 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Journals |
||
|
You are here: BAILII >> Databases >> United Kingdom Journals >> Stevenson, 'Observations on the Law Relating to Sexual Offences: the Historic Scandal of Women's Silence' URL: http://www.bailii.org/uk/other/journals/WebJCLI/1999/issue4/stevenson4.html Cite as: Stevenson, 'Observations on the Law Relating to Sexual Offences: the Historic Scandal of Women's Silence' |
||
[New search] [Help]
Department Academic Legal Studies,
Nottingham Trent University
Copyright © 1999 Kim Stevenson.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
The Government's review of the laws relating to sexual offences provides an opportunity to revise the existing legal provisions that deal with sexual assaults and violence, particularly rape and indecent assault. As a mainly consolidating statute, the Sexual Offences Act 1956 simply reproduced a number of existing provisions from the earlier Offences Against the Person Act 1861 and Criminal Law Amendment Act 1885. The 1861 Act, though promoted as a measure to protect the person, failed to address effectively the issue of sexual violence. The driving force behind the 1885 Act was the perceived need to protect men from immoral girls and women, rather than any primary desire to protect vulnerable females from male sexual violence. It is argued here that the law relating to sexual violations has never been informed by any considered approach drawing upon both feminine and sexual discourses. Women, being disenfranchised, were unable to participate in the law-making process and were denied a say in the very crimes most likely to jeopardize their sexual security. The cumulative effect of these earlier statutes has had far-reaching implications which it is hoped will be addressed within the current debates about legislative reform.
Recent Government initiatives to revisit the laws relating to sexual offences with a view to reform are to be welcomed as a comprehensive re-examination is long overdue, especially in respect of sexual assaults and violations. The Sexual Offences Act 1956 was predominantly a consolidating act and its main provisions regarding sexual violations, particularly rape, indecent assault, defilement and procuration, were simply reproductions of existing nineteenth century provisions. Many of these now appear antiquated and inappropriate to contemporary sexual behaviour and orientation. Aspects of the statute are discriminatory, and there exist a number of anomalies relating to age, gender, criminal responsibility and sentencing provisions. Debates about lowering the age of consent for homosexuality, redefining and extending the crime of rape and the practical difficulties in securing convictions, whether there should be a separate category for 'date rape' and the possible legitimisation of some incestuous relationships underline the statute's limitations. The last fifteen years has also seen significant legal activity in relation to the phenomenon of child sexual abuse (a term not legally defined), not only to facilitate the delivery of evidence by children and its reception but to impose a more punitive approach towards sexually abusive offenders.
When announcing the proposed review in 1998, Alun Michael, Minister of State at the Home Office, stated that this area of law was ripe for reform and should reflect contemporary society. He pointed out that many of the existing measures stemmed from the enactment of the Criminal Law Amendment Act 1885 (The Times 17 June 1998). Certainly a number of provisions from the 1885 Act were incorporated into the 1956 Act including the criminalisation of male homosexual relationships, indecent assault, defilement and procuration. However, as already pointed out, the Sexual Offences Act 1956 was predominantly a consolidating measure and drew on yet earlier law and the philosophical approaches informing that law's development. In particular the Offences Against the Person Act 1861 which has been significantly overlooked and ignored in this regard. It is to these attempts that we must look when seeking to comprehend the present position. It is suggested that, despite its credentials in seeking to protect the person in the widest sense, the 1861 Act was largely ineffectual in controlling sexual violations and tended to reflect the mid-Victorian reluctance to address matters of such a 'disagreeable nature'.
