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Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968

  • Karen Pearlston (a1)
Abstract
Abstract

The Divorce Act, 1968, provided no-fault divorce for the first time. It also included a list of fault-based grounds for divorce. In addition to the traditional grounds, a spouse whose wife or husband had “engaged in a homosexual act” during the marriage could petition for divorce. This novel provision was aimed at giving husbands a way to divorce their lesbian wives. A close reading of the resulting jurisprudence and surrounding context shows not only that courts struggled to define the homosexual act between women, but also that the legal history of lesbian women differs from that of gay men in a number of respects. Notably, male homosexuality was regulated primarily through criminal law. In contrast, when parliamentarians specifically addressed lesbians, they turned their minds to the family and family law.

Résumé

La Loi sur le divorce de 1968 offrait, pour la première fois, le divorce sans égard à la faute, mais aussi la liste de motifs de divorce reconnus par la loi. En plus des motifs habituels, la Loi prévoyait qu’une personne dont l’épouse ou l’époux avait eu des relations homosexuelles durant le mariage avait un motif de divorce valable. Cette nouvelle disposition visait à donner aux maris la possibilité de divorcer de leur femme lesbienne. L’étude approfondie de la jurisprudence et du contexte qui en a découlé indique que non seulement les tribunaux ont eu beaucoup de mal à définir ce qu’est un acte homosexuel entre femmes, mais aussi que l’histoire juridique de l’homosexualité féminine est très différente de celle de l’homosexualité masculine. Par exemple, l’homosexualité masculine était abordée par le biais du droit criminel, mais lorsque les parlementaires traitaient d’affaires lesbiennes, ils pensaient surtout en fonction de la famille et du droit familial.

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1 Divorce Act, SC 1968, c 24, s 3(b). This was the first federal divorce legislation in Canada. It included some grounds for divorce that were fault based, including s 3(b), and others that were not based on fault. Most of the fault-based grounds, including the homosexual act, were dropped when the statute was repealed and replaced in 1985. See Divorce Act, RSC 1985, c 3.

2 The Divorce Act, 1968 was passed unanimously in December, 1967. John English, “Trudeau, Pierre Elliott,” in Dictionary of Canadian Biography, vol. 22, University of Toronto/Université Laval, 2003, accessed July 26, 2014, http://www.biographi.ca/en/bio/trudeau_pierre_elliott_22E.html. The legislation decriminalizing private homosexual acts between persons 21 or over was passed during the next session of Parliament in 1969. However, its predecessor, Bill C-195, was introduced and extensively debated in 1967, during the same session as the divorce bill. See Michel Bédard, “Omnibus Bills: Frequently Asked Questions” (2012), accessed July 26, 2014, http://www.parl.gc.ca/content/lop/researchpublications/2012-79-e.htm.

3 The 1968 Divorce Act was in force from July 2, 1968, to June 1, 1986, that is, from the beginning of the Gay Liberation Movement (conventionally understood as commencing with the 1969 Stonewall Rebellion) to the achievement of statutory human rights protection for sexual orientation in the first English-Canadian province to do so (Ontario, 1986).

4 The legal cases I examine were concerned solely with identifying the homosexual act between women, and this article is concerned with the development and regulation of the legal category of lesbian. My conception of women includes trans women. It is likely that some of the people in the cases discussed below did not identify as lesbian, and some of them may have been trans men or bisexual. These identities were not legally recognized at the time and were therefore subsumed into the category of lesbian, perhaps particularly in family law. The legal history of trans people in relation to family law is beyond the scope of this paper, but see Mossman, Bakht, Gruben, and Pearlston, Families and the Law: Cases and Commentary, 2nd ed. (Toronto: Captus Press, 2015), 136–144 for a partial assessment.

5 See Mariana Valverde, “A New Entity in the History of Sexuality: the Respectable Same-Sex Couple,” Feminist Studies 32 (2006): 155–162; Angela Harris, “From Stonewall to the Suburbs? Toward a Political Economy of Sexuality,” William & Mary Bill of Rights Journal 14 (2005–2006): 1539–1582. See also the recent changes encompassed in Ontario’s All Families are Equal Act, SO 2016, c 23, in force January 1, 2017.

