Nineteenth-Century Canadian Rape Law 1800-1892
in David H. Flaherty, ed. Essays in the History of Canadian Law v.2 (Toronto: University of Toronto Press, 1981) 212-248.
Posted: 25 Jun 2013 Last revised: 29 Jun 2020
Date Written: 1983
Abstract
The history of nineteenth-century Canadian rape law lends insights into the values surrounding sexual assault, the comparative development of English and Canadian law, tensions between the courts and legislature, and the status of women during the period. In the early 1800s, to rape a woman was considered a crime against male property. Rape was criminalized to the extent that it damaged a woman's potential reproductive function, and was thus defined as sexual intercourse with ejaculation. The law slowly began to turn away from a proprietary view of rape by eliminating requirements for ejaculation, hymen rupture, and finally penetration. Lesser sexual assault offences were created. The reformed Canadian criminal law paternalistically painted women as vulnerable, corruptible and needing the legislature to protect their chastity. As Canadian rape law moved from property to paternalism, courts applied new laws conservatively. Judges were motivated by their own expectations of a chaste woman's behaviour, fear of false complaints by women who had consensual sex, and an unwillingness to extend the law's protection to women who were not of virtuous reputation. Spousal immunity from criminality was an exception to the reforms that had eschewed characterising women's sexuality as a man's property.
Keywords: Canada, Canadian, law, legal, rape, sex, assault, women, feminist, feminism, history, historical, court, legislature, status, crime, criminal, intercourse, code, sexism, gender, role, consent, spouse, men, sexual
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