Topless: an equal rights to ruin.

On a humid July 19, 1991, Gwen Jacob went for an evening stroll in Guelph, Ontario. Within the next two hours she would be pointed to, leered at, reviled and shunned by her neighbours. She would give traffic a reason to slow down and young men a reason to gather on a porch with beer and binoculars. She would have three separate encounters with police, and finally be arrested for indecency, despite repeated claims that she was merely asserting her "constitutional right" to equality with men. All Gwen Jacob wanted to do was walk the public streets with nothing on above the waist. Last December the Ontario Court of Appeal granted Ms. Jacob the "right" to do as she desired.

Providence postponed the warmth of summer as long as possible, but with the first real heat wave the triumph of Gwen Jacob was soon in evidence--not so much at the beaches or public pools about which so many parents had expressed concern, but in parks and nightclubs, and on Toronto and Ottawa sidewalks in daylight hours. Off-duty strippers sun-bathed outside "girlie" bars. At least one woman offered up her bare breasts to the blazing sun and mosquitoes of Algonquin Park, demonstrating that she was as stupid as she was "liberated." People were suddenly awake to what had always been inevitable, and the debate resurfaced in earnest.

Clouding the soup

But the Court of Appeal decision stands. Whatever their opinions about its implications, few people are likely to have closely examined the peculiar creature which is the judgement itself. Cobbled together from odd bits of a now-dismembered body of public morality law, it is yet another example of the judiciary committing mayhem on the meaning of words because they are operating without ideas. Decades of precedent have reduced legal definitions of indecency, obscenity, expression, harm, tolerance, and public order to Orwellian gobbledegook. The three judges on the Jacob panel are not personally responsible for the cumulative effect of such precedents--they have simply done their part to further cloud the soup.

Daunting as it seems, we have a duty to make the effort to understand the way these judges think, because they are galloping ahead of our elected representatives in the mission to reshape society according to the prevailing winds of modern culture. Each issue that comes before them is addressed as if it stands alone--and the broad principles of a civilized society are dismantled one by one, an in endless fine-tuning of autonomous "rights."

The Jacob decision sets this reality squarely on the table. Mme. Justice Weiler laments the difficulty of "determining the underlying values necessary for the coexistence of persons in [public places] now that conventional morality has been rejected as the basis for finding an act to be indecent." [emphasis added] Weiler is acknowledging that in recent years the dictionary definitions of words like "obscenity" and "indecency" have not just fallen into disuse or lost their punch in our criminal courts; they have been consciously discarded.

Justice Weiler even traces this path of abandonment in her portion of the Jacob decision to justify the present court's abdication of moral responsibility. Indecency and obscenity were first covered in the Canadian Criminal Code in 1892, when, in Weiler's words, "a common morality was deemed to be essential." Back then they were called "offences against morality," defined as matters whose tendency was "to deprave and corrupt" those minds which might be "open to such immoral influences."

Community "standards" are secularized

But the moral backbone represented by this kind of language (now characterized as "subjective") began to splinter; obscenity and indecency parted company within the Criminal Code. In 1959 a statutory definition of obscenity was created according to an "objective" standard of "undue exploitation of sex," which eventually came to be measured against tests of "artistic merit" and "community standards." Justice Weiler also cites later cases in which "the ordinary meaning of the word indecent" and the language of the common morality of 1892 were both officially rejected as "no longer applicable."

What is achieved by tracing this chronology is the convenient rationalization that the law has moved in a particular direction, leaving the hands of the present justices tied. Our judiciary, in their self-appointed role as moral lexicographers, have decided on our behalf that traditional morality is dead, and it is for them to institutionalize the vapid nihilism which claims to have replaced it.

One illustration of this process, pertinent to the topless case, is the legal definition of "harm." In a 1992 case involving a charge of selling pornography, the concept of "harm" was defined as the consequence of activity which "predisposes persons to act in an antisocial manner," as if harm is always a community concern, not a concern for the private morality of individuals. The Court did momentarily ponder the idea that society might just have an interest in preventing harm to its general "moral fibre" - i.e., a concern about what kind of people pornography might cause us to be. But in the end the standard of harm was based on what pornography might cause people to do. The full impact of this narrow definition was brought home the next year when a judge found that no harm had been caused by sexual acts carried out in private cubicles within a public bar, because the customers were proven to have been practicing "safe sex with no risk of infection" - the only social harm this judge could conceive of was catching a fatal disease.

