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Regulating (Hetero)Sexual Offences in British Columbia, 1885-1940

Published online by Cambridge University Press:  04 July 2014

Dorothy E. Chunn
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Extract

Since the late twentieth century, much literature and debate has addressed the use and misuse of science and expertise in the courts and the relationship between science and law in the determination of legal outcomes. Feminists have examined these issues in relation to the adjudication of criminal cases involving women accused (battered woman syndrome – BWS; pre-menstrual syndrome – PMS) and women complainants/victims (rape trauma syndrome – RTS) as well as cases in other areas of law such as sex discrimination and sexual harassment. Their research demonstrates that expert testimony reflects class-based, gendered, racialized, and sexualized assumptions and is clearly important to case outcomes. On one hand, judges often are swayed by expert testimony given at trial and/or submitted at the pre-trial or pre-sentence stage of the criminal process. On the other hand, non-legal experts often act like legal agents on behalf of either the prosecution or the defense. Indeed, the issue of competing experts is central to much discussion and debate about their place in criminal proceedings.

Type
Applications of Social Science in the Law
Information
Israel Law Review , Volume 35 , Issue 2-3 , Summer-Autumn 2001 , pp. 285 - 319
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2001

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References

1 See, e.g., Ewick, Patricia, Kagan, Robert, and Sarat, Austin, eds., Social Science, Social Policy and the Law (New York, Russell Sage Foundation, 1999)Google Scholar.

2 On the issues related to expert testimony and the “syndromization” of women's experiences, see Comack, Elizabeth, Feminist Engagement with the Law: The Legal Recognition of the Battered Woman Syndrome (Ottawa, Canadian Research Institute for the Advancement of Women, 1993)Google Scholar; Sheehy, Elizabeth, Personal Autonomy and the Criminal Law: Emerging Issues for Women (Ottawa, Canadian Advisory Council on the Status of Women, 1987)Google Scholar; Stubbs, Julie and Tolmie, Julia, “Race, Gender and the Battered Woman Syndrome: An Australian Case Study” (1995) 8(1) Canadian J. of Women & the Law 122–58Google Scholar. On the use of expert testimony by the courts see, Erickson, Rosemary and Simon, Rita, The Use of Social Science Data in Supreme Court Decisions (Urbana, Univ. of Illinois Press, 1998)Google Scholar; MacCrimmon, Marilyn, “Developments in the Law of Evidence: The 1990-91 Term [of the Supreme Court of Canada]: Social Science, Law Reform and Equality” (1992) 3 Supreme Ct. L. Rev. 269–345Google Scholar; Smart, Carol, Feminism and the Power of Law (London, Routledge, 1989)CrossRefGoogle Scholar.

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12 Chunn, Dorothy E., “Sex and Citizenship: (Hetero)Sexual Offences, Law and ‘White’ Settler Society in British Columbia, 1885-1940,” in Adamoski, Robert, Chunn, D.E., and Menzies, Robert, eds., Contesting Canadian Citizenship: Historical Readings (Peterborough, Ontario, Broadview Press, 2002)Google Scholar; Garland, supra n. 5.

13 Garland, David, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago, Univ. of Chicago Press, 2001) 194–195Google Scholar.

14 See Bland, Lucy, Banishing the Beast: English Feminism and Sexual Morality, 1885-1914 (London, Penguin Books, 1995)Google Scholar; Foucault, History of Sexuality, supra n. 5; Hunt, Governing Morals, supra n. 5; McLaren, Angus, Our Own Master Race: Eugenics in Canada, 1885-1945 (Toronto, McClelland & Stewart, 1990)CrossRefGoogle Scholar; Mort, Frank, Dangerous Sexualities: Medico-Moral Politics in England since 1830 (London, Routledge & Kegan Paul, 1987)CrossRefGoogle Scholar; Walkowitz, Judith, Prostitution and Victorian Society: Women, Class and the State (Cambridge, Cambridge Univ. Press, 1980)CrossRefGoogle Scholar and City of Dreadful Delight: Narratives of Sexual Danger in Late-Victorian London (Chicago, Univ. of Chicago Press, 1992)Google Scholar; Weeks, Jeffrey, Sex, Politics and Society (London, Longman, 1981)Google Scholar.