6 See, for example, Becki L. Ross, The House That Jill Built: A Lesbian Nation in Formation (Toronto: University of Toronto Press, 1995); Line Chartrand, “Remembering Lesbian Bars: Montreal, 1955–1975,” Journal of Homosexuality 25 (1993): 231–269; Elise Chenier, “Rethinking Class in Lesbian Bar Culture Living ‘The Gay Life’ in Toronto, 1955–1965,” Left History 9 (2004): 85–118; Liz Millward, Making a Scene: Lesbians and Community Across Canada, 1964–1984 (Vancouver: University of British Columbia Press, 2015). But see Cameron Duder, Awfully Devoted Women: Lesbian Lives in Canada, 1900–65 (University of British Columbia Press, 2010), whose account of lower middle-class lesbians after the second world war provides some context for the women in the cases discussed below.

7 Harvey Brownstone, “The Homosexual Parent in Custody Disputes,” Queen’s Law Journal 5 (1980): 199–240; Wendy Gross, “Judging the Best Interests of the Child: Child Custody and the Homosexual Parent,” Canadian Journal of Women and the Law 1 (1986): 505–31; Katherine Arnup, “‘‘Mothers Just Like Others’: Lesbians, Divorce, and Child Custody in Canada,” Canadian Journal of Women and the Law 3 (1989–90): 18–32; Susan B. Boyd, “Lesbian (and Gay) Custody Claims: What Difference Does Difference Make?” Canadian Journal of Family Law 15 (1998): 131–152. See also Chris MacNaughton, “Who Gets the Kids?” Body Politic 34 (June 1977): 12–13.

8 The exception is Arnup, “‘Mothers Just Like Others’.” See also Mary Eaton, “Lesbians and the Law,” in Lesbians in Canada, ed. Sharon Dale Stone (Toronto, ON: Between the Lines, 1990), 114–15.

9 See Divorce Act, RSC 1985, c. 3.

10 Repeal of the homosexual act and sodomy grounds for divorce was among the demands made of the federal government on Parliament Hill at “the first large-scale gay demonstration in Canada,” Canadian Lesbian and Gay Archives. “We Demand, 1971,” accessed March 15, 2017, http://www.clga.ca/Material/Records/docs/wedemand.htm. It was also among the gay rights demands adopted in 1977 by the federal NDP, “NDP adds gay demands to party policy,” Body Politic 36 (September 1977): 4. However, “Reforms to the Divorce Act never caught fire as a movement issue,” Canadian Lesbian and Gay Archives. “What we demanded; What we got,” accessed March 15, 2017, http://www.clga.ca/Material/Records/docs/wegot.htm#div.

11 J.H. Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002), 493. Parliament could dissolve a marriage, but such actions were rare. See Sybil Wolfram, “Divorce in England 1700–1857,” Oxford Journal of Legal Studies 5 (1985): 155–186.

12 Matrimonial Causes Act, 1857 (UK), 20 & 21 Vict, c 85, s 6.

13 Ibid., s 27.

14 William D. Eskridge Jr., Dishonorable Passions: Sodomy Laws in America 1861–2003 (New York: Viking Penguin, 2008), 2.

15 There is no statutory definition of adultery in Canada or the UK. At common law, adultery was defined as “voluntary sexual intercourse between a married person and a person of the opposite sex other than his or her spouse,” Julien D. Payne, The Law Relating to Divorce and Other Matrimonial Causes in Canada, 2nd ed. (Calgary: Burroughs & Co., 1964), 415. The act of adultery required at least “an attempt to commit adultery by the introduction of the male organ into the female…even though the attempt has not fully succeeded. Masturbation or other practices falling short of such penetration do not constitute adultery, but an inference of the commission of adultery may be drawn from such conduct,” ibid., 417. The opposite sex definition of adultery was successfully challenged in PSE v PDD, 2005 BCSC 1290, 50 BCLR (4th) 34, 259 DLR (4th) 34 (SC), holding that adultery may include same-sex sexual conduct. See also Thebeau v Thebeau, 2006 NBQB 154, 27 RFL (6th) 430 (QB).

