Abstract
One summer’s evening in 1894, a young girl named Rose Buckland went to St George Park in Bristol for the purposes of listening to a live band and socialising with her friends. This enjoyable day out turned rapidly into a nightmare for the girl when, she claimed, two youths began ‘pulling her about’ and lifting up her clothes.1 Buckland complained to her mother and a case was brought before a magistrate in October of the same year, but was dismissed before trial. The dismissal of this case at first seems surprising. It had a number of direct witnesses, with testimony that supported Buckland’s claims to distress and her efforts to escape from the accused boys. However, witnesses also raised questions about the girl’s status as a victim. The law on sexual consent assumed Buckland — as a girl aged 12 — to be sexually immature, both in behaviour and body, but witness testimony indicated that she had been flirtatious with boys in the park. One friend of the prisoners stated that Buckland was only ‘pretending to cry’ and that she had previously encouraged him ‘to go and lie on her’.2 This testimony destabilised Buckland’s status as an innocent victim at the hands of two older boys.
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Notes
For general medico-legal histories and works on other forms of forensic medicine in the nineteenth century see Ian A. Burney, Bodies of Evidence: Medicine and the Politics of the English Inquest, 1830–1926 (Baltimore, MD: Johns Hopkins University Press, 2000).
Ian Burney and Neil Pemberton, ‘Making Space for Criminalistics: Hans Gross and Fin-De-Siècle CSI’, Studies in History and Philosophy of Science 44 (2013), 16–25.
Michael Clark and Catherine Crawford (eds), Legal Medicine in History (Cambridge; New York: Cambridge University Press, 1994).
M. Anne Crowther, ‘Forensic Medicine and Medical Ethics in Nineteenth-Century Britain’ in The Codification of Medical Morality: Historical and Philosophical Studies of the Formalization of Western Medical Morality in the Eighteenth and Nineteenth Centuries, ed. Robert Baker, vol. 2 (Dordrecht; London: Kluwer Academic Publishers, 1995), 173–90.
Thomas Rogers Forbes, Surgeons at the Bailey: English Forensic Medicine to 1878 (New Haven: Yale University Press, 1985).
Katherine D. Watson, Forensic Medicine in Western Society: A History (London; New York: Routledge, 2010).
For a more detailed discussion of the development of rules of evidence and how they relate to expert testimony over time, see: Tony Ward, ‘Law, Common Sense and the Authority of Science: Expert Witnesses and Criminal Insanity in England, Ca. 1840–1940’, Social & Legal Studies 6 (1997), 343–62, pp. 345–47.
Anthony Good, ‘Cultural Evidence in Courts of Law’ in The Objects of Evidence: Anthropological Approaches to the Production of Knowledge, ed. Matthew Engelke (London: Royal Anthropological Society, 2008), 44–57, p. 45.
Wilson Wall, Forensic Science in Court: The Role of the Expert Witness (Chichester; Hoboken, NJ: Wiley-Blackwell, 2009), p. 58.
Carol Jones, Expert Witnesses: Science, Medicine and the Practice of Law (Oxford: Clarendon Press, 1994), pp. 102–14.
Thanks go to Dr Noah Millstone for directing me towards some reading on earlier periods, including John H. Langbein, The Historical Foundations of the Law of Evidence: A View from the Ryder Sources’, Columbia Law Review 96 (1996), 1168–1202.
Barbara J. Shapiro, A Culture of Fact: England 1550–1720 (Ithaca: Cornell University Press, 2000).
Jill L. Matus, Unstable Bodies: Victorian Representations of Sexuality and Maternity (Manchester: Manchester University Press, 1995), p. 7.
Louise Jackson, Child Sexual Abuse in Victorian England (London: Routledge, 2000), p. 24.
For example see Seth Koven, Slumming: Sexual and Social Politics in Victorian London (Princeton, NJ: Princeton University Press, 2006).
For example Ivan Crozier and Gethin Rees, ‘Making a Space for Medical Expertise: Medical Knowledge of Sexual Assault and the Construction of Boundaries between Forensic Medicine and the Law in late Nineteenth-Century England’, Law, Culture and the Humanities 8 (2012), 285–304. Some historians have studied court cases, but paid only limited attention to their forensic dimensions; for example, there is one chapter on medicine in Jackson, Child Sexual Abuse.
