Origianlly published: May 29, 2003
It’s time to change Canada’s antiquated sex laws. Why? Because the government and the police have no business regulating sexual morality. Because they are still used to target queer people. Because the sex laws are bad laws.
In the aftermath of the high profile police raid on the Montreal strip club Taboo this month, the police raid on the Calgary gay bathhouse Goliath’s last December and not so very long ago, the 1999 bust of the Bijou porn bar in Toronto, there is good evidence that the cops still use these laws to harass gay men. And that’s to say nothing about many low profile cases we never hear about involving the ashamed men who suffer police harassment or plead guilty to having sex in parks just to make charges go away.
Police say the laws are on the books, so they have to enforce them. So it’s up to politicians to take the plunge and force change.
And maybe, just maybe, Canadians are actually ready for a change. Sex is everywhere in our society: on TV, on billboards, in magazines, in newspapers and of course, on the Internet. The shame that people might have felt about pursuing and having the sex they want is evaporating. And they care less about how other people get off. So now’s the time for Canada’s sex laws to catch up with the 21st-century.
The Brits, whose laws form the basis of our own, are leading the way. The UK has undertaken a major review of its sex laws, and decided that now is the time for major overhaul. It is getting rid of victimless morality crimes, focussing criminal law where it should be: On non-consensual sexual activity. Here, many consensual adult sex acts remain illegal under the Criminal Code Of Canada.
Anal sex, indecent acts – which basically means sex in a public place of any sort – indecent performances, obscenity and prostitution are all criminalized, even though the sex in all these cases is consensual. Consenting adults can still go to jail if they have the wrong kind of sex, if they have it in the wrong kind of place or if they let somebody else – even willing voyeurs – see it.
Canada’s sex laws were written in Victorian England, and haven’t changed much since then. In 1968, then-prime minister Pierre Trudeau’s famous amendments to the criminal law were aimed at getting the state out of the bedrooms of the nation, including decriminalizing homosexual sex between two consenting individuals.
But there’s lots of sex, gay and straight, that wasn’t decriminalized. Where to start?
Anal sex is still targeted. It’s prohibited between people under the age of 21 and between more than two people. Anal sex is only okay if you and your partner do it in private, but not if you bring anyone else along.
It’s discrimination based on orifice. There’s no law against three or more straight folks getting together in private for sex, as long as there’s no anal penetration. And there’s no law against three or more gay folks getting together in private and having lots of oral sex. But if anyone puts a penis near an anus – well, now that’s criminal.
As well, the age of consent is higher for anal sex than for other sex. Penises into vaginas and mouths are okay at 14, but anuses have to wait until 21. While the law applies to straight folks, too, it’s impossible to escape the historical legacy of these prohibitions on anal sex. It’s really all about regulating gay male sex.
A constitutional challenge to the anal sex laws was successful in the Ontario courts – police in this province don’t charge on it – but the law is still on the books and remains enforceable in most other provinces.
Other laws do even more harm to the gay and lesbian community.
Section 163 of the Criminal Code – revealingly still entitled “Corrupting Morals” – prohibits, amongst other things, publicly exhibiting “a disgusting object or an indecent show.”
In fact, indecency is criminalized 17 ways to Sunday. Section 167 prohibits immoral, indecent or obscene performances. Section 175 prohibits people from exposing or exhibiting an indecent exhibit in a public place.
These laws can capture any public display of sex and sexuality, from art shows to live performances including burlesque, strip shows, performance art or theatrical productions, limiting our freedom of expression. Madonna got in trouble in 1990 in Toronto because of them.
But it’s not only about shows and performances. Section 173 criminalizes “indecent acts” performed in a public place in the presence of one or more persons. This law is intended to capture everything from flashers to sex in public places.
The strange thing about indecency, the concept that binds all these charges together, is that it’s not defined in the Criminal Code.
The courts have said that indecency should be defined according to a community standard of tolerance: An act is indecent if the community would not tolerate it taking place. The courts have said that the only community that counts is the national one from sea to sea. The community standard is considered the same regardless of whether one is in the gay ghetto in Vancouver or the countryside of Prince Edward Island, though we all know that the community standards of these two places are quite different.
The courts have also said that indecency is to be judged according to the social harm that it is likely to cause. Is it degrading or dehumanizing? Will it cause people to act in an anti-social manner? This definition hits all sexual activity in public: oral sex, anal sex, mutual masturbation, lap dancing, sexual touching, masturbation, exposing yourself, you name it. But in downtown Toronto, these activities may be seen as more social than anti-social.
And what is a public place?
The courts have interpreted it as any place to which the public has access by right or invitation. It doesn’t include your home (unless maybe you are having an open house or block party). It doesn’t include a locked hotel room, and it probably doesn’t include a locked bathhouse cubicle. Sometimes it includes a car, but sometimes it doesn’t.
A public place definitely includes a public park or washroom or the back room of a gay bar or porn theatre.
The laws against indecent acts means that people cannot have sex on at the corner of Yonge and Dundas. Most people would consider this a reasonable limitation – though inhibitions and good manners, rather than the law, probably prevents most people from doing this.
But the law against indecent acts also means sex is prohibited in somewhat less public places. Owners and performers at strip bars, for example, are at risk of being charged with indecent acts or indecent theatrical performances if the show gets too risqué. So are bathhouses if there’s any hint of sex occurring outside of a locked cubicle. So are sex clubs.
But most people would agree that strip bars, bathhouses and sex clubs just aren’t the same as the corner of Yonge and Dundas. Their patrons are not there by accident nor to shop at The Gap. They are there because they want to watch erotic performances, they want to have sex, they want to watch other people have sex or because they want other people to watch them having sex. The sexual activity in these places is most often consensual, but the law covers them as the same as Yonge and Dundas.
And if these indecent acts routinely take place in a particular place, like a strip bar or a bathhouse, then the folks running the place can be charged with running a common bawdy house. Most of the time, the bawdy house laws are used for prostitution. But a bawdy house also includes places where indecent acts routinely occur. And patrons can be charged as found-ins, like what happened at Remington’s strip bar in Toronto in 1996 and at Taboo in Montreal in May.
(You’ll note that in this piece and in Xtra’s call to repeal many sex laws in the Criminal Code Of Canada, we haven’t asked for the repeal of laws governing prostitution. To be honest, Canada’s laws around prostitution are pretty bad – prohibiting commercial sex is based on the same old tired values as the indecency laws. But the legal regulation of sex work raises many other issues – the oppression of women, questions of health and safety – that should be addressed at another time, with other arguments.)
The big picture is this: The law has no business regulating sexual morality, as long as the folks engaging in it and watching it are doing so by consent. In any and all cases where adult people having sex have created a reasonable expectation of privacy, there’s no reason for the law to concern itself.
The only argument in favour of these laws is morality. Victorian sex laws were based on the idea that sex was bad, dangerous, corrosive, always verging on out of control and taking social control with it. All sex had to be carefully policed. Only private, marital, monogamous sex was tolerated.
Sexual norms have changed. The laws are no longer appropriate, nor do they reflect the way many modern people live. The state does have a role in regulating non-consensual sexual activity and in protecting people from sexual interference and exploitation – there are many laws that give such protection, especially to children. But the state doesn’t have a role in prohibiting sex just because it doesn’t take place in private, isn’t monogamous or isn’t to everyone’s taste.