Indecency is an easy trap

Courts frown on even the smell of sex

Public sex is still a very risky proposition because it is still basically illegal.

Section 173 of the Criminal Code – the provision under which the 18 men arrested at The Bijou have apparently been charged – says: “Everyone who does an indecent act in a public place in the presence of one or more persons is guilty of an offence.”

So what exactly is an indecent act? And what is a public place? The law has some pretty bizarre answers.

The law does not define indecent acts, leaving it up to the courts. And the courts have developed some dandy tests.

Basically, the Supreme Court Of Canada has said that the standard for indecency is the same as the standard for obscenity.

This goes back to the infamous Butler decision. That’s the one in which the court redefined pornography, and said that it means material that is degrading and dehumanizing, particularly towards women. The decision, not incidentally, was then used by cops against gay and lesbian material.

The same test is now used for indecency. According to the court, the test is about community standards of toleration. That means not what the average Canadian could stand looking at herself, but what she could tolerate other people looking at.

An indecent act is something that the community would not tolerate taking place. Oddly, this community standard for decency is supposed to be a national standard.

That’s not particularly clear. The court offer more details when it says that the relevant harm in considering a particular act or performance is the social harm that it might cause. In particular, “whether the act is degrading or dehumanizing, whether it desensitizes sexuality and is incompatible with the dignity and equality of each human being; and it predisposes people to act in an anti-social manner.”

According to the courts, that means sex – any way, any form, any how, including oral sex, anal sex, mutual masturbation, lap dancing, any sexual touching, masturbation or exposure.

Acts that are otherwise perfectly legal in private fall within the purview of the law when they take place in a public place.

This might not be a terrible thing if we could agree on the meaning of a public place. For example, it clearly means that you can’t have sex on Yonge St. And it means that you can have sex in the privacy of your own home. But there is a lot of space between our bedrooms and Yonge St, a lot of which is potentially very public.

I don’t want to discount talk about homophobia as a factor leading to the busts. But there is, I think, more going on here.

The gay and lesbian community is particularly vulnerable to these charges precisely because it is a community that is so public about its sex and sexuality, because sex and sexuality is very much a part of our political identities.


And there’s the hitch. Because anything or anyone that gives off even a whiff of public sex and sexuality is at risk of the periodic sweeps that are conducted against highly sexualized communities.

Straight strip bars are routinely busted, with the dancers routinely charged with doing bad things, usually in the name of having discovered a prostitution ring. Straight sex clubs, when the cops can find them, are busted. SM dominatrixes are arrested and their dungeons are closed down.

The gay and lesbian community is part of these broader group of folks who wear their sexualities very publicly, and whose lives are particularly vulnerable to criminal prosecution.

The bust at The Bijou needs to be seen as part of a much broader effort to regulate sexuality. We need to think harder about working with the other affected communities: the sex workers, the straight swingers and the straight SM folks.

We should be no more surprised when The Bijou is busted than when the Madame de Sade’s Bondage Bungalow [Terri-Jean Bedford, a dominatrix for straight men, was convicted of keeping a bawdy house in 1998] is busted, or when the sex club for heterosexual swingers in Montreal is busted. It’s all at the hands of the same anti-sex laws.

These are laws that we need to work to change. Because as long as they stay on the books the way they are, we are all at risk.

Brenda Cossman

Brenda Cossman is a professor of law at the University of Toronto, the author of Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford University Press) and a former board member of Pink Triangle Press, Xtra’s publisher.

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Power, Toronto, Human Rights

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