The statistics include those cases that were found a ‘no bill’ by a grand jury and those cases that do not have surviving pre-trial statements. The phrases ‘sexual crime’ and ‘sexual offences’ are used as umbrella terms to cover all of these types of non-consensual sex, but without claiming that they were synonymous. They all carried very different social, legal and medical meanings that this book considers where relevant. The crime of indecent exposure is excluded, as in the courts under study it had no relevance to medical practitioners. The ‘exhibitionist’ became a psychiatric category in the late-nineteenth century, but in Middlesex and the South West was not an issue upon which medical witnesses were consulted; Angus McLaren, The Trials of Masculinity: Policing Sexual Boundaries, 1870–1930 (Chicago: University of Chicago Press, 1997), p. 194. On the late nineteenth-century development of ‘exhibitionism’ as a psychiatric category.
Joanna Bourke, Rape: A History from 1860 to the Present Day (London: Virago, 2007), pp. 250–51. The legal category of incest is similarly omitted from the list because after 1908 the crime generally related to sexual relations between consenting adults. Most cases of incest between adults and children were incorporated in the category of ‘carnal knowledge’ of girls under the age of consent at the Quarter Sessions. Finally, these parameters exclude prostitution as a subject of close analysis. With the exception of procurement or brothel-keeping charges, it was not explicitly illegal and few prosecutions involved medical evidence.
For further reading on the ‘dark figure’ of (sexual) crime and the use of this term, see David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), p. 18; Bourke, Rape, pp. 15–18.
Shani D’Cruze and Louise A. Jackson, Women, Crime and Justice in England since 1660 (Basingstoke; New York: Palgrave Macmillan, 2009), pp. 28–29.
V. A. C. Gatrell, ‘The Decline of Theft and Violence in Victorian and Edwardian England’ in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman and Geoffrey Parker (London: Europa, 1980), 238–70, pp. 286–89.
Roy Porter, ‘Rape — Does it have a Historical Meaning?’ in Rape: An Historical and Cultural Enquiry, ed. Roy Porter and Sylvana Tomaselli (Oxford: Basil Blackwell, 1986), p. 221.
Stephen Garton, Histories of Sexuality (London: Equinox, 2004), p. 123.
Barry M. Coldrey, ‘The Sexual Abuse of Children: The Historical Perspective’, Studies: An Irish Quarterly Review 85 (1996), 370–80, p. 370.
See Garthine Walker, ‘The History of Sexuality? A View from the History of Rape’ <http://garthine.wordpress.com/2014/01/22/the-history-of-sexuality-a-view-from-the-history-of-rape/> (accessed 28 December 2014).
For a clear summary of Michel Foucault’s theories on ‘normalization’ see James W. Bernauer and Michael Mahon, ‘Michel Foucault’s Ethical Imagination’ in The Cambridge Companion to Foucault, ed. Gary Gutting (Cambridge: Cambridge University Press, 2005), 149–175, p. 151.
Works on childhood in which historians have taken a critical approach to age include Alysa Levene, ‘Childhood and Adolescence’ in The Oxford Handbook of the History of Medicine, ed. Mark Jackson (Oxford; New York: Oxford University Press, 2011), 321–37.
Sally Shuttleworth, ‘Victorian Childhood’, Journal of Victorian Culture 9 (2004), 107–13, p. 107. Stephen Robertson’s work provides a rare example of nuanced approaches to age in relation to the history sexual crimes.
Stephen Robertson, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill; London: University of North Carolina Press, 2005).
Anna Davin, ‘What is a Child?’ in Childhood in Question: Children, Parents and the State, ed. Anthony Fletcher and Stephen Hussey (Manchester: Manchester University Press, 1999), 15–36, p. 17.
For example Sally Mitchell, The New Girl: Girls’ Culture in England (New York; Chichester; Columbia UP, 1995).
Claudia Nelson and Lynne Vallone (eds), The Girl’s Own: Cultural Histories of the Anglo-American Girl, 1830–1915 (Athens; London: University of Georgia Press, 1994).
Deborah Gorham, The Victorian Girl and the Feminine Ideal (London: Croom Helm, 1982).
John R. Gillis, Youth and History: Tradition and Change in European Age Relations, 1770-Present (New York: Academic Press, 1974).
G. Stanley Hall, Adolescence: Its Psychology and its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion and Education, vol. 1 (London; New York: Appleton, 1904).
On child development see André Turmel, A Historical Sociology of Childhood (Cambridge: Cambridge University Press, 2008), p. 84.
James Wong, ‘Critical Ontology and the Case of Child Development’, Canadian Journal of Political Science 37 (2004), 863–82, pp. 873–76.
Hugh Cunningham, The Children of the Poor: Representations of Childhood since the Seventeenth Century (Oxford; Cambridge, MA: Blackwell, 1991), pp. 192–97.
Sally Shuttleworth, The Mind of the Child: Child Development in Literature, Science and Medicine, 1840–1900 (Oxford: Oxford University Press, 2010), p. 9.
