Gross indecency

What does Brent Hawkes have in common with Oscar Wilde and Alan Turing? Regrettably, it’s that all three were charged under discredited law that was specifically designed to persecute gay men for illegal gay sex.

 The crime of “gross indecency” was invented in Victorian England, but its long and shameful history reaches into Canada as well. That’s because Canada’s Criminal Code is based on the criminal laws of England.

The offence of “gross indecency” was first proposed by Henry Labouchere, a British MP and the publisher of a magazine that specialized in “shocking” stories about the moral degeneration of London. When a law was introduced in 1885 to crack down on female prostitution, Labouchere put forward a last minute amendment that targeted “deviants”. The crime of “gross indecency”, also known as the Labouchere Amendment, was aimed at making any sexual or intimate contact between males a crime, even a kiss. It was deliberately made vague enough to get quick and easy convictions.

The maximum penalty was two years with hard labour. The first prominent person convicted under this law was author and playwright, Oscar Wilde. The computing pioneer Alan Turing, whose life was described in the movie “The Imitation Game,” was another famous victim of this infamous law. 

What does “gross indecency” mean? Well, it could include any erotic contact between two males. As Professor Valverde has noted , it could mean two men kissing in a park.

Canada copied the English law seven years later, but brought in a harsher penalty - a maximum of five years in prison and whipping as well. The then Prime Minster John Thompson made it clear that the law was aimed at “gross acts of immorality committed in reference to a male person.” Thompson noted that the offences had gained notoriety in England, and had appeared in “one or two places” in Canada. Thompson defended the need to keep the crime deliberately broad and vague as it was in England, but insisted the English penalty of two years with hard labour was “entirely inadequate”.

The crime was limited to sex acts between males until 1954, when Parliament expanded it to cover females. But our lawmakers didn’t stop there. They increased the harshness of the law by allowing the courts to label someone as being a dangerous sexual offender and put them in jail for life if they had committed gross indecency and were likely to do so again. The courts used this law to sentence George Klippert to life in prison, a sentence that was upheld by the Supreme Court of Canada in 1967.

Kilppert’s case prompted Prime Minister Pierre Trudeau to famously remark that “the state has no place in the bedrooms of the nation”. At his urging, Parliament created an exception to the law of “gross indecency” and allowed two consenting adults of the same sex to have sexual activity in private, if they were 21 or older. This was a great step forward, but discrimination continued to exist. While the age of consent for same sex sexual activity was 21, the MPs kept a much lower age of consent for heterosexual intercourse – only 14.

The final indignity in all of this is that while Parliament had the good sense to abolish this homophobic law in 1985, prosecutions are still possible for acts that took place prior to the law’s repeal.  That means that someone can be charged with a crime that doesn’t exist today.

The law as it existed at the time of the alleged incident read as follows:

Gross indecency
157. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

158. (1) Sections 155 and 157 do not apply to any act committed in private between
 (a) a husband and his wife, or
 (b) any two persons, each of whom is twenty-one years or more of age, both of whom consent to the commission of the act.   

(2) For the purposes of subsection (1)

(a) an act shall be deemed not to have been committed in private if it is committed in a public place, or if more than two persons take part or are present; and
(b) a person shall be deemed not to consent to the commission of an act
       (i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by falseand fraudulent misrepresentations as to the nature and quality of the act, or
       (ii) if that person is, and the other party to the commission of the act knows or has good reason to believe that that person is feeble-minded, insane, or an idiot or imbecile.

It will be seen at once that the exceptions are precisely the same ones that applied to anal intercourse. It seems probable that this provision would have been declared unconstitutional too. That never happened simply because Parliament had the good sense to repeal this provision in 1985, the time section 15(1) of the Charter came into effect.  

We understand that one must consider the cultural values of the time in order to determine whether an act constituted “gross indecency” (i.e. for Brent, the years of 1974 and 1975).  This was an era that was clearly more homophobic than today, and an era before the many advances in equality won with the aid of the Charter by the LGBTQ community. It is not only ironic, it is outrageous and unfair that the very man who has done so much to advance those equality rights would be pursued by a criminal process that came from an earlier more homophobic era.

Given its homophobic history, it’s fair to say that no one in Canada should ever be charged with “gross indecency”. And perhaps least of all, Brent.