If you kept the Criminal Code on your bedside table and consulted it every time you wanted to follow a sexual fantasy, you could be spending many evenings with your right hand, still in fantasy.
Outside the realm of two consensual adults – alone in a private space, not causing each other too much discomfort or pain, not spreading disease, not looking at offensive images – much sexual activity is still controlled or forbidden.
Just try taking the law at face value. Activities as inoffensive and as common as threesomes involving anal intercourse are prohibited – the maximum sentence is 10 years.
The term “indecent act” is not defined in the Code, but it’s been used against nudity, oral sex and even heavy petting. It’s scattered through Canadian law like landmines in a war zone: indecent acts in a public place, indecent acts in a theatrical production, indecent acts in your own home if others can catch a glimpse.
Like a little spanking? Well, be careful not to leave a bruise, because you can’t consent to assault and any deliberate physical contact that leaves a mark can be considered assault. The maximum sentence for a simple (no weapon, no sex, etc) physical assault is five years.
And that’s not even getting into more inflammatory issues like whether a 20-year-old basketball coach can have sex with his 17-year-old player. (Er, no. Maximum sentence is five years.)
I sound like a paranoid prude listing all these unforgivable transgressions because, of course, most people don’t take most of these laws at face value, if they know about them at all.
Most sex laws can’t and shouldn’t be taken seriously. Reasonable people don’t see their lives – what’s good, what’s bad, what causes harm, what doesn’t – reflected in the laws and so they flaunt them on a regular basis. Especially in the queer community where married-sex-for-procreation isn’t the norm.
You might wander out of your apartment, buy some pot on Yonge St, strip to your G-string for a dance in a local bar, feel up a stripper for a $40 tip, and then go home with some cutie and their video camera-wielding lover, with whom you share your pot.
Worrying about whether the evening has turned you into a drug trafficker (let’s say 18 months jail time) or whether the apartment could be considered a bawdy house (up to two years) would hardly make a fun Saturday night.
So we go on with our sexual lives because we can. The police usually aren’t going to find out about illegal behaviour when it’s consensual and out of the eyes of those who might be offended. Participants at an orgy or an SM party are tied together by a bond of confidentiality: Telling authorities doesn’t benefit anyone. We can take refuge in the fact that the police can’t nab us for everything because there’s no way they could know about everything.
Or can we? People who like sex in public, on videotape or on the Internet are increasing the chance of being investigated. Businesses like bathhouses and strip bars often find themselves in grey areas, where a little police enthusiasm can translate into hassle, if not charges.
Only a fool would take all of the Criminal Code too seriously. But only a foolish community would let it stand unchallenged, hoping that ignorance and popular acceptance will win the day. Both these forces can’t hold up against a nasty politician or a particularly arrest-happy police chief.
The grey areas of police ignorance and selective enforcement have given us a lot of freedom and relieved us from a lot of worry. But they doesn’t provide us with safe spaces, no matter how much we want them to.
Paul Gallant is Features Editor for Xtra.