Introduction
Between 1886 and 1890 in Wentworth County, Ontario, Crown Attorney John Crerar prosecuted three cases involving sexual relations between adolescent girls and their male family members. These cases include the prosecution of the grandfather of fifteen-year-old Mary in 1888, the stepfather of fifteen-year-old Ann in 1890 and the father of fifteen-year-old Alice, also in 1890. Incest was not a well-understood form of sexual violence in this period, and it did not become a crime under federal law until mid-1890, after the conclusion of these prosecutions.Footnote 1 Prior to 1886, such cases were typically prosecuted as rape, indecent assault or other related offences, but the coercive characteristics of incestuous abuse presented prosecutorial challenges under rape law. To overcome this, Crerar relied upon a new statutory option to prosecute these three cases. The 1880s and early 1890s were a period of concentrated criminal law revision culminating in its codification in 1892 and, corresponding with a peak in interest over social purity and the protection of women and girls, several sexual offences were added to the statute book.Footnote 2 Seduction, established in 1886, criminalized “illicit connection” with girls under the age of sixteen who were of “previous chaste character.”Footnote 3 In the absence of a more suitable statutory option, Crerar prosecuted each of these cases under the new seduction law. Ultimately, only Ann’s case resulted in a conviction.
These cases facilitate an examination on two fronts. First, this unusual use of seduction allows us to reconsider the significance of consent for seduction cases. In Karen Dubinsky’s 1993 study on sexuality and law in Ontario, the operation of seduction in cases of consensual sexual interaction was established, but, in this and other studies, its use in non-consensual cases has received limited attention.Footnote 4 Moreover, there is no literature on seduction that identifies its use in cases of incestuous abuse—an application of the law that is not incidental: Crerar did not prosecute non-incestuous sexual crimes under this statute in the first five years of its existence, indicating that he viewed seduction as particularly applicable to cases involving incest.Footnote 5 Examination of these cases provides insight into the contemporary response to intra-familial sexual abuse and the role of regional variability and judicial discretion in its prosecution. Second, these cases demonstrate how the limitations of contemporary legal frameworks shaped responses to the victimization of girls within the family. The courts were highly skeptical about claims of intra-familial sexual abuse and the mechanics of seduction law encouraged doubts about victim credibility, particularly in cases involving biological relatives. Experiences of coercive and ongoing abuse within the family home were illegible within the confines of contemporary law and discourse, and this had, in Alice’s case, a long-term impact on her safety and community membership.
Taken together, these examinations reveal how the criminal law’s incapacity to address incest was borne by abused adolescent girls, who served as testing sites for evolving sociolegal understandings of consent and coercion. At the same time, the conceit that these girls were “seduced” complicates the legal and social interpretation of incestuous abuse, girls’ efforts to resist, and public reception. This study will first explore the historiography of seduction, gaps in rape legislation, and the legal and conceptual framing of seduction, before surveying each case, and will conclude by considering the afterlife of these crimes and the legacy of seduction and incest legislation.
The problem of consent in rape law
Promoted by John Charlton, MP of Norfolk North, and granted assent in 1886, the seduction statute, colloquially known as the Charlton Act, established a misdemeanour offence punishable by up to two years’ imprisonment.Footnote 6 In a 1983 article, Graham Parker stressed seduction’s distinctions from age-of-consent legislation and argued that the “previous chaste character” clause had the effect of determining whether an act was criminal based on a binary assessment of whether the girl involved was “good” or “bad.”Footnote 7 In this way, seduction selectively problematized consent, whereas age-of-consent legislation, in 1880s Canada, rendered the consent of anyone under the age of twelve irrelevant.Footnote 8 For legal historian John McLaren, criminal seduction was an extension of middle-class anxieties about sexual morality, feminine virtue and the behaviours of the working class.Footnote 9 Constance Backhouse has examined seduction in the context of rape law, viewing it as a patriarchal response to concerns about feminine chastity that neglected considerations of sexual consent but nevertheless presented alternatives to the requirement that sexual offences must involve violence and physical resistance. She also notes that, despite its potential, it is unlikely that its parliamentary advocates saw seduction as a solution to the weaknesses in rape law.Footnote 10 As this study explores, this potential was put to the test in Wentworth County, even while the paradigm of incest transformed understandings of rape.