The apparent lack of any coherent and rational approach to the law in this area has been a constant feature. The criminalisation of sexual assaults was considered either in the context of a much broader remit, such as that of the 1861 Act, or in response to public outcry or moral panic over a particular incident of assault. Thus scandals concerning child prostitution and abduction of British girls into foreign brothels were the prime motivation behind the Criminal Law Amendment Act 1885. Incest was not made a secular crime until pressure from the social purity movement, notably the National Vigilance Association and the NSPCC, finally forced through the Punishment of Incest Act in 1908. All three statutes are analogous and have in common a failure to examine the actual context in which sexual relationships operated. Instead, those limited philosophies or theoretical justifications, which were employed, related to a sexual discourse influenced by respectable masculine prejudice. In particular, there was no acceptance or recognition of anything even approaching a feminist dimension in their creation. The composition of these statutes, undertaken by a purely masculine establishment, failed to appreciate the sensitivity of such crimes from the female perspective, or effectively to acknowledge the criminal responsibility of the male for his actions. Women, being disenfranchised at this period and therefore unable to participate in the law-making process, were denied a say in the very crimes most likely to jeopardise their sexual security and autonomy. Similarly the homosexual voice was denied. The 'Labouchere amendment', a clause quietly inserted into the 1885 Criminal Law Amendment Bill, criminalised homosexual relations conducted in private. As Sir Robert Boothby reminded the Commons during a debate to consider the appointment of a Royal Commission to investigate the laws relating to homosexuality (subsequently the Wolfenden Committee 1957), the clause was "moved in the middle of the night" to an empty House and passed without discussion, thus silencing the homosexual voice for many years to come (HL 1954 [526] 1745-1756). Indeed as a consolidating measure, the Sexual Offences Act 1956, enacted under the fast track provisions, was not even debated in the House. When Lieutenant-Colonel Marcus Lipton singularly opposed the "whole idea of consolidating the law relating to sexual offences" the Speaker advised that the Bill could not be criticised, except on a Motion or an amending Bill. Lipton countered that "There is an argument in favour of consolidating a reasonably good law, but there cannot be a very strong argument for consolidating bad law" (1955 HL 2R [555] 1750-1). However, Lipton's concern related only to the provisions regarding homosexuality. As Martin Bowley QC, President of the Bar Lesbian and Gay Group, has argued, there is thus an urgent need for a major overhaul of this area of law (Bowley1999, p140; 1998, p 376).
The Government has now stated that the promised review of sexual offences must provide coherent and clear provisions, which will protect the individual from abuse and exploitation, but experience has shown this is no straightforward task. It is therefore suggested that the societal framework informing these earlier enactments must be taken into account if the Government is to avoid repeating similar mistakes in their current undertakings. By focusing on the legislative framework, and subsequent impact of the Offences Against the Person Act 1861 and the Criminal Law Amendment Act 1885 in the context of sexual assaults, it is anticipated that some insight and awareness of the underlying legacies of these enactments can be provided.
Top | Contents | Bibliography
In June 1857, the Offences Against the Person Bill was introduced to the Lords as the lead Bill of the eight (later seven) Consolidating and Amendment Acts of 1861. These constituted the end result of an ambitious, but doomed, enterprise to codify the whole of the criminal law, initially recommended by a Select Committee in 1824 to relieve the statute books of over 20,000 Acts of Parliament contained in 36 volumes (SC 1824 No 205 and see Manchester 1980, p 40). The Bill was primarily a consolidation of an earlier 1828 enactment of the same name (An Act for consolidating and amending the Statutes in England relative to Offences against the Person 9 George IV) which had catalogued, repealed and revised almost all statutory crimes since the reign of Edward I. The subsequent Offences Against the Person Act 1861 Act was primarily concerned with the criminalisation of physical and injurious assaults, detailing some 50 crimes where 'the person' could be harmed or endangered. Sexual offences are included in sections 48 to 55 but though the Act expressly promotes itself as affording protection to the person, it is suggested that this is only engineered in an asexual sense in that the statute failed adequately to address the control of sexual violations. The express reference in the title to the word person might lead one to believe that this would effectively extend to the sexual person. After all, in the Victorian courtroom, the word person was used with a very clear sexual connotation as a euphemism for both male and female genitalia. Absurdly, it is apparent from the Parliamentary debates that no specific thought was given to the protection of the sexual female person (or sexual male person for that matter) from sexual violence.
