What about consent?

Sometimes, it’s the most innocuous details that really stick with a person. As I sat in the courtroom last week, listening to hours and hours of testimony in Robin Sharpe’s ongoing sexual assault trial, one word really caught my attention: viaduct.

It was Tues, Feb 24, and the Crown was questioning the complainant, a now 35-year-old man who alleges he had an illegal sexual relationship with Sharpe from 1979, when he was 11 years old, to 1983, when he was 14 years old. Sharpe would’ve been in his mid-40s at the time.

The complainant, whose name I can’t publish by law, was sharing his memories of Sharpe driving him home over the downtown viaduct. And he smiled as he said the word viaduct.

“It’s a bridge over land,” the man said, casually adjusting his glasses on the stand. Sharpe, he added, taught him that word.

Now, admittedly, this is a very minor detail in a highly complex case. The case itself revolves around accusations that Sharpe basically seduced a pre-pubescent teenage boy from a dysfunctional family and then had sex with him and took nude photos of him for a period spanning four years. Sharpe is facing three charges in connection with the case: sexual assault, indecent assault on a male and acts of gross indecency. (If you think the language in some of those charges sounds old, you’re right. I’ll explain the specific charges and my concerns about them later.)

But first I want to get back to the viaduct.

It may seem irrelevant to you, but to me it shed a sliver of light on the complainant’s alleged relationship with Sharpe all those years ago.

You see, by law, young people less than 14 years old cannot choose to have sex with adults. Period. Even if they may have been happy to have sex at the time, even if they initiated the whole thing-by law it doesn’t count, their wishes don’t exist.

For me, that raises an important question: is the law appropriate? Does it accurately reflect reality and protect vulnerable youth who need protection? Or does it strip youth of their sexuality and their genuine ability to choose? And why is it set at 14? Why not, say, 13?

What, you may ask, does all this have to do with a viaduct?

Nothing, really. It’s just a feeling I got listening to the complainant, as he smiled and recalled fond memories of viaducts, and playing endless board games with Sharpe, and the unique shape of Sharpe’s homemade driftwood furniture, and the camping trip they took together.

Now, I’m not saying this complainant did consent to have sex with Sharpe, or even that they had sex at all (since that is still nothing more than an accusation in an ongoing trial).

But if they did have sex, and the youth was 12 or 13 years old at the time, is it possible that he could have consented? Forget the law. I mean in life: could he have consented? Could a 12- or 13-year-old choose, of his or her own free will, to have sex with an adult? Or does it automatically have to be abuse?

The answer, I think, lies with each individual youth and his or her experience of the acts in question.

Now, unfortunately, I can’t ask the youth in this case. But I can listen to the adult he grew up to be, and try to glean some clues from the testimony he gave last week.

For starters, what does he say about the sex he allegedly had with Sharpe? The complainant alleges that Sharpe gave him oral sex, finger-fucked him and touched him more than 50 times over the course of their four-year relationship. If so, how did he, as a youth, feel about it? Did he participate voluntarily?

It’s hard to say. What I can say is that the complainant looked relaxed on the stand and even smiled occasionally as he related details of those alleged sex acts. He did not seem uncomfortable or pained by the memories, the way I’d expect someone who was repeatedly forced to have sex would seem. In fact, consensus outside the courtroom was that he seemed kind of excited as he relived those memories. At one point he even told the court that “it was all very stimulating.”

That suggests to me that maybe he consented. Maybe he even enjoyed it.

Now I’m not judging the youth in the slightest; there’s nothing wrong with enjoying consensual sex at any age. Nor am I saying that he asked to get sexually assaulted-I would never say that. I can’t even tell if his apparent ease on the stand was just a successful coping mechanism.

But my gut feeling is that he seemed genuinely non-distressed. And that he seemed to have had some power in the relationship he described.

Take, for example, his statement that he refused to have anal sex with Sharpe. “I absolutely forbade that,” the complainant told the court. “I guess that was my limit.”

Since no one is alleging that Sharpe had anal sex with the youth, I can only conclude that Sharpe respected the youth’s limit and did not force him to have anal sex after he said no. Does that sound like an abusive relationship to you?

Let’s go back to the facts: On the one hand, the complainant seemed comfortable with the sex acts he said occurred, and talked about the limits he set. On the other hand, he seemed to grow increasingly uncomfortable when discussing the nude photos Sharpe allegedly took of him.

“I don’t even like looking at it,” the complainant said, as he pushed one of the photos away. “It’s not a very nice photograph of me.” He then recalled heated arguments that he allegedly had with Sharpe over the prospect of taking some nude photos outside. He says he eventually lost at least one of those arguments and felt exposed as he posed, nude, in a tree.

