Tub wanks may be indecent

CALGARY – An Alberta judge has ruled that police did nothing wrong when they conducted an undercover investigation and then raided Calgary’s only gay bathhouse in December 2002.

Judge Terence Semenuk also ruled that men masturbating in front of other men “may constitute an act of indecency” under the Criminal Code-and therefore be illegal.

Semenuk’s ruling sets the stage for part two of the Goliath’s bathhouse trial. Defence counsel had asked the judge (in part one of the trial two months ago) to throw out the police evidence on the basis that the undercover investigation violated the bathhouse patron’s privacy rights. The judge refused.

Now for the first time in over 20 years, a Canadian judge will be asked to decide whether sexual activity in a gay bathhouse violates community standards of tolerance and should therefore be considered a criminal offence.

“Police had a reasonable suspicion of criminal activity occurring at Goliath’s and were lawfully entitled to pursue their investigation,” Semunk ruled May 26. “It was, in my view, a bona fide investigation.”

And, he said, police not only had reasonable grounds to launch the investigation, but had every reason to believe that they obtained evidence of criminal activity when they entered Goliath’s.

“Although no prostitution was observed, the police witnessed males masturbating in front of other males, and one male masturbating himself and another male in front of other males, while watching gay pornography on TV,” the judge ruled. “These observations, in my view, were sufficient, in themselves, for police not only to have reasonable suspicion, but reasonable and probable grounds to believe that indecent acts were ongoing at Goliath’s.

“In law, males masturbating in front of other males at a gay premise may constitute indecent acts within the meaning of section 197(1) of the Criminal Code,” Semenuk continued.

According to Canada’s Criminal Code, a bawdyhouse is a place where prostitution and/or acts of indecency occur. Though the Code does not clearly specify what counts as an indecent act, courts have generally measured the act against their sense of what the Canadian community as a whole would tolerate.

Calgary gay rights activist Stephen Lock says he’s extremely disappointed with Judge Semenuk’s ruling.

“This has a major impact on gay sexual space,” says Lock. “There’s a risk other jurisdictions will raid gay bathhouses and clubs as well.

“This will have a chilling effect on sexual expression.”

Lock says the fact that men masturbating in a gay bathhouse can be considered a criminal offence is an indication that the Criminal Code needs to be changed.

“To me, it’s about context. If I stand out on the corner and masturbate, that’s an indecent act. [But] in a recognizably all-male environment, this kind of behaviour is expected, he says.

The law needs to be changed because it doesn’t distinguish between situations like these, he continues. “It makes no difference between what is truly public and what is essentially private and consensual.”

Goliath’s should not be considered a public place because there’s a big neon sign that says Gay Premises at the entrance, Lock points out. Plus, patrons can only gain entry to the bathhouse after they’ve passed through two locked doors.

“Uncle George won’t wander in thinking innocently it’s a gym. It’s pretty clear what it’s about,” he says.

now that Semenuk has accepted the police evidence, the trial’s next step will be to determine whether the sexual activity police witnessed at Goliath’s was indecent-and therefore illegal.

Crown counsel David Torske says he may present expert testimony on the subject, but he may also rely strictly on case law that’s relevant to the issue. However, Torske concedes that the only case law he’s been able to find dates back to bathhouse raids that happened more than 20 years ago.

“All these cases are from the ’70s and ’80s. There hasn’t been anything for years. Probably contemporary Canadian standards have changed since then,” says Torske.

Defence lawyer John Bascom says he has a couple of expert witnesses that he may call, depending on how the Crown’s case proceeds. He says the onus is on the Crown to prove that what police observed was contrary to community standards of tolerance. Bascom says he doesn’t believe the average Calgarian would be overly bothered by what occurs in Goliath’s.

“It’s so imprecise: what is an act of indecency based on community standards of tolerance?”

“It’s clearly political whether [police and the Crown] charge a person or not because they don’t have to prosecute every individual,” Bascom notes.

“In other cities they have consciously chosen not to prosecute [gay bathhouses]. I find it disappointing police are prosecuting this.”

Bascom points to the fact that during the Stanley Cup playoffs, dozens of women in Calgary have been baring their breasts in public. He says this, too, could fit into the definition of an indecent act-and yet no women have been charged.

“Is there some kind of prejudice against gays?” he asks.

If Judge Semenuk rules that the activity police witnessed in Goliath’s is contrary to community standards of tolerance, it will send the wrong message to the public, Bascom continues.

“It will be viewed by some as: If you’re a homosexual you’re a criminal,” he says. “It’s a step back to when sodomy was illegal.”

Lock agrees. “It’s a double standard,” he says.

A date for the continuation of the Goliath’s trial will be set Jun 8 at 9:30 am. Goliath’s owner, Darrell Zakreski, and two of his employees, Gerald Rider and Peter Jackson, are all facing one count each of keeping a common bawdyhouse. Goliath’s manager, Lonnie Nomeland, is facing a similar charge of knowingly permitting the premises to be used as a common bawdyhouse. Zakreski, Rider and Jackson could all face a jail sentence of up to two years if convicted.