The “Class Dynamic” of the Capacity to Consent

Against the background of social reformers, the rise of women's rights movements, and a focus on working-class girls’ sexuality, it is no surprise that the age of consent for sexual activity outside marriage shifted during the late nineteenth century more than once. Yet the year 1885 was perhaps one of the most remarkable years in the field: an annus mirabilis of moral politics, as described by Jeffrey Weeks.Footnote ²⁰ The CLAA 1885 was passed that year, marking significant changes in the regulation of morality and sexuality by criminalizing procurement for prostitution and brothel keeping, and by creating an offense of gross indecency that was used to target men suspected of homosexuality. Most importantly for the purposes of this article, section 5 of the CLAA 1885 raised the age of consent for girls from 13 to 16 for sex outside marriage.

A fixed legal age of consent was intrinsically tied to respectability, marriage, and marriageability, and English law had historically set different ages of consent for women from different socioeconomic backgrounds. This section argues that in 1885, reform campaigners separated the age of consent from the age to marry and that a class dynamic lies behind this intellectual separation. Marriage was viewed as a protective institution, and it was at the core of the notion of a middle-class family. Sex outside marriage, on the other hand, was framed as dangerous, and working-class girls were particularly vulnerable to being seduced, as they did not have equally strong protection and moral values instilled in them.

There were a wide range of offenses in which age and consent were of the essence at the time, ranging from rape to abduction, and, later on, procurement for prostitution and trafficking in women. Sex outside marriage was always framed as undesirable, but some sexual activities such as prostitution or eloping were considered particularly harmful, requiring a higher age of maturity. Age of consent was not set at 16 for all sexual activity outside marriage, but rather it was set according to the harm associated with the sexual context in question, creating different thresholds for capacity. For example, the Offences against the Person Act (OAPA) 1861 included various sections to protect girls from seduction. Under section 49 of the OAPA 1861, it was unlawful to under “false pretences, false representations, or other fraudulent means, procure any woman or girl under the age of twenty-one years to have illicit carnal connexion with any man,” and so it created protection for girls who would be groomed into prostitution by deception. Section 55 of the OAPA criminalized the taking away of an unmarried girl under the age of 16 from the possession, and against the will, of her parents. This misdemeanor, although not phrased as a sexual offense, was used against men who enticed girls away from home with sexual motives with or without the girl's consent.Footnote ²¹ Section 53 of the OAPA creates a similar offense to section 55, but it only applied to girls who had wealth or who were heiresses. This section introduced a higher age of consent, that of 21. Under this section, anyone who tried to lure away a girl or a woman with property who was under the age of 21 for the purposes of marriage or carnal knowledge against the wishes of her parents could be held liable for a felony. Both of these offenses under sections 53 and 55 were concerned with the rights of the parents rather than those of the girl in question, and they focused on preserving chastity. In the words of Josephine Butler, one of the leaders of the women's rights movement, section 53 of OAPA showed “tenderness…by English law to property and the carelessness evinced when it is a case of a girl's honour and happiness.”Footnote ²² Although less frequently relied on in courts, section 53 was the stronger of the two sections as it concerned a felony rather than a misdemeanor, and extended parents’ possession of daughters until the age of 21, in contrast to the age limit of 16 for those who had no property. Through these sections, the law clearly prioritized parents’ rights and control over their daughters above the consent of the daughter in question. It also gave parents control over the choice of husbands for girls with wealth by imposing criminal penalties on those who attempted to elope below the age of 21.

Like the OAPA, the CLAA also set different thresholds for capacity to consent depending on the context. Section 2 of the CLAA 1885 as it made it an offense to procure “any girl or woman under twenty-one years of age, not being a common prostitute or of known immoral character” for sex and prostitution.Footnote ²³ The exclusion of women with bad character from the scope of the law is of great symbolic value, but it was explicitly enacted as a safeguard to protect men from false accusations. In the words of Gregory MP, the law “had to guard as much against conspiracies being brought against innocent men as against the offence sought to put be (sic) a stop to.”Footnote ²⁴ The age limit of 21 made it clear that a girl under that age, who did not work in prostitution, did not have the capacity to consent to be procured. Despite the focus on section 5 in public rhetoric and later on in prosecutions, it is important to highlight that sexual maturity was not set at 16 in all circumstances; prostitution or leaving parents’ home without their consent was considered particularly harmful, and so a higher age of consent was required.