When he said that, my heart went out to him. No one should ever feel pressured to perform any acts they don’t want to perform.

But at the same time, the complainant said he charged Sharpe $15 for the first set of alleged photos and continued, over the years, to negotiate prices for more sex and photos. Does that sound like someone who was powerless to you?

I honestly don’t know. And the question gets even muddier when we factor in the complainant’s home life. According to the complainant, his mother was basically a hypochondriac obsessed with her own health who spent the family’s meagre social assistance income on her own vitamins rather than on food and never really listened to him. The complainant testified that he was always hungry in school, rarely got breakfast or lunch, and was traumatized by cockroach infestations.

It was against that backdrop that he met Sharpe, and that Sharpe allegedly took him in, fed him, smoked pot with him and befriended him-and had sex with him. “Robin was like a father to me, a buddy, a friend. He listened to me, he talked to me. What can I say?

“Robin always kept his word to me,” the complainant continued. “I trusted him. He’s never threatened me. He was very, very nice to me.”

So, you decide: if, in fact, Sharpe had sex with the youth when he was 12 or 13 years old as he is accused of doing, was he a friend or a predator? Could he have been a friend and a lover, instead? Was he a predator before the youth turned 14, and a lover afterwards?

I don’t expect you to come up with an answer right away. I’ve been tossing and turning for a week.

And not just about the consent question, by the way. As if this case wasn’t difficult enough, the charges themselves raise a whole other set of concerns for me.

**

Remember, Sharpe is charged with one count of sexual assault, one of indecent assault on a male and one of gross indecency. The Crown pressed those charges because the alleged acts took place between 1979 and 1983, and the Crown always has to use whatever charges existed at the time of an alleged offence.

Now, in the case of sexual assault, that doesn’t really pose any problems because the definition of that crime hasn’t changed much since it was introduced in 1983. And indecent assault on a male basically got rolled into sexual assault in a new and improved, gender-neutral way, in 1983. So both those crimes essentially exist today under the sexual assault section of the Criminal Code.

But what about gross indecency? Parliament repealed that section of the Criminal Code in 1985. Before that, it was barely defined as acts featuring “a very marked departure from the decent conduct expected of the average Canadian.” Anything viewed as “abnormal” or “perverted” fell into that category-except fellatio, which the Criminal Code noted was okay.

So what exactly constituted gross indecency? It’s a little unclear, but basically anything outside mainstream society’s sexual mores could be hauled into court and prosecuted back then. As you might guess, gay sex was especially vulnerable.

And that brings me to my concern about the charges Sharpe is now facing. Is it really in the public interest to resurrect the gross indecency charge, even if it’s just for this trial?

I know the Crown has to use whatever charges were on the books at the time of the alleged offence. But it is also supposed to ask itself if it’s in the public interest to pursue those particular charges. In this case, it already has two other charges to prosecute; did it really need a third?

Outside the courtroom, I asked Elliot Poll, the Crown in this case, which of the alleged acts fall under the gross indecency charge. He wouldn’t say. He just said that all the alleged acts fall under all three charges.

So, if none of the acts fall exclusively under the gross indecency charge, I renew my question: Why was it necessary to use it?

Gay lawyer Garth Barriere shares my concern about the Crown’s decision to resurrect the gross indecency charge. “The danger is they’re going to call something grossly indecent that is no longer a crime-and re-stigmatize some aspect of homosexual sexual behaviour,” he says.

Case in point: anal finger fucking. Today, it’s legal for two consenting adults, over the age of 14 years, to drive their fingers up each other’s butts. (Unless, of course, one of the two people is a teenager between the ages of 14 and 17 and in a position of dependency on the other.) But overall, finger-fucking is not a crime. Now.

Twenty years ago, it could have been called grossly indecent.

And that’s just “grossly offensive,” says Barriere.

“I don’t have a problem,” he continues, with the Crown prosecuting acts that society still considers criminal today, such as sexual assault.

But that’s not necessarily the case with gross indecency. While some of the elements of the old charge may be found in some of the newer sections of the Criminal Code’s sexual offences section, some of the acts are no longer considered harmful and are now legal. Remember, gross indecency was a very broad charge.

If the Crown lumps now-legal homosexual sex acts under gross indecency and calls them a crime and re-denounces them, what message will that send? Barriere asks. And is it in the public interest to send such a message?

“Not in my opinion,” he says.

Nor mine.

Sharpe’s trial resumes this week.