What Does an Indecent Act Look Like?
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 26, 2003
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By Mariana Valverde
It should be easy to find out what the law is in a
democracy, especially one with Internet access. But when it comes to laws
about non-aggressive use of the body—things like indecency and
nudity—Canada has a welter of confusing laws, all of them inconsistently
enforced. Having armed myself with a pile of scholarly articles, court
decisions and access to experts, I still don’t have the full picture.
Let’s begin with nudity. You might think nudity is
objective. We know when we’re naked, don’t we? But being nude, for
criminal law purposes, is not being naked, it is “being so clad as to offend
against public decency or order.”
This wording prevents, for example, a stripper from
wearing a transparent outfit to avoid prosecution. But the wording also
removes “nudity” from our everyday understanding of the word, placing it
into the ethereal region of judicial interpretation.
So when seven gay men at Toronto Pride 2002 were charged
with “public nudity” under section 174 of the Criminal Code, the legal
outcome wasn’t based on the simple question, “Were they naked?” Their
penises might have been exposed, but did they offend public decency and order?
The Crown decided not to proceed with the case against
them, knowing (unlike the provincial Attorney General who gave the go-ahead
for the charges and the police who laid them) that courts have ruled that most
non-sexual and non-harassing nudity—streaking, for example—is legal in
It should set off some alarm bells that the Attorney
General was involved in the Pride nudity charges. Why? Because the public
nudity section of the Criminal Code Of Canada is one of the very few sections
for which permission of the Attorney General is necessary in order to lay
charges. (Hate propaganda is another.) Nudity is considered a political
crime—and there are politics in its origins.
A study by University Of Victoria law professor John
McLaren describes how the Canadian state used the nudity law to persecute and
imprison the Doukhobors, a Russian pacifist and anarchist religious sect, from
the 1920s to the 1950s. During this time, penalties for nudity were increased
to three years from six months, and then-justice minister Hugh Guthrie
admitted this was the “Doukhobor clause” during a parliamentary debate
where one Quebec MP opined that “the Ku Klux Klan should lend their
nightshirts to the Doukhobors.”
There was no allegation against the Doukhobors of sexual
impropriety, the original concern of the law. But their explicitly political
nudity became the excuse for a decades-long campaign that included having
their children taken away and, for the adults, long and harsh sentences of
imprisonment. The long sentences imposed for what is legally a very minor
matter were justified so as to allow the state time to resocialize Doukhobor
The Attorney General’s clause could easily have been
taken out when the Criminal Code was overhauled in 1985. But it was not;
public nudity continues to be a political crime. Cops can enforce other laws
without asking permission, but only governments can target nudity, since
it’s supposedly a threat to the state.
Nudity charges are in any case very rare; police prefer
to charge with indecency.
While nudity is found in one specific section of the
code, indecency is found in several. One is in the obscenity section, where
“indecent shows” are specifically targeted. This is not the same as
“indecent exhibitions,” a category linked to “causing a disturbance.”
In another part of the Code, under the bawdy house laws,
the habitual performance of indecent acts is listed (along with prostitution)
as one of the definitions of a bawdy house. This indecent acts clause is what
has been used for a long time to justify raids on gay bathhouses. Since money
is not usually exchanged for sex among gay men in bathhouses as it is in
heterosexual houses of prostitution, indecent acts provided the legal excuse
for raids and bawdy-house charges.
Whether or not money was exchanged for sex can be
objectively determined. But how can a police officer or a bathhouse operator
know if indecent acts are being committed? What does an indecent act look
Being aware of this sticky problem, courts have tried to
modernize Canadian law. In its 1992 Butler decision, the Supreme Court Of
Canada created a “risk of harm” test to determine what is obscene. That
“risk of harm” is also supposed to govern interpretations of indecency.
One important case concerned Guelph university feminist
student Gwen Jacob, who set out to challenge what she (mistakenly) thought was
a gender-biased law by walking down the street topless. Children playing
outside ran inside to get their mothers; men sitting on porches drank beer and
ogled; and a number of cops, beginning with an ordinary constable and ending
with several cruisers led by a sergeant, descended upon her.
She was charged with indecent exhibition, probably
because the local cops did not want to ask the Attorney General for permission
to lay nudity charges.
Jacob was initially convicted, but in 1996 the Ontario
Court Of Appeal ruled that her “indecent exhibition” did not pose any risk
of harm, and was thus not properly the subject of criminal charges.
The Jacob case was an important precedent, especially
considering that children were present. It makes it difficult to argue in
court that Pride Day nudity is criminal, since the many thousands of
spectators hardly show any signs of being harmed, or even shocked.
But Jacob’s victory did not put an end to Canada’s
long history of moralistic prosecutions of harmless displays of the body. In
fact, a year after the Jacob case, the Supreme Court ruled, in the Mara case,
that the relevant risk of harm is not possible or actual harm to performers,
or to women as a group. Rather, it’s an entity unknown to psychology called
“attitudinal harm.” Like the old morality test it was supposed to replace,
the new attitudinal harm test allows judges to decide if they think there is
harm going on somehow, regardless of what the people involved claim.
And so today, hookers who look like they might have sex
with a client in a parking lot can be charged with committing an indecent act,
even if nobody is actually harmed. And men who have sex in public bathrooms,
even inside a stall, can continue to be targeted.
In January 2002, lawyers representing several
heterosexual sex club argued to the Ontario Court Of Appeal that the indecency
part of our bawdy-house law is a void; it’s too vague. The court conceded
that the law does not define indecency. But it uneasily ruled that both
prostitution and indecency “are defined by the community standard of
tolerance.... They are not easy terms to apply, but neither are they
So the Ontario Court Of Appeal, instead of going back to
its own decision in Jacob and interpreting “risk of harm” narrowly,
recycled the old vague “community tolerance” standard.
This is bad news for sex trade workers—and for all
queers. The Supreme Court has made it clear that a cultural minority is not a
community for the purposes of determining “community tolerance.” Just
because gay men tolerate a sexual act doesn’t mean it meets the test. For
criminal law purposes, only a generic Canadian community—moral fibre intact
since the Criminal Code of 1892—has a voice.
And, worse for queers, the voice isn’t heard directly.
Public opinion polls might show the Canadian public to be more progressive
than what politicians think, but they don’t count. Judges are still the sole
authorities on what constitutes harm to the country’s moral fibre—their
own notions define what the community will tolerate.
It would be an improvement if courts embraced the
Jacob’s risk of harm test, which would protect political nudity and beach
nudity. But this will not necessarily make sexual nudity or sex work more
legal. In those situations, Canadian courts’ traditional contempt for sexual
entertainment and commercial sex will carry the day.
So the space carved out by Jacob and used by the Pride
Day nudists is small. The demonstrators are safe from prosecution because they
are not acting sexually and they are not getting money. Sex work and other
behaviour the courts deem indecent will continue to make criminals of many
people, particularly working-class women who do sex work.
We cannot rest content with legal victories that extend
only to the already respectable, while allowing the state to prosecute
harmless but nevertheless sexual nudity. In many of these cases, the courts
can not and will not come to the rescue. It will take political action to
change what’s there in the Criminal Code itself.
* Mariana Valverde is a professor at the University Of
Toronto’s Centre Of Criminology and a long-time contributor to Xtra.
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