Canada: Sodomy on the books?

In response to my recent post about the anti-gay bill introduced by an Alabama lawmaker and that bill's reference to Alabama's existing "sodomy and sexual misconduct laws," a friend sent me an e-mail to remind me that anal sex is still on the books even in Canada. Here's the relevant section of the Criminal Code, from Part V:

159. (1) Every person who engages in an act of anal intercourse is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

But there are exceptions:

(2) Subsection (1) does not apply to any act engaged in, in private, between
(a) husband and wife, or
(b) any two persons, each of whom is eighteen years of age or more,
both of whom consent to the act.

(3) For the purposes of subsection (2),
(a) an act shall be deemed not to have been engaged in in private if it is engaged in 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 an act
(i) if the consent is extorted by force, threats or fear of bodily harm or is obtained by false and fraudulent misrepresentations respecting the nature and quality of the act, or
(ii) if the court is satisfied beyond a reasonable doubt that the person could not have consented to the act by reason of mental disability.

Some of this makes sense, specifically the matter of consent. Surely a person who is mentally disabled or who has been extorted cannot give his or her consent in any reasonable way. And surely we prefer that anal sex remains a "private" matter. And, yes, the "exceptions" do exclude married couples and, indeed, all adult couples. Presumably, the "husband and wife" section means that married couples with one or both partners under 18 can legally engage in anal sex. And the reference to "any two persons" means that anal sex is not limited to heterosexual couples.

We are, after all, a fairly progressive country. Several U.S. states may have passed anti-gay referenda last November, but Canada is moving towards full and equal recognition of same-sex couples, not least in terms of marriage. And I fully support these efforts.

Here are a couple of problems, however: Legal anal sex is limited to two partners. No one else may be present in any way, as a participant or not. Hence the definition of "private" is limited to two people, and the presence of only a single other person makes the private public. How does this make sense? Why can't three or more consenting adults engage in sexual activity of this kind "in private"? Yes, I know, I'm making an argument for group sex, but, more so, it doesn't make any sense that two is private and three or more is public. Does it?

Finally, it's interesting to look at where anal sex appears in the Criminal Code. Although it has for the most part been legalized in Canada, if only between two partners, anal sex appears between incest and bestiality in the "Sexual Offences, Public Morals, and Disorderly Conduct" part of the Criminal Code. But incest and bestiality are illegal without exception, whereas anal sex is for the most part legal. How does this make sense? Although anal sex is hardly limited to gay male couples, they of all Canadians should take offence at this inexcusable insult.