The 1861 Act's avoidance of sex specific language may reflect society's contemporary denial of active female sexuality, but, given the precision devoted to defining the elements of virtually all the other substantive provisions to be found in the Act, such silence is striking. Detailed clauses, often running to 50 words or more, clearly express the constituent elements of mens rea and actus reus, except for murder, upon which a common definition could not be agreed, and rape. Lord Campbell, the Lord Chancellor, pointed out that it was discouraging that even the Select Committee could not agree upon a definition for murder, but typically no comment was made about any attempt to define rape (HL 1860 [156] 253). It is now widely acknowledged that the construction of many of the provisions in the 1861 Act lacked coherence and rationale. This is confirmed by the current Government's acceptance of the Law Commission's 1993 Report, Legislating the Criminal Code, recommending that the main offences against the person i.e. physical assaults, be revised and placed on a good foundation based on a combination of motivation and outcome (Law Com No 218; Home Office CP 1998). During the passage of the 1861 Bill, Mr Bowyer MP, informed the Commons that there was much "repetition and unnecessary matter" which might have been reduced "had there been proper scientific definitions of what constituted certain offences, such as murder and assaults" (HC 2R [159] 278). Despite the ambiguity of many of the provisions of the 1861 Act it seems remarkable that the legislators failed to attempt to articulate any explicit statutory definitions in respect of the major sexual offences, particularly as regards rape, the most serious of all. It is open to conjecture whether the exclusion of any explicit definition was deliberate, negligent or simply deemed unnecessary. Rape, abduction and defilement were included in the final version, but mainly by restating the existing law. What the legislators signally failed to do was to seize the opportunity to revise and reconsider such crimes in the light of contemporary social attitudes and practice. In particular by omitting to stipulate expressly the elements of mens rea required for rape and indecent assault the Act failed to acknowledge and emphasise masculine responsibility for such actions. This contrasts strongly with the general physical assaults contained in sections 18 and 20 where the requisite mens rea is mandated, for example, through the required elements of unlawfully, maliciously or with intent. One explanation can be found in the work undertaken by Clark who shows that there already existed a propensity in society that men should not be held fully accountable for their sexual violations. Her examination of rape trials and popular literature between 1770 and 1845 reveals evidence of a belief that men's "uncontrollable" passions caused rape and that men sometimes "misinterpreted" a woman's refusal to consent as part of her seductive play (Clark 1987, pp 34 and 37).
An examination of the Parliamentary debates reveals only one substantive reference to sexual violence, and only then in relation to the appropriate sentence for rape. The Marquis of Westmeath urged their Lordships to consider the expediency of amending the proposed law because the punishment would be the same whether one or more persons commit the offence. He recommended that the sentence of death (abolished in 1841) be reinstated, as multiple rape had greatly aggravated this 'abominable crime', frequently causing the woman's death through violence. The House was divided on two occasions but the proposal was rejected, albeit by a small majority (HL 2R 1857 [146] 1354). As a result, section 48 simply provided that "whosoever shall be convicted of the crime of rape shall be guilty of a felony" and sentenced to penal servitude for life or not less than three years. The section is silent as to the elements to be proved, leaving the substantive framework to be developed through the common law as unlawful carnal knowledge of a woman without her consent by fear, force, or fraud. Some members of the judiciary had earlier alluded to such simplification in 1854. It is recorded in that year's Edinburgh Review that the bare clause "it shall be rape" was "gravely condemned" by some (unnamed) judges in that it introduced a new, "impersonal mode of expression" (Edinburgh Review 1854 p 576), but apparently these concerns were never addressed during the passage of the Bill. The concept of intent had been considered by, amongst others, the judges in the leading case of Camplin (1845) 1 Cox CC 311. Issues relating to the actus reus such as resistance and consent had also been examined in such cases as Hallett (1841) 9 C&P 748 and Case (1850) 1 Den 580, but such rulings failed to find their way into any formal expression. Indeed, consequently no attempt was made to define the constituent elements of mens rea and actus reus for the crime of rape until 1976. Prior to the notorious case of DPP v Morgan [1976] AC 182, in order for a successful defence based on the mistaken belief that the woman had consented, it had to be based on objectively reasonable grounds. The much critcised decision in Morgan, hailed by many as a 'rapist's charter' (Temkin 1987, p 79) ruled that where a defendant honestly and genuinely believed that the woman was consenting this negatived liability, however unreasonable that belief was. Thus, though long overdue, it was finally recognised that it was necessary to draft a statutory provision for mens rea as formalised in section 1 Sexual Offences (Amendment) Act 1976. This provision skilfully avoided the issue of mistaken belief in consent.
