Handbook on Sexual Violence (11 page)

For women and men of the middle and upper classes, the cultures of ‘sensibility’, which historian Lawrence Stone saw as evidence of more modern emotionality in his history of the modern family (Stone 1977), are in this model more divisive. In literature (and arguably in culture), sensibility prioritised narratives of seduction, which matched a predatory male heterosexuality with a subservient female response, gilding the earlier narratives of male activity/ female passivity with (a kind of) romance and further sexualising the inevitability of female submission. Nevertheless, as with all such cultural narratives, it cannot be assumed that all ‘fallen’ women necessarily internalised it. Tanya Evans argues that single women who petitioned London’s Foundling Hospital to look after their illegitimate children preferred to speak of misfortune and bad luck rather than seduction (Evans 2005).

While sensibility and romance enabled more affluent women to indulge in some pleasurable if illicit sex, for the most part this merely added a certain gloss to the brutish tendencies of heterosexual masculinities. Among working people, where increasing numbers of young women were domestic servants, subjected to intersecting grids of authority and highly vulnerable to sexual predation, sexual violence was just the nastier end of a continuum of courtship (Trumbach 1998).

If eighteenth-century rape could lead to marriage, this was not historically unprecedented, as research on the medieval period has shown. Seventeenth- century rape narratives also recount this kind of sexual behaviour. It seems likely that this model describes a shift in emphasis across more heterogeneous sexual cultures, rather than signalling entirely new behaviours. These models of changing (hetero)sexualities may or may not indicate that heterosex acquired an increasing potential for male on female sexual violence as the modern era dawned (Porter 1989). If they do, this qualifies and limits substantially the behaviour change argued to be a civilising process. Either way it is clear that even more effective neutralisations of sexual violence were becoming available, embedded in cultures of sexuality that thought about seduction and romance. The modern founding statement of the marital rape exemption is commonly attributed to jurist Matthew Hale in 1736 (Bourke 2007: 307).

Anna Clark argues that between 1770 and 1845 there was indeed an alteration in how sexual violence articulated gender and class relations (Clark 1987a). The idea of sexual ‘fallenness’ heightened the emphasis on women’s responsibility to preserve their own chastity, now assumed to be even more vulnerable to predatory male sexuality. Clark suggests a shift from an earlier

‘libertine’ to a ‘chivalric’ model. Earlier, as we have seen, male sexual irregularities (including both violence and sex with other men) were decried as an uncontrolled (libertine) excess of desire. Those subjected to sexual violence were unlikely to see their attacker punished. However, they were not necessarily morally responsible for his violence. The succeeding ‘chivalric’ mode addressed sexual violence to women and girls in particular. Under this framework, women were increasingly taught to rely on the protection of men (particularly husbands and fathers) to preserve their chastity (though they themselves remained responsible for its loss). A stronger investment in domestic life and companionate if strictly unequal marital relations became an attribute of respectable mid-Victorian masculinities (Tosh 2007). Away from the protection of husbands and fathers, feminine sexual attractiveness was seen as provoking potentially uncontrolled male desire, and hence, in effect, female victims were assumed to have caused the violence they experienced. The rapist became represented as monstrous and therefore different from respectable men; by the later nineteenth century he was a marginal, working- class deviant. His gender opposite was the prostitute, the symbolic embodiment of social marginality and dangerously excessive female sexuality (Walkowitz 1992: 20).

The Victorian family, on the model of middle-class, gendered domesticity, had become an important symbol of social order. Rape of women and girls therefore acquired heightened significance; it had the potential for great social harm – a ‘fate worse than death’. This bolstered male authority in the home and made it increasingly difficult for women to make full use of the criminal justice process, which was itself taking a greater interest in interpersonal violence as crime. So much of Victorian women’s ‘deviance’, from illegitimate pregnancy to promiscuity, from prostitution to public discussion of sexual violence, was explained by feminine sexuality, that these overlaps seem to suggest another application of Kelly’s continuum concept. However, though these connections had powerful effects on nineteenth-century gender relations, the notion of a continuum does not really work. The debilities and dangers attributed to female sexuality were ubiquitous. If this misogyny was a continuum of (cultural) violence then the concept is so far broadened that it loses interpretive momentum. In fact, such sexually-rooted frailties were re- examined, reinterpreted and redeployed in terms of the circumstances of individual cases. As a result, some women did get justice for the sexual violence done to them. Those perpetrators were punished in the interests of maintaining hegemonic masculinity, a move that rendered so much other sexual violence invisible, scaffolded the inequalities of the gender order, and thus underwrote dominant (hetero)sexual cultures and the potential for violence within them.

