In 1965 a Justice Department Report on Juvenile Delinquency explored the issue of having parents pay for the crimes of their children, but decided this was not a progressive, rehabilitative policy. Does this discussion sound familiar? In fact, the Peterborough Family Court came to similar conclusions in 1957! Why are advocates of increased punitiveness towards youth urging us to adopt measures rejected thirty years ago?

My research focuses on the history of girls and women in conflict with the law, and though it may not provide easy answers to today's problems, it can offer some sobering second thoughts on current debates.

Although the media often focuses on sensational crimes of violence, women in the past and present are far most likely to be arrested for property and 'moral' offences. During the 1940s, most women were arrested under vagrancy, prostitution, theft and alcohol laws. In the 1990s, according to Elizabeth Fry, only 10% of women's crimes involved violence; most offences are theft, fraud, drug infractions and prostitution. While statistics never measure actual crime, along with other research, they point to an inescapable conclusion: material deprivation, social alienation, racism and violence create a fertile context in which crime flourishes.

History should also press us to ask why we even define some behaviour as criminal. From 1919 to 1958, women deemed "idle and dissolute" were incarcerated under the Ontario Female Refuges Act. It targeted women considered promiscuous, with illegitimate children, suspected of VD, sometimes women involved with Asian or Black men. All that was needed to imprison a woman was a statement sworn out by her parents, a social welfare agency or the police. Why did such a draconian law, with scant attention to the defendant's rights, exist? It may have reflected dominant ideals of proper feminine sexual behaviour yet it criminalized poorer women for behaviour not illegal for men. In 1958, under pressure from the Elizabeth Fry Society, it was finally repealed.

The Juvenile Delinquents Act of 1908 was utilized against girls in similar ways. Boys were usually in Court for property offences, but girls were often there for incorrigibility, a code word for promiscuity and running away. Even if the girl was arrested for theft, the court officials were often primarily concerned with her sexual activity! Girls who did not secure probation and were sentenced to Training (or reform) Schools had often experienced economic insecurity, family transience, foster care or sexual abuse; some had disabilities that were ignored. Institutionalization offered little education, yet it often stigmatized girls, sometimes leaving them more alienated and angry.

Women also tried to use the law to secure financial support or end domestic violence, and the courts might be sympathetic -- as long as the woman was above moral reproach. Family Courts were intended to improve the situation, offering counselling, probation and private solutions. Yet, women's escape from violence had more to do with whether she had viable economic and emotional alternatives to the family. Moreover, the advice offered to battered wives was shaped by prevailing expert views of gender roles. In the 1950s, some counsellors attributed violence to the provocation of "nagging" wives and pressed them to accept family reunification. Without viable economic options, social support and widespread condemnation of violence against all women, this was, and is, unlikely to change.

Research also indicates that the overincarceration of Native women is a relatively recent tragedy, emerging after the Second War as economic problems, urbanization, cultural denigration and systemic racism took an excessive toll on Native peoples. Native women and men are currently searching for alternatives to a criminal justice system which has failed them, as victims and offenders. Their resolve to create new forms of justice remain difficult in communities injured by colonialism. Perhaps, however, their quest will spur the wider Canadian community also to ask critical questions about the nature of justice offered to women in our courts and penal institutions.