According to our courts, "harm" (as defined in 1992) is an ingredient in the only legal definition we have left to determine whether conduct is "indecent." This defining factor is called the "test of community standards of tolerance." Most of us have heard this phrase before, and probably thought we knew what it meant. According to the courts, community standards are not a matter of what most of us would do - they are a matter of what most of us will, or won't, tolerate other people doing. In other words, our courts will only promote common standards of decency and right conduct to the degree that we are willing to insist that they be imposed on everyone else. How many standards are likely to survive such a test today?

Gauging what the community of the late 1990's will tolerate, the Ontario Court of Appeal found that Gwen Jacob's public display of bare breasts was not an indecent act; they did not find it degrading, dehumanizing, socially harmful, or in violation of "community standards." They did not consider the act to have a "sexual context." Evidence of harm was no more than "grossly speculative." The judges did find that Ms. Jacob's conduct was "limited" - although she was seen by 250 people of both sexes, including children and adolescents. Furthermore, "no one who was offended was forced to continue looking at her" - the operative word here is "continue," because (as Justice Weiler herself admitted) the initial sight of Ms. Jacob's breasts was not a matter of choice for anyone she encountered.

Sexual context said to be important

One of the reasons Justice Weiler could not find public toplessness to be indecent is her view (not supported by the other two justices) that in order for an act to be indecent it must have a "sexual context," which she claims Ms. Jacob's activity did not. It takes a certain kind of mind to conceive of circumstances in which the public display of a woman's breasts is devoid of sexual context: a mind deeply rooted in militant feminism, and not at all rooted in human reality--not the supposed reality of men's helpless subjection to lustful instinct, but the miraculous reality of God's creation of opposite sexes, for whom it is healthy, natural, and truly good to be drawn to each other in sexual attraction.

Justice Weiler's idea of sexual context is unnaturally fragmented. She cites the well-worn example of the woman who breast-feeds a baby in public as a set of circumstances which precludes any sexual context. She then suggests circumstances which would constitute a sexual context, such as stroking the breasts or using words and gestures related to sexual gratification. In other words, breasts being used for feeding are non-sexual, and breasts presented for gratification are sexual, and might be indecent. Circumstances define indecency.

In support of this approach, Justice Weiler suggests the scenario of a woman standing at a busy downtown intersection shooting heroin into her arm. The law could not declare this act an obscenity or indecency, because it has nothing to do with sex - it could only charge the woman with a narcotics offence. Weiler also cites an actual case where a conviction for an indecent and immoral performance was overturned, because the Court found that "the mere fact the accused was completely unclothed . . . was no suggestion that the performance was otherwise immoral . . . . Depending on circumstances, total nudity may import a sexual context." [emphasis added] A nude dance could not be found indecent because the dance itself had nothing to do with sex. Who would have predicted that feminism would eventually drive its adherents to equating sex with indecency? At the end of the day, Weiler seems a bit of a prude.

By this logic, then, human beings can turn on the sexual meaning of their bodies at will, and our ability to determine which "mode" an undressed person is in will depend on our ability to read the "footnotes." Any difficulty interpreting the meaning of nudity should be resolved in favour of the nude person's intentions.

At least one ingredient of this strange feminist brew is quite clear: it assumes a definitive gulf between sexuality and reproduction. For the feminist, breast-feeding can have no sexual context - and anyone who makes such a connection is probably disturbed. For the Christian, the opposite is true: it is the person for whom breast-feeding does not have a sexual context who is truly disturbed. The Christian view of sex--the properly ordered one which respects and rejoices in God's gift of sexual attraction - finds the reproductive aspect of sexuality as thrilling as the pleasurable aspect. Unlike the poor victim of feminist correctness, the healthy Christian has permission to find a nursing mother sexy, and to take pleasure in the sight of her fulfilling God's design.

God did not intend us to find each other's bodies "neutral" in particular circumstances. It is part of His Providence that our obligation to perpetuate the human race has been made so very attractive to us. Unfortunately, this powerful reality can pose some danger to our weakened self-discipline, which is why we have been told, in no uncertain terms, that this gift of bodily attraction is to be ordered toward marriage.

