Indecent to whom, Mr Policeman?

Caught with your pants down in the bushes?

Whether you’re there for a blowjob, a cruising quickie or just to get some air, if the police catch you, you might very well get charged with committing an indecent act.

But when you look at the state of, say, reality television, you have to wonder what’s indecent nowadays, anyway?

The courts and the police constantly wrestle with the question – and their answers never seem to add up.

Gary Kinsman, gay activist and sociology prof, says indecent acts are almost always sexual.

“The way it’s used in the Criminal Code is [in] the practices of sexual activity,” says Kinsman. “Queer sex can still be considered far more indecent than similar hetero activities.”

The law against indecent acts are spelled out in section 173 (1) of the Criminal Code under the heading Disorderly Conduct. It penalizes anyone who “willfully does an indecent act in a public place in the presence of one or more persons or in any place with the intent to insult or offend.”

But an “indecent act” is not defined and what’s considered indecent is decided by a combination of court rulings and, according to Det John Tinkler from the Toronto Police Service, common sense. Both depend on the concept of public morality – will it be tolerated and does the act offend or cause harm to the public?

The idea that something can be a “risk of harm” toward the public has been borrowed from the court rulings on obscenity laws (which are listed as Sexual Offences in the Criminal Code). This is best shown in the 1997 Supreme Court Of Canada case Mara And East. The late Justice John Sopinka ruled that legal prohibitions applying to indecent acts – in this case, lap dancing – were not unconstitutional because they could be justified by the “risk of harm.” But Sopinka pinpointed not the harm toward the lap dancing women, but the “attitudinal harm on the men watching the performance.”

If you’re thinking that there’s never been a test developed to see if men who watch lap dancers have a different level of harm to their attitude than men who don’t, you’re right. That doesn’t make the concept legally less important.

“You might think that ‘indecency’ is inherently a vague word – but so is ‘the reasonable person,’ and that’s used all the time as well,” says Mariana Valverde, a criminology professor at the University Of Toronto. “Vagueness is the essence of law, you might say.”

Indeed it is specific court cases that have created the shape of indecent acts – what activity police will charge on and what they won’t – and most of them tend to apply to sexual acts, nudity and what criminal defence lawyer Ron Jourard calls “crimes of sexual immorality.”

“It is decided, as many other legal questions are decided, by looking for a resemblance of the situation in question to a situation that some earlier court, preferably a high court, decided fell within the boundaries of indecency,” says Valverde.

Court cases have defined a “public place” – which is where indecent acts take place. The 1981 Alberta Court Of Appeal case Figluzzi ruled that an indecent act in a car on a public street and observed by a citizen is considered public. The 1986 Manitoba Court Of Appeal case Buhay went further, ruling the doorway of a private house, exposed to public view, is a public place if a person were to expose themselves there.

Courts have also defined what it means to “willfully” commit an indecent act. The 1957 Ontario Court Of Appeal case Kosodoy ruled that it doesn’t have to be a particular person who is wilfully offended. Police don’t have to call up an offended party to claim a grievance. In 1977 the Ontario Provincial Court ruled that willful means deliberate or intentional as opposed to accidental.

But it’s not all heavy news in the courts. Streaking, nude sunbathing and women being topless are not considered to be indecent acts (1974, Ontario Provincial Court; 1971, BC Supreme Court; 1996, Ontario Court Of Appeal, Jacob). But police say that the exposure of genitals is essential in indecency.

“Kissing is not an exposure,” says Const Wendy Drummond of the Toronto Police Service. That means tonsil hockey and sucking face should never attract police attention.

Police charges, while shaped by court rulings, are usually decided on a more individual basis. Police are taught about the Criminal Code at the Ontario Police College, but then decide when and how to implement a charge.

“It’s a common sense approach. Whatever society will tolerate at the time,” says Tinkler. “When I say common sense – it’s in the Criminal Code.”

He gives the example of someone exposing themselves on the TTC subway and says the police reaction is based on whether it will offend the majority or not.

As rulings from court cases change how the Criminal Code should be interpreted, police forces are provided with what’s called a routine order that is published for the officers to read. Sometimes an outreach training video is made.

It’s not so much that homo-phobic police officers misuse the Criminal Code, says Kinsman. It’s in the culture. Gay men might get charged for sex in a park while straight couples would just be sent home.

“In practice this vague expression [indecent acts] has been mobilized in the courts and by police against queer sex in particular,” says Kinsman.

Kinsman gives the example of former laws in the Criminal Code, gross indecency (for oral sex) and buggery (anal intercourse) that often targeted homosexual sex. Both of these were removed in 1988, although buggery was replaced by the anal intercourse offence.

In section 159 (1) the Criminal Code still says that every person who engages in an act of anal intercourse is guilty of an indictable offence liable to a 10-year prison sentence. Of course there is an exception to 159 (1) – it doesn’t apply to husband and wife, or consenting adults over 18 if done in private. But then, it is not considered “private” if more than two persons are present or involved.

“Clearly a broader form of heterosexism directs the police,” says Kinsman. “Quite often the police have had major organizations to go after specific gay areas.

“We need to get rid of this notion of queer sexual activity being seen as indecent,” says Kinsman. “If you just look at is as antiquated, which indecent acts are because they are based on antiquated morals, then you lose the bigger picture that these laws still have power.”