Laws of desire: the political morality of public sex.

• Author: Craig, Elaine
• Position: Canada

In indecency cases, Canadian courts historically employed a model of sexual morality based on the community's standard of tolerance. However, the Supreme Court of Canada's recent jurisprudence addressing the role of morality in the criminal law relies upon, in order to protect, the fundamental values enshrined in the Canadian constitution. This article analyzes the Court's decisions in R. v. Labaye and R. Kouri and demonstrates that these cases represent a shift in the relationship between law and sexuality. The author illuminates the possibility of a new approach by the Court to the regulation of sex. Such an approach allows for the legal recognition of pleasure behind, beyond, or outside of legal claims regarding identity, antisubordination, relationship equality, and conventional privacy rights. A new theoretical approach to the legal regulation of sexuality recognizes the importance and benefit of challenging mainstream beliefs about sexuality and subverting certain dominant sexual norms. Such an approach is firmly grounded in the principles of liberalism that Labaye reflects.

En matiere d'indecence, les cours canadiennes ont historiquement utilise un modele de moralite sexuelle se basant sur la norme de tolerance de la societe. Cependant, la jurisprudence recente de la Cour supreme du Canada s'appuie sur les valeurs fondamentales garanties par la Constitution canadienne, afin de les proteger. Cet article analyse les jugements de la Cour dans R. c. Labaye et R. c. Kouri et demontre que ces affaires representent une mutation du lien entre le droit et la sexualite. L'auteure expose la possibilite d'une nouvelle approche de la Cour quant a la regulation des relations sexuelles. Une telle approche permettrait la reconnaissance judiciaire du plaisir au-dela et hors des revendications touchant l'identite, l'anti-subordination, l'egalite des relations et le droit a la vie privee. Une nouvelle approche theorique a la regulation de la sexualite reconnait l'importance et les benefices de defier les croyances majoritaires concernant la sexualite et de subvertir certains normes dominantes en matiere de sexualite. Une telle approche est fortement baste sur les principes de liberalisme qui transparaissent dans Labaye.

Foreword: A Swinger's Guide to Montreal Introduction I. The Constitution as Custos Morum A. A Standard of Tolerance for the Community B. McLachlin's Hart of the Community Versus the Devlin Is in the (Sexual) Details II. Tolerance, Iconoclastic Sex, and Common Goods A. Tolerating Group Sex B. The "Liberated Couple": An (Anti-)Icon to Come? C. Laws of Desire Conclusion Foreword: A Swinger's Guide to Montreal

The bouncer at Coeur a Corps will not let you in unless you answer in the affirmative when he asks if you and your companion are a "liberated couple". Once inside, Coeur a Corps offers a modest bar and dance floor. "[E]very half hour a black translucent curtain automatically closes around the dance floor at which time the disc jockey plays--for 8 to 12 minutes--lascivious musical pieces. During these periods ... the dance floor fill[s] up with people ... [who engage] in sexual acts, ranging from caresses to masturbation." (1) On a busy night you can expect between sixty and one hundred people on the dance floor at any given time. (2) Don't forget the cover charge. It's six dollars per person. Cash only, folks.

For those who like to fly (or rather swing) solo, Ceeur a Corps isn't the establishment for you. The rule is "couples only" at Coeur a Corps. So single swingers might consider the club L'Orage instead. L'Orage is a private club with an annual membership fee that accepts both couples and singles. It is open to members and their guests only. What L'Orage lacks in decor--it consists of "[a] number of mattresses ... scattered about the floor of the apartment" (3)--it makes up for in terms of sexual opportunity. Two doors separate access to the third floor from the rest of the bar, one marked "Prive" and the other locked with a numeric keypad which only members can open. This makes a lot of what goes on at L'Orage much more "involved" than what is usually available at Coeur a Corps. (4)

Oh, and one last thing. You need not worry anymore about police raids at either L'Orage or Coeur a Corps. In 2005, the Supreme Court of Canada refined the definition of indecency under the Criminal Code and quashed bawdy-house convictions against the proprietors of these establishments. (5)

Introduction

Both R. v. Labaye and R. v. Kouri concerned charges against the proprietors of establishments alleged to be bawdy houses. As defined under section 197 of the Criminal Code, a common bawdy house is a "place that is kept or occupied, or resorted to ... for the purpose of prostitution or for the practice of acts of indecency." (6) Counsel for both Mr. Labaye and Mr. Kouri argued that the acts occurring in these establishments were not indecent under the criminal law. As such, both cases turned on the statutory interpretation of the term "indecent". (7) The cases were differentiated mainly by the extent to which their activities were publicly accessible. In Labaye, the issue was whether or not the activities of a private members' sex club were indecent under the Criminal Code. Similarly, the issue in Kouri was whether or not the activities occurring at Cceur h Corps, as a non-members' club, constituted acts of criminal indecency.

