Karen Pearlston

In Canada, the legal histories of gender and sexuality are dominated by the 1969 Criminal Code reform, about which Prime Minister Pierre Trudeau famously said “there’s no place for the state in the bedrooms of the nation.” Through this act, Canada’s parliament decriminalized buggery (aka sodomy) and gross indecency, but only if these acts were committed in private, with no more than two persons present, and between consenting adults.

Often and erroneously credited with completely decriminalizing homosexuality, this legal change had little effect on sex between women, which was not a criminal offense. To understand how sex between women was legally regulated in Canada, we need to turn to the Divorce Act of 1968. Scholars have barely noticed that the Divorce Act added a new ground, “engaging in a homosexual act,” to the traditional fault grounds for divorce. The new divorce law forced judges to develop a legal definition of what constituted “lesbian” sex and led to new forms of regulation for sex between women.

By Joan of Art, 2017

The provision naming homosexual acts as grounds for divorce was not in the original bill, but was added during the debate at the behest of one member of parliament (MP) who said:

I believe that every other situation which could arise is covered … where [the bill] mentions adultery, rape, sodomy, bestiality, cruelty, desertion, non support, bigamy, non-consummation … I suggest that possibly we were not exact enough to rescue men from marriages in which the female partner is a practising lesbian …

By the next day, Justice Minister Pierre Trudeau had amended the bill, thus satisfying the MP, who said, “The minister has added the ground of homosexuality. I believe that covers cases where a man is married to a practicing lesbian.”

Canadian divorce law was based on British law which, in contrast to that in the United States, included sodomy as a ground for divorce and understood it to mean anal sex. As such, sodomy law applied to homosexual acts between men, not same-sex sexual acts between women. The criminal offenses of rape, buggery, and bestiality and the matrimonial offenses of adultery, sodomy, bestiality, and rape all required proof of penetration. These laws, which assumed the presence of at least one penis, implicitly ignored same-sex sexuality between women.

In addition, sex acts between women fell outside of Canadian laws governing gross indecency, which criminalized non-penetrative sex between men, and was included in Canada’s Criminal Code in 1892. By 1954, Parliament had expanded gross indecency to apply to “anyone,” which meant that women, including lesbians, could be charged. However, except for one case involving a sex worker, no women were prosecuted for gross indecency between 1954 and1969. It appears that crown attorneys and judges were not particularly interested in consensual oral sex where women were involved.

Judges at Canadian divorce trials in the 1960s and 70s had to address a crucial question: What constituted a homosexual act between women? These jurists had no precedents upon which to rely when deciding whether a wife had engaged in a homosexual act. Yet decide they must: if a spouse petitioned for divorce on grounds of a homosexual act, then a homosexual act had to be proven or the divorce could not be granted.

The first case to tackle this question was M v M (1972). Two women, Mrs. M and Mrs. G, each lived with their husbands in the small and rural province of Prince Edward Island (PEI). Mrs. M and Mrs. G appear to have been very much in love and to have conducted their sexual affair at each other’s homes. Both husbands tolerated this conduct, although Mr. G exhibited more grace. Mr. G testified at the trial that he loved his wife and did not want her to leave him. After the two women left PEI for Ontario, Mr. M served his wife with divorce papers.

At the divorce trial, witnesses sought to describe lesbian sexuality. Because Mrs. M did not appear at the trial, others spoke for her. Mr. M said his wife had described “a love like kissing and petting all over the body from head to toe.” Mrs. G, who had reconciled with her husband, also testified about her relationship with Mrs. M. Under questioning at the trial, Mrs. G could not explain “what type of acts were performed between you that would be homosexual acts,” but she answered yes when asked whether she and Mrs. M “were sexually aroused by each other” and reached “a climax if you may use that word in these relations.” The judge in M v M put a lot of effort into explaining his reasoning. He drew extensively on a book written by an American jurist, Sex and the Law (1962) to describe “the usual techniques of the female homosexual.” However, he failed to identify which of those techniques Mrs. M and Mrs. G used, instead granting the divorce upon finding that Mrs. M and Mrs. G “engaged in mutual fondling” of each other’s “naked body … to such an extent that each woman would reach a sexual climax or orgasm.”

The judge in the next case, Gaveronski (1974), offered a far more expansive definition of what constituted a homosexual act. Because Mrs. Gaveronski admitted that she and another woman had caressed each other’s breasts, the judge reasoned that, “Such an act by a male person to a female is unquestionably sexual. It follows that between females it is a homosexual act where their relationship is, as here, strongly suggestive of a mutual homosexual attraction.” Since “proof of gratification is not essential to any other sexual offence, matrimonial or criminal,” the judge held that evidence of orgasm was not required for an act to be homosexual. He could have stopped there but instead went on, without explanation, to drop any necessity for genital involvement as indicative of sexual conduct between women:

Nor do I see any reason to require that there must be proof of vaginal contact. The test must be: Was the act homosexual? In some cases, perhaps, a friendly caress of the bosom of one female by another may not be homosexual, but in the present case it was.

The non-genital approach in Gaveronski persisted in the subsequent cases, even though it potentially raised some difficult legal problems, including making homosexual acts easier to prove than adultery, which required proof of penetration. In addition, the existence of “homosexual act” as a fault ground left lesbians vulnerable to a high level of scrutiny of not only their sexual, but also their social conduct. The “homosexual act” ground was dropped when the Divorce Act was revised in 1985. However, the scrutiny mandated by the earlier law persisted and helped to perpetuate the legal barriers that lesbian mothers in Canada were forced to endure for the rest of the 20th century.

This brief report represents only some of my early findings. But even at this preliminary stage, they suggest two points. First, and obviously, the legal histories of lesbians and gay men cannot be equated. Second, most lesbian histories of the postwar period look at the development of lesbian subjectivity through their own cultural institutions. In contrast, the legal cases I have found involved women who were forced into visibility by the law’s need to ascertain whether they had committed a “lesbian act.” Some of the wives in these cases may have identified as lesbian but others did not. Some expressed same sex desire but did not want to leave their heterosexual marriages. Mrs. M and certainly Mrs. G probably had more in common with the American women whose lives Lauren Gutterman recounts than they did with the lesbian feminists and radical dykes who built the Lesbian Organization of Toronto and similar organizations in the 1970s. Legal history, and especially the history of family law, may continue to provide us with glimpses of same-sex sexual desire outside of lesbian community.

Karen Pearlston teaches and researches family law, gender, sexuality and law and legal history at the University of New Brunswick. She has published articles on coverture and its exceptions in 18th- and 19th-century England and has recently turned her attention to gender and sexuality in 20th- and 21st-century Canada with a current focus on lesbian legal history. Her article “Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968” will appear in an upcoming issue of the Canadian Journal of Law & Society. She is a life-long activist, currently with Reproductive Justice New Brunswick, and tweets from @kaypear99.

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