Of importance to this study is Karen Dubinsky’s work on seduction prosecutions in Ontario, where seduction is framed as legislating parental authority and social control over the sexual conduct of adolescent girls. Dubinsky concludes that, while non-consensual sexual interactions could result in charges for seduction, seduction was broadly a means of regulating consensual sex.Footnote 11 Fewer that 20 percent of the seduction cases surveyed by Dubinsky were the result of non-consensual sex and she notes that, contrary to the cases that we will examine from Wentworth County, non-consensual cases had high conviction rates, particularly when the perpetrator was known to the victim.Footnote 12 Notably, while Dubinsky’s study includes all counties in Northern Ontario and half of those in Southern Ontario, selected randomly, it did not include Wentworth County.Footnote 13 The inclusion of Wentworth County’s seduction cases, few as they are, may not have changed Dubinsky’s quantitative results by significant margins. They do, however, offer a qualitative perspective that can broaden our understanding of sexual violations, particularly when coercion is not physical—a dynamic not considered in Dubinsky’s study.Footnote 14
The Wentworth County cases provide additional context for criminal seduction, as well as for the history of rape and incest. Backhouse describes the enactment of the criminal seduction statute as a “hollow victory” and seduction has typically been seen as a tenuous means of addressing injustices against girls, with multiple scholarly accounts noting its low conviction rates.Footnote 15 These conclusions hold true in this study. The seduction statute was deficient but offered a narrow legal avenue for cases involving girls over the age of consent, who had very little recourse for sexual encounters that fell short of the legal test for rape. The potential usefulness of seduction for cases of intra-familial sexual abuse lay within the contemporary articulation of consent in rape law, which clashed with the coercive characteristics of incest. Rape was a capital offence in Canada throughout this period and those convicted faced a maximum sentence of life imprisonment or death, with a minimum sentence of seven years’ imprisonment. In the Ontario criminal courts, as Backhouse has noted, jurors and judges understood that, in cases of rape, women were expected to offer sustained resistance, to the point that they could be understood by the perpetrator to be “resisting to the utmost” and overcome only by “force or terror.”Footnote 16 If the effort to “violently resist” was not made, then consent was assumed and the conviction would not generally be secured.Footnote 17 In at least one non-incestuous Ontario case in which charges for seduction and rape were considered, the grand jury rejected the charge of rape based on what they perceived to be a lack of resistance and instead returned a true bill on the charge of seduction, which ultimately resulted in a conviction at trial.Footnote 18
However, while violence and physical resistance were generally expected in rape cases, judges, attorneys and juries recognized that cases involving incest could merit special treatment under rape law. For incestuous abuse, the question of “terror” took precedence over the typical focus on “force.” An Ontario appellate court ruling in 1889 held that, when cases involved incest, physical restraint was not necessary to establish the crime of rape if the father held a “reign of terror” over the household on the night in question. Relying on English precedent, the court determined that, in these circumstances, any consent or submission could be understood to have been achieved through fear, resulting in a sentence of fifteen years in prison for the father involved in this York County case.Footnote 19 This reflects Carolyn Strange’s findings in her study of York County rape cases, in which those involving incest were some of the most likely to result in a conviction and a lengthy sentence.Footnote 20 However, the obvious reign of terror in this case, in which the father, in a rage, became violent with the whole household, did not characterize the experience of all victims of incestuous abuse and courts were not inclined to describe long-term coercive experiences as “terror.” Moreover, the fact that this case was appealed indicates that the suitability of rape law for prosecuting incestuous abuse was uncertain in this period. While criminal prosecutions in general depended upon the discretion and knowledge of the legal professionals involved, this was especially fraught for a phenomenon as poorly understood as incest.
The Crown attorney’s solution
By the 1880s, Ontario criminal prosecutions relied upon Crown attorneys—salaried government-appointed prosecutors who represented the Crown within a particular county—to prepare and prosecute most criminal cases, in contrast to those of other provinces.Footnote 21 Established in Upper Canada in 1857, the Crown-attorney system shifted the responsibilities of criminal prosecutions away from an ad-hoc system of Crown counsel and private prosecutions.Footnote 22 Crown attorneys possessed significant discretionary powers and were responsible for initiating further investigations into complaints and making charging decisions.Footnote 23 For cases of intra-familial sexual abuse, in which the choice of charge was made from several imperfect options, this discretionary power is highly important. The decision made by Wentworth County Crown Attorney John Crerar to use seduction for three consecutive cases indicates his dissatisfaction with rape law and the desire to find a more effective prosecutorial strategy.
