Legalize consensual sex

OTTAWA – It’s time for the Canadian government to honour former Prime Minister Pierre Trudeau’s pledge and finally get out of the bedrooms of the nation.

And the bathhouses, too.

That’s the message that Canada’s national lobby group took Apr 18 to a special sub-committee of Parliament set up to examine the nation’s solicitation laws. “Move away from the imposition of the sexual morality of some on the lives of others,” Egale Canada’s director of advocacy Laurie Arron told politicians from all parties.

In their coming-out process, gays and lesbians come to understand that the “scope for healthy sexuality is much broader than that which is legal under the Criminal Code,” said Arron. Canada’s sex laws need to change, said Arron. A new approach needs to be adopted: all expressions of consensual adult sexuality that do no harm ought to be legal. Arron and co-presenter Stephen Lock, a longtime Calgary gay activist, called for two specific changes to the Criminal Code: deletion of references to “indecent acts” and elimination of any prohibition against anal sex. The phrase “the practice of acts of indecency” ought to be deleted from the definition of a common bawdyhouse in Section 197 of the Criminal Code, they said.

Whereas the bawdyhouse laws were written to criminalize houses of prostitution, the reference to acts of indecency has been used by police, the Crown and the courts to target gay bathhouses, they noted.

Parliament should also review and amend or repeal the Section 173 reference to committing an indecent act in a public place, said Arron.

The law ought to use harm as the measure of when sexual expression becomes unacceptable, he said.

Anal sex laws were also singled out by Arron and Lock. The Criminal Code singles out anal sex for special treatment: anal sex is outlawed except in some limited circumstances.

“Anal sex is legal only in some circumstances, which don’t include bathhouses,” said Arron.

That law should be completely dropped from the code, he said.

Criminal law reflects society’s longstanding discrimination against homosexuality, the committee heard and is still loaded with moralistic language and judgement.

It’s time for an update.

“Sex that takes place behind closed doors should not be punished unless there are specific and compelling reasons,” said Arron. “We simply don’t see that in a bathhouse.”

Nobody could accidentally find themselves exposed to gay sexuality in a bathhouse, Lock told the committee as he described the measures tubs take to control entry and inform customers of what takes place inside.

Bathhouses are legal establishments that pay taxes, seek business licenses and meet health and labour laws. And yet, “for simply being on site when a raid is conducted, an individual can be charged.

“The damage is incalculable,” said Lock. He detailed the health effects suffered by those charged following a raid of Calgary’s Goliath’s Sauna in 2002: stress, anxiety, panic attacks, hospitalization and the need to see a therapist.

The raids have got to stop, he said. “Bathhouses provide an important service to the gay community.”

Part of the gay coming-out process “is looking deeply at our sexual desires and activities. We struggle with the societal homophobia that we have internalized. Finally, if we make it through that struggle, we recognize that our sexuality is not something immoral or evil, but rather is a healthy part of who we are. It is that sex-positive perspective which has led to the development of today’s bathhouses.”

Art Hanger, the Conservative Party member of the solicitation committee, questioned the importance of changing the sexual provisions of the Criminal Code. In the committee’s cross-Canada hearings into prostitution laws, he said, almost every law has come in for attack.

“Every law that deals with sexual abuse in some fashion would be eradicated if we listen to everything set forward. You want… anal sex removed and… indecent acts removed. Is this for the common good of the community? I’m talking about the broad community here.”

Hanger suggested the committee hearings were a “stacked deck” that wanted to get rid of all laws governing morality. The Criminal Code was deliberately created to regulate morality, he suggested.

“When sex is behind closed doors between consenting adults and there is no harm, then there is no need for laws,” countered Arron. Two provincial courts of appeal have shot down Section 159’s prohibition on anal sex for Charter reasons, he noted, and yet Parliament has not respected the court decisions.

“I think the final say is what the public wants to see and not the courts,” shot back Hanger, a former police officer who also noted he had personally charged people for committing “indecent acts.”

Liberal MP Hedy Fry and lesbian NDP MP Libby Davies noted the committee had heard very little from gay male prostitutes and trans sex trade workers. Could Egale offer advice on how the solicitation laws apply to queer prostitutes, they wondered?

The national gay group had no position on those issues, answered Arron. But he suggested the committee might find help in Egale’s written submission. It included five guidelines Egale uses to evaluate the regulation of sexual activity (see sidebar).