15 New (hetero)sexual offences included indecent assault (female), carnal knowledge and bigamy; reform of old law included the criminalization of seduction.

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17 I use the term “complainant/victim” to indicate that the (young) women involved in sexual offence cases were active as well as reactive.

18 The categorization of sexual offences in Canadian criminal law during this period reflected prevailing moral and social attitudes. Incest and seduction were classified as “offences against morality;” indecent assault (female), carnal knowledge, and rape as “offences against the person/reputation;” and abduction of a girl under the age of 16 as an “offence against parental rights.” See The Criminal Code, 55-56 Vict., 1892, c. 29.

19 During this period, the Supreme Court of British Columbia operated as a circuit court. Twice a year judges based in Victoria and Vancouver travelled to smaller urban centers throughout the province to preside over trials. Verchere, David R., A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver, UBC Press, 1988), 63–64Google Scholar.

20 Despite the problems associated with reliance on case file data, I agree with those who argue that such data can yield important historical insights. See Gordon, Linda, Heroes of Their Own Lives (Harmondsworth, Penguin, 1988), 12–20Google Scholar, Appendix A; Iacovetta, Franca and Mitchinson, Wendy, eds., On the Case: Explorations in Social History, (Toronto, Univ. of Toronto Press, 1998)CrossRefGoogle Scholar.

21 See supra n. 14. See also Anderson, Kay, Vancouver's Chinatown: Racial Discourse in Canada, 1875-1980 (Montreal, McGill-Queen's Univ. Press, 1991)Google Scholar; Backhouse, Constance, Colour Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto, Univ. of Toronto Press & The Osgoode Society, 1999)Google Scholar.

22 Hunt, Governing Morals, supra n. 5; see also Menzies, Robert, “Governing Mentalities: the Deportation of ‘Insane’ and ‘Feebleminded’ Immigrants Out of British Columbia from Confederation to World War II” (1998) 12 Canadian J. L & Soc. 135–73CrossRefGoogle Scholar; Mort, Dangerous Sexualities, supra n. 14.

23 Arnup, Katherine, Education for Motherhood: Advice for Mothers in Twentieth-Century Canada (Toronto, Univ. of Toronto Press, 1994)Google Scholar; Sangster, Joan, Regulating Girls and Women: Sexuality, Family, and the Law in Ontario, 1920-1960 (Toronto, Oxford Univ. Press, 2001)CrossRefGoogle Scholar; Snell, James, “The ‘White Life for Two’: The Defence of Marriage and Sexual Morality in Canada, 1890-1914” (1983) Histoire sociale/Social History 31, 111–29Google Scholar; Snell, James and Abeele, Cynthia Comacchio, “Regulating Nuptiality: Restricting Access to Marriage in Early Twentieth-Century English-Speaking Canada” (1988) 64:4Canadian Historical Rev. 466–89CrossRefGoogle Scholar. I conceptualize “race”, “whiteness”, etc., as socially constructed, historically and culturally specific concepts, but to avoid repetition I have not placed these terms in quotation marks throughout the paper.

24 For discussions of this point in relation to British Columbia, see Dubinsky, Karen and Givertz, Adam, ”‘It was Only a Matter of Passion’: Masculinity and Sexual Danger” in McPherson, Kathryn, Morgan, Cecilia, and Forestell, Nancy M., eds., Gendered Pasts: Historical Essays in Femininity and Masculinity in Canada, (Toronto, Oxford Univ. Press, 1999)Google Scholar; Perry, Adele, On the Edge of Empire: Gender, Race, and the Making of British Columbia, 1849-1871 (Toronto, Univ. of Toronto Press, 2001)Google Scholar.