Through the CLAA, age of marriage and age of consent for sex outside marriage diverged. England has an unusually long history in regulating age of consent through statutes. Intercourse with a female child under the age of 12 had already been made a capital offense in England in 1285.Footnote ²⁵ This early statutory provision setting a minimum age is unusual, and most European countries did not have age of consent legislation until more recent centuries, and used biological sexual maturity as determining factor.Footnote ²⁶ Twelve remained the common- law limit for both marriage and sex outside marriage until 1875, with some exceptions in relation to marriage.Footnote ²⁷ Although the reform efforts focused on sex outside marriage, the age of marriage was rarely discussed. The age of marriage was defined by common law and tied to physical maturity, set at 12 for girls and 14 for boys, reflecting the beginning of puberty and the ability to conceive a child.Footnote ²⁸ On rare occasions, marriages were allowed in cases in which the girl had not reached the age of 12. Those marriages were voidable in common law but they could be ratified upon the girl reaching the age of 12.Footnote ²⁹ By reforming the age of consent outside marriage, first in 1875 and then in 1885, the law on sexual consent within and outside marriage diverged in England. Through these reforms, a higher threshold was set for the capacity to consent to sex outside marriage, demonstrative of how sex outside marriage was framed as harmful and socially unacceptable.

As ages of consent to marriage and consent were disconnected, the campaigners ignored the reality of people's lives. Emmeline Pankhurst, famed suffragist and women's rights campaigner, for example, supported a campaign to raise the age of consent outside marriage as high as 21 for girls.Footnote ³⁰ Pankhurst was not alone in the call for a higher age of consent, although her call for 21 was at the higher end of campaigners’ demands. In agitation meetings and demonstrations around the country, people supported a higher age of consent, but there was no consensus among the reformers as to whether 18, 20, or Pankhurst's 21 would the appropriate threshold.Footnote ³¹ These calls ignoredFootnote ³² the fact that many women, and men, entered relationships when they were younger than the age of 21. If the age of consent were raised to the levels demanded by reformers, it would have effectively criminalized all relationships outside marriage, including those a woman had entered by choice when she was under the age of 21.

By ignoring the low age of marriage, those campaigning to reform the age of consent laws constructed a split image of a working-class woman. One the one hand, she was a mature woman when it came to her decision to marry, but on the other, she was a child when it came to giving sexual consent outside the confines of marriage. This is particularly notable, as consent to consummation and marital relations was implied within consent to marriage, as marital rape was only criminalized by common law in the late twentieth century.Footnote ³³ Most of the reformers, a few notable women's rights activists aside, viewed marriage as the core of middle-class family life, and the assumption was that marriage was a protective, Christian institution.Footnote ³⁴ Furthermore, case law from the same time period implies that a low level of intellect was required to consent to marriage, driven by the desire to keep marriage accessible for everyone, including those of lower intellect.Footnote ³⁵ This is where age of consent debates diverge from the practice of family law on marriage. For sex outside marriage, a higher threshold of moral and intellectual capacity was needed, thereby reinforcing the idea of sex outside marriage as inherently harmful.

From the middle-class reformers’ perspective, women were expected to remain virgins until marriage, and early sexual relationships would ruin a girl's chance of entering into a family life and also prevent her from obtaining a position in service. In the vigilance rhetoric and campaign materials, the fall of a girl was often described in terms of a downward spiral: beginning with seduction and leading to a short and bleak life in prostitution.Footnote ³⁶ A girl, therefore, if seduced, could not fulfil her potential as a productive citizen. She could not better her position, and if she were to have children, these children would be born out of wedlock and, therefore, would become a threat and a burden to the state.Footnote ³⁷ In the words of Professor Alliers in the 1913 Abolitionist Federation Conference, “there has always been a brutal and popular belief in the irresponsibility of man, and there has been a brutal and popular belief in the impossibility of raising the fallen.”Footnote ³⁸ Throughout the many public interventions, it was implied that working-class girls were unable to recognize sexual danger, and that they did not realize the importance of chastity and preserving their virginity. To demonstrate the lack of ability of a young girl to understand her actions or their consequences, in “The Maiden Tribute,” the most widely read and circulated piece of tabloid journalism in the nineteenth century, Stead recounted an encounter with a 16-year-old girl to whom he had offered £2 for her virginity, or £1 not to be seduced. Appalled by the foolishness of the girl who chose “to part with her virtue” for a mere pound extra, Stead wrote that this is proof that a girl of 16 cannot understand the value of what he considered to be the only commodity that a working-class girl could have.