John Crerar was a clever man “of intense convictions” and excellent debating skill, who pursued a legal career alongside his active involvement in Liberal party politics through the 1870s. He quickly solidified his reputation as a talented barrister in Hamilton, the county seat of Wentworth County.Footnote 24 Crerar was a judicial risk-taker, willing to pursue unconventional legal strategies, as demonstrated in an 1876 homicide case in which he applied an insanity defence in a manner that departed from prevailing precedents.Footnote 25 Appointed Crown attorney in 1881, Crerar was equally bold in his new role and had no qualms about clashing with the status quo and, occasionally, with the local magistrate.Footnote 26 His quick adoption of the new seduction statute demonstrates a characteristic departure from convention. Prior to the establishment of seduction, Crerar prosecuted cases of incestuous abuse by the usual means: an 1886 Hamilton case concluded with a short sentence for indecent assault a few months prior to the passage of seduction.Footnote 27 Indecent assault carried the same penalty as seduction, but reflected the framework of rape law around consent and Crerar opted not to use it for subsequent cases of incestuous abuse once seduction was established. This decision reflects the contemporary tension around sexual violence, coercion and consent, which Crerar attempted to mediate through the strictures of the law. Crerar chose seduction because it appeared to be the simplest strategy to prosecute crimes in which consent, by the standard of the time, was seen as ambiguous.
As Linda Gordon has noted, incestuous sex “cannot be said to be motivated only by hostility or to be experienced simply as abuse” and this challenges understandings of acquiescence and resistance.Footnote 28 The privacy of the home, the sanctity with which it was treated by the law and the gendered power dynamics therein facilitated abuse that could occur over a long period, with escalating and perhaps non-violent grooming strategies aimed at building trust or secrecy.Footnote 29 Often, the power imbalance between girls and the family patriarch would have made physical resistance seem futile and physical force or verbal threats were not needed when more subtle manipulations were possible. In the absence of an indictable offence for incest or a sufficiently high age of consent, the seduction law allowed men to be brought to trial for cases that did not, for a society with a limited understanding of consent, read as rape or indecent assault.Footnote 30 When bringing a charge of seduction, the Crown would not need to prove that the girl resisted, nor that the head of household had instituted a “reign of terror”—only that sexual connection had occurred and that the girl was previously chaste.
Notably, the concept of seduction was prominent in nineteenth-century cultural scripts about coercive sexual experiences involving young people, which may have contributed to the readiness with which criminal seduction was received. The term “seduction” was colloquially used to describe sexual encounters between children and adults. Young people relayed their own experiences through this language, describing being “seduced” in instances that we now consider non-consensual or, as in William T. Stead’s “Maiden Tribute of Modern Babylon,” requesting to be paid in exchange for their “seduction.”Footnote 31 For Victorians, seduction implied vulnerability, coercion and potential criminality (in some contexts, it was used interchangeably with rape), but it could also suggest sexual precocity, moral corruption or susceptibility to sexual or material temptation, particularly for older working-class girls.Footnote 32 This ambiguity made the concept capacious, common and useful. As a criminal offence, seduction offered a legal avenue for cases that did not comfortably fit within the framework of any other indictable offence in this period by accommodating the perceived grey area of coercive sexual experiences. At the same time, it offered an organic interpretive lens, as the terminology fitted the contemporary understanding of sexual experiences between young people and adults.
The Wentworth County cases
Despite its theoretical potential, this prosecutorial strategy did not resolve the challenges presented by cases of incestuous abuse. Often, the failures of prosecutions under the Charlton Act have been attributed to the “previous chaste character” clause, as defence attorneys commonly used evidence of past romantic relationships, truancy or any other behaviours broadly defined as immoral to tarnish the complainant’s character.Footnote 33 However, it was the requirement of corroboration that derailed the three Wentworth County cases. The problem of corroboration and, by extension, the lack of credibility afforded to girls is exemplified in Mary’s case.
