Anal-sex charges continue

BC court finds law unconstitutional, but charges laid again

Last summer the BC Court of Appeal decided that denying same-sex couples the right to marry was unconstitutional. A couple of months later, that same Court of Appeal decided that the anal intercourse law in our Criminal Code was also unconstitutional.

We celebrated the same-sex marriage decision but paid no attention to the anal intercourse decision. And yet same-sex marriage and anal intercourse are intimately related-and not only because there will be a lot of ass-fucking on our honeymoons. Through all the smoke and mirrors, disapproval of same-sex marriage has its source in the historic disapproval of homosexual sex and intimacy, especially the stigma against anal intercourse among men. As US Supreme Court Justice Scalia said last summer in the Texas sodomy case, preserving the traditional institution of marriage is just a kinder way of describing the state’s moral disapproval of same-sex couples.

Laws making anal intercourse a crime have played an essential part in justifying discrimination against us. As long as our expression of intimacy was considered criminal, it remained legitimate to discriminate against us in other ways. Justice Scalia would have allowed Texas to keep sodomy a crime because “many Americans do not want persons who openly engage in homosexual conduct as partners in their businesses, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.”

It is true that anal intercourse has come out of the closet among straights. An early episode of Sex and the City had the girls talking about it. There’s a whole new porn genre-bend-over-boyfriend -where straight guys take it up the ass from women with strap-ons. But in reality, the stigma against anal intercourse remains very strong and is still firmly directed at us. It was no surprise that when US personnel set out to humiliate male Iraqi prisoners, they forced them to simulate acts of anal intercourse.

Regrettably, you don’t have to look to a group of young, out-of-control soldiers in a far-off place to be reminded of how our society continues to view anal intercourse. While sodomy laws in the United States and Canada have been found to be unconstitutional, the recent history of those laws and their unjust use in our own backyard demonstrate just how firmly entrenched the stigma is against anal intercourse.

Anal intercourse in Canada was a total crime until the late 1960s, when a defence was introduced exempting married persons or persons over 21-if only two persons were present. In the ’80s, the defence was changed to allow anal sex between married people or when both people are over 18-still with only two persons allowed to be present. The age of consent for vaginal intercourse was 14-with group sex allowed.

In the late ’90s, the Ontario and Quebec appeal courts found the latest version of the anal intercourse law discriminated on the basis of marital status, age and sexual orientation.


Despite those decisions, the Crown in British Columbia continued prosecuting anal intercourse cases. In a feature for this paper, I criticized that practice and called on the NDP provincial government to put a stop to it. In a Jul 5, 2000 letter addressed to the editor of this paper, the government first responded by saying I was misleading the readers of Xtra West to suggest that, without action by the government, Crown prosecutors were free to prosecute anal intercourse cases. They added that Crown prosecutors “have been directed not to lay such charges.”

You would have thought that would have been the end of it. But just 15 days later the Crown indicted an accused for anal intercourse and obtained a conviction in 2001. That conviction was appealed and last summer the Crown finally threw in the towel, conceding that the anal intercourse law was unconstitutional. Our Court of Appeal agreed and acquitted the accused of that charge.

Again, you would have thought that would be the end of it. But no: the Crown recently indicted an accused for anal intercourse. I wasn’t surprised. After the Ontario Court of Appeal found the anal intercourse law to be unconstitutional in 1995, the police there charged someone under that unconstitutional law. As I said in my report four years ago, sodomy laws never die easily.

Every time that the Crown in British Columbia charged someone under the anal intercourse law, they helped perpetuate the stigma against homosexuality and made it easier for others to discriminate against us. Either the Crown intended that harm as was likely the case with prosecutions under the old sodomy law, didn’t care about the harm they were causing, or were unaware enough to even see it. I have written the BC attorney general, asking him to use his powers to finally put an end to prosecutions for anal intercourse in this province. (See sidebar.)

Obviously not everyone shares our enthusiasm for anal intercourse. While the state in Canada may no longer be in a position to makes us criminals for that form of intimacy, the stigma remains and remains to be challenged. We may have gay marriage, but how fun is the honeymoon going to be if the hotel you have booked refuses to give you the room because they do not want ass-fucking going on in their beds?



Dear Honourable Geoffrey Plant;

On September 26, 2003, the Court of Appeal for British Columbia in R v Blake found section 159 of the Criminal Code, the anal intercourse provision, to be unconstitutional. The Crown in that appeal conceded that the provision was discriminatory on the basis of age and therefore violated s.15(1) of the Canadian Charter of Rights and Freedoms. The Crown also conceded that the provision was not justified under s.1 of the Charter.

Despite that Court of Appeal decision, and Crown’s concession during that appeal, the Crown in British Columbia has since indicted an accused for anal intercourse. In those circumstances, I request that you use your power under s.5 and 6(1) of the Crown Counsel Act to direct that Crown prosecutors in British Columbia no longer prosecute for anal intercourse. I request that you provide a timely response to this letter.

Yours truly,

Garth Barriere

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