As regards marital rape, until the House of Lords rectified the law on this issue in the case of R v R [1992] 1 AC 599, formalised in section 142 Criminal Justice and Public Order Act, the legal position was somewhat unclear and was certainly not considered in 1861, 1885 or 1956. In 1913, the National Vigilance Association highlighted the obfuscation declaring that "a husband cannot (it is said) commit a rape upon his wife" (NVA 1913, p 46). The common law condoned this phenomenon through the apparent acceptance and misrepresentation of Hale's approbation of the mediaeval approach to consent without any jurisprudential justification (Hale 1936, pp 627-9; Temkin 1987 pp 40-45). The common law also approved the requirement that rape could only be committed against the will of the victim necessitating proof of the infliction, or threat, of real physical violence and a correspondingly high level of physical resistance. The courts did acknowledge that the offence could be committed where the victim was insensible through drink (Camplin (op.cit)), asleep (Mayers (1872) 12 Cox CC 311) or deceived by the defendant as to the nature of the act (Flattery (1877) 2 QBD 410, and Williams (1898) 62 JP 310). Temkin argues that once rape ceased to be a capital offence the judges became more willing to broaden its scope (Temkin 1987, p 61). However, it is suggested that this made little difference in practice. Historians point out that in the public sphere, few men of any status were convicted of rape and deference to male respectability was influential in many courtrooms (Conley 1986, p 530). Further, as D'Cruze points out, a woman lost her respectability simply by the fact of having been raped (D'Cruze 1993, p 89).
The female position was further exacerbated by the attitude of the courts that, unless induced by a state of intoxication forced on them or by some other fraud, a woman's consent might be implied through status or behaviour. It is worth noting here the comment of Mr. Justice Willes in 1856, doubting that the offence of rape could be committed "upon the person of a woman who had rendered herself perfectly insensible by drink" (The Times, 6 December 1856). Women regarded as 'immoral' because of their reputation (which included, but did not solely consist of, active prostitutes) were regarded as 'public property' and technically could not be raped, an attitude which has had an enduring influence to this day (Frost 1995, p 110; and see Walkowitz 1992). Thus developed the insistence, in practice, on independent corroborating evidence for sexual offences and, until recently abrogated by s 32 Criminal Justice and Public Order Act 1994, the common law requirement that a warning be given by the judge to the jury of the dangers of convicting on the uncorroborated testimony of a complainant where the offence is a sexual one.
Recent decisions of the Court of Appeal dealing with the anomalies of rape have clarified some aspects of the law, but not all. The case of Larter v Castleton [1995] Crim LR 75 considered the issue of consent where the 14-year-old victim was asleep and "insensible, probably through drink" (according to the LEXIS transcript cited in Selfe and Burke 1998, p 64). The two defendants claimed that the judge should have given an express direction that the prosecution prove either that she resisted, or was in no position to decide whether to consent or resist. In dismissing the appeal the Court of Appeal made it clear that the trial judge correctly directed the jury that valid consent requires that the victim fully understands her situation and is capable of exercising a rational judgment. This would appear to cover the position in cases where consent is induced through drink or drugs, such as the use of the 'date-rape' drug rohypnol. However, the appeal court has failed to make clear the distinction between consent and submission. R v Olugboja [1982] QB 320 appears to settle the law that consent obtained by physical force or threat of physical violence is not vitiated, but where such coercion is non-physical, such as blackmail or economic threats, the position is less clear cut (ibid. pp 65-8). With regard to consent obtained by fraud the position is still that the only frauds that vitiate consent are those as to the nature of the act or identity of the perpetrator. Consent obtained by the defendant conditional on his false promise to pay a prostitute £25 in advance, and use a condom, was held in the case of R v Linekar [1995] 3 All ER 370 not to vitiate consent as it was not a fraud as to the actual act of sexual intercourse.
Finally, in failing to construct any express components for the actus reus, the interpretation of the phrase 'unlawful sexual intercourse', inserted by the Sexual Offences (Amendment) Act 1976, was narrowly construed by the courts as intercourse 'outside the bonds of marriage' and only per vaginam. Section 142 of the Criminal Justice and Public Order Act 1994 has now rectified this aberration by extending the crime of rape to male victims and to rape per anum as well as removing the word 'unlawful' as superfluous. Some attempt at formal expression in the previous century might therefore have improved the position of female complainants and made convictions easier to secure by providing clarification of what actually constitutes the crime of rape. The 1861 Act served to perpetuate the mystification about whether rape was a property crime, infringing a man's rights over a woman's sexuality, a physical crime of violation or a 'moral' crime undermining female sexual chastity. But the real tragedy was that the Act failed effectively to hold men to account for their actions and encouraged the courts to maintain a suspicious attitude towards female victims requiring they prove themselves beyond reproach.