Mary
In 1888, Mary, a pregnant fifteen-year-old, testified that, following a period of domestic employment, she had returned a year prior to the family home. She explained that her grandfather, George, “had tried to take improper liberties with me before I went to service, but never succeeded until after I came home.”Footnote 34 Her family were working-class English immigrants living in a small house and George slept in the same room as his three granddaughters. Mary’s mother, father and sister supported her account, with her mother testifying that she “had been in fear of her father ever since her childhood, and for that reason dared not refuse to allow him to live in the house.”Footnote 35 While Mary’s family provided evidence at the assize court a few months later, Judge John Rose declared this to be insufficient for the requirement of corroboration and directed the jury to deliver a verdict of not guilty.Footnote 36
At the close of the assizes, the grand jury expressed frustration with this verdict, calling the seduction law “defective,” as “such cases in their very nature will be wanting in this necessary particular.” Responding to this, Judge Rose revealed that he had a “strong suspicion that the charges had not been laid exactly in the interest of society” and suspected extortion to have played a role.Footnote 37 During the trial, Mary’s mother testified that, upon finding her daughter pregnant, she had confronted George and asked what he planned to do about his pregnant granddaughter. The judge stated that this “gave a colour to the case that it should not possess” and that Mary’s mother ought to have been so prostrate that she could not speak to the accused. The judge interpreted the confrontation as her opening “negotiations for a settlement.” He went on to express sympathy for the defendant, for whom he thought the experience of being in court was likely “very trying to a nervous man.” He did not extend this sympathy to young Mary, who had given birth a month prior.Footnote 38
Judge Rose’s sympathies and his belief that this was a matter of extortion suggest either that his pity for George and his distaste for Mary’s mother outweighed other considerations or that he did not believe incestuous abuse to have occurred and assumed another man had fathered Mary’s child. In either case, he ignored the fact that the long-standing tort of seduction—through which fathers could secure damages in the event that their daughter became pregnant—offered a popular means of gaining monetary recompense without a criminal proceeding of this nature.Footnote 39 This disinclination to confront incestuous abuse was common and reflects the parliamentary debates of this period. When a bill to criminalize incest circulated in the early 1880s, MP Malcolm Colin Cameron argued that a criminal law on incest was needed to resolve the high burden of proof involved in rape cases, but opponents argued that this type of behaviour did not occur in Canada.Footnote 40 Various MPs noted that, while they would support this legislation if it were necessary, they were not aware of any instances of incest in their jurisdictions and needlessly adding incest to the statute book would be a black mark on the character of Canadians.Footnote 41 To mediate these positions, some proposed that cases of incest could be tried privately to spare the communities from shame—a concern that exemplifies the insidious nature of incestuous abuse: the societal desire to keep incest hidden behind the doors of the home is reflected in the desire to keep the doors of the courts firmly closed and in Judge Rose’s refusal to believe Mary or her family.Footnote 42 Judge Rose instead exploited the stereotype of the conniving and irresponsible working-class mother, blamed for the supposed sexual delinquency of her daughter. Dubinsky has observed that this type of displacement of blame away from men and towards mothers was common in Ontario incest cases, as was suspicion over financial negotiations in any sexual offence cases.Footnote 43 Lacking an understanding of incest and the dynamics of secrecy and fear it engendered, the actual victimization of Mary was ignored and her experience rendered legally uninterpretable and irrelevant. No further charges were brought in this case.
Ann
By the time the 1890 cases came before the courts, the incest bill was still being debated and, despite the failure of seduction in Mary’s case, Crerar did not abandon his strategy. The courts may have received allegations of incestuous abuse with skepticism, but the press amplified fifteen-year-old Ann’s accusation against her stepfather in January 1890, engaging the taboo topic with simultaneous fascination and disgust. While Ann’s abuse did not meet the definition of incest that would, later that same year, be established in the federal law, it was discussed in the press as such and was referred to in the Hamilton Spectator as “one of the most revolting cases which has come to light for a long time past in this city.”Footnote 44
On 11 January 1890, Ann was arrested on a months-old warrant for a vagrancy charge made on the information of her stepfather, John. Upon being brought to the police station, she made a complaint to the on-duty constable, alleging that John had “seduced” her and taken “improper liberties with her since she was ten years old,” beginning before the family had emigrated from England. Her mother had recently discovered this, which prompted her stepfather to order Ann out of the house, at which time John revived his complaint of vagrancy in an effort to undermine Ann’s character. Her allegation was taken seriously, however, and John was arrested that same night and committed for trial at the County Court Judges’ Criminal Court, electing to be tried by the judge without a jury.Footnote 45 The charge dealt with an instance of seduction that had occurred on 11 November 1889, though Ann was required to answer questions about prior instances as well. She could not recall specific details from years past, but her testimony was regarded as convincing and competent. However, the question of corroboration was again raised. Several community members testified, verifying instances identified by Ann in which Ann and John were alone together, and, while the defence attempted to argue that their statements did not constitute the necessary corroboration, Judge John Muir disagreed. He found John guilty of criminally seducing his stepdaughter and sentenced him to eighteen months in prison.Footnote 46
The outcome of Mary’s and Ann’s cases demonstrate that these prosecutions hinged upon the judgement made on questions of corroboration, influenced innately by whether the judge accepted the claim made by the complainant. Ann’s was to be the only successful prosecution of the three and the only case in which the defendant was family but not a biological relation and non-familial testimony was presented. Her case lent itself to an assessment beyond the paradigm of the family that had generated such acute skepticism in Mary’s case. It is also likely that abuse by a stepfather was not as unimaginable as was the abuse of a father or grandfather and did not transgress the same social taboos that contributed to the previous failure of Mary’s case and the subsequent failure of Alice’s case.