16 Wendy J. Owen and James M. Bumsted, “Canadian Divorce Before Reform: The Case of Prince Edward Island, 1946–67,” Canadian Journal of Law and Society 8 (1993): 1–44.

17 In addition to the fault-based grounds, a spouse was permitted to petition for divorce on the ground of permanent marriage breakdown, which could be proved by living “separate and apart” from the other spouse for no less than three years, Divorce Act, 1968, s 4(e)(i).

18 Divorce Act, 1968, s 3.

19 Cynthia Peterson, “Living Dangerously: Speaking Lesbian, Teaching Law,” Canadian Journal of Women and the Law 7 (1994): 327.

20 Eskridge, Dishonorable Passions, 2–3.

21 See Alan Milner, “Sodomy as a Ground for Divorce,” Modern Law Review 24 (1960): 43–51, considering “whether the ‘sodomy’ of … the Matrimonial Causes Act should be interpreted as relating only to the sodomy of the husband with a third party, or also to sodomy with his wife.” Ibid., 44. According to Eskridge, “in the course of the twentieth century, homosexuality became synonymous with sodomy,” Eskridge, Dishonorable Passions, 6.

22 House of Commons Debates, 27th Parl, 2nd Sess, No 5 (4 December 1967) at 5021 (Robert McCleave). McCleave had urged the inclusion of lesbianism as a ground for divorce as early as 1960. See House of Commons Debates, 24th Parl, 4th Sess, No 1 (8 December 1960) at 635 (Robert McCleave).

23 House of Commons Debates, 27th Parl, 2nd Sess, No 5 (4 December 1967) at 5024 (Arnold Peters).

24 House of Commons Debates, 27th Parl, 2nd Sess, No 5 (5 December 1967) at 5089, 5091 (Robert McCleave). For an intriguing account of the social and cultural background to “the problem,” see Lauren Jae Gutterman, “Another Enemy Within: Lesbian Wives, or the Hidden Threat to the Nuclear Family in Post-war America,” Gender and History 24 (2012): 475–501.

25 House of Commons Debates, 27th Parl, 2nd Sess, No 5 (15 December 1967) at 5501 (John Gilbert).

26 Bernard Green, “The Divorce Act of 1968,” University of Toronto Law Journal 19 (1969): 633. He added, “[t]hese questions raise a more difficult problem: why should divorce legislation treat homosexual activity in a manner different from that of heterosexual conduct? In other words, why should a husband be entitled to a divorce if he finds his wife engaging in cunnilingus with her girl friend but be refused a divorce—unless he can prove cruelty—if he finds her performing fellatio on her male friends?” These concerns were perhaps addressed in PSE v PDD 2005 BCSC 1290, discussed in n. 15, above.

27 D. Mendes da Costa, “The Divorce Act, 1968, and Grounds for Divorce Based Upon Matrimonial Fault,” Osgoode Hall Law Journal 7 (1970): 141–42.

28 Julien Payne, “The Divorce Act (Canada), 1968,” Alberta Law Review 7 (1969): 10.

29 Same-sex sexual practices had always existed, and were generally condemned, but in the “latter part of the nineteenth century” there developed a “new concern with the homosexual person, both in legal practice and in psychological and medical categorization” which “marks a crucial change,” Jeffrey Weeks, Sex, Politics & Society, 2nd ed. (London: Longman, 1981), 102. For the similarities in Canadian social and legal history, see Gary Kinsman, The Regulation of Desire, rev. ed. (Montreal: Black Rose, 1996), 128.

