indecent assault on a male
“Gross indecency” wasn’t the only crime designed to persecute gay men. So was “indecent assault on a male” - a crime that Parliament treated as more serious than gross indecency since it implied a lack of consent. Parliament also treated it more seriously than similar crimes against women. Introduced in Canada in 1892 and repealed in 1983, this crime was always a crime that only applied to men who assaulted men.
The last version of the crime reads as follows:
156. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.
The homophobic and sexist nature of this law is clear on the face of it. However, it is underscored by the fact that the offence of “indecent assault on a female” always attracted a lower maximum penalty. In the last version of that law, repealed at the same time as “indecent assault on a male”, the maximum penalty was only 5 years imprisonment (half the maximum for male victims) and whipping.
An indecent assault conviction requires proof of a lack of consent. Before Pierre Trudeau’s law reforms, two men could be convicted of having sex, even if they both consented to it. After the law was changed in 1969, a man could not be convicted if his sexual partner consented to the act and was 21 year or older.
This crime was correctly repealed and replaced with gender neutral sexual assault laws in 1983. However, police still can and do use this charge to prosecute for something that was considered a crime before 1983, even if it is not a crime now.
This crime has a homophobic and sexist history. It was repealed by Parliament long ago. This alone merits extreme caution in pursuing a prosecution using this charge. Prosecutions using this archaic and obsolete charge should be very rare and should only occur in the most compelling of cases. We do not believe that this is such a case. At the very least, the nature of this charge calls for a careful review at a high level.