Alice
Alice’s case is the most complex of those examined here, as it features several indictments and months of trials, through which a partial picture of Alice’s life emerges. When Alice and her mother Elizabeth appeared before the magistrates’ court on the morning of 22 January 1890, Elizabeth was severely bruised and missing two front teeth. The previous evening, fifteen-year-old Alice had disclosed to her mother that her father, William, had been sexually abusing her for several years and had threatened to kill her if she told anyone. Elizabeth’s injuries were the result of her subsequent confrontation with her husband. That night, both Alice and Elizabeth made complaints to the police about abuse in the household. William was arrested and, before the magistrate, he alleged that Alice’s account of sexual abuse was concocted in retaliation for his treatment of Elizabeth. He called Alice’s character into question by stating that Alice frequently ran away from home and stayed out all night. For her part, Alice had already told the magistrate that she was afraid to be alone with her father and avoided the home when possible.Footnote 47
A week later, at the Wentworth Criminal Court (the same sitting in which John was convicted), William pled guilty to a charge of assault against Elizabeth, for which he was sentenced to three months of hard labour.Footnote 48 Meanwhile, for his abuse of Alice, William was charged first with rape—the death threats present in this case could be used to establish “terror”—but the prosecution for this would have to wait until the next sitting of the assize court, in which serious capital offences were handled.Footnote 49 The Hamilton Spectator offers a more sensational explanation for the delay than do the court records, stating that Alice had been removed from the city by an unknown party so that she “could not be compelled to testify against her father.”Footnote 50 If accurate, this reflects the increased potential for intimidation and interference in cases that involve incest. In the interim, a charge of seduction was also made—it is likely that Crerar had grown uncertain over the efficacy of the rape charge and meant to use this as a fail-safe following the recent success of Ann’s case.
Alice was recovered by April for William’s rape trial, in which she testified that the sexual abuse had begun when she was ten years old. Over the course of two hours, the defence attorney jumped among dates from the previous five years and requested that Alice provide information from those dates, including the clothes she was wearing, the time of day and the locations at which the abuse had occurred. As requested, and likely desperate to secure a conviction, Alice gave precise details. According to the defence, she was attempting to add the “verisimilitude of truth” to her testimony by providing these specifics. The Hamilton Spectator summed up the apparently jovial atmosphere occasioned by this trial—the spirited cross-examination was reportedly part of the “fun of it.”Footnote 51 The only other witness was Alice’s brother, whose testimony about their father’s assaulting their mother on the night that Alice disclosed her abuse was deemed “unimportant.” Judge William Falconbridge repeatedly called Alice’s testimony “incredible” and refused to submit the case to jury deliberation on the evidence provided. He directed the jury to deliver a verdict of not guilty for the crime of rape.Footnote 52 As in Mary’s case, the grand jury did not share the judge’s skepticism, arguing that “manifest failures of justice” had occurred, in which “persons charged with very grave offences [had] escaped punishment.”Footnote 53
Alice’s testimony was not enough to overcome the judge’s doubts and corroboration was already proving to be problematic for her case, endangering the seduction prosecution. The seduction trial was delayed due to the absence of an “important witness”—Elizabeth, who did not attend the April assize court.Footnote 54 Due to this, the seduction charge—“an offence against public morals” rather than an offence against Alice’s person—was transferred to the Court of the General Sessions of the Peace, to be held in a few months’ time.Footnote 55 However, on 11 June 1890, Alice appeared in court alone with Crerar, who informed the judge that, as no witness had materialized, “the Crown could not succeed” and a not-guilty verdict was entered. In the period between the trials, William had served his three-month sentence for assaulting his wife and was released from custody.Footnote 56
The verdicts in context
The three cases were concluded, as was the Wentworth County experiment with seduction, which does not appear to have ever again been used to prosecute a case of incestuous abuse. Crerar did not leave a record of his assessment of these cases, but they share obvious similarities and divergences that encourage analysis. In each case, the girl involved was fifteen and from a working-class family that had emigrated to Canada from England during the girls’ lifetime. Their age placed them on the cusp between girlhood and womanhood, and this, alongside their status as young female immigrants from poor labouring families, would have contributed to doubts about their sexual morality and respectability.Footnote 57 Ann’s case, however, inspired fewer doubts and it is no coincidence that hers is the case least burdened by the dynamics of incest and that most reflects Dubinsky’s conclusions about high conviction rates for non-consensual seduction cases.Footnote 58 While abuse by a stepfather generated outrage, the hurdle of disbelief regarding incest was smaller in this case and, as her abuse did not occur only within the confines of the home, it was possible for credible, non-familial witnesses to provide corroboration.
