Monday, October 16, 2017

Pearlston on Canadian Judicial Interpretations of Lesbian Sex under the Divorce Act

Karen Pearlston, Faculty of Law, University of New Brunswick, has published "Avoiding the Vulva: Judicial Interpretations of Lesbian Sex Under the Divorce Act, 1968," which appears in the Canadian Journal of Law and Society 32 (2017): 37-53.  It's gated, but here is the 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.

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