Places on the Sexual Margins?
In a case against a swingers club, the Canadian Supreme court has upheld the trend of judgements over the last decade toward a standard of harm in judgements of indecent activities. Many GLBTS groups have argued that indecency laws based on notions of ‘community standards’ are subject to abuse and create a negative atmosphere for citizens whose sexual preferences differ from heterosexual, monogamous assumptions. Bathhouses and other clubs are sexual ‘places on the margin’ which are now firmly within the threshold of Canadian society.
‘Do the impugned acts offend the standard of tolerance of the contemporary Canadian community, having regard to their nature and to the place and context in which they occurred?’ (italics added) In the past, the commercial nature of clubs was construed as making them ‘public places’, which brought them under the rule of laws governing public morality. However, it was submitted that ‘Whether certain acts are indecent cannot simply depend on whether they are performed in a “public place”, as defined in the Criminal Code. Tremblay cautioned against an overly simplistic reliance on this factor, as ‘common sense indicates that there are great differences between locations which can come within the definition of public places’ (Tremblay p. 970). ‘ In Regina v. Labaye, the Court concluded that ‘the concept of harm as a significant, but not determinative, factor to consider in establishing the applicable level of tolerance’. In their judgement ‘place’ appears again and again as an operative term, but the changing power of location alone to guide standards of conduct is a fascinating indicator of the way in which notions of the public, of publicness and of public places are understood in more nuanced ways.
If physical place is less prominent, physical harm (danger) and probabilistic thinking about harm (ie. as risk) seems to come to the fore, replacing abstractions such as moral harm and harm to virtualities (ie. intangible things which exist even if we can’t see them) such as community or dignity.
Just the other day round here we were talking about ‘virtue’ as a practical way to develop ethically guided notions of citizenship (as opposed to top-down, sovereign grants of legal rights). What does this judgement tell us about ethics and virtue in law?