexual Offences” in the 1950s. (Nowadays the section is called “Sexual Offences, Public Morals And Disorderly Conduct,” retaining its judgmental attitude toward what is wrong and what is right.)

It is not until the 1950s in Canada that the offence of gross indecency is expanded to include lesbian sexual acts; prior to this the very possibility of lesbian sex tends to be denied in the law. This moralization of the sexual continues even after there is a shift away from overt moral conservatism towards a liberal policy of sexual regulation focussing on public/private and adult/youth distinctions in the 1960s.

Though the strategies might grow more liberal and less religious, there is still a common public morality which prohibited the public affirmation of prostitution and queer sexuality. The limited private moral space provided for queer sex is clearly subordinated to this public morality, which is still seen as heterosexual in character and is rooted in earlier moral conservatism. It is this liberal approach which informed then prime minister Pierre Trudeau’s when he said “the state has no place in the bedrooms of the nation.” His 1969 Criminal Code reform leads to the partial de-criminalization of gross indecency and buggery and the establishment of limited situations in which women can secure access to abortion services if a hospital has a therapeutic abortion committee.

The 1969 Criminal Code reform is today widely misunderstood as legalizing homosexual sex. It does nothing of the sort. Instead, it is a shifting of sexual regulation and policing. A limited private moral realm for two consenting adults (aged 21 and over) is established in which homosexual sex will be tolerated. Queer sex is still targeted. In fact, the policing of gay sex actually intensifies after the 1969 reform, as more men are charged with sex in public and sex involving younger men.

Under the law, sex is considered to take place in public if more than two consenting adults are involved or if it is in a public place (that is, not a private home or private room). That’s the case even if the participants have constructed privacy and intimacy for themselves so they are bothering no one. The presence of a third person can makes a sexual encounter public.

Since the police can legally claim that bathhouses and bars are public in character and since queer male sex can still be constructed legally as indecent, this means the police have been able to use the bawdy-house legislation against gay establishments.

This sets the stage for the massive bathhouse raids of the 1970s and early 1980s as queer male sex looms larger in the public conscience. This increasing gay visibility also develops in tandem with intensified forms of censorship of queer sexual images and texts.

In the latter 1980s some of this sexual legislation is changed. Gross indecency was finally repealed. Buggery is changed to “anal intercourse” and the age of consent for anal sex is lowered to 18 from 21. It’s still higher than the heterosexual age of consent for straights (which is 14 in most circumstances) but there is a perception that young males apparently require extra protection from homosexual advances.

The youth porn law of the 1990s intensifies forms of regulation along adult/youth lines and has been used to collect evidence of queer male sex captured on video so that sex charges can be laid against those participating.

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While we have achieved many significant legal and social changes, particularly in relation to basic human rights and spousal and family recognition rights, our sexualities continue to be criminalized.

This not only leads to the criminalization of some sections of queer communities, but it also holds back all our other struggles. This criminalization helps to construct some of us as “bad” and irresponsible queers.

It is time to put the sexual back into queer liberation. We need to develop a broad campaign against sexual policing to get rid of these laws so that the sex police can no longer criminalize our sexualities. This will also involve us in building alliances and coalitions with prostitutes and others facing oppressive sex policing.

We need to get rid of the legal notions that queer sex is indecent and obscene; we need to get rid of the bawdy house laws which are used against prostitutes and queer sex; we need to narrow the definition of “public” space and expand notions of our social rights to privacy and intimacy. We need to move towards a situation in which the sex police are no longer involved in regulating consensual sex and no longer are constructing some of us as sexual dangers and sex perverts.

Once we are rid of the sexual policing of consensual sex, we can focus all our energies on addressing the real roots of sexual violence and harassment as we build a world defined by erotic pleasure and the ending of sex-related violence and danger.