The ANU School of History’s Professor Carolyn Strange has published an article in the Canadian Historical Review on “Determining the Punishment of Sex Criminals in Confederation-Era Canada: A Matter of National Policy”.
Professor Carolyn Strange is a specialist in the history of gender and sexuality, and she has published extensively on the history of crime, punishment, and mercy in Canada, the United States, and Australia. This article branches from her forthcoming book on the administration of the death penalty, from Confederation to abolition, in response to capital convictions for rape, carnal knowledge, and sex murder.
Criminal justice was a critical component of nation building, which culminated in Canada’s adoption of a federal Criminal Code in 1892. However, the connections between criminal law reform and the Dominion’s fortunes began in 1869, when penal policy was first formulated and debated on a national stage. At that point, the mandatory sentence of death applied to rape and carnal knowledge of a girl under ten years of age. This article analyzes why and how Canada’s early harsh stance, promoted by John A. Macdonald, gave way, within a decade, to milder penalties. It argues that existing explanations, which focus on the “civilization” of punishment and the racist character of penal policy, must be augmented by an analysis of regional tensions, clashes between the judiciary and the legislature, and the factors at play in individual capital cases (twenty-six in total, from 1867–77). Executive discretion, while constitutional, ultimately proved to be a liability in the broader project of nation building.
You can read the article online here: https://www.utpjournals.press/doi/full/10.3138/chr.2017-0122