Top | Contents | Bibliography
Inasmuch as the 1861 Act afforded any protection for women this was mainly achieved through its proprietorial emphasis on the female sex, detailing the circumstances in which a girl may be abducted or procured. Procuring a young woman, by trickery, to have sexual intercourse, was something that the mid-Victorian legislators were prepared to consider in some detail further reinforcing the inherent denial of female sexual autonomy and reflecting proprietorial interests of women as property. Section 49, which subsequently found its way into section 3(2) of the 1885 Act, prohibited the procuration of females under 21 years by false pretences or fraudulent means. First enacted in the Protection of Females Act 1849 (12 &13 Vict. c.76), this measure was intended to combat the 'white slave trade' where 'innocent maidens' were captured for immoral purposes, usually incarceration in continental, or sometimes oriental, brothels. The section has been rarely utilized though it has been applied in cases where sexual favours have been obtained under false promises of marriage (Williams 1983, p 563). Sections 53 and 54, creating new offences, were the only sections that were expressly revised in this part of the Act. Section 53 created a new offence of abducting a woman against her will for purely financial motives, and fraudulently abducting a girl under the age of 21 against the will of her parent. Section 54 covered the forcible abduction of a woman with the intent to either marry or carnally know her. However, in protecting young women of property these provisions are clearly discriminatory in the class of woman they seek to protect. Interestingly section 53, unlike rape and indecent assault, is analogous with the rest of the Act in that it runs to some 250 words detailing all possible proprietorial interests a woman might possess "whether legal or equitable, present or future, absolute, conditional, or contingent, in any Real or Personal estate,...". Thus in failing to provide effective protection against the sexual violation of the female person, the statute instead underlined the patriarchal concept of woman as property, emphasising the safeguarding of her personal assets.
The 1861 Act also failed to protect the morality of young girls in that it was not deemed necessary to raise the age of consent from 12 years, first established in the Act of 1576 (18 Eliz. I c.7). Sections 50 and 51 basically reiterate the 1828 provisions that carnal knowledge with a girl under 10 remains a felony, and between 10 and 12 a misdemeanour. The Act therefore maintained the position that it was no offence to have sexual intercourse with a girl under 12 who 'freely consented', however ignorant of the carnal connection she may be. It was also often accepted by the court that where girls under 10 'validly consented' to sexual intercourse the charge could be reduced to 'attempted carnal knowledge', again shifting the emphasis away from the defendant's intent and assuming informed consent on the part of young children (R v Beale 1 CC 10). In addition there was a widely held belief that 'natural' sexual innocence and purity would protect young girls from abusive men suggesting perhaps that formal legal regulation was unnecessary. Where a girl had been sexually abused it was often regarded as self-evident that she had already been corrupted, relieving the defendant of any criminal responsibility. Smart suggests that the 1861 Act failed to provide adequate protection for young girls against sexual violation as it was only used in very specific cases, although she does acknowledge the protectionist stance of this part of the Act in aiming to protect "British women against foreign men and young women against old men". She compares this to the later Contagious Diseases Acts and Criminal Law Amendment Act 1885 which, she argues, served to protect men of all classes from working class women (Smart 1992, p 25).
