law and sexuality, indecency, morality, Labaye, swingers, public sex, Raz, Dworkin
In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously private and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values enshrined in the Canadian constitution. This article analyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that these cases represent a shift in the relationship between law and sexuality. Drawing upon the work of both Joseph Raz and Ronald Dworkin, 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 sexuaity and subverting certain dominant sexual norms. Such an approach is firmly grounded in the principles of liberalism that Labaye reflects.
Elaine Craig, "The Political Morality of Public Sex" (2009) 54 McGill LJ 1.