Seduction appears to have encountered problems when applied to cases of incestuous abuse such as Mary’s and Alice’s, however. The conceptual framing of these events as “seductions” failed to convey the nature of the abuse and the requirement for corroboration decreased the perceived credibility of victims, while accusations of incest devalued the testimony of family members. Family testimony that spoke to the character of the home and the relations therein was discredited, as in Mary’s case. This aligns with the disinclination of the courts to meddle in family affairs and with the response to mothers in cases of child sexual abuse, where their testimony was often met with suspicion.Footnote 59 Following accusations of incestuous abuse, it was not uncommon for mothers to be accused, as Elizabeth was, of recruiting their daughters in vendettas against their husbands.Footnote 60 Had Elizabeth testified, her abuse at William’s hands may have discredited her account. For mothers, the decision to testify against their husband not only posed emotional and physical risk, but also threatened significant economic and social repercussions for working-class women who relied upon their husband’s income for survival.Footnote 61 The success of Ann’s case and the failures of Mary’s and Alice’s indicate that the centrality of the family complicated the application of seduction for cases of intra-familial sexual abuse.
As Gordon has observed, feminist critique has been crucial for recognizing incest as a significant problem and interpreting the power dynamics involved, without which incest becomes anomalous and obscure.Footnote 62 In Canada, incest had not yet been subjected to comprehensive legal or social interrogation and could not be understood through seduction or contemporary rape law. Neither the provisions in the law nor the implications of seduction as a cultural touchpoint communicated the experiences of these girls in a way that could foster justice. For Mary and Alice, the failures of these prosecutions counter the trend observed by Strange of severe penalties for incest and the success of non-consensual seduction prosecutions identified by Dubinsky.Footnote 63 The confluence of seduction and incest transformed these outcomes. Moreover, the result of Ann’s case, with its notably short sentence, was not likely experienced as a major victory. The criminal offence of seduction did not reflect the nature of the abuse experienced by each girl and did not, in many cases, secure convictions. Girls such as Mary, Ann and Alice were left with no recourse when this legal experiment failed.
The criminalized victim
Alice’s story provides further insights into the repercussions of incestuous abuse and the failures of the criminal justice system, as, in the aftermath of the trials, she became the object of police suspicion. Following the prosecutions against her father, Alice was in a precarious position. While there were reports that her family was “broken up,” her home did not automatically become safe.Footnote 64 We cannot know what her relationship was like with her mother, but it was surely complicated following the trials that Alice endured alone. We know that William was still present in the home periodically, as Elizabeth suffered harassment and abuse from him subsequently.Footnote 65 Alice continued to avoid the home and, in July, only one month after her father was released, Alice was arrested by a Hamilton constable for vagrancy.Footnote 66 When Alice was brought before the magistrate, questions of her sexual morality were raised. Constables expressed their belief that she was “not leading a good life,” noting that she had been “misbehaving herself […] and was frequently seen in the company of men.”Footnote 67 Given the notoriety of the previous criminal proceedings, the police would have been aware of Alice’s accusations against her father. Undoubtedly, the police and magistrate were also aware of William’s long history of interactions with the courts, in which he was often charged and convicted for assaulting community members.Footnote 68 This did not mitigate their interpretation of Alice’s plight. The magistrate sentenced her to the Andrew Mercer Reformatory for a term of twenty months, in sharp contrast to the three months that her father had received for beating her mother.Footnote 69 Only a month after the conclusion of her difficult experience in navigating the criminal justice system, Alice had emerged as the member of her family who was most acutely criminalized. The societal unwillingness to engage with and address the realities of incestuous abuse had left Alice without a place in the community.
