Sex Police Are Still with Us
Getting the Criminal Code out of your sex life
An ongoing series by Xtra, Xtra West and Capital Xtra on Canada’s silly sex
June 12, 2003
491 Church Street, Suite 200, Toronto, Ontario M4Y 2C6, Canada
416-925-6665 or 1-800-268-9872
By Gary Kinsman
Police bust a bathhouse in Calgary just before Christmas
2002, then another in Edmonton just a couple of months later.
It can’t get much clearer than that: the sex police are
still very much with us. Consensual queer sex, along with other consensual
erotic activity, remains criminalized. In a time of talk of lesbian and gay
respectability, assimilation and same-sex marriage, Canada’s Criminal Code
still allows police to arrest us for consensual queer sex. And they act on it.
There are deep roots for this on-going criminalization,
some archaic and some more contemporary.
Christian history sees church law bound up with state
law, resulting in prohibitions and taboos against non-reproductive forms of
erotic activity. Sodomy originally referred to someone who engaged in any form
of non-reproductive sex and was not specifically a same-gender offence. But in
the latter 19th-century, as historian and philosopher Michel Foucault tells
us, the emergence of sexual science and its classifications of “normal”
and “pathological” sexualities turns the sodomite into a specific type of
being with distinct gender and sexual characteristics.
New criminal legislation is passed in the late 19th- and
early 20th-centuries to deal with what is viewed as new troubles and dangers
emerging in urban centres. Some of this criminal legislation, and the sexual
policing it mandated, specifies the homosexual as a distinct type of criminal.
True, the morally conservative and Christian-based social
purity movement in Canada agitates for many of these new pieces of criminal
legislation against prostitution (which they call “the social evil”) and
against sex between men (labelled “gross indecency”). But some of these
notions are imported from Great Britain.
The offence of gross indecency, which criminalizes all
sex acts between men, is picked up from UK legislation inspired by a desire
for social purity. Homosexual sex also more generally gets constructed as an
“act of indecency.” Laws against prostitution, including laws against
“common bawdy houses,” are broadened during these years.
In 1917, Canada’s bawdy house legislation, initially
directed at prostitution, is expanded to include “acts of indecency” to
make it easier to convict sex workers who work in massage parlours. But by the
1970s this allows the police to use the bawdy-house legislation against sex
going on in gay bathhouses and bars.
Much of this sexual legislation has a morally
conservative character to it, defending reproductive, married and heterosexual
sex from perceived social and sexual threats. Moral conservatism is an
approach that argues there is only one right sexuality—if not Christian
based, then at least religiously based—and generally argues for a rather
repressive approach to erotic activity outside marriage and heterosexuality.
Canada’s Criminal Code sections referring to
sex-related offences are originally referred to as “offences against
morality” until they are moved into a new section called “Sexual
Offences” in the 1950s. (Nowadays the section is called “Sexual Offences,
Public Morals And Disorderly Conduct,” retaining its judgmental attitude
toward what is wrong and what is right.)
It is not until the 1950s in Canada that the offence of
gross indecency is expanded to include lesbian sexual acts; prior to this the
very possibility of lesbian sex tends to be denied in the law. This
moralization of the sexual continues even after there is a shift away from
overt moral conservatism towards a liberal policy of sexual regulation
focussing on public/private and adult/youth distinctions in the 1960s.
Though the strategies might grow more liberal and less
religious, there is still a common public morality which prohibited the public
affirmation of prostitution and queer sexuality. The limited private moral
space provided for queer sex is clearly subordinated to this public morality,
which is still seen as heterosexual in character and is rooted in earlier
moral conservatism. It is this liberal approach which informed then prime
minister Pierre Trudeau’s when he said “the state has no place in the
bedrooms of the nation.” His 1969 Criminal Code reform leads to the partial
de-criminalization of gross indecency and buggery and the establishment of
limited situations in which women can secure access to abortion services if a
hospital has a therapeutic abortion committee.
The 1969 Criminal Code reform is today widely
misunderstood as legalizing homosexual sex. It does nothing of the sort.
Instead, it is a shifting of sexual regulation and policing. A limited private
moral realm for two consenting adults (aged 21 and over) is established in
which homosexual sex will be tolerated. Queer sex is still targeted. In fact,
the policing of gay sex actually intensifies after the 1969 reform, as more
men are charged with sex in public and sex involving younger men.
Under the law, sex is considered to take place in public
if more than two consenting adults are involved or if it is in a public place
(that is, not a private home or private room). That’s the case even if the
participants have constructed privacy and intimacy for themselves so they are
bothering no one. The presence of a third person can makes a sexual encounter
Since the police can legally claim that bathhouses and
bars are public in character and since queer male sex can still be constructed
legally as indecent, this means the police have been able to use the
bawdy-house legislation against gay establishments.
This sets the stage for the massive bathhouse raids of
the 1970s and early 1980s as queer male sex looms larger in the public
conscience. This increasing gay visibility also develops in tandem with
intensified forms of censorship of queer sexual images and texts.
In the latter 1980s some of this sexual legislation is
changed. Gross indecency was finally repealed. Buggery is changed to “anal
intercourse” and the age of consent for anal sex is lowered to 18 from 21.
It’s still higher than the heterosexual age of consent for straights (which
is 14 in most circumstances) but there is a perception that young males
apparently require extra protection from homosexual advances.
The youth porn law of the 1990s intensifies forms of
regulation along adult/youth lines and has been used to collect evidence of
queer male sex captured on video so that sex charges can be laid against those
While we have achieved many significant legal and social
changes, particularly in relation to basic human rights and spousal and family
recognition rights, our sexualities continue to be criminalized.
This not only leads to the criminalization of some
sections of queer communities, but it also holds back all our other struggles.
This criminalization helps to construct some of us as “bad” and
It is time to put the sexual back into queer liberation.
We need to develop a broad campaign against sexual policing to get rid of
these laws so that the sex police can no longer criminalize our sexualities.
This will also involve us in building alliances and coalitions with
prostitutes and others facing oppressive sex policing.
We need to get rid of the legal notions that queer sex is
indecent and obscene; we need to get rid of the bawdy house laws which are
used against prostitutes and queer sex; we need to narrow the definition of
“public” space and expand notions of our social rights to privacy and
intimacy. We need to move towards a situation in which the sex police are no
longer involved in regulating consensual sex and no longer are constructing
some of us as sexual dangers and sex perverts.
Once we are rid of the sexual policing of consensual sex,
we can focus all our energies on addressing the real roots of sexual violence
and harassment as we build a world defined by erotic pleasure and the ending
of sex-related violence and danger.
* Gary Kinsman is a queer liberation, anti-war and global
justice activist living and teaching in Sudbury, Ontario. He is the author of
The Regulation Of Desire and of numerous articles on sexual and gender
politics and critical approaches to national security.
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