Sexual violence and the law, eighteenth–nineteenth century

Many new capital statutes were introduced in the later eighteenth century, but trials and convictions for sexual violence remained rare. The Old Bailey Sessions Papers show an average of 29 defendants tried for rape per decade

between the 1750s and 1810s. Other assize circuits show even lower totals (Simpson 1984: 811–13). The legal definition had tightened over the eighteenth century until courts required proof of emission and physical force as well as penetration. Over half of eighteenth-century complainants at the Old Bailey were below the age of consent; adult women’s chances of seeing a rapist convicted (then as now) were remote. Simpson suggests that the sexual abuse of girls was encouraged by the belief that intercourse with a virgin cured venereal disease (Simpson 1987). The acquittal rate was also extremely high. At the Old Bailey between the 1750s and 1810s, an average of 4.5 men per decade were found guilty of rape (calculated from data at http://www.oldbaileyonli- ne.or
g). On the Norfolk Assize circuit there were a mere 15 convictions and 11 executions for rape between 1768 and 1818 and a further four convictions and three executions for buggery and sodomy. On the Home circuit between 1755 and 1814, 38 rape convictions led to 18 executions, and 14 buggery convictions

produced 12 executions (Emsley 2005: 262).

In the early nineteenth century, prison sentences replaced hanging for many property and subsequently violence offences. Prison seemed a more rational measure since capital punishment had done nothing to deter rising crime rates (Gatrell 1994). There was also a progressive codification of the laws against violence. Given its class bias and the fact that far more violent crime was (and is) committed by men than women, these laws took greatest effect against working-class men. Wiener argues that this ‘civilising offensive’ meant more sexual violence cases in the higher courts from the 1820s. However, conviction rates increased only after capital punishment for rape was first discontinued (1836) and then repealed (1841) (Wiener 2004). The Old Bailey Sessions Papers show seven defendants found guilty of rape in the 1820s, 12 in the 1830s, 85 in the 1840s and as many as 196 in the 1880s (http//

:www.oldbaileyonline.org). By 1860 the offences of indecent assault, assault with intent and assault with sodomitical intent had been written into black letter law and secondary charges could be brought together with rape or sodomy (Wiener 2004: 91). Sodomy, by this time used to prosecute a range of male–male sexual practices, formally became a non-capital offence in 1861 though hanging had been discontinued in 1836 (Weeks 1977: 14).

The 1861 Offences Against the Person Act was a major consolidating statute. This named rape as a felony subject to at least three years penal servitude, but left the precise definition of the offence unclear (Stevenson 2000: 96, 2005). In a remark which says more about dominant models of manliness than it does about sexual violence, indecent assault was specified as ‘what all right-minded men, men of sound and wholesome feelings would say was indecent’ (Justice Brett,
The Times
, 3 August 1875: 10). Although conviction rates for rape improved, the imprecise definitions meant many cases were dropped or tried as a lesser offence before they reached the higher courts. There are instances of judges simply refusing to hear evidence where they thought the defendant too respectable to have committed the crime (Wiener 2004: 90; D’Cruze 1998; Conley 1986: 24).

