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|Thu, 12-22-2005 - 3:33pm|
Sex club ruling redefines 'indecency'
In a ruling that sex clubs are legal, the Supreme Court of Canada has changed the definition of acceptable behaviour
Dec. 22, 2005. 05:06 AM
It might not transform Canada into a top sex tourism destination, but a Supreme Court ruling yesterday to legalize swingers clubs — including orgies and partner swapping — has broad implications for sexual culture and rights, experts say.
In its 7-2 decision, dealing with two Montreal swingers club operators charged with keeping a bawdy house, the court rewrote the definition of indecency. Now harm, rather than community standards, is the key yardstick that will be used to measure the point at which constitutional freedoms can be limited.
Under the ruling, public sex would meet the test of indecency, but orgies and partner swapping among adults in private do not. Acts must be shown to be harmful to the point where they "interfere with the proper functioning of society" before they can be labelled indecent, Chief Justice Beverley McLachlin wrote.
Experts said the decision could lead to the decriminalization of prostitution in the future. It also sends a clear message to police to back down when enforcing law on public sex. If officers have to crash into a suburban home to break up a key-swapping party between consenting adults, or burst through a closed bathhouse door, they no longer have any business doing it, said Bruce Freeman, a cultural anthropologist at the University of Calgary.
"There are these changing sexual mores in Canada," said Freeman, who recently surveyed residents in Calgary's Beltline neighbourhood on the presence of swingers clubs there and found an increased tolerance. "The larger point is the shift from morality-based enforcement to these types of harm-based," he said.
In her decision, McLachlin wrote that "grounding criminal indecency in harm represents an important advance in this difficult area of law."
Alan Young, who teaches at York University's Osgoode Hall Law School, said the decision has a "small context."
"The essence of this case is about consensual activities, in private, amongst adults."
Young added that "it does send a message for any cases involving indecency, whether it be nude bathing or nude displays or public sexuality. There seems to be a requirement now for the Crown to prove something a bit more tangible in terms of the harm. The message is: `Show us some studies, come equipped to court, not just with undercover officers who ... tell us this happened.'"
He said the judgment raises questions about the potential decriminalization of prostitution. "What makes it wrong to exchange money to buy the sex?"
Joel Bakan, a University of British Columbia law professor, said the court is "saying that if an activity is actually causing harm ... then it should be and can be stopped. If it's simply a question of moral taste, a question of sort of subjective views of what people like to do with their life, basically people are free to do what they want as long as they're not causing harm to others."
Defining indecency has always been difficult, and judges have wrestled over the issue for a century and more, McLachlin wrote. Bad taste, violation of religious or moral standards or even public disgust aren't by themselves enough to make something indecent. However, conduct that confronts the public, which predisposes others to anti-social behaviour or actually harms those taking part would meet the test.
The ruling dealt with the cases of James Kouri and Jean-Paul Labaye, both convicted swingers club owners. The unsettled state of the law was demonstrated when separate Quebec Court of Appeal rulings upheld Labaye's conviction and overturned Kouri's. The high court threw out Labaye's conviction and affirmed the Kouri decision.
A bawdy house is a location kept for prostitution or indecent acts, according to the criminal code. Because there was no payment for sex at the clubs, the legal issue was not a question of prostitution, but of the definition of what constitutes an "indecent act."
Writing on Labaye, McLachlin noted: "Entry to the club and participation in the activities were voluntary. No one was forced to do anything or watch anything. No one was paid for sex."
Long-time Canadian sex expert Sue Johansen said she expects the ruling to prompt an outcry among the sexually squeamish. "The ranting that's going to go on about morals going down the toilet. ... They've had clubs for years where couples would put their keys in a hat and at the end of the evening they'd grab a set of keys and go home with whomever. It's not unusual," Johansen said.
She said those who aren't already part of the swing scene won't notice a difference. What does worry Johansen are issues of coercion, pornography and the capacity for some people to see the ruling as a licence to lose control behind closed doors.
Janet Epp Buckingham, director of law and public policy for the Evangelical Fellowship of Canada, said the decision "is beyond what most Canadians would find tolerable," adding: "This kind of thing offends Canadian standards of decency."
Montreal club owner Denis Chesnel said the ruling shows the court's evolution. The judges recognize "people can exercise their fundamental rights to have sexual relations with partners of their choice," he said.
Osgoode Hall's Young said yesterday's ruling will likely have no impact on definitions of obscenity used by courts or on child pornography laws.
with files from the Star's Wire Services