The threat to chastity was perceived to come from many sides, but in the public debates, sexual danger was particularly associated with gentlemen seducers out to take advantage of naïve working-class girls who were unable to resist the sexual advances because of moral failings and gullibility. The age of consent legislation was explicitly framed in many ways with a view to stopping and discouraging gentlemen seducers. In the parliamentary debates, there was little, if any, discussion of actual meaning of consent, but there was plenty of condemnation of men who took advantage of young working-class girls, and support for a law to protect such girls. The narrative of fall and ruin was of particular importance, as for social reformists, once the prized possessions of virginity and youth were taken away, there was no possibility of returning to respectable society. In 1885, The Archbishop of York called for people to come to together and rally for the protection of innocent girls and to raise the age of consent, and said: “Look at your bright girl, with her innocent mind gleaming of her eyes, and think that some poor man's child, years younger than she, and quite as innocent, has been stolen but yesterday by some prince of the devil, and made to pass through the fire to Moloch, so that when she woke at eighteen or at sixteen to the realities of life she found that her soul and body had been polluted and ruined.”Footnote ³⁹ Working class girls, therefore, were portrayed as inherently vulnerable, in need of the protection that they did not receive from their families and immediate surroundings.

For women's rights campaigners, and, for example, the members of the Socialist League, sexual danger was not solely a question of male moral failings but was also a structural issue relating back to the commodification of sex. In The Education and Employment of Women, Butler argued that brothel doors “stand ever wide open, yawning like the gates of hell” for women and girls excluded from public employment and education.Footnote ⁴⁰ Butler was not alone in linking child prostitution and sexual danger to poverty and structural inequalities. In a demonstration on child prostitution and age of consent in Leeds, attended by trade societies, politicians, and members of the clergy, many attendees spoke about the link between poverty and the vulnerability of children. The Socialist League tabled a motion in the meeting, that in relation to the “evils complained,” it is the society that would need to change and that “all classes must be abolished.”Footnote ⁴¹ Henry Broadhurst, an MP attending the meeting, argued that this is not a question of vice or age of consent, and the only way to truly address the concern is to tackle low wages.Footnote ⁴²

Beyond structural inequalities, much of the concern over the protection of girls was related to the very nature of sexual consent. Sexual consent still remains something women are expected to confer upon men. If male sexuality and sexual desire were framed as constant and natural, women were framed as the gatekeepers of sexual access. As such, women had to have the moral fortitude to reject advances outside the confines of marriage. Laws on age of consent, for example, set boundaries on when it was safe enough for girls to make those decisions. If the girls did not have the appropriate moral guidance as children, they were unable to make those distinctions and recognize sexual danger. For example, Lord Mount-Temple argued, in a parliamentary debate on raising the age of consent, that ordinarily a girl of 15 is more a child, and as such obedient and vulnerable, and not able to “resist the terrible results of traps and nets set for her [any] more than goldfinches could avoid the nets concealed from their sights.”Footnote ⁴³ This moral fortitude to resist advances and traps ought to have come from family protection, but from the campaigners’ perspective, working-class girls had more exposure to society and less in the way of a moral upbringing. Ordinarily, there was a reluctance to intervene in family matters, and the sanctity of the home was generally of great importance. In the House of Commons debate on the 1885 Criminal Law Amendment Bill, the secretary of state, arguing for the bill, said “there is nothing more sacred to the English people, and there is nothing which they are so determined to maintain, as the purity of their own households.”Footnote ⁴⁴ Purity and a desire to protect their household were not values that working-class families were considered to share.

