Stop the Crackdown on consensual queer sex: Toronto Police at it again with “Project Marie”
By Gary Kinsman, Nov. 14, 2016.
The Toronto police are engaging in a very intensive six week (perhaps longer) crack down on consensual queer sex in Marie Curtis Park in western Toronto. Media reports are that so far they have arrested 72 people on 89 charges. This is a large number of arrests and a major deployment of police time and resources. The arrests have included undercover officers from 22 Division of the Metro Toronto Police going into secluded sections of the park and making themselves available to be approached by men for sexual encounters. In some legal jurisdictions this would be described as ‘entrapment.’ The men who approach them are then charged for the simple act of communicating their sexual interest and not for any actual act engaged in. As with sex workers we have sex-related communication leading to charges but this time for offers of consensual queer sex.
In a broad sense this continues the criminalization of consensual homosexual practices even though in this situation the police have so far mostly used trespass to property, accessing restricted areas and engaging in a prohibited activity provincial offences and bylaw infractions. Constable Kevin Ward of 22 Division’s Community Response Unit stated in the Toronto Star that they can use bylaw offences such as nudity or engaging in sexual behaviour in a park (with fines up to $520) or criminal code offences such as “indecent exposure” or “indecent act” (long used by police for masturbation by men in parks and washrooms) which can potentially carry jail time. The police are arguing this has nothing to do with “sexual orientation” but the crackdown is directed at men who have sex with other men in a long-time cruising area and is based on legal and social constructions of homosexual sex as more “indecent” than heterosexual sex.
The campaign is posed as “cleaning up the park” (remember Operation Soap to clean up the gay baths in the early 1980s) and the police argue that this is “entirely in response to community complaints.” The suggestion there are “community complaints” operates as the ideological key mandating these police campaigns. Apparently the “community groups” the police are responding to and working with include Neighborhood Watch and the Community Police Liaison Committee who are themselves animated by the police and are part of the police organization of the “community.”
“Community complaints” was the same argument used in the police campaigns in washroom and park arrests for consensual queer sex in the 1980s including in the washroom at the Orillia Opera House and at the Shopping Mall in St. Catharines which led to one man taking his own life when his name was reported in the media. In 1982-1983 more than 600 men in Toronto were arrested for homosexual acts in washrooms and in 1985 more than 600 men were arrested for “indecent acts” in Toronto.
The police argue that sexual activity is not allowed in ‘public’ places like parks – we should remember they argued in the late 70s/early 80s in Toronto that gay baths and in Montreal gay bars as well were ‘public’ places. They are not arguing that this sexual activity is violent or non-consensual but simply that it is taking place in the wrong place.
It is important we not simply take for granted these state-defined distinctions between ‘public’ and ‘private.’ There are many ‘publics’ and ‘privates’ and they shift historically. There is the ‘private’ of ‘private enterprise’ which allows capitalists to argue against any social intervention into their ‘private’ business decisions. Until the re-emergence of the feminist movement it was standard for the police to not interfere in ‘private’ domestic disputes since the man/husband was ruler of his ‘castle’ and until 1983 it was possible for husbands to legally rape their wives in this ‘private’ realm. It took major efforts for the feminist movement to get the police to take this violence against women more seriously.
A ‘private’ realm that allowed for sexual interaction between men and women and for public expressions of and the incitement of heterosexuality was denied to queer men and women until the 1970s and later. Among men interested in having sex with other men this gave rise to the emergence of cruising practices that allowed for men to meet each other for sex outside the ‘private’ realm. Often this took place in places like parks and washrooms. While these are state-defined as ‘public’ places men interested in having sex with other men in these locations developed social practices constructing intimacy and privacy for themselves that tried not to bother other people. George Smith when he was chair of the Right to Privacy Committee in Toronto wrote that “Privacy is something that is socially constructed in this society … Indeed in the middle of the night, when it is absolutely pitch black, a park might be a very private place.” These social practices whereby people construct relations of privacy for themselves in state-defined ‘public’ places continue in places like Marie Curtis Park.
Contrary to the popular mythology that the 1969 reform ‘legalized’ homosexuality the reform led only to the limited de-criminalization of homosexual practices in a very narrow ‘private’ realm (basically behind closed bedroom doors) and only involving two individuals over the age of 21. Using these public/private and adult youth distinctions they attempted to relegate all homosexual activity to a very narrow ‘private’ realm and to deny young people under the age of 21 the ability to participate in this form of sex. This carried with it constructions of homosexual sex as more “indecent” than heterosexual sex. Public expressions of non sex work related heterosexual sex are much more tolerated by the police with research showing that those involved in such activities are often just told by authorities to move along.
In contrast the police were directed against all homosexual activity in a very broadly defined ‘public’ realm which led to an escalation of the number of charges for consensual homosexual sex after the 69 reform. This included not only the bath raids but also the police arrests of men for consensual sex in parks and washrooms. While mass mobilizations against police raids in the 1980s closed off the possibility for mass arrests in bars and bath houses the police shifted to arresting men who had sex with other men in settings like parks and washrooms. This is continuing with the arrests in Marie Curtis Park.
It is useful to remember how the gay movement responded to these arrests in the 1980s after the resistance to the bath raids. The Right to Privacy Committee (RTPC), the mass resistance organization formed to fight the bath raids, also defended men arrested in parks and washrooms. The Gay Court Watch program was based on this legal support work. The RTPC also developed a broader social notion of privacy that was not based on state definitions of ‘public’ and ‘private’ as distinct and separate spaces. Instead the RTPC argued that people can construct relations of privacy in state-defined ‘public’ places and these sexual practices needed to be defended just as the practices of those arrested in the baths were. It is this history or organizing and resistance that we need to remember and return to in calling for an end to this police campaign and for dropping all the charges for consensual queer sex.
Some lawyers from the Law Union of Ontario are organizing legal support for the men who have been arrested. This is vital but there is also the continuing need to prevent these criminal code sections, provincial offences and bylaws from being used to clampdown on consensual queer sex. Consensual sex is not the problem. The problem is violence and coercion in sexual contexts.
This police campaign also provides another reason why Police Departments should not be marching inside our Pride parades and promoting themselves within the festival at Toronto Pride. This demand has been pushed forward by Black Lives Matter Toronto and I fully support this demand. We need to ask how the very same Police Departments that are arresting men for consensual sex can be allowed to march in our parades?
Gary Kinsman, The Regulation of Desire, Homo and Hetero Sexualities, (Montreal: Black Rose Books, 1996).
George Smith, “In Defence of Privacy,” Action! (publication of the Right to Privacy Committee), V. 3, No. 1 (1982).