Sex clubs legalized

A Supreme Court of Canada ruling has legalized consensual group sex in members-only sex clubs and re-written the legal definition of indecency.

The ruling dealt with charges against the proprietors of two Montreal swingers clubs. They were each charged with keeping a common bawdyhouse-defined as a place where prostitution or indecent acts take place-because they played host to group sex and sex in the open in their establishments.

In acquitting the two proprietors, the court changed the test for assessing indecency.

The Dec 21 judgment eliminates the community standards test Canadian courts have traditionally used to determine if an act is indecent under the Criminal Code, and replaces it with a harm-based test. The old community standards test was often used to harass and prosecute gay bathhouses.

“This is a huge step,” says Toronto bathhouse owner Peter Bochove, who has been leading a campaign to get Canada’s sex laws modernized. “Obviously this puts an end to bathhouse raids. After 32 years of business, it’s here-son of a bitch.”

“It is a good decision,” says Vancouver lawyer Garth Barriere. “I think what it does is it carves out a space for quasi-public-quasi-private sexual spaces like bathhouses, sex clubs, swingers clubs, dungeon parties and those kind of things.”

“How does one determine what the ‘community’ would tolerate were it aware of the conduct or material?” wrote Chief Justice Beverley McLachlin in the decision. “In a diverse, pluralistic society whose members hold divergent views, who is the ‘community’? And how can one objectively determine what the community, if one could define it, would tolerate…?”

The old community standards test “tended to function as a proxy for the personal views of expert witnesses, judges and jurors,” McLachlin continued. “In the end, the question often came down to what they, as individual members of the community, would tolerate.”

McLachlin and a majority of Supreme Court justices ruled that, from now on, harm should be the only criteria for determining what is indecent, and concluded that consensual partner-swapping and group sex in a commercial venue are not harmful.

Only justices Michel Bastarache and Louis Lebel objected. The new test marks “an unwarranted break” with past indecency decisions, they wrote. “The existence of harm is not a prerequisite for exercising the state’s power to criminalize certain conduct: the existence of fundamental social and ethical considerations is sufficient.”