The offence of indecent assault on a female is governed by section 52, which simply penalizes "an indecent assault on a female person" and also confusingly encompasses the attempted carnal knowledge of a girl under 12. The maximum penalty stipulated is two years imprisonment but no consideration is given to the possible range of severity of violations that could be classified as 'indecent assault', from slipping a hand up a skirt to instrumental violation. Conley confirms that the offence of indecent assault had an even vaguer legal definition than rape. She cites a comment from Justice Brett in 1875 who explained to one jury that "I cannot lay down the law as to what is or is not an indecent assault beyond saying that it is what all right-minded men, men of sound and wholesome feelings would say was indecent " (Conley 1991, p 83). This also reinforces the position that any interpretation of what action constituted indecent assault was in purely masculine terms. Defendants were often charged with both indecent assault and common assault allowing the jury to convict on the lesser charge if a 'clear' sexual intention could not be proven. In 1867, the Home Office was forced to seek guidance from the law officers concerning the most appropriate charge under the Offences Against the Person Act 1861 where an indecent assault was committed, but no great violence used or actual bodily injury occurred. Should the magistrates treat it as indecent assault (section 52), a common assault carrying 2 months imprisonment (section 42), or an aggravated assault against women or boys under 14 (section 43) - penalty 6 months? The Attorney General and Solicitor General advised that such assaults could properly be dealt with as aggravated assaults, presumably to avoid the necessary expense of a full committal (PRO HO119/118). However, this failed to acknowledge the sexual context of such assaults and a number of reported cases in The Times between 1861 and 1870 confirm that though the initial allegation was one of indecent assault the defendant was subsequently convicted of common assault (Stevenson, forthcoming, 2000). This not only distorts the statistical incidence of such offences but minimises the sexual aspect of the violation.
Top | Contents | Bibliography
The combined effect of these provisions served to reinforce contemporary male-female gender stereotypes reflecting the mid-century public denial of female sexuality. As Edwards comments, "the exclusion of women from any statutory definition, for example in terms of consent, shows that the legislation upheld and enshrined the [Victorian] belief in female passivity". She continues that although the 1861 Act was a consolidation it "nevertheless represented an important legal juncture" as a reference point by which to gauge subsequent legislation (Edwards 1981, p 23). Despite an increase in the recorded number of sexual offences committed there was little professional or public comment about the efficacy of the 1861 Act. Research undertaken by Gatrell concludes that from 1856 onwards to the end of the century all indices of violence "unambiguously declined" yet simultaneously the incidence of sexual assaults increased. He estimates that the rate of trials for non-sexual assaults fell significantly whereas the committals to trial for sexual assaults systematically increased (Gatrell 1980, p 289). It is also likely that many cases were not pursued to trial as, except for rape, the complainant had to bear the financial costs of prosecution. In addition, given that many trials for assault were, on closer examination, indecent assault, the incidence is even higher than suggested by the available statistics. Cases of sexual outrage and violent attacks from around the country continued to appear in the court report section of The Times newspaper in the 1860s and 70s but there is little indication that the Act made any significant difference to convictions and sentencing practice (Stevenson, forthcoming, 2000).
While many nineteenth century female activists mounted vigorous campaigns to change the law in support of a variety of causes, including the Contagious Diseases Acts, there appears to be little evidence of any major feminist outcry against the laws on rape and sexual violence in the mid-century, and child abuse did not feature as a major issue until much later. Women such as Frances Power Cobbe protested against the existing state of the law on domestic violence. Others of a feminist persuasion, such as Josephine Butler and Ellice Hopkins, seemed more interested in endeavouring to ensure both male and female responsibility for sexual morality and social purity than in showing any serious concern over the incidence of sexual violence. Margaret Oliphant, while recognising the longstanding and significant injuries of women, insisted that men should not be seen as intentional and voluntary oppressors. Thus she vindicated male lawmakers on the grounds that their humanitarianism would prevent them from legislating tyrannically against her sex (Oliphant 1856, p 380). Suffrage memoirs suggest that sexual issues were discussed privately but only discreet hints appeared in even the feminist press (Kent 1987, p 158). Millicent Fawcett argued that if women had been enfranchised, the 1885 Act would have been passed without the necessity of forcing Parliament, and the public, to open their eyes to the "hideously perverted state of morals running through society" (Fawcett 1885, p 327). The issue of female protection did manifest itself again at the start of the 1880s, but this was mainly in relation to the moral panic about the 'white slave trade' and the decoying of girls to brothels in Belgium, epitomised in W T Stead's report, `The Maiden Tribute of Modern Babylon' in the Pall Mall Gazette (Stead 1885). The Government moved to respond to the public outcry and a Select Committee of the House of Lords heard evidence on the matter and reported in August 1882 (HL Sel Com 1882).
