Gross Indecency: An Offence Without Parallel

February 7, 2016 in General

Writing in Canada’s Daily Xtra, Arshy Mann (05.02.2016) provides a sobering insight into the “offence” of “gross indecency,” an antigay constituent element of the Canadian Criminal Code imported from the United Kingdom, which has since abolished it within the ambit of the UK Sexual Offences Act 2003. University of Toronto criminology professor Mariana Valverde has expressed concern at the Royal Canadian Mounted Police’s revival of an explicitly antigay law in charges against Metropolitan Community Church Rev. Brent Hawkes. Valderde stated that the rev ival of ‘gross indecency’ sets a worrisome precedent, says criminology professor Mariana Valverde.

Hawkes, who is the senior pastor at the Metropolitan Community Church of Toronto, was charged with ‘indecent assault’ and ‘gross indecency’ in December 2015. The charges are over forty years old and relate to his time living in Nova Scotia in the 1970s. He has denied the charges and very few details are within the public domain at this time.

As with the United Kingdom, indecent assault and gross indecency are no longer in the Canadian Criminal Code. At the time, “indecent assault” referred to any form of sexual assault that did not involve vaginal or anal penetration and was a forerunner to modern-day sexual assault laws. Gross indecency however was an intentionally vague charge that was used almost exclusively to prosecute gay men engaged in sexual activity, noted Valverde. Gross indecency was a crime cited within the original 1892 Canadian Criminal Code. The original language referred solely to acts between two men. However, the statute did not describe what an “act” of gross indecency actually was. Gross indecency was much easier to prove than other homophobic crimes such as “sodomy” or “buggery” because it didn’t require anal penetration to have taken place.

“The history of the gross indecency section of the Criminal Code is as nasty and as against the spirit of the Charter of Rights as you could possibly imagine. There was no definition of what counted as gross indecency and it was interpreted as any erotic contact between two men. Two men kissing wouldn’t be sodomy, but two men kissing was gross indecency,” she says. “Which is why in England, and especially in Canada, police forces went around arresting two men who might have been necking behind the bush in a park.”

In 1969, Canada’s federal Pearson government passed legislation which added exceptions to the law around “gross indecency.” Two men, if they were both over the age of 21, could engage in consensual sexual contact as long as it was private. However, if even a third person was present, the act was considered “public”, and therefore all parties could still be charged with “gross indecency.” This provision appears to have been modeled on similar provisions within the United Kingdom Sexual Offences Act 1967. For a decade and half after this amendment gay men were still charged with gross indecency for entirely consensual acts. For instance, 30 men were charged with gross indecency in Orillia, Ontario, in 1983 after police videotaped men cruising in an opera house washroom. The statute was finally excised altogether from the Canadian Criminal Code in 1985.

In recent years, police and prosecutors have charged a number of serial pedophiles with gross indecency if their crimes dated back before 1985. This has occurred in cases where the victims were female, though before 1985, “gross indecency” was rarely applied to heterosexuals. The charge allows prosecutors to get a conviction with a lower burden of proof than other charges such as buggery (anal sex). In 2014, Gordon Stuckless, an admitted serial pedophile, was convicted of two counts of gross indecency, but was acquitted of two counts of buggery.

Valverde was horrified when she saw that Hawkes was charged with gross indecency:

“I just don’t see any possible justification why anybody would bring up a section of the Criminal Code with such a bad history.”

In clarification, she notes that charging someone with “historic” gross indecency today brings up a number of potential complications. Because the age of consent was 21 for gay sex after its partial decriminalisation, anyone under that age could have been considered a minor unable to consent at the time. A spokesperson for the Nova Scotia RCMP told Daily Xtra that they were unable to reveal the age of the alleged victim at this time, but confirmed that it could be anyone below twenty-one. Valverde says that there are a number of options for use of the charge is being used in the context of the Hawkes case.

“They [the RCMP] often charge people with three different things for the same crime, that’s very common,” she says. “So they can plea bargain, or they can have some bargaining power.”

Valverde says that once details about the case emerge, the most important question for the judiciary will be if the alleged sexual activity that took place would be legal today. Valverde worries about the precedent that using such historically antigay charges sets:

“And if it is legal now, then you really have to wonder about the prosecution. It sends a message to gay men, older gay men especially, that they may not have gained all of the rights they think they have gained,” she says.

New Zealand appears to have escaped such nuances to antigay criminal legislation. Until the 1960s, criminal justice legislation concentrated specifically on gay anal sex as a direct analogue to vaginal penetration, according to New Zealand gay historian Chris Brickell. There was therefore no distinct crime of gross indecency. While gay oral sex and mutual masturbation were incorporated into antigay Crimes Act clauses in 1961, they never formed a seperate specific “offence” of “gross indecency”, unlike the United Kingdom or Canada in this context.

Recommended:

Arshy Mann: “The History of Gross Indecency in Canada” Daily Xtra: 05.02.2016: http://www.dailyxtra.com/toronto/news-and-ideas/news/the-history-gross-indecency-in-canada-185028