In addition to their inability to protect the girl child's chastity, prominent campaigners such as W.T. Stead accused working-class parents of posing a direct threat to their daughters by selling them into prostitution. In the melodramatic and near pornographic “Maiden Tribute,” Stead wrote that “drunken parents often sell their children to brothel keepers. In the East-end, you can always pick up as many fresh girls as you want. In one street in Dalston you might buy a dozen.”Footnote ⁴⁵ Demonstrating low or no family values, the “low class” was portrayed as uncaring and as living in conditions of destitution and moral depravation unimaginable to the readership of the Pall Mall Gazette, the paper where the “Maiden Tribute” was published. As part of his investigation for “Maiden Tribute,” Stead had “bought” a girl called Eliza Armstrong to show how easy it would be to make a girl from the East End to disappear. Following the publication of the “Maiden Tribute,” Stead was charged and convicted for the abduction of Eliza Armstrong, as her mother maintained that she thought Eliza was being recruited for domestic service. When on trial, he argued in his testimony to the court that “I am not here to advocate liberties being taken with the children of anyone, least of all the children of the poor; but you must sometimes take risks in order to save poor girls from ruin. I believed that in doing as I did with Eliza Armstrong, I was standing between her and ruin.”Footnote ⁴⁶ In his mind, there was no question about the inevitable ruin that Eliza Armstrong was facing or about the corrupting effect that her family continued to have on her. He later argued that the “period of the alleged abduction was probably the happiest period in the existence of the child” and that she “will look back with regret in the midst of the surroundings into which she has been plunged.”Footnote ⁴⁷ The “Maiden Tribute” was crude and sensationalist, yet, Stead's narratives of danger and ruin were hugely influential. “The Maiden Tribute” was the most successful piece of tabloid journalism in Victorian period, and ultimately it was the catalyst that led to the passing of CLAA.

Beyond the targeted, explicit attacks on lack of family values, the working-class family was absent from much of the discourse. The family unit was simply not recognized as one that existed, nor was it referred to by those campaigning for reforms, demonstrated by a lack of references to working-class families in much of the rhetoric of the reformers’ written and archived work. Commenting on the construction of working-class family life at the time, Lydia Murdoch argues in relation to child welfare policies that to avoid challenging the notion of family as an institution, “reformers cast poor children as waifs and strays.”Footnote ⁴⁸ The role of the law was seen as crucial in protecting and raising the children where the parents clearly are unable to or did not exist. Emily J. Straton, a prominent reform campaigner, wrote about the home for young girls that she was volunteering at, whose role was to “safeguard those who from the early training, unhappy homes, the thoughtlessness and folly of youth or other cases, expose themselves to dangers of the nature of which they are little aware.” She wrote about how disappointing it was that the girls were often ungrateful but that it “is a very consoling thought that, if only to a very small extent, some real and permanent good is being done and that some are being rescued and raised.”Footnote ⁴⁹ The role of the home for girls, in Straton's eyes, was not just to rescue girls but also to raise them. Similarly, Amy Sharp wrote in support of legislation in favor of a higher age of consent as way of dealing with poor girls. She argued that “medical authorities and social workers agree in maintaining that the years from sixteen to eighteen are the most dangerous of a girl's life, and the time when she ought least to be left responsible for her own conduct.”Footnote ⁵⁰ The underlying assumption was that poor girls would be left responsible for their own conduct, and would have no moral or other guidance from home, and that therefore, statutory protection was essential to protect the girls. In relation to age of consent debates, the working-class family is noted by its absence or inadequacy, requiring the reformers and criminal law to step in almost as a surrogate parent.

“Young Girls of Her Class”: Class, Gender, and Trustworthiness on Trial

The first section of this article argued that the campaigners designed laws based on erroneous middle-class assumptions of working-class life. This section turns the focus to courts, and shows that on a conceptual level, the courts shared those erroneous assumptions, and that this impacted the way victims, their trustworthiness, and their capacity were understood. Whereas the rhetoric behind the law reform had focused on the limited capacity of adolescent girls to understand the consequences of sex and the need for protection, the courts did demonstrate equal focus or understanding of capacity. Instead, this section argues that the courts failed to give meaningful protection to working-class girls because the rules of evidence allowed the courts to realize their ingrained gendered biases about the Victorian working-class family, girlhood, and motherhood.

This and the following two sections analyze cases dealing with carnal knowledge of a girl below the age of consent between 1880 and 1900, to evaluate the themes that emerge from court archives and the narratives from judges, officials, and victims themselves. Ultimately, the analysis shows that the CLAA did not have a profound effect on increasing prosecutions when the victim was an adolescent. The vast majority of cases of carnal knowledge of a child after CLAA came into force involved girls under the age of 12. The cases of teenage girls between 13 and 16 years of age being seduced did not materialize in courts. The public rhetoric of sexual danger in terms of the gentleman seducers, as discussed in the earlier section, also did not translate into court proceedings. In the vast majority of the cases, both the victim and the defendant were working class. This and the following section argue that the deeply entrenched biases about working-class family life, discussed in the first section, impacted the courts’ reluctance to believe girls.