A number of Bills, eventually culminating in the enactment of the Criminal Law Amendment Act 1885, were introduced between 1882 and 1885. These generated considerable debate over raising the age of consent but this was mainly limited to the context of prostitution. Public concern focused on the problem of 'immoral' girls corrupting men and leading them astray. Lengthy debates considered the need to protect men from such feminine wiles, but there was virtually no significant discussion of the problem caused by men sexually violating women and how that might be addressed. Lord Milltown criticised the Government for making a crime of what "had hitherto been only considered a moral offence" - defilement of a girl between 12 and 16 years. He claimed this would lead to "wholesale extortion" as girls under 16, of bad character and looking older, might "inveigle men to accompany them to houses of ill-fame" where they would be induced to commit acts they might never have intended. Respectable men found in this position would have no choice but to pay blackmail to avoid prison; the offence should therefore be limited to cases of seduction (HL 1883 [280] 1390). Lord Norton asked "at what age a girl should be considered capable of consenting to her ruin, so as to exonerate the man from the guilt of criminal injury in taking advantage of her ignorance." The Marquess of Salisbury warned that any attempt to raise the age of consent would encounter great difficulties in the Commons and meet "a vast mass of silent, tenacious, immovable opinion" (ibid. 1391). The Earl of Dalhousie noted that in other countries, female chastity was protected up to the age of 21 but his point was not taken up (HL 1884 [286] 1454). The Bishop of Rochester moved an amendment to empower the infliction of corporal punishment for the defilement of innocent girls of a tender age (HL [280] 1384-6). Walkowitz notes that at the time no-one openly acknowledged the supreme irony of the proposal of flogging as a punishment for sexual violations when the practice of flagellation and chastisement for sexual gratification was one of the major abuses exposed in the Maiden Tribute scandal (Walkowitz 1992, p 104). Twenty-five lashes were agreed as a suitable penalty where the offender was less than 16 years of age and a maximum of 2 years imprisonment in all other cases. Lord Shaftesbury was one of the few peers who spoke about the need to protect women and girls from male importunity, especially given the "thousands of morally vulnerable women and girls returning home at all times of the night from factories, workshops and houses of business" (HL 1883 [288] 410-12). Unsurprisingly the issue of their physical vulnerability was ignored by his fellows.
The long title of the 1885 Act, An Act to make further provision for the Protection of Women and Girls, the suppression of brothels, and other purposes is therefore somewhat misleading. The first substantive section, section 2, details the circumstances in which 'innocent' and moral women and girls might be procured to have unlawful carnal connection within or outside the United Kingdom. But externally at least, it is argued that this was a less serious problem than the everyday sexual attacks and violations committed domestically. Bland confirms that the narratives of the 1885 Act were not of "women's making, and girls and women were portrayed as passive victims" (Bland 1995, p 299). There was some debate on rape but only in the context of the three common law categorisations which vitiated consent. These were formulated into the three lesser provisions under section 3, procuring the defilement of a woman by threats, false pretences and stupefaction, thereby minimising the severity of such coercive behaviour which was compounded by providing a maximum punishment of 2 years, with or without hard labour, for (in effect) securing sexual intercourse through fear of violence. This section too was later automatically incorporated into the Sexual Offences Act 1956. Though discussed at length in 1885 during the committee stage there was virtually no reference to the criminal responsibility of the defendant. The law on defilement was finally settled. Sexual intercourse with a girl under 13 was made unlawful - section 4. The Act further prohibited the unlawful carnal knowledge of a girl between 13 and 16, (subject to the limited defence under section 5 where the man was under 24 years of age) and of any female idiot or imbecile, provided the defendant was aware of her character. A 3 month time limit on initiating such proceedings was stipulated to ensure that complaints were genuine, again implying feminine fabrication. This proved to be practically ill-conceived as the Home Secretary received numerous petitions urging him to extend the period to 12 months (PRO HO 144/A47048/2,3 and 17). The official response justified the proviso as a "proper protection against prosecutions prompted by pique, jealousy or a desire to extort" confirming the prime motivation behind the Act. However, it was acknowledged that this was an obstacle to justice for "modest girls who have yielded to the solicitations of a seducer" and the limitation period was extended to 12 months (ibid.8).