30 Criminal Law Amendment Act (UK), 48 & 49 Vict, c 69, s 11.

31 An Act Further to Amend the Criminal Law, SC 1890, c 37, s 5.

32 Alex K. Gigeroff, Sexual Deviations in the Criminal Law (Toronto: University of Toronto Press, 1968), 46.

33 Kinsman, Regulation of Desire, 129.

34 Criminal Code, SC 1953–54, c 51, s 149. Although “lesbians were ignored by English law,” they were subject to criminal sanction in continental Europe. See Louis Crompton, “The Myth of Lesbian Impunity: Capital Laws from 1270 to 1791,” Journal of Homosexuality 6 (1980–81): 19. English legislators resisted attempts to expand the gross indecency prohibition to cover lesbian conduct. See Laura Doan, Fashioning Sapphism: The Origins of a Modern English Lesbian Culture (New York: Columbia University Press, 2001), 31–63. But see Constance B. Backhouse, “Canada’s First Capital ‘L’ Lesbian Sexual Assault: Yellowknife, 1955,” in Backhouse, Carnal Crimes (Toronto: Osgoode Society, 2008), 193–226. The accused in that case was prosecuted for indecent assault, not gross indecency.

35 Elise Chenier, Strangers in Our Midst: Sexual Deviancy in Postwar Ontario (Toronto: University of Toronto Press, 2008), 27.

36 Alix Dobkin, “View from Gay Head,” Lavender Jane Loves Women (Women’s Wax Works, 1974).

37 Two of the other four reported cases involve allegations of lesbianism which were not substantiated. See S (CE) v S (LJ) (1980), 30 N.B.R. (2d) 458, 70 A.P.R. 458, 1980 CarswellNB 242 (QB) where the divorce was granted on the alternate ground of cruelty, with custody going to the wife. See also Hahn v Stafford [1985] OJ No 595, 1985 CarswellOnt 1871(HCJ). The final two reported cases involve sex between men. They are notable for their lack of discussion regarding the homosexual act. See King v King (1985), 47 RFL (2d) 58, [1985] OJ No 432, 1985 CarswellOnt 295 (HCJ) and Carson v Carson (1985), 61 NBR (2d) 351, 46 RFL (2d) 102, 1985 CarswellNB 25 (QBFD).

38 There were 38,116 divorce petitions filed during the first year of the new Divorce Act’s operation, with 87 of those petitions stating the homosexual act as a ground, see Mendes da Costa, “The Divorce Act 1968,” 118. I have sampled approximately 4,000 divorce case files for the province of New Brunswick and for the York Judicial District (Toronto) in Ontario and found 16 files in which a spouse committing a homosexual act was a ground for the petition. Of these, twelve are about men and only four involve lesbians. In contrast, six of the eight reported cases are about lesbianism. Arguably, the editors of the law reports were more interested in the cases involving sex between women, either because the definition of the homosexual act between women was the issue of legal significance, or because they were more sensational.

39 Morrison v Morrison, 1972 CarswellPEI 5, 2 Nfld & PEIR 465, 24 DLR (3d) 114 (sub nom M v M) 7 RFL 384) (SC).

40 Ibid., at para 12.

41 Ibid.

42 Ibid., at para 18.

43 Ibid., at para 12.

44 Ibid.

45 Ibid.

46 Ibid., at para 14.

47 Ibid., at para 15.

48 Ibid., at para 16.

49 Ibid.

50 Ibid., at para 17.

51 Ibid.

52 Ibid. For more on married lesbians in the period, see Lauren Jae Gutterman, “‘‘The House on the Borderland’: Lesbian Desire, Marriage, and the Household, 1950–1979,” Journal of Social History 46 (2012): 1–22.