For detailed discussions of the various shifts in nineteenth-century child labour legislation and school-leaving ages see William Blackstone, Commentaries on the Laws of England in Four Books with an Analysis of the Work (Philadelphia: J. B. Lippincott & Co., 1867), pp. 348–49.
Eric Hopkins, Childhood Transformed: Working-Class Children in Nineteenth-Century England (Manchester: Manchester University Press, 1994).
For a discussion of Protestant ideas about ‘linear human development’ and the fixing of (religious) character after puberty, see Joseph F. Kett, ‘Adolescence and Youth in Nineteenth-Century America’, The Journal of Interdisciplinary History 2 (1971), 283–98.
Joseph F. Kett, ‘Reflections on the History of Adolescence in America’, The History of the Family 8 (2003), 355–73. Bushnell’s work was first published in the 1840s but later in England.
John Tosh, ‘Authority and Nurture in Middle-Class Fatherhood: The Case of Early and Mid-Victorian England’, Gender & History 8 (1996), 48–64, p. 53.
Garthine Walker, ‘Rereading Rape and Sexual Violence in Early Modern England’, Gender & History 10 (1998), 1–25, p. 2.
Carol Smart, ‘A History of Ambivalence and Conflict in the Discursive Construction of the “Child Victim” of Sexual Abuse’, Social and Legal Studies 8 (1999), 391–409, p. 393.
BPP, Report from the Selection Committee of the House of Lords on the Law Relating to the Protection of Young Girls, 1882, pp. 6–11.
also Ellice Hopkins’s comments in ‘The Criminal Law Amendment Bill’, The Standard, 9 July 1883, 3, p. 3.
W. T. Stead, ‘The Maiden Tribute of Modern Babylon — I’, Pall Mall Gazette, 6 July 1885, 1–6, p. 1.
On melodrama see Judith R. Walkowitz, City of Dreadful Delight: Narratives of Sexual Danger in Late Victorian London (Chicago: University of Chicago Press, 1992).
W. T. Stead, ‘The Maiden Tribute of Modern Babylon III: The Report of our Secret Commission’, Pall Mall Gazette, 8 July 1885, 1–5, p. 3.
Victor Bailey and Sheila Blackburn, ‘The Punishment of Incest Act 1908: A Case Study of Law Creation’, Criminal Law Review (1979), 708–18.
Sybil Wolfram, ‘Eugenics and the Punishment of Incest Act 1908’, Criminal Law Review (1983), 308–16.
Stephen Robertson, ‘Age of Consent Laws’ in Children and Youth in History: Item #230 <http://chnm.gmu.edu/cyh/teaching-modules/230> (accessed 28 February 2011).
Lynn Sacco, Unspeakable: Father-Daughter Incest in American History (Baltimore, MD: Johns Hopkins University Press, 2010), p. 50.
Elizabeth Kolsky, ‘“The Body Evidencing the Crime”: Rape on Trial in Colonial India, 1860–1947’, Gender & History 22 (2010), 109–30. For an example of the debates surrounding this legislation see ‘Indian Child Marriage’, The Women’s Penny Paper, 26 July 1890, 474, p. 474.
Dan Healey, Bolshevik Sexual Forensics: Diagnosing Disorder in the Clinic and Courtroom, 1917–1939 (DeKalb: Northern Illinois University Press, 2009), p. 10.
Phrases such as ‘rape myths’ or ‘real rape’ have been used widely by scholars from a range of disciplinary backgrounds, generally in reference to stereotypes that ‘real’ rape involves violent assaults by strangers and active resistance on the part of a woman. Such ‘myths’ were long-held and did not generally originate in the courts, but were reinforced by judicial processes and by medical testimony. See Gethin Rees, ‘“It is Not for Me to Say Whether Consent Was Given or Not”: Forensic Medical Examiners’ Construction of “Neutral Reports” in Rape Cases’, Social & Legal Studies 19 (2010), 371–86, p. 372; Bourke, Rape, pp. 21–49.
David Philips, ‘Sex, Race, Violence and the Criminal Law in Colonial Victoria: Anatomy of a Rape Case in 1888’, Labour History 52 (1987), 30–49, p. 30.
Victoria Bates, ‘“Predatory” 13-year-olds: We’ve Heard This One Before’, <http://www.independent.co.uk/voices/comment/predatory-13yearolds-weve-heard-this-one-before-8751738.html> (accessed 29 December 2014).
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Bates, V. (2016). Introduction: Sex, Sexuality and Sexual Forensics. In: Sexual Forensics in Victorian and Edwardian England. Genders and Sexualities in History. Palgrave Macmillan, London. https://doi.org/10.1057/9781137441720_1
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