by Patrice Corriveau, translated by Kathe Roth. Vancouver and Toronto: University of British Columbia Press, 2011. 244pp. Cloth $85.00. ISBN: 9780774817202. Paper $29.95. ISBN: 9780774817219.
Reviewed by Greg Marquis, Department of History and Political Science, University of New Brunswick Saint John. Email: gmarquis [at] unb.ca
In 2004 the highest court in Canada’s province of Quebec, the Court of Appeal, upheld an earlier Superior Court of Quebec ruling that the traditional definition of marriage was a violation of section 15 of Canada’s Charter of Rights and Freedoms. In 2004 Quebec, following Ontario and British Columbia, became the third province in Canada to allow same-sex marriages. By the end of that year courts in the Yukon territory, Manitoba, Nova Scotia, Saskatchewan and Newfoundland and Labrador had done the same. In 2005, by a margin of less than 30 votes, the House of Commons passed Bill C-38, which permitted same-sex civil marriages. Almost all of the Conservative Party Members of Parliament had voted against the measure. Despite this social progress, same-sex marriage in Canada was not uncontroversial (pp.132-34).
Judging Homosexuals by criminology professor Patrice Corriveau is an interesting comparative study of the legal persecution of homosexuals in two francophone societies, France and Quebec, from the 17th century until recent times. Corriveau adopts the explanatory theory that at different times in history, usually social or economic crises, the “dominant classes,” acting in the name of religion, public order or the family, have scapegoated and repressed the “dangerous” classes (p.168). Although they share a common culture, the legal and political systems of the two jurisdictions discussed in the book have developed on distinct trajectories; Quebec, for example, a colony of France’s until 1763, was a British colony until it became a province of Canada in 1867. Under the British North America Act of 1867, the federal government could legislate on marriage and divorce, but Sec. 92 (12) gave the provinces exclusive rights over the “solemnization” of marriages. In Quebec, where most of the population remained French speaking and Roman Catholic, the Catholic church retained, well into the 1950s, a conservative grip on family or social policy. Women in Quebec were permitted to vote on the provincial level only in 1940 and prior to the 1968 federal Divorce Act, unlike in a number of other provinces, the courts played no part in divorce.
This study is not a social history of homosexuality in France and Quebec, but an examination of how homosexuality was constructed by law as shaped by various experts and organizations of influence such as the clergy, doctors and jurists. Corriveau brings a socio-historic analysis of dominant discourses on homo-erotic behaviour. Much like religious arguments and secular laws against divorce, the abiding fear was that [*133] homosexuality was a threat to the family, the basic social and economic unit. As late as 1968 gay men in Canada were subject to prosecution, not for being gay, but for committing homosexual acts. A generation later, the homosexual in Canada, and in many other western nations, had been transformed from a sinful or mentally-ill deviant to a rights-bearing citizen supposedly welcome in modern democratic society (p.vii).
The book begins with an examination of European attitudes and responses to homoerotic behavior in the centuries prior to the 1600s. Same-sex relationships were not demonized in ancient Greece but in the transition from the late Roman Empire to the Middle Ages, municipal, feudal and royal laws were enacted against sodomists. One challenge for historical researchers is that societies attempted to obscure the “social reality” of homoerotic behaviour and that homosexuals themselves were afraid to document their lifestyle and risk legal repression. One argument is that the growing sexual repression under early Christianity was part of the battle against paganism. The early medieval Church taught that marriage was the sole rationale for sexuality but homosexual acts were a part of a long list of deviant acts forbidden under Christian doctrine. The sodomist also was a perfect political scapegoat, with the act being associated with heretics and non-Christians such as Muslims.
The heart of Corriveau’s study covers the period from 1670, when New France adopted the Grande Ordonnance, to the recent years of legal reform. In Ancien Regime France, despite the seriousness of the offence, which could result in a sentence of burning at the stake, the authorities appear to have exercised leniency and in most cases attempted to conceal the crime from public scrutiny. Operating behind most prosecutions was an official fear of sodomists as a threat to youth. The dispersed population of New France, weak policing and “the omnipresent violence in settlers’ lives,” the author suggests, explains the relative absence of prosecutions against sodomy (p.39). Only three prosecutions against “unnatural acts” in the colony have been uncovered; one resulted in a death sentence converted to imprisonment; a second in banishment and the third (for bestiality) despite the application of judicial torture resulted in an acquittal.
In the period form the late 18th century until that late 19th century, homoerotic behaviour in France was a smaller part of the bourgeoisie’s anxieties over unbridled sexuality. Medical experts viewed homosexual acts as manifestations of “inversion.” Following the Conquest of the 1760s New France, first as the colony of Quebec, then as Lower Canada, was under British criminal law, although the Catholic church dominated social policy. Although sodomy prosecutions up to the 1840s were rare, Corriveau reviews the relevant British legal thinking on the subject, represented by Blackstone, Bentham and Stephen. Canada passed legislation against sodomy (which had to involve anal penetration) in the 1840s; the penalty of death was changed to life in prison beginning in 1869. In 1890 all homoerotic behaviour was brought under the legal category gross indecency, which became the preferred charge against homosexuals. Corriveau argues that it was no longer the isolated act of sodomy that was persecuted, but [*134] “homoerotic desire, associated with a specific personality type”(p.73).
