Partners in sex crimes

The battle over Canada’s sex laws is heating up again. The Supreme Court Of Canada has agreed to hear an appeal about the legality of swingers clubs.

Meanwhile, one of the patrons of Goliath’s, the bathhouse in Calgary that was busted in 2002, is challenging the laws under which he was charged.

Both cases involve Canada’s indecency laws. The Criminal Code prohibits indecent acts, indecent performances, and places where indecent acts are habitually performed. What is indecency? Well, good question. The Criminal Code doesn’t define it. And courts haven’t really defined it in very concrete terms either.

It seems to be any act that violates “community standards,” which means anything that Canadians can’t tolerate. That’s in turn defined as anything that is degrading and dehumanizing. It involves sex if committed in a public place, in a performance or in what’s called a common bawdy house – a place where indecent acts habitually occur.

Both the Goliath’s case and the swingers case raise the question of whether, constitutionally, Canadians can gather and have sex at a place specifically designed for sex. The future of Canada’s sex laws lies in these cases and, perhaps, future ones like them.

Gay and lesbian folks have tended to get behind cases that are defined in gay terms. But it would be a grave error to ignore the swingers case. It’s not every day that the Supreme Court hears an indecency case, straight or gay. And it may just be a good thing that it’s a straight case that’s getting there first, since they may actually have a better chance of winning.

(The courts are the only real hope for change. The Paul Martin minority government, in its desperate bid to cling to power, is barely willing to touch same-sex marriage. It isn’t going to go near Canada’s sex laws with a ten foot pole.)

The courts, which made up and continue to apply the tests of indecency and community tolerance, have not been particularly friendly to this kind of sex.

The swingers case, which goes to the Supreme Court later this year, is an appeal from two different Quebec Court Of Appeal decisions, issued on the same day. One of the decisions held that the sex occurring at a swingers club called Cabaret Chez Mado was legal, since the sex was consensual.

The other one held that the sex occurring at a different swingers club, Club L’Orage, was indecent, since the club was established for the express purpose of having sex. The sex at these members-only clubs was basically the same: straight folks switching partners.

The Goliath’s case is at a much earlier stage. The owners and staff who were charged with operating a common bawdy house are headed to trial later this year, while Terry Haldane, the only patron who is fighting the charges, goes to court in early 2005.

The advantage of the Goliath’s case over the swingers case is that it can play the discrimination card. Not unlike the Little Sister’s bookstore challenge to Canada Customs censorship, Haldane can and will argue that Goliath’s was targeted because it’s for gay men. As in the Little Sister’s case, targeting folks because they are gay doesn’t sit very well with Canadians anymore.

The advantage on the swingers side is that, for a change, it’s not sex-crazed gay folks leading the charge. Nor is it strippers and their patrons (another set of folks who have tried unsuccessfully to challenge these laws in the past). It’s married straight folks who just want to fool around with each other. Admittedly, these aren’t your run of the mill married folks. But they do still bring some heterosexual respectability to the issue.

And when it comes to challenging Canada’s sex laws, we can use all the help we can get. In fact, the swingers case is a great example of the need to build bridges beyond gay and lesbian identity, because when it comes to consensual sex laws, its not always about discrimination against us specifically. Often, it’s just about the fact that the law doesn’t like the way some folks have sex – gay or straight.

Brenda Cossman is a member of the board of directors of Pink Triangle Press, which publishes Xtra.