Earlier scholarship on child sex offenses in Victorian and Edwardian England have come to somewhat inconsistent conclusions on how courts dealt with defendants on abduction cases and cases involving sexual activity with a girl under the age of consent. Jackson, Lois Bibbings, and more recently Daniel Grey have written about the public condemnation faced by men who sexually abused young girls during the Victorian Era, noting incidences of vigilante justice.Footnote ⁵¹ Jackson argues that there is a contradiction in the “absolute condemnation” of men in a trial and the low number of prosecutions against men for child sexual abuse.Footnote ⁵² In contrast, in a study on mid-Victorian child abuse cases predating the CLAA 1885, Carolyn Conley argues that during trials, the focus was on the victims rather than on the defendants, and on the girls’ accounts of what had happened, with their reliability often questioned. She argues that “unless the victim had been severely beaten, judges and juries assumed that these girls had consented to seduction.”Footnote ⁵³ This section builds on work of Conway, and argues that following the enactment of CLAA 1885, the attitudes of judges and those involved in trial proceedings did not shift, as the courts did not demonstrate a more nuanced understanding of capacity or consent. Instead, the rules of evidence, discussed next, allowed judges in particular to confirm their notions of absence of family values among the working classes. Much like Conley's analysis of cases dealing with prosecutions under OAPA 1861 and 1875, both the trial cases and the appeals under CLAA 1885 show that victims were treated with suspicion, in particular if they were considered to be of “bad character.” The cases following CLAA demonstrate that if girls continued to be treated with suspicion, some leeway was given to men on trial, particularly if they argued that they had been intoxicated when the rape took place.

This section focuses on the testimonies and depositions that the girls gave during trials of rape and appeal proceedings, and on how these were perceived by the courts. The section shows that girls, regardless of their age, were treated with suspicion and that undue emphasis was placed on suspicions of them being of “bad character.” Much of this section focuses on notions of consent, something that has been largely overlooked by previous studies. The reform campaigners focused on capacity over consent, and so in the public rhetoric and parliamentary debates, the questions of who could consent, and in which circumstances, and how consent should have been articulated, were not considered. This stands in marked contrast to narratives in the courtroom about consent and its absence, often articulated by all parties, as is demonstrated in the following section. The language of resistance or absence of resistance was more commonly discussed than consent, but they were often intertwined, and at times the victims used the language of consent explicitly, stating that they had not consented to what the defendant did. This focus on consent over capacity is of particular importance as it demonstrates that rape was defined in common law as a “carnal knowledge of a woman forcibly and against her will,” later changing “against her will” into “without her consent.” This broad definition left a great deal of leeway for the judges and juries when interpreting facts of a case. Following the CLAA, carnal knowledge was considered a felony if the girl was under 13 years of age and a misdemeanor if she was between 13 and 16 years of age. As the cases in this article focus on victims below the age of consent, there, victims’ resistance ought to have been irrelevant, as by definition they were below the age required to have capacity to consent. Merely establishing that intercourse had taken place ought to have been sufficient to prove that an offense had taken place, yet, clearly this was not the case.

Following a long common-law tradition, any conviction that rested on a single person's testimony with no supporting evidence could create doubts. Sexual abuse cases were particularly problematic from an evidentiary perspective, because the case law analysis shows that evidence was treated with suspicion. Victorian rules of evidence made it difficult to prove that an offense had taken place, because the evidence of women and children had to be corroborated. Matthew Hale's now infamous statement that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent”Footnote ⁵⁴ was frequently relied on in courts. Although children's testimonies had to be corroborated, they could be heard in court regardless of the age of the child. William Blackstone wrote, following Hale, that in rape cases “it seems now to be settled, that in these cases infants of any age are to be heard, and if they have any idea of an oath, to be also sworn: it being found by experience that infants of very tender years often give the clearest and truest testimony.”Footnote ⁵⁵ Although girls could and did testify in courts, their testimonies came under scrutiny, as demonstrated in the following sections, and the girls were often framed as untrustworthy or even malicious.