Until the provision was repealed in the late 1960s, gross indecency was used by urban police against men engaged in acts of public indecency, often involving minors. The emphasis was on what would later be called gay cruise areas such as public parks and washrooms. This was motivated in part by a new emphasis on homoerotic behaviour not as a sin against God but as a form of social contagion that targeted minors. By the mid 20th century the stereotype of the relatively harmless effeminate homosexual had been joined in the media and political spheres by the image of the dangerous psychopath who was a threat to children. Although the arrest totals seem too low to be statistically significant, the author discusses a study by Demers that suggests that an upsurge in sodomy prosecutions in Quebec during the 1930s was somehow related to the economic crisis. Chapter 4 also discusses the medical construction of homosexuality as a disease or pathology that could be possibly cured. The threat of the more dangerous, incurable manifestation, evidenced by the “homophobic panic” (p.95) of the 1950s, was reflected in 1961 legislation dealing with sexual psychopaths. Men in Montreal’s gay lifestyle in the 1960s recalled police raids conducted with “lies, violence and hate” (p.100) and the mainstream media discussed homosexuality in negative terms. Until the early 1940s, in contrast to the situation in Quebec, France’s responses to homosexual lifestyle were relatively liberal. Homosexual activity was under police surveillance, but French citizens (as opposed to foreigners) tended to evade prosecution. This changed with the socially conservative Vichy regime beginning in 1942. The new penal code dictated jail sentences for those who facilitated “debauchery or corruption of a youth of either sex, below the age of twenty-one” (p.106). Although France retained its reputation as being relatively tolerant to homosexuality after the war, political, judicial and medical authorities continued to distrust homoerotic behaviour.
During the period from the 1970s to the present western industrial societies experienced a sexual revolution reflected in not only social practice and attitudes but also political mobilization and legal changes. Reform came more quickly in Quebec than in France. Homosexuals organized a gay liberation movement, became more visible and began asserting demands for rights and legal protections. Opposition to liberalized attitudes and policies remained, and was reinforced by public fears over the AIDS crisis in the 1980s. In Canada homosexual acts were partly decriminalized by a 1968 Criminal Code amendment that permitted sodomy between two adults in private, although gross indecency continued to be prosecuted in Quebec and other parts of the nation. Police repression of homosexuals in Montreal helped to ignite a wave of gay and lesbian activism that won political and legal reforms. Between the 1950s and the 1980s Quebec was transformed from one of Canada’s most socially conservative provinces to one of its most socially tolerant. In 1977 Quebec enacted a Charter of Human Rights and Freedoms, which protected homosexuals from discrimination in area under provincial government jurisdiction.
Although homosexuals mobilized and [*135] gained increased support in France in the 1970s, they were still subjected to morality policing. In 1980 the crime of homosexual indecent assault was removed from the penal code. The AIDS scare did result in the closure of many of the gay saunas and clubs that had appeared in the 1970s, but the long-term trend was towards liberalization. France in 1999 enacted one reform liberalizing family law, recognizing certain rights in civil unions under pactes civil de solidarités (PACs). Social conservatives feared that the PACs were a step towards recognition of gay marriage, but the vast majority of couples to whom they applied were heterosexual.
Judging Homosexuals has a clear thesis and is logically organized. The translator has done an excellent job in making specialized academic discussion understandable in a second language. The book is highly readable and should prove to be of value to not only academics in a number of disciplines such as history, criminology and gender studies, but also undergraduates. Historians who rely on primary sources may be disappointed in Corriveau’s reliance on secondary works (although a number of them date from the 18th and 19th centuries or earlier). As Corriveau points out, documentation of gay lifestyles and of legal repression of homosexual activity has been rare; he does reference, in endnotes only, archival sources from the Bibliothèque nationale de France and the Bibliothèque de l’Arsenal.
Since the publication of this study, France has further modernized its family law. Following a failed attempt to pass a same-sex marriage law in 2011, momentum for change began to build in 2012. Under a Socialist majority the National Assembly, despite a massive protest in the streets of Paris, in February 2013 passed measures approving same-sex marriage and adoption rights. At the time of writing of this review, the matter remains in the hands of France’s Senate (“French MPS approve”).
British North American Act, 1867, 30 Victoria, c 3
“French MPs approve gay marriage bill,” The Guardian, 12 Feb., 2013, http://www.guardian.co.uk/world/2013/feb/12/french-gay-marriage-bill
Copyright 2013 by the Author, Greg Marquis.