Twentieth-Century Canadian Law, Psychiatry, and Social Activism in Relation to Pedophiles and Child Sex Offenders By Justin F. Smith Thesis Submitted to the Faculty of Graduate and Postdoctoral Studies in partial fulfillment of the requirements of the MA degree in History University of Ottawa © Justin F. Smith, Ottawa, Canada, 2017 ABSTRACT Twentieth-Century Canadian Law, Psychiatry, and Social Activism in Relation to Pedophiles and Child Sex Offenders Justin Smith Supervisor: University of Ottawa Heather Murray The contemporary conflation of pedophiles and child sex offenders is a prevalent aspect of reporting in news and social media, as well as in government- sponsored efforts to prevent child sexual victimization. Throughout twentieth century Canada, however, legal experts, psychologists and psychiatrists, and social activists were recognizing the harmfulness of grouping individuals who may have a propensity to commit crime with those who have committed the most heinous of criminal acts. As early as 1938, Canadian legal experts suggested that criminal insanity was a myth, advocating for a divergence between legal punishment and psychiatric healthcare, but after World War 2 had enacted serious efforts targeting criminal sexual psychopathy. Successive Royal Commissions investigating sexual victimization and child abuse revealed that Canadian courts, jails, prisons, and remand services were unable to solely deal with the realities of child sexual victimization. Psychologists and psychiatrists of the American Psychological Association increasingly researched sex and sexuality, classifying pedophilia as a paraphilia using child sexual victimization as a diagnostic indicator and criterion. Gay liberation activists discussed inequalities posed between hetero- and homosexual ages of consent and, more rarely, thought about the total abolition of age of consent. Each of these discourses firmly advocated for a separation between thought and action, recognizing the pedophiles who had not and would not harm children. The historical roots of the conflation of pedophiles and child sex offenders makes an important contribution to understanding contemporary discourses on criminality, victimology, sexology, and sociology, and to the development of efforts which can more successfully reduce child sexual victimization. ii Table of Contents Abstract ii Table of Contents iii Acknowledgements iv Introduction: A History of the Modern Child Sex Offender 1 Chapter One: The Death of Rehabilitation 22 The Royal Commission – Context, Purpose, and Process 25 The Archambault Report, 1934-1938 27 The Fauteux Report, 1953-1956 32 The McRuer Report, 1954-1958 39 The Ouimet Report, 1965-1969 43 The Badgley Report, 1981-1984 47 Conclusion 55 Chapter Two: The Death of Wellness 57 Instability in the Psychiatric Profession, 1930-1960 62 The DSM-I to DSM-III – From Revision to Reform 66 Pedophilia – Sociopath, Sexual Deviant, or Sexual Orientation? 75 Stepping Back – Deinstitutionalization Revisited 87 Chapter Three: The Death of Identity 89 Ensuring Inclusivity 91 The Body Politic 94 “Boy-Love” 97 Identity – “These Recalcitrant Few” 101 Visibility – “Together, We Are Strong” 111 Normativity – “[Living] in a Heterosexual Society” 120 Therapy – An Exercise in Normativity 127 Epilogue 131 Bibliography 167 iii Acknowledgements This project, if not this Master’s degree, would have been an impossible endeavour without the continued support and encouragement from numerous individuals. I am both lucky and eternally grateful for having them in my life, and would briefly like to acknowledge them – as well as anyone I happen to shamefully forget in this brief section. To my loving parents, Calvin and Gerry, I thank you for teaching me the value of schooling and higher education, for supporting my successes (and not-so-successes), and for letting me become my own person. Without you, I would not have the comfort or the diligence required to deal with the controversy of this subject matter, nor would I be okay with likely being on the CSIS watch list. To my research supervisor, former professor, and friend, Dr. Heather Murray, I thank you for dealing with my penchant for using unnecessarily garish vocabulary. I thank you for encouraging me to think about graduate school in undergraduate classes, and to think about continuing graduate school when I received a tentative B+ on an assignment. You have been an invaluable role model to many students and I am fortunate to know you. To my good roommate, friends, and colleagues who have read sections of this paper, or who reviewed it in its draft and proposal stages; I wouldn’t dare try listing you, but I appreciate all that you’ve had to say and more. You’ve made