NineteenthCentury Canadian Rape Law 180092

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Nineteenth-Century Canadian Rape Law 1800-92

• Constance Backhouse

Art by Georgia OKeefe
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Early English Influence 1800-60

• 1800-50 reflected English law
• -- eg. Ontario 1800 common law felony of rape
  capital offense
• 1803 no mitigation of offense if the woman
  yielded to violence if her consent was forced by
  fear of death or duress
• Previously thought pregnancy showed evidence of
  consent
• 1883 abolished benefit of clergy
• Heiress abduction no longer capital offense
• Carnal knowledge of girl under ten capital 10-12
  misdemeanour
• By1841 not necess to prove ejaculation to prove
  rape

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Departure from English model 1861-80

• Adopted penal servitude for life, and in Canada
  for rape/ statutory rape under 10
• 1873 max penalty 7 years
• Connotations of interference with male property
  interests decreasing in importance
• Actual sexual assaults being viewed more
  seriously
• 1875-80 stricter sanctions agt statutory rape to
  protect virginity of young girls
• New era of morals legislation
• Canadian law adopted harsher penalties

Globe and Mail, Nov 1, 1849 3
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Standards of force, resistance, and lack of
consent

• Judiciary reluctant to convict unless victim put
  up strong show of resistance
• Requirement accepted by prosecutors
• 1885, even impersonation accepted
• danger in implying force from fraud, and an
  absence of consent, when consent was in fact
  given, though obtained through deception
• Legislators saw no problem with this

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Fear of false complaints

• Judges thought malicious women might make false
  complaints
• Eg. 1882, Caroline Mercer, a married woman,
  charged William Stead, a married man who lived
  near her, with rape while her husband was putting
  horse out to pasture...Justice cautioned the jury
  that such charges sometimes arose from motives of
  malice.

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Reputation of the victim

• Victims reputation important, eg.1858 Rogers v.
  Gregg case
• let a woman be ever so abandoned, she was
  entitled to the protection of law butshe was
  not entitled to credit, and no jury could feel
  justified in convicting on the bare assertions of
  those who admitted they were of the loosest grade
  and character

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Statutory rape
Moral crusade

• Confusion about intent of legislation
• Was legislation designed to protect virginity,
  or, was legislation to protect from all sexual
  contact

• 1885 Act to make provision for protection of
  women and girls
• Pressure to raise age of consent, penalties for
  statutory rape
• 1885-90 raised consent to 14
• However, still concern over false complaints

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Codification 1892

• 1892 federal Criminal Code
• -- 1st definition of rape
• -- husband exemption clause
• by their mutual matrimonial consent and contract
  the wife has given up herself in this kind unto
  her husband, which she cannot retract
• Legislation of matrimonial unity

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Conclusion

• Early 1800s, rape was violation of male property
  rights
• Requirements changed ejaculation, rupturing
  hymen, penetrationlesser offenses created
• Rape law evolved past requirements for physical
  violence to encompass sexual coercion fraud and
  taking advantage
• Didnt represent true liberation, as law
  paternalistic
• Women seen as needing protection

However, forerunner of changes to come?