Document Type

Article

Publication Date

2009

Keywords

law and sexuality, indecency, Dworkin, Raz, swingers, public sex

Abstract

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 pri- vate 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 en- shrined in the Canadian constitution. This article ana- lyzes 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. The author illuminates the possibility of a new approach by the Court to the regulation of sex. Such an approach al- lows for the legal recognition of pleasure behind, be- yond, or outside of legal claims regarding identity, anti- subordination, 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 sexual- ity and subverting certain dominant sexual norms. Such an approach is firmly grounded in the principles of lib- eralism that Labaye reflects.

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