Criminal justice had developed since the eighteenth century and many of the institutional and professional characteristics of modern criminal justice were being forged in this period, including the stereotypes that distinguished

‘deserving’ from ‘undeserving’ complaints of sexual violence. Defence counsel were generally retained (Prisoners Counsel Act 1836). Trials took longer and, although the same situation did not apply in Ireland (Conley 1995), English complainants regularly faced hostile cross-examination designed to destroy their moral character. Less respectable women rarely obtained a verdict – it was assumed that they were little harmed by sexual violence since their characters were already lost. Judges were required to warn juries about the dangers of convicting on a complainant’s uncorroborated testimony in trials for sexual offences until 1994 (Stevenson 1999). An accusation of rape was less damaging to the reputation of an otherwise respectable, ‘manly’ man or boy than the experience of having been raped could be for a woman who could not demonstrate the highest standards of sexual probity. Nevertheless, chivalrous masculinities on the bench and the fact that feminine weakness was taken for granted also meant gestures towards the protection of demonstrably respectable women. Associations such as the Society for the Protection of Women and Children funded some particularly ‘deserving’ complainants (Conley 1986: 526).

Summary courts, where magistrates tried minor offences without a jury and referred serious cases to the higher courts, became an important site for the filtering of sexual violence cases (D’Cruze 1998; Stevenson 1999, 2000). However, even a conviction for a lesser offence meant a kind of limited justice, when pursuing a case into the higher court would be expensive and with a good chance of an acquittal. Indeed, courts’ agendas of punishing disorderly (working-class) masculinities meant they could be realistic about what kind of sexual chastity constituted appropriate victimhood (Jones 2000). Magistrates also heard paternity cases where an illegitimate child was liable to be charged to the poor rate. As in earlier centuries, these cases might enable at least some kind of public hearing of a complaint of rape. In fact, the criminal justice process stood alongside other informal means of settlement, usually by the payment of money. Louise Jackson notes Victorian child sexual abuse cases that came to court only when informal negotiations failed. The lower courts were also where most of the comparatively few sexual abuse cases involving boys (7 per cent in Jackson’s research sample) were dealt with (Jackson 2000: 38, 100).

In Victorian times sexual chastity came nearer to encompassing women’s moral integrity and sense of self. If Early Modern witnesses often emphasised violence to avoid describing sex, in the nineteenth century a melodramatic narrative of violent seduction became a common discursive terrain on which courts, the fast-growing press and other print culture discussed sexual violence. This language indicated a shift in legal and cultural perceptions of the harm of sexual violence, from damaging a woman’s social reputation to what Vigarello refers to as its ‘moral violence’ (Vigarello 2001). Frequently complainants used this discourse, taking up appropriately feminine, vulnerable and sexually passive subject positions (Clark 1987a; Conley 1991; Stevenson 2000: 240; Bourke 2007: 398). Witnesses argued that ‘he did what he should not do’, or that ‘he effected his purpose’. The euphemism and allusion made it difficult to specify the precise details about sexual acts which were necessary evidence (Stevenson 2005). There were class (and race) as well as

gender interests at work. These were ‘crimes of outrage’ and chivalric courts and juries might well punish the attackers, provided they appeared unmanly, brutal and uncivilised. Hegemonic manly masculinities needed some ‘real’ rapists to punish. ‘Real’ rape was physically very violent, non-consensual intercourse, perpetrated by a (probably) lower-class man who failed to live up to masculine ideals on other fronts, and which was accomplished against a chaste woman who was robbed of her moral probity and thus of her social worth. However, if the case could be made to look like seduction – or even boyish high spirits – punishment could be slight. The nineteenth-century ‘civilising offensive’ not only increased the discipline of (working-class) male violence through the criminal justice system, it also had lessons for women and girls. If it taught (some) men restraint, the burden of the feminist scholarship would also be that it taught women the demeanour of femininity with all its powerlessness and need for protection.

As in the Early Modern period, the nineteenth century also saw moments when sexual violence became very visible and apparently socially destabilising. Victorian ideologies meant that above all violated young girls embodied this sense of threat. The symbolic importance of the (middle-class) family also involved the idealisation of the innocent (girl) child. However, assumed feminine weakness meant fears about the potential (sexual) corruption of girls. The sexual abuse of young girls was located as an urban problem of the social and sexual depravity of the labouring classes. Medical opinion was slow to recognise the physical evidence of sexual abuse and sexually transmitted diseases (gonorrhoea was identified only in 1879) and much readier to attribute such bodily signs to dirt, poor childcare or masturbation. The sexually precocious and knowing girl herself became a source of danger, a perspective reproduced in early criminological studies on female delinquency (Jackson 2000).