I fondly recall scarring my Grade 11 English class as I read aloud my ode to skinny-dipping.
My poetic description of water touching skin, and how serene it is to be totally naked, alone and one with nature didn’t sit well with my 17-year-old colleagues.
Skinny-dipping is awesome, one of life’s simple pleasures. Streaking and public nudity is hilarious. Sex outdoors is exhilarating and, depending on the circumstances, straight-up sensual. The problem is these acts are illegal under the Criminal Code of Canada, or in the case of skinny- dipping, under bylaws.
Canada has more laws regarding sex than it does robbery. It’s a cultural obsession with puritanical roots. Obviously laws that deal with consent and minors are crucial. Those are serious offences.
But why can’t I have sex in a car?
There is a tendency to use the term exhibitionism pretty loosely. While some people describe exhibitionism as public nudity and sex in public places, according to Psychology Today it’s actually a psychiatric sexual disorder whereby the exhibitionist (usually a male) masturbates or has sex in front of a stranger (usually a female or child).
This behavior is inherently criminal and not the type of behavior I discuss in this article.
The creepy, googlie-eyed man who exposed himself to my little sister and I on the streetcar is an exhibitionist.
A person who wants to get it on in a public pool after hours is not an exhibitionist. Rick James and I would refer to them as “super freaks.” This is an important distinction.
Within the law and my perverted mind, there is a lot of grey area. Could having a bit of fun really be so wrong? What acts are be considered indecent? What are the limitations?
To answer these questions I turned to my granddad, Justice Fred Ross. Not only is he a major badass and the highlight of any family gathering, he has 15 years of experience as a justice of the peace working in Ontario courts.
These offences concerning super freaks, covered by section 173 (indecent acts) and 174 (nudity) of the Criminal Code are generally summary offences, meaning punishable by fines and small jail time in more serious instances. The accused are tried without a jury. The exception is if these indecent acts involve minors, in which case it’s an indictable offense, meaning major jail time.
It becomes a little bit like the expression “if a tree falls in the woods and no one is there to hear it, does it make a sound?”
For public sex or nudity to be an indecent act under the law, there has to be a person present, or the act was done with the intention to offend or insult.
“It really does become, for the most part, subjective,” explains my granddad. “The police aren’t going to bother without complaint.”
“If you’re in a public place, and there is nobody around, do anything you want to do… There would have to be someone there to insult or offend,” my granddad explained, adding however, “It is no defense that the accused did not know the acts could be seen by others.”
So for those of you who like to get freaky in front of your windows or have ever contemplated the legality of having sex on your balcony, Justice Ross says it’s a no-go, regardless if you are on private property.
“If you were in full view, and were very much aware that you were in full view, then that would be sufficient to lay a charge of an indecent act. Common sense would indicate that you were aware that you were in the public view.”
Some couples are a little out there with PDA. Is it illegal to have your hands down a partner’s pants in public, assuming there’s no sexual stimulation or exposed genitalia? Surprisingly, the answer is no.
Walking down the street holding your partner’s Johnson would be odd. But my granddad assures me, not indecent “unless there is an action that would confirm that it is more than a place to simply keep your hands warm.”
If you’ve ever been tempted to masturbate in a washroom stall, the law doesn’t prevent you.
“That would come under the issue of in front of one or more persons… [A person] has the privacy of the stall. And there is an implied privacy there, not only a real privacy. The door is closed. He or she is in the stall doing whatever it is they do.”
Since, 1991 this glorious province allows women to walk around topless, just as men can. Google Gwen Jacob, the then-19-year-old who accidentally spearheaded the movement.
Yet touching your breasts in public is indecent. For those of us who aren’t in the know, the law appears murky.
“Think of the average person, not a right-winger, not a left-winger, but the average person. Would whatever acts you speak about, or think of, would it offend you? And if the answer is yes there is a section in the Criminal Code that would prohibit you from doing it under penalty of law if charged.”
In all the years my granddad has been a Justice of the Peace, he’s never heard of a skinny-dipper going to court. It seems that is the bastion of innocent sexual reverie the law won’t touch.
That relieves me.
For all the super freaks out there, keep getting your thrills in the great outdoors, or the miniscule backyard. Just make sure no one sees you.