At the Mercer Reformatory in Toronto, girls over sixteen, which Alice by this time was, mingled with adult women who had committed a range of offences, but who were generally described as “fallen women.” While only a few women were committed as prostitutes, the superintendent estimated that the “majority” of inmates had worked as such and positioned vagrancy convictions as a cover for the primary concerns of prostitution and drunkenness.Footnote 70 Tamara Myers has observed that Montreal juvenile courts placed girls whom they suspected were victims of incest but whose abuse was unconfirmed in institutions as a form of both “punishment and protection” and related considerations may have played a role in Alice’s sentence.Footnote 71 However, her placement in the Mercer did little to improve her circumstances. Although inmates learned some domestic skills in the hopes that they would not lead “stained” lives upon their release, for many, their incarceration was itself a source of stigmatization.Footnote 72 Being sentenced to the Mercer painted women as part of a “criminal class” and recidivism was high.Footnote 73 Staff acknowledged that, despite the name of the institution, reform played a minor role.Footnote 74
Alice’s encounters with the law continued. Back in Hamilton by 1894, she appears periodically in police records, sometimes alongside other young women or girls framed as having similarly disreputable characters. In one case, rocks were thrown at Alice and a friend by local boys, but, because the magistrate “had a poor opinion of the girls,” he placed the blame on them for their tendency to “promenade the streets too frequently” and the boys were given only a warning.Footnote 75 Alice and girls like her were excluded from social and legal protections on the basis of their perceived character. A month later, Alice appears in the records alongside a younger girl named Edith, accused of stealing clothes and jewellery. Edith, at age fourteen, received a three-year sentence to the Mercer, but it is not clear whether Alice received another sentence at this time. Edith attempted suicide twice while confined in Hamilton awaiting her sentence, which illustrates the emotional stakes for young people involved in the criminal justice system.Footnote 76 Varied interactions with this system followed Alice into adulthood, but, as her girlhood ends, so too will we end our trespassing on her life.
Vagrancy charges were not uncommon for girls who were victims of incest or sexual violence more broadly, as accusations relating to sex created suspicion about the sexual morality of the girl involved—indeed, this scrutiny was central in seduction prosecutions.Footnote 77 The conceptual framework of seduction is implicated in this because, as Chloë Kennedy explains, seduction was seen as a process of corruption that created deviant sexuality in formerly innocent girls.Footnote 78 The moral character of girls who possessed sexual knowledge, even when unwillingly acquired, existed in a state of troubling indeterminacy that merited close observation, interrogation and, potentially, removal from the community.Footnote 79 For police and community members, the public presence of girls on the streets and their social behaviours bore the same markings as prostitution and vagrancy was used as a catch-all offence that encompassed a broad range of activity that defied the patriarchal confinement of girls to the home and to standards of chaste femininity.Footnote 80 Adolescent victims of incest were especially tied to narratives of vagrancy because intra-familial abuse left girls without the protection of the home and family that were assumed to assure their physical and moral safety.Footnote 81
The criminalization of incest victims has been observed by scholars in various locations, including Myers’s examination of girlhood delinquency in Montreal, Joan Sangster’s study of Ontario and Gordon’s exploration of Boston incest cases, all of which conclude that victim criminalization coincided with girls’ efforts to avoid further victimization at home.Footnote 82 In the cases examined here, narratives of vagrancy were initiated by the perpetrators of abuse. Alice’s father accused her of “running away from home” and staying out all night on numerous occasions, and Ann’s stepfather had her arrested for vagrancy. By circumstance and because their guardians had defiled the perceived safety of the familial home, these girls were forced to publicly break the conventions that prized their confinement to the private domain under the control of a patriarch and to behave in ways that were defined as vagrant. As Gordon has explained, “their resistance often transformed itself, or was transformed by the constriction of their environment, into further victimization.”Footnote 83
This pattern extended beyond vagrancy as well, as, in various contexts, girls who were victims of incest were likely candidates for criminalization. The pressures involved in following up on a complaint of intra-familial sexual abuse led to charges against victims that exemplify the labyrinth of obligation and marginalization that these girls were forced to navigate. In one case, fourteen-year-old Matilda from Hamilton was sent to the Mercer for an “indefinite period” for perjury in 1894, after admitting in court that she had been pressured by her stepfather to accuse another man of seducing her.Footnote 84 The only case in York County to be tried under the incest law after its passage saw a fourteen-year-old girl placed in the Mercer for refusing to testify against her father. A few days in the Mercer for contempt of court appear to have convinced her to speak and the judge cancelled the remainder of her sentence when her testimony led to her father’s conviction.Footnote 85 An 1890 case near Ottawa saw fourteen-year-old Josephine tried alongside her father for incest after she reported him but, ultimately, she was not believed and they were both acquitted. Two years later, Josephine was forced to conceal the birth of a child and, although her father was charged with incest, he was again acquitted, while Josephine received a two-year sentence to the Mercer for infanticide.Footnote 86 The varied obligations these girls held, to themselves, their families and to society, were irreconcilable in cases of incestuous abuse. They might be accused of a crime no matter what course they took, never mind the countless other social, emotional and financial considerations involved in pursuing criminal charges. In the face of these warring considerations, many victims opted to stay silent.Footnote 87 In Wentworth County, the lack of credibility given to accounts of incest, particularly when tied to seduction and combined with the challenges of establishing acceptable corroboration, may have further reinforced this reticence. Attempts to challenge a central tenet of the social order—the patriarchal family structure—could not succeed in a system that relied upon inadequate laws that privileged the preservation of patriarchal social conventions and mischaracterized the nature of incestuous abuse.