Justice Otis, in her Court of Appeal of Qurbec decision quashing the trial court's bawdy house conviction of James Kouri, (8) stated that "[b]etween the aesthetic canons of Alberoni eroticism and the sexual disarray expressed by Houellebecq, in Les particules elementaires, there is a gulf which the State cannot force citizens to cross in the name of moral conformity and behavioural normality." (9) The normative assertions about sexual morality that Justice Otis suggests by her juxtaposition of Alberoni's description of falling in love as the "nascent state of a collective movement involving two individuals" (10) with the sexual promiscuity of Houellebecq's characters in The Elementary Particles (11) are enormous. But Justice Otis allowed the appeal and acquitted Mr. Kouri. She did so on the basis that "sexual morality is, first and foremost, the result of the responsibility which human beings assume towards [themselves]" (12) and that "... Canadian society, which is pluralist and tolerant, does not condemn sexual modes of expression [that] ... are not a source of social harm" and are not offensive. (13) Justice Otis' decision was affirmed by the Supreme Court of Canada. (14)

Similarly, in Labaye, the majority of the Court allowed the appeal of Mr. Labaye's bawdy house conviction on the ground that the acts occurring at L'Orage did not constitute indecent acts under the Criminal Code. (15) The majority opinion, written by Chief Justice McLachlin, determined that only activities which pose a "significant risk of harm" will be considered indecent. (16) This type of harm must be contrary to the "norms which our society has recognized in its Constitution or similar fundamental laws," and incompatible with proper societal functioning. (17) The group sex occurring at L'Orage was not found to interfere with society's functioning or to perpetuate serious social harm.

In response to the majority's refinement of the test of indecency under the Criminal Code, the dissent in Labaye stated: "We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected." (18) Did the dissent exaggerate the potential impact of this decision? Has the Court's majority decision in Labaye relegated our public sex laws to some sort of normative wasteland in which the state has no recourse to morality-based policies or actions?

In fact, Chief Justice McLachlin's majority decision does invoke an order of morality. The decision of the Supreme Court of Canada in Labaye very much establishes an understanding of the regulation of public sex based on moral and ethical convictions. However, it is grounded in fundamental social, legal, and political (liberal) values--such as autonomy and tolerance--rather than in sexual morality. So which values are necessary for the maintenance of the kind of society cherished by Canadians? Chief Justice McLachlin relies upon, in order to protect, the fundamental ethical and social considerations enshrined in the constitution and she does so in a manner which continues to recognize the importance of community and collective interests without subjugating minority desires to majoritarian sexual morality.

The structure of Chief Justice McLachlin's reasoning in Labaye is implicitly supported by certain theories of liberalism, such as Ronald Dworkin's theory of liberal equality. (19) While relying on principles of liberalism, the majority decision also responds indirectly to the dissent by emphasizing certain common interests protected by the principles underpinning the constitution. Some of these interests are exclusively founded on individual rights; others, as will be discussed in Part II, are interests that can only be experienced collectively. Labaye represents a shift in the relationship between law and sexuality, and it illuminates the possible emergence of a new approach by the Supreme Court of Canada to the regulation of sex--an approach which allows for the legal recognition of pleasure behind, beyond, or outside of legal claims regarding identity, antisubordination, relationship equality, and conventional privacy rights. On a theoretical level, Labaye suggests the possibility of an approach to the legal regulation of sexuality which recognizes the importance of challenging mainstream beliefs about sexuality or subverting certain dominant sexual norms, while maintaining an analysis firmly grounded in principles of liberalism.

1. The Constitution as Custos Morum

   The dissent in Labaye suggests that the...