25 The racist basis of suffrage should be noted. In 1920, universal suffrage meant that most white, adult Canadians could vote in federal elections, but most Aboriginal persons and racialized persons could not. Bacchi, Carol, Liberation Deferred? The Ideas of the English-Canadian Suffragists, 1877-1918 (Toronto, Univ. of Toronto Press, 1983)Google Scholar.

26 Showalter, Elaine, Sexual Anarchy: Gender and Culture at the Fin du Siecle (Harmondsworth, Penguin, 1990)Google Scholar.

27 Ibid. See also Bland, Banishing the Beast, supra n. 14; Foucault, History of Sexuality, supra n. 5; Mort, Dangerous Sexualities, supra n. 14.

28 McClintock, Anne, Imperial Leather: Race, Gender and Sexuality in the Colonial Context (London, Routledge, 1995) at 5Google Scholar; see also Walkowitz, City of Dreadful Delight, supra n. 14; Young, Robert, Colonial Desire: Hybridity in Theory, Culture and Race (London, Routledge, 1995)Google Scholar.

29 Barman, Jean, The West Beyond the West: A History of British Columbia (2d ed., Toronto, Univ. of Toronto Press, 1996)Google Scholar; Culhane, Dara, The Pleasure of the Crown: Anthropology, Law and First Nations (Vancouver, Talonbooks, 1998) 37–57Google Scholar.

30 Barman, West Beyond the West, supra n. 29, at 379, Table 5; 385, Table 11.

31 Adele Perry, On the Edge of Empire, supra n. 24, at 48-78.

32 Barman, The West Beyond the West, supra n. 29, at 385, Table 11.

33 Anderson, Vancouver's Chinatown, supra n. 21, at 34-105; Barman, Jean, “Taming Aboriginal Sexuality: Gender, Power and Race in British Columbia, 1850-1900” (1997–1998) 115–16 BC Studies 237–66Google Scholar; Mawani, Renisa, “In Between and Out of Place: Racial Hybridity, Liquor and the Law in Late 19th and Early 20th Century British Columbia” (2000) 15 Canadian J. L. & Society 9–38CrossRefGoogle Scholar; Menzies, Robert, “Race, Reason and Regulation: British Columbia's Mass Exile of Chinese ‘Lunatics’ Aboard the Empress of Russia, 9 February 1935”, in McLaren, John, Menzies, Robert, and Chunn, Dorothy E., eds., Regulating Lives: Historical Essays on the State, Society, the Individual and the Law (Vancouver, UBC Press, 2002)Google Scholar.

34 Settler societies “[fall] along a continuum rather than within clear and fixed boundaries,” but in general terms they are “societies in which Europeans have settled, where their descendants have remained politically dominant over indigenous peoples, and where a heterogeneous society has developed in class, ethnic and racial terms …” Stasiulis, Daiva and Yuval-Davis, Nira, “Introduction: Beyond Dichotomies – Gender, Race, Ethnicity and Class in Settler Societies,” in Stasiulis, and Yuval-Davis, , eds., Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class, (London, Sage, 1995) at 3Google Scholar.

35 British Columbia Archives, Attorney General, Document Series 1857-1966 (hereinafter “BCARS”), GR0419, v. 244, #107, 1921. The quotation is excerpted from a handwritten draft of the Crown Attorney's address to the jury in a rape trial.

36 For instance, druggists or pharmacists sometimes testified about the nature of certain pills, solutions, etc., and if they were linked to sexual intercourse or the termination of a pregnancy or not. See, e.g., BCARS, GR0419, v. 175, #123, 1913; v. 209, #37, 1917.

37 Since an accused did not testify and generally made no statement at a preliminary hearing, defense counsel did not introduce their own witnesses, including medical experts, at that stage of the criminal process; in rare cases, they requested that state-affiliated doctors examine a client.