Conclusion
Through the late 1880s, Canadian legislators gradually moved beyond their doubts about whether incest existed in Canada. Transnational conversations about the sexual exploitation of girls, occasioned by the passage of the Criminal Law Amendment Act in Britain in 1885, shifted the reception to the bill on incest. When it was introduced again in 1890, it was accompanied by other legislation aimed at protecting women and girls, including amendments to age-of-consent and marriage provisions. While some MPs blamed working-class immorality and overcrowding for incest, others, informed by contemporary social purity concerns, now acknowledged the significance of the patriarchal structure of the family. Girls—as the sexual abuse of boys was not considered—were seen as subject to the “almost absolute power” their father wielded over them, which could be used to coerce their compliance.Footnote 88 Viewed through the lens of child sexual abuse, MPs acknowledged that incest often involved a father abusing “daughters of very tender years.”Footnote 89 Minister of Justice Sir John Thompson proposed that, given the potential for girls and women to be coerced by male relatives, the law should solely target male perpetrators.Footnote 90 Ultimately, where the original bill on incest had held both parties liable, the version that became law in the spring of 1890, a few months too late for use in Alice’s case, exempted from punishment women or girls who had only been a party to this crime due to “restraint, fear or duress.” Targeted at sexual intercourse between parent and child, siblings, and grandparent and grandchild, it imposed a penalty of up to fourteen years’ imprisonment.Footnote 91
However, into the twentieth century, trials for incest rarely appeared in Ontario courts and incestuous abuse was increasingly obscured behind psychological and medical explanations for symptoms of sexual abuse.Footnote 92 In Wentworth County, only a few cases were prosecuted under the incest statute in the two decades following 1890, none of which resulted in a conviction. By the mid-twentieth century, some Canadian medical experts supported the idea that children were complicit in incestuous relationships with their parents, undermining the conclusions drawn by nineteenth-century legislators.Footnote 93 Patriarchal authority and the centrality of the family in Canadian life have been supported by the dismissal of incest, first as a non-existent phenomenon and later as the result of uniquely deviant children. Despite this, instances of incest were never uncommon and the incest taboo was (and remains) more wished-for than real. It was regularly transgressed, with perpetrators confident that the sanctity of the private sphere would extend to their actions. Dorothy Chunn proposed in her work on British Columbia that incest and other forms of intra-familial violence posed a challenge to the normal function of the criminal justice system in the late Victorian period, which prioritized crime in the public sphere and allowed men to act with little interference well into the twentieth century.Footnote 94
In the period examined here, the success of these cases was tied to the interpretive coherence of the method of prosecution and to the complications engendered by the paradigm of the family. Seduction, while it appeared to have applications for coercive sexual activity, was not a suitable tool for securing convictions for cases involving incest. Nor was it often successful for other types of cases. Seduction was rarely invoked in the twentieth century, considered anachronistic and “ridiculous” by the 1970s and ultimately removed without fanfare from the Criminal Code in 1987, never having proved its worth.Footnote 95 Convictions resulted in much shorter sentences than those offered by rape or incest and, by requiring proof of previous chastity, harmed the reputation of the complainant.Footnote 96 Seduction could circumvent questions of consent, but it rendered the experience of incest illegible. Successful prosecution would have required the courts and prosecutors to confront domestic power dynamics and for victims and their families to be treated as credible sources, which neither seduction nor nineteenth-century rape law was positioned to accomplish.
Meanwhile, sexual violence tied vulnerable girls to notions of criminality, which was exacerbated for victims of intra-familial sexual abuse who were navigating between the patriarchal authority of their fathers and that of society. The treatment of victims demonstrates the recurring injustices produced by the inability to conceptualize incest and the lack of suitable social frameworks for addressing it. Having no significant recourse or protection, Alice was constructed in the wake of her allegations as a delinquent girl. That she had tried to seek a legal remedy for her abuse and was ultimately abandoned to the criminal justice system draws attention to the systemic failures of the Victorian family, the courts and society. The Wentworth County experiment with the prosecution of incestuous abuse cases under seduction demonstrates the challenges of responding to sexual harm through traditional criminal law mechanisms, which did not end in the Victorian period. Modern laws and social supports require constant re-evaluation and fortification, so that young people who try to bring light to dark and difficult subjects can receive more than just the admiration of future historians.
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