invaluable suggestions, pointed out awkward mistakes that I’ve made, and have dealt with me yammering on and on about school when we get together. Thank you. iv Introduction: A History of the Modern Child Sex Offender In 1938, after four years of rigorous study and investigation, Chairman Joseph Archambault wrote in the Royal Commission Report for Penal Reform in Canada that Your Commissioners are of the opinion that there is no class of persons who can be termed 'criminally insane'. Those who have committed, or are likely to commit, violent or unlawful acts by reason of their insanity are essentially a medical problem and not a legal one. They are, in no sense, criminals, because their violent tendencies are due to mental disease.1 This report signaled a landmark shift in Canadian penology as legal experts and testimony sought to move the focus of criminal justice from retribution to rehabilitation; it made novel connections between endemic poverty, mental illness, and crime,2 and initialized the foundation of the system of conditional release, more commonly referred to as parole. Mindful of the notion that some individuals lacked the possibility of being meaningfully rehabilitated, the Commissioners also prescribed the foundations of 'habitual offender status' – the predecessor to modern indeterminate sentencing.3 Since its publication, however, nearly fifty federal prisons have been established, 4 widespread deinstitutionalization reduced the number of psychiatric vacancies from 4 beds per 1000 in 1964 to less than 1 bed per 1000 in 1979,5 and the number of criminal code offences which require mandatory minimum sentencing increased from three to 1 Joseph Archambault, Report (Ottawa: King's Printer, 1938), 156. 2 Archambault, 177-178. 3 Another form of indeterminate sentencing had been available in Ontario since 1916, though it functioned similarly to non-custodial supervision rather than indefinite confinement. 4 Gerald Fauteux, Report of a Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada (Ottawa: Queen's Printer, 1956), 39. 5 Patricia Sealy and Paul C Whitehead, "Forty Years of Deinstitutionalization of Psychiatric Services in Canada: An Empirical Assessment", Canadian Journal of Psychiatry, 49(4), 2004: 250. 1 twenty-nine.6 In less than a century, support for penal rehabilitation had seemingly died. The death of rehabilitation, or conversely, the resurrection of retributive justice, is perhaps best demonstrated by the child sex offender. Occupying a particularly heinous place in current society, child sex offenders are generally deplored as degenerates, as predators, and serve as the representative example of “stranger danger”7 at its worst. Yet in mass media, alongside social media, pedophilia and pedophiles are often used interchangeably to decry acts of child sexual exploitation, predation, and victimization, despite the knowledge that not all of these offenders are pedophiles – and that not all pedophiles enact sexual offences. 8 Despite the lack of any legal definition provided for pedophilia in the Canadian Criminal Code, despite a clear indication of the need to differentiate between pedophiles and persons with a pedophilic disorder, 9 and despite the development of pre-offence prevention programs which seek to prevent child sexual exploitation, laymen and populist discourses continue to use the terms synonymously. Unfortunately, this has led to a widespread misunderstanding of all pedophiles as inevitable child sex offenders, consequently redirecting therapy funding to carceral institutions;10 such a redirect is necessarily self-fulfilling, since any participants seeking such programmes in prison would be convicted sex offenders. The broadest purpose of this thesis is to historicize how, when, and why pedophiles have become synonymous with child sex offenders within the Canadian context. I argue that the conflation of pedophiles and child sex offenders is a multifaceted and interdisciplinary result of 6 Justice Canada, "Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models". Last modified January 7, 2015. http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr05_10/p2.html 7 Stranger danger refers to the sentiment that strangers are the most common perpetrators of crime and violence, rather than persons known by the victim (within the family or extended social circle, as examples). 8 Ray Blanchard, “The DSM Criteria for Pedophilia”, Archives of Sexual Behaviour 39 (2010): 309. 9 Individuals who have acted upon their sexual desires, whether it be with the consumption of child pornography or the perpetuation of a direct contact sexual offence. 10 James Cantor, quoted 9:52 in I, Pedophile, directed by Matthew Campea, (Ottawa: CBC