38 Racial and ethnic identification of accused and complainants/victims was not clear in all cases, but approximately 80 percent of the cases involved white women and men.

39 See BCARS, GR0419, v. 93, #63, 1902; v. 116, #72, 1906; v. 266, #32, 1923; v. 271, #80, 1923. The respective sentences in these cases were 21 years (two convicted Aboriginal men); life imprisonment; 15 years; 15 years and 15 lashes.

40 On racialized conceptions of sexuality, see Barman, “Taming Aboriginal Sexuality,” supra n. 33; Collins, Patricia, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (London, Harper-Collins Academic, 1990)Google Scholar; McClintock, Imperial Leather, supra n. 28; Perry, On the Edge of Empire, supra n. 24.

41 Complete penetration was a key element in the cultural/popular definitions but not the legal definitions of most (hetero)sexual offences. Until 1920, even rape law did not require “proof of emission of seed or total penetration to constitute the act of carnal knowledge.” Chapman, Terry, “‘Inquiring Minds Want To Know’: The Handling of Children in Sex Assault Cases in the Canadian West, 1890-1920,” in Smandych, Russell, Dodds, Gordon, and Esau, Alvin, eds., Dimensions of Childhood: Essays on the History of Children and Youth in Canada (Winnipeg, Legal Research Institute of the Univ. of Manitoba, 1991) 194–55Google Scholar. Likewise, in theory, the laws of incest and carnal knowledge of a female under the age of 14 did not require corroboration of a complainant/victim's lack of consent.

42 BCARS, supra n. 35, GR0419, v. 322, #85, 1927.

43 Ibid., v.256, #78, 1922.

44 See, e.g., McLaren, Our Own Master Race, supra n. 14, at 46-67; Stephen, Jennifer, “‘Factory Girls’ and the Toronto Psychiatric Clinic” in Binnie, Susan and Knafla, Louis, eds., Law, Society and the State: Essays in Modern Legal History (Toronto, Univ. of Toronto Press, 1995)Google Scholar.

45 BCARS, supra n. 35, GR0419, v. 284, #10, 1925.

46 Ibid., v. 172, #106, 1913.

47 Ibid., v. 58, #34, 1895.

48 Ibid., v. 214, #26, 1918.

49 Ibid., v. 167, #7, 1913; see also v. 181, #231, 1913.

50 Ibid., v. 351, #93, 1929.

51 Ibid., v. 400, #120, 1932.

52 See, e.g., ibid., v. 272, #36, 1931.

53 Ibid., v. 161, #143, 1912.

54 Ibid., v. 377, #49, 1931.

55 Ibid., v. 400, #120, 1932.

56 Ibid.

57 Ibid., v. 345, #12, 1929.

58 Ibid.

59 See Dubinsky, Karen, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880-1929 (Chicago, Univ. of Chicago Press, 1993)Google Scholar; Peiss, Kathy, Cheap Amusements: Working Women and Leisure in Turn-of-the-Century New York (Philadelphia, Temple Univ. Press, 1986)Google Scholar; Strange, Carolyn, Toronto's Girl Problem: The Perils and Pleasures of the City, 1880-1930 (Toronto Univ. of Toronto Press, 1995)CrossRefGoogle Scholar.

60 BCARS, supra n. 35, GR0419, v. 244, #107, 1921.

61 Ibid.

62 Ibid., v. 323, #, 1927.

63 Ibid., v. 271, #80, 1923.

64 Ibid., v. 330, #29, 1928.

65 Ibid., v. 214, #31, 1918.

66 Ibid., v. 267, #38, 1923.

67 Ibid., v. 259, #116, 1922.

68 Ibid.

69 Outcomes are known for approximately 85 percent of the cases reviewed.

70 Mort, Dangerous Sexualities, supra n. 14, at 136-37.

71 Ibid.; Loo and Strange, Making Good, supra n. 5.

72 While they have supported decriminalization and deregulation of birth control and abortion, many feminists have also demanded the (legal) regulation of new reproductive technologies (NRTs), surrogacy, cloning, sex selection technologies, and international adoptions.