Sadly, we live in a society where immersion in a distorted, fragmented sexuality is increasingly accessible, whether through pornographic media or dehumanizing "personal" encounters like sex-shows and prostitution. Advertising makes degrading use of the bodies of anonymous men and women to sell every consumer product imaginable. The divorce between the body and the person has become final in the public eye. It has become acceptable to luxuriate in the flesh of strangers.

Biblical "knowing one another"

We used to read in Genesis 4:1 that "Adam knew Eve his wife, and she conceived. . . ." The traditional translation has long since given way to expressions like "had intercourse" or "lay with." The term to "know" in the Biblical sense is now considered an antiquated euphemism. But as a description of sexual contact the choice of words, in both English and Hebrew, was quite deliberate.

The Biblical writer understood what many a modern mind does not: that sexual intimacy should engage all the senses, and that some of what the senses perceive is going to be processed intellectually. The old expression "carnal knowledge" is a fitting term for the act of intercourse, reminding us that human beings can acquire some knowledge of each other's bodies through the three non-contact senses, especially sight.

Most of us are cautious about how much we allow ourselves to be known, in any sense of the word. We would not think of announcing publicly what medications we take, how much money we earn, or which of our relatives are alcoholics. We value our privacy, cherish the discretion of our friends, and resent impertinent familiarity on the part of strangers. And, if we are the least bit sensible, we are baffled and disgusted by some people's freakish compulsion to air their private woes on television talk shows.

It is ironic, then, that in the Jacob decision, Ontario's highest court has decreed that society should be indifferent when a woman offers unsolicited intimate "carnal knowledge" about herself in public by going topless. The Court of Appeal's decree is grounded in the absurd notion that this act does not constitute a sexual intimacy more properly carried out in private. The decision puts us in the ridiculous position of being given intimate knowledge of a stranger while being forbidden to luxuriate in her flesh. Furthermore, we have no grounds to object to this situation because we are assumed to be "reasonable bystander[s], fully informed of all the circumstances." With our community standards so hopelessly contorted and contradictory, some kind of social explosion is almost inevitable.

Public modesty

It is important to note, by the way, that no Ontario Court has ever addressed Ms. Jacob's so-called "constitutional right" to go topless because men can. In fact, no one has ever established any such right for men. It is a tribute to the failure of our education system that so many people not only assume that men have a right to go bare-chested, but that, as the ill-informed editor of the Etobicoke Villager put it, they have had it "forever and a day."

Even a cursory look at a few coffee-table history books or old Clark Gable movies reveals that not so long ago no decent man ever appeared topless, not even to go swimming. In fact, a man was considered undressed if he took off his jacket and appeared in his "shirt-sleeves" (a term derived from the fact that all decent men, no matter how poor, wore waist-coats). If there is anything that has been the rule "forever and a day," for both sexes, it is public modesty.

Right next to the flippant Villager editorial was a very serious letter from a female employee of a garden store, who works outdoors in view of passing cars. When the warm weather finally came, she found herself the object of regular verbal harassment for not removing her shirt. In a society where bodies are seen primarily as instruments of gratification, one more source of a cheap thrill has now become an expectation.

A legal crossroads

One would like to hope that the Gwen Jacob case will prove the last straw in the ruination we have wrought in the past few decades upon standards of decency and politeness among both sexes. We have two ludicrous propositions before us: the legal one - that the public display of female breasts is not necessarily sexual or inappropriate; and the popular one - that women and men share a legal right to appear in public half-dressed. With all of the violence, strife, and bafflement between the sexes as the century closes, one wonders (and fears) just how bad it will have to get before we generally resolve to roll back the damage and establish, in law and in life, genuine "community standards" with strict limits to our tolerance.

This case is a legal crossroads, and fortunately Ontarians seem to have realized this. The Attorney General's office has been flooded with complaints, and has begun to believe that the Justices do not necessarily have the last word on this subject. It should be a lesson for all Canadians that they must keep the pressure on their legislative representatives not to cede their authority to Courts bent on social engineering. If we fail in this duty, the mindless pursuit of rights, acquiesced to by a rudderless judiciary, will yield men and women nothing better than an equal right to their own ruin.

Claudia Sommers is a contributing editor of Catholic Insight. She lives with her husband and three sons in Etobicoke ON.