Supreme Court case looks at ‘What makes sex private?’

Is sex private if a group of consenting adults caress on a stage surrounded by a translucent black curtain? Is sex public if you have to pay $200 to join a swinger’s club, go through an interview process to make sure you’re not being pressured into it, and then when you’re ready for sex, you climb a stairway, go through a couple of doors, and punch in a code to gain entry?

Those are the questions the justices of the Supreme Court of Canada are considering after hearing appeals Apr 18 related to charges brought against two Montreal heterosexual swinger’s clubs.

It’s a double case with profound implications for the legal standing of gay bathhouses; in fact, the options available to the Supremes include radically amending or even throwing out the Criminal Code’s Section 210 bawdyhouse laws that have been used to harass bathhouses and swinger’s clubs, as well as massage parlours and whorehouses.

In both cases, the court heard from the clubs’ lawyers, there was a screening process to ensure nobody participated in or viewed anything that they were not prepared for. And in both cases, women were there because they wanted to be.

“Only consenting adults took part,” said Robert La Haye, lawyer for Jean-Paul Labaye, then-owner of L’Orage. And though there was a group of people involved, the space was not public in the way a schoolyard or shopping centre is public.

“One couldn’t have tripped into this situation. One couldn’t just walk in off the street.

“One can only perceive the situation as providing a certain amount of intimacy. Group intimacy. It’s a way of life for some people, who like group sexual activity.” And there’s a swinging culture that should be respected.

In fact, La Haye suggested, society has an interest in ensuring swingers have places to meet for group sex. That way the children of swinging couples are unlikely to stumble upon a group-sex scene at home.

La Haye said arguments that women were exploited, dehumanized or degraded by participating at a swinger’s club are wrong.

No prostitution was involved at Club L’Orage, he said. There was no rape. Condoms were available. Participants were there because they wanted to be.

In fact, on the day that Club l’Orage was charged in 1997, five women members and one man were in the swinging room.

“A woman is not living off the avails of this,” added defence lawyer Josée Ferrari. “She goes to the swingers club because she wants to. …If the woman goes there and wants to [have sex] with four men at the same time, where does it become degrading and dehumanizing?”

Labaye lost his case in the lower courts because the judges were “substituting their personal opinion for evidence submitted by the defence,” said La Haye.

The case should not revolve around a judge’s personal taste, he said. Canada has had a sexual revolution and the public is prepared to tolerate swingers clubs and consensual group sex.

Not so, rebutted Crown attorney Normand Labelle.

“Group sexual activities were organized that were close to orgies,” he said. And Canadians do not tolerate orgies, for themselves or for others.

As well, he said, even if there was no prostitution, there was a commercial nature because of the membership charge. “Profits are expected.”

Finally, “this is a public place,” Labelle insisted under questioning by the justices. Admittedly, there were hoops that had to be jumped through before people could have sex. But the large number of members-345 couples and 145 singles-and the fact that a group of people participated together in sex, made it inherently public rather than private.

Both Club L’Orage and the second swingers club before the Supremes-Coeur à Corps-lost before the municipal court. Coeur à Corps had its conviction overturned at the Quebec Court of Appeal on the same day that L’Orage’s conviction was upheld. In both cases, the appeal court decision was a 2-1 vote. And the two cases shared two Justices. But the third justice was different in each case.

And that underlines how subjective the decisions can be in sex-related cases, Labelle told the Supreme Court justices. Personal values can creep in to court judgements.

The Crown appealed the Appeal court verdict in the Coeur à Corps case to the Supremes.

“Average Canadians are willing to tolerate swinging, but on condition it be conducted in a private place, not a public place,” Crown attorney Germain Tremblay. “Remunerated sexual activities that can be seen by other people go beyond the acceptable level.”

There was no evidence of prostitution at Coeur à Corps. Every half-hour a translucent black curtain automatically closed around a dance floor at the bar. People gathered in circles on the dance floor and stroked each other. There was also some oral sex and intercourse on one occasion, the court heard. Up to 70 people would gather inside the curtain, many of them masturbating.

A videotape filmed at crotch level had been previously played for the justices.

“We are not before you to impose certain morals,” Tremblay insisted in answer to a question from chief justice Marie Deschamps, who repeatedly asked the Crown in both cases why the state should care about consensual sex between adults so long as their activities are not visible to unaware people.

“Whether you agree or not with swinging, there are certain rules of society to be respected for it to function properly,” replied Tremblay.

The court heard that Coeur à Corps advertised itself as a swingers club, had brochures at the front door and charged $6 per couple. Each couple was asked if they were a “liberated couple” before being allowed in.

But that does not provide sufficient filtering to allow club owner James Kouri to claim sexual acts were private, argued Tremblay. And having sex behind a curtain is insufficient privacy as well, he said.

Furthermore, he wondered if a woman could truly consent to sex in a group situation. “This isn’t becoming an object?” he asked.

As well, he suggested, the activities “presented a risk of contracting a sexual illness.”

But swinging is not illegal in Canada, retorted Christian Desrosier, lawyer for Coeur à Corps.

“State intervention has to be justified by an urgency, a necessity.

“If swingers couldn’t meet in such locations, what then?”

The level of tolerance in Canadian society, he said, “is linked to the social harm” an activity causes. And swingers clubs cause no social harm.

“Will Canadian society be put in danger or be weakened if we tolerate this behaviour?

“Such marginal phenomenon as swinging is, a sexual liberty, creates a kind of freedom in society that puts into question [some people’s] limited view of what sexuality is about. There’s no need to criminalize such kinds of behaviour.”

Quebec has a history of “witch hunts” against swingers with police raiding bars and even homes, he said.

And the question of sexually transmitted diseases is irrelevant, he said. The federal government decriminalized the transmission of sexual diseases in 1985. You can’t single out swingers clubs for special regulation of safe sex.

“If you want to regulate the use of condoms, good luck!”

The judgement is not expected for weeks.

Egale asked for intervener status in the cases to argue the importance of gay bathhouses, but was denied by the Supremes.