Top | Contents | Bibliography
The cumulative effect of the prevailing societal attitudes that informed the enactment of both the 1861 and 1885 Acts has been far-reaching. The proprietorial emphasis of the former and the latter's focus on male protection imposed a distorted agenda that failed to acknowledge and accommodate the needs of sexually vulnerable women and young girls. The significant absence of any fundamental feminine discourse underpinning both statutes caused further inequities and injustices that were repeated in the 1956 consolidation. Women were denied the opportunity to voice their concerns about, and contribute to the construction of, enactments most pertinent to their sexual security and welfare. It is impossible to evaluate or assess the consequent measure of injustice perpetrated, directly and indirectly, against the female sex as a whole and at an individual level. While it might be positively argued that recent reforms illustrate a satisfactory flexibility of the law this cannot mitigate against the many injustices and inequities imposed. For the first time, women now have the opportunity to make a real difference and effectively contribute to the discussion leading to new laws dealing with sexual violence. It is hoped that the current Home Office review will solicit their views and listen to what they have to say.
Bland, L (1995) Banishing the Beast: English Feminism and Sexual Morality 1885-1914 (London: Penguin).
Bowley, M (1998) 'A Pink Platform' New Law Journal 376.
(1999) 'An Overdue Reform' New Law Journal 140.
Clark, A (1987) Women's Silence Men's Violence: Sexual Assault in England 1770-1845 (London: Pandora Press)
Conley, C (1986) 'Rape and Justice' 29 Victorian Studies 519.
(1991) The Unwritten Law. Criminal Justice in Victorian Kent (Oxford University Press).
D'Cruze, S (1993) 'Approaching the History of Rape and Sexual Violence: Notes Towards Research' 1(3) Women's History Review 77.
Edinburgh Review (1854) 'The Judges on Codification' vol.99, p 573.
Edwards, S (1981) Female Sexuality and the Law (Oxford: Martin Robertson).
Fawcett, M (1885) `Speech or Silence' 48 Contemporary Review 332.
Frost, G (1995) Promises Broken: Courtship, Class and Gender in Victorian England (Charlottesville: Univ Press Virginia).
Gatrell, V A C, Lenman, B and Parker, G (eds) (1980) Crime and the Law: The Social History of Crime in Western Europe since 1500 (London: Europa Publications Ltd).
Hale, M (1936) History of the Pleas of the Crown (London: Professional Books).
Home Office Consultation Paper (1998) Violence: Reforming the Offences Against the Person Act 1861 (London:HMSO).
Select Committee of the House Of Lords (1882) Report on the Law Relating to the Protection of Young Girls.
Kent, S (1987) Sex and Suffrage in Britain 1860-1914 (Princetown NJ: Univ Press).
Law Commission Report No 218 (1993) Legislating the Criminal Code: Offences against the Person and General Principles (London:HMSO) Cm 2370.
Manchester, A. (1980) A Modern Legal History of England and Wales 1750-1950 (London: Butterworths).
National Vigilance Association and International Bureau for the Suppression of White Slave Traffic (1913) Manual of Vigilance Law, 3rd edn., Wyndham A. Bewes (ed).
Oliphant, M (1856) 'The Laws Concerning Women' 79 Blackwood's Edinburgh Magazine 377.
Report on the Consolidation of the Criminal Laws and the Simplification of their Enactments (1824) No 205.
Reed, A (1995) 'Offences Against the Person: The Need for Reform' 59 Journal of Criminal Law 187.
Selfe, D and Burke, V (1998) Perspectives on Sex, Crime and Society (London:Cavendish).
Smart, C (1992) Disruptive Bodies and Unruly Sex: The Regulation of Reproduction and Sexuality in the Nineteenth Century in Regulating Womanhood - Historical Essays in Marriage, Motherhood and Sexuality (London: Routledge).
Stead, W T (1885) `The Maiden Tribute of Modern Babylon' Pall Mall Gazette 4 July, 6-10.
Stevenson, K (forthcoming 2000) 'Ingenuities of the Female Mind: Legal and Public Perceptions of Sexual Violence in Victorian England 1850-1890' in D'Cruze, S (ed) Unguarded Passions: Gender, Class and Everyday Violence in Britain c.1850-1950 (Harlow: Longmans).
Temkin, J (1987) Rape and the Legal Process (London: Sweet & Maxwell).
Walkowitz, J (1992) City of Dreadful Delight: Narratives of Sexual Danger in Late Victorian London (University of Chicago Press).
Wolfenden Committee on Homosexual Offences and Prostitution 1957, Cmnd 247.
Williams, G (1983) Textbook of Criminal Law, 2nd ed (London: Stevens).
