Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 (review)

Backhouse has done it again: produced a major work of legal history written and designed to appeal to a broad audience, from Supreme Court justices to readers simply interested in the Canadian criminal justice system’s prior ways of dealing with sexual assault. How does she do it?

Because the book operates at three levels it can be approached effectively as three books. The one most will read comprises nine chapters, which examine in detail individual cases of sexual assault, and an introduction and conclusion that ties them together by highlighting their illustrative significance. Readers with greater interest in the historical and legal context in which Backhouse situates her selected cases will turn to the second, near-book-length resource of the endnotes (thirty-seven densely packed pages). This would have been impossible had a publisher other than the Osgoode Society for Canadian Legal History taken on the project. For anyone wishing to follow the trail to the 1,202 cases she unearthed through her meticulous law report searches and her intensive archival research, Backhouse’s personal website provides a full listing. The result is a benchmark resource for further study and analysis, produced by an extraordinarily generous scholar.

Carnal Crimes begins where Petticoats and Prejudice (1991) left off, and it follows Backhouse’s well-established method of approaching larger themes in law through individual cases. In her earlier work she exposed the ways in which nineteenth-century criminal law failed to deliver justice to women exposed to sexual violence. This new work extends that argument, but the framing is different, since the book covers the period of 1900 until 1975 – the year when Canadian criminal law first responded to feminist concerns over sexist laws in an era when efforts to reorient the criminal justice system toward victims’ experiences were gathering momentum.

Her nine cases highlight the issues that prompted those reforms, particularly the onerous burden of corroboration imposed on complainants and the intrusive scrutiny into the character and sexual history of women and children who claimed to have been abused. The legacy of seventeenth-century English jurist Matthew Hale’s famous dictum that rape is ‘an accusation easily to be made’ clearly lingered in the minds of the men who dealt with sexual assault cases before the 1970s, and not just defence lawyers zealously defending clients, but also Crown attorneys and police officers whose duty it was to gather evidence and prosecute credible cases. Several of the cases Backhouse presents ended in convictions, but each of those was successfully appealed. Indeed, as she and others in the field have established, the conviction rate for all forms of sexual assault, and rape in particular (which carried a maximum penalty of death until 1954), was substantially lower than rates for comparable indictable offences over the early- to mid-twentieth century. Remarkably little changed over time.

But this is a work about people, not numbers and trends, and Backhouse’s storytelling skill is the key to her crossover appeal. General readers and students of history and gender studies will be led effectively through law’s complex operations with the aid of compelling and frequently harrowing accounts of violence and coercion. Although Backhouse recounts the scenarios that led to complaints of sexual assault by synthesizing and quoting from depositions, trial transcripts, and expert testimony, she keeps her spotlight on the law and the legal personalities involved in each case. Law here is not an abstract force or a set of principles applied to unique fact situations; rather, Backhouse’s criminal justice system is run by men operating on an uneven playing field that made victories for victims a rarity and failed utterly to protect women and children.

Each of the cases Backhouse selects vividly supports her argument, and one can hear her accusatory voice in the testimony of Mary Burton in 1907. This complainant, a working-class woman from the wrong side of town, responded to a battering cross-examination into her unsavoury reputation with remarkable spirit and...