53 Morrison, at para 17.

54 Morris Ploscowe, Sex and the Law, rev. ed. (New York: Prentice-Hall, 1962).

55 Morrison, at para 19.

56 Ibid., at para 22.

57 Criminal Code, RSC 1970, c 34, ss 157, 158.

58 Ibid., at para 27.

59 Ibid., at para 28.

60 Gaveronski v Gaveronski, 1974 CarswellSask 57, 45 DLR (3d) 317, [1974] 4 WWR 106, 15 RFL 160, (QB).

61 Ibid., at para 4.

62 Ibid., at para 6.

63 Ibid., at paras 7 and 8.

64 Ibid., at para 8.

65 Morrison, at paras 23–27.

66 Smith v Smith, [1952] 2 SCR 312 at para 32.

67 Ibid., at para 10.

68 T v T, 1975 CarswellMan 22, 24 RFL 157 (QB).

69 Ibid., at para 16.

70 Ibid., at para 18.

71 Ibid., at para 17, quoting Smith at para 36.

72 Ibid., at para 22.

73 Ibid.

74 For example where the parties’ separation agreement included a clause stating that the wife’s maintenance would continue only as long as she refrained from sexual relations, “the existence of such a clause and the penalties attached to its violation might be considered as relevant evidence for the defence, tending to show the improbability that the offence alleged has occurred,” Payne, Law & Practice Relating to Divorce, 427.

75 Mendes da Costa, “Divorce Act, 1968,” 138, n. 131.

76 Ibid., 142–43.

77 Ibid., at para 25.

78 M.C. Kronby, Divorce Practice Manual, 2nd ed. (Toronto: Butterworths, 1977), 102.

79 T v T, at para 28.

80 Guy v Guy, 1982 CarswellOnt 794, 25 OR (2d) 584 (SC).

81 Divorce Act, 1968, s 11.

82 Guy, at para 21.

83 Ibid., at para 22, quoting Iverson v Iverson, [1967] Pr. 134, at page 138.

84 Ibid., at para 25.

85 Marriage breakdown is the sole ground for divorce in the 1985 legislation. Marriage breakdown may be proved by adultery, cruelty, or living separate and apart for one year. Divorce Act, RSC 1985, c 3, s 8.

86 Case v Case (1974), 18 RFL 132 (Sask QB).

87 Arnup, “Mothers Just Like Others,” 26.

88 Criminal Law Amendment Act, 1968–69, SC, c 38.

89 Criminal Code, RSC 1970, c 34, ss 157, 158.

90 On recent episodes in the battle over public sex, I refer to the November, 2016 police undercover operation in an Etobicoke, Ontario park, see http://www.dailyxtra.com/toronto/news-and-ideas/opinion/project-marie-the-latest-chapter-in-toronto-police%E2%80%99s-long-history-targeting-queer-sex-211210#. On the “two persons” restriction in the 1969 reform, see Thomas Hooper, “‘More Than Two Is a Crowd’: Mononormativity and Gross Indecency in the Criminal Code,1981–82” Journal of Canadian Studies 48 (2014): 53–82. See also Kinsman, Regulation of Desire, 164–178.

91 Kinsman, Regulation of Desire, 214.

92 Lesbian conduct had never been criminalized in Anglo-Canadian law. Although the amendments to the law of gross indecency formally applied to women, it was not until the 1980s that prosecutions of lesbians for gross indecency began to be reported. The jurisprudence in the family law cases may have influenced law enforcement and judicial approaches to lesbianism and gross indecency. The characterization of the grossly indecent act in R v C [1981] NJ No 207, 30 Nfld & PEIR 451, 84 APR 451, rev’d R v Clancey [1982] NJ No 1, 39 Nfld & PEIR 8 (CA) is similar to the judicial attempts to define the homosexual act between women in the family law context. This is the earliest case I have found where a woman was prosecuted for gross indecency for sex with another woman.

* This research has been presented at conferences of legal scholars, historians, and legal historians, all of whom provided valuable feedback. Tom Hooper and Gary Kinsman shared their insight into and knowledge of queer history in Canada. My colleagues at UNB law, Jula Hughes and Aloke Chatterjee, shared their criminal law expertise. Thanks also to Jessi Taylor for her help and encouragement. The anonymous reviewers for this journal gave me the benefit of careful reading and insightful comments that pushed me to think more deeply and rigorously. Any remaining errors are my own. This article is dedicated to the 1970s and 1980s lesbian-feminists and anarcha-feminists who worked angrily and joyously to politicize the vulva.

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