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Laws of Desire: The Political Morality of Public Sex


Elaine Craig


Dalhousie University - Schulich School of Law

October 4, 2009

McGill Law Journal, Vol. 54, No. 3, 2009

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 private 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 enshrined in the Canadian constitution. This article analyzes 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. Drawing upon the work of both Joseph Raz and Ronald Dworkin, the author illuminates the possibility of a new approach by the Court to the regulation of sex. Such an approach allows for the legal recognition of pleasure behind, beyond, or outside of legal claims regarding identity, antisubordination, 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 sexuaity and subverting certain dominant sexual norms. Such an approach is firmly grounded in the principles of liberalism that Labaye reflects.

Number of Pages in PDF File: 30

Keywords: law and sexuality, indecency, morality, Labaye, swingers, public sex, Raz, Dworkin

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Date posted: November 12, 2009 ; Last revised: October 17, 2010

Suggested Citation

Craig, Elaine, Laws of Desire: The Political Morality of Public Sex (October 4, 2009). McGill Law Journal, Vol. 54, No. 3, 2009. Available at SSRN: http://ssrn.com/abstract=1482750

Contact Information

Elaine Craig (Contact Author)
Dalhousie University - Schulich School of Law ( email )
6061 University Avenue
Halifax, Nova Scotia
Canada
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