73 See Roberts, Julian V. and Mohr, Renate M., eds., Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto, Univ. of Toronto Press, 1994)Google Scholar.

74 See Julian V. Roberts and Michelle G. Grossman, “Changing Definitions of Sexual Assault: An Analysis of Police Statistics;” Scott Clark and Dorothy Hepworth, “Effects of Reform Legislation on the Processing of Sexual Assault Cases;” and Rita Gunn and Rick Linden, “The Processing of Child Sexual Abuse Cases,” in Roberts and Mohr, eds., Confronting Sexual Assault, supra n. 73.

75 See Aijzenstadt, Mimi and Steinberg, Odeda, “Never Mind the Law: Legal Discoure and Rape Reform in Israel” (Fall 2001) 16:3Affilia 337–59CrossRefGoogle Scholar; Bonnycastle, Kevin, “Rape Uncodified: Reconsidering Bill C-49 Amendments to Canadian Sexual Assault Laws,” in Chunn, Dorothy E. and Lacombe, Dany, eds., Law as a Gendering Practice (Don Mills, Ont., Oxford Univ. Press, 2000) at 75Google Scholar; Maria Los, “The Struggle to Redefine Rape in the Early 1980s,” in Roberts and Mohr, eds. Confronting Sexual Assault, supra n. 73, at 20; Smart, Feminism and the Power of Law, supra n. 2, at 26-49; Stewart, Mary White, Dobbin, Shirley and Gatowski, Sophia, “‘Real Rapes’ and ‘Real Victims’: The Shared Reliance on Common Cultural Definitions of Rape” (1996) 4:2Feminist Legal Studies 159–77CrossRefGoogle Scholar.

76 Smart, Feminism and the Power of Law, supra n. 2, at 44.

77 Other researchers have documented the intertwined relationships among all the regular players in the criminal process. See, e.g., Ericson and Baranek's study of pretrial interactions among legal agents which concluded that defense counsel was central to the operation of an informal plea negotiation system; they were the ones who would tell clients that they were getting a “bargain” and induce them to plead guilty. Ericson, Richard V. and Baranek, Patricia, The Ordering of Justice (Toronto, Butterworths, 1982)Google Scholar.

78 Christie, Nils, Conflicts as Property” (1977) 17 British J. Criminol. 1–15CrossRefGoogle Scholar. See also Chunn and Menzies, “Gender, Madness and Crime,” supra n. 4; Ericson and Baranek, The Ordering of Justice, supra n. 77; Smart, Feminism and the Power of Law, supra n. 2.

79 For more detailed discussion of this point, see, Chunn, “Sex and Citizenship,” supra n. 12, at 378. See also supra n. 40.

80 See, e.g., Dubinsky, Improper Advances, supra n. 59; Finch, Lynette M., The Classing Gaze: Sexuality, Class and Surveillance (St. Leonards, NSW, Allen & Unwin, 1993)Google Scholar; Smart, Carol, Law, Crime and Sexuality: Essays in Feminism (New York, Routledge, 1995) at 53–69Google Scholar.

81 For instance, Karen Dubinsky found a 49 percent overall conviction rate for 348 cases of rape, attempted rape, carnal knowledge, and indecent assault that were tried at the Ontario criminal assizes between 1880 and 1929. Dubinsky, Improper Advances, supra n. 59, at 172-3.

82 It is possible to say, however, that complainants/victims often proactively invoked the law and that in the criminal process they were not merely passive objects who could be manipulated at will by medico-legal authorities. See Chunn, “Sex and Citizenship,” supra n. 12, at 373-377; Gordon, Heroes of Their Own Lives, supra n. 20, at 289-299.