“Make no mistake,” wrote contributor Garth Barriere in Xtra’s 2003 series calling for a repeal of the bawdy-house laws, “by asking for the law to respect our sexual gatherings we are asking for a revolutionary change to the law.”
On Dec 21 the Supreme Court Of Canada brought us one step closer to revolution with a decision that redefined the previously vague term “indecency” as a question of harm rather than morality. Hats off to the seven out of nine justices who saw fit to update this Victorian legal remnant and a heartfelt thank you to the straight swingers in Montreal whose pursuit of orgiastic pleasure was the basis for the case.
True, it’s not the end of the struggle for sexual freedom — the legal definition of “harm” is still a little vague and may encompass various forms of consensual sex — but the decision is certainly cause for celebration and salivation.
Previously indecent acts that apparently will no longer be considered criminal activities in the wake of the decision include sex in front of willing spectators, threesomes or moresomes involving anal sex and sex in commercial establishments like bathhouses, sex clubs and, conceivably, bar backrooms. It’s even possible that the new definition of indecency will allow for the enjoyment of park sex, provided that those involved have taken the trouble to ensure that unsuspecting passersby won’t be made unwilling witnesses to their escapades.
Couple this information with Toronto police chief Bill Blair’s position that “consensual sexual activity quite frankly isn’t a priority for the police,” and I can see the potential for a sexual renaissance in this city, the stirrings of a utopian society where sex and pleasure are valued as legitimate pursuits that contribute to the well-being of the population.
But before I get too far ahead of myself it’s worth noting one glaring limitation of the indecency decision: it stops short of decriminalizing sex work. It’s lamentable, but not unexpected.
On one hand, the swingers’ club case created a perfect opportunity to change the bawdy-house laws incrementally. It was very clearly a case of consenting adults getting it on in a private place without the exchange of money to muddy the waters. Pulling prostitution out of the equation (though bathhouses and other commercialized sexual spaces are affected by the decision) made it simpler to accept that the consent of those involved had been freely given.
On the other hand, the wording of the decision seems to reassert the idea that sex work is harmful because of the possibility that coercion is involved. “Sexual activity is a positive source of human expression, fulfillment and pleasure,” reads the English translation of the decision. “But some kinds of sexual activity may harm those involved. Women may be forced into prostitution or other aspects of the sex trade.”
Furthermore, although sex work isn’t included in the list of sexual activities the court considers intrinsically harmful (child pornography, incest, polygamy and bestiality), the decision does re-affirm that “the purchase of sexual favours in public places” is unacceptable because it contravenes social morality. This is disheartening, especially given the setback of the parliamentary report on sex law and prostitution in the wake of the election.
But for all its limitations, the decision is an exciting one that opens up all sorts of possibilities for Canadians to explore their sexuality without the fear of being pounced on by legal authorities. Now it’s up to us to test the waters.
Been thinking about organizing a sex party? Now you can without worrying about being busted. Nostalgic for the anonymous action of ’80s backrooms? There’s no time like the present to revive the old traditions. Here’s to making 2006 a year full of sexual adventure.
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