Overall, the testimonies of women and girls in these cases were generally given less credence than those of the defendants. In the appeal in the case of J.P.K., a Home Office official confirmed that the rules of evidence should be followed in these cases, and said that corroborating evidence was needed to secure a safe conviction as “there should never be a conviction for rape on the uncorroborated evidence of one witness. Usually at least the corroboration (1) of evidence of immediate complaint (2) of evidence of condition of clothes (3) of medical evidence.”Footnote ⁵⁶ In the same appeal case, the judge wrote to the secretary of state asking for guidance because of the lack of evidence. He said that he felt that without corroborating evidence, the conviction should not stand. He further said, highlighting the unreliability of working-class girls, that “It is almost absolutely impossible to tell from manner and conduct in the witness box, whether young girls of her class and condition are telling the truth or not. Young women—especially the premature young women of whom one sees so much in these cases—when they lie do it far better than people of the other sex.”Footnote ⁵⁷ Similarly, in the 1887 petition of J.A. to have his life sentence reduced after he was convicted at Durham Assizes for the rape of his own 10-year-old daughter, the Lord Chief Justice notes that “I never feel quite satisfied with the unsupported testimony of mother and child in this class of case.”Footnote ⁵⁸ He further noted that the penalty felt too severe but as it was not the defendant's first offense, and there were similar cases waiting to be heard in Durham, the petition should not be successful, as the Lord Chief Justice felt that they needed an “exemplary sentence.” These cases highlight the discomfort and distrust that judges felt and expressed against working-class women and girls. The rules of evidence required them to produce corroboration to the accounts, and further, the judiciary explicitly highlighted how victims and their mothers were untrustworthy because of their class and gender.

Although some judges had sympathetic words for the victims,Footnote ⁵⁹ in both the cases and appeals there is clearly a deep distrust in the girls’ word, regardless of their age, often based on their class, parents’ drinking, and their own suspected sexual history. Baron Huddleston, presiding judge over the Yorkshire Assizes, said at the start of the assizes that although section 5 of the CLAA 1885 was a step in the right direction, whether it would be beneficial for society would need to be proven still.Footnote ⁶⁰ He then continued to explain to a grand jury—before a single case was heard—how charges of this kind by “women and children against men were charges which required vigilance by all those connected with the administration of justice” before moving on to outline how, based on long professional experience, false charges were far more common in cases of sexual offenses than in any other field, implying that women and girls should not be believed.Footnote ⁶¹

The lack of belief in women's and girls’ testimonies was particularly notable, as medical experts were often unable or unwilling to provide clear evidence in support of the victims. Although some judges placed importance on the hymen, it was widely agreed by the end of nineteenth century that carnal knowledge could have taken place “without necessarily rupturing the hymen.”Footnote ⁶² Yet in many cases, the medical experts commented on the hymen and noted whether or not the hymen was broken, and whether there were other signs of intercourse. If time had passed, they were unable, or unwilling, to report whether force had been used and to comment on any other injuries. In the words of the medical examiner in the case of R.C. for the rape of his 15-year-old daughter, “by my examination I could not ascertain whether the prosecutrix was a virgin or not. I cannot give any opinion upon the matter, from my medical experience, I do not think it possible that an opinion could be given in cases exceeding over forty-eight hours after the alleged offence.”Footnote ⁶³ Although this case predates the CLAA, similar views were expressed by medical experts throughout the 1880s and 1890s.

Despite their reluctance to corroborate the girls’ testimonies, medical experts did frequently comment on whether they assumed that the victim had had sexual intercourse previously, adding to the suspicion that the victim was of “bad character” and “untrustworthy”. Girls who were suspected to have had sexual encounters with men were considered unreliable witnesses and their past sexual history—real or suspected—was discussed openly in trials, even when the victim was below the age of 13. Loss of virginity was associated with bad character; in the minutes of the appeal of J.P.K. for the rape of his 15-year-old daughter, the daughter's presumed sexual history was introduced. The medical evidence that was introduced to the trial and the appeal noted that her hymen had been broken some time ago, and then proceeded to describe her vulva as flaccid and the entrance of her vagina as dilated, as if the external appearance of the genitalia demonstrated frequent sexual intercourse or sexual encounters with multiple partners thereby freeing the father from liability.Footnote ⁶⁴ In the same appeal, the assistant head constable in Liverpool wrote in support of the father's appeal that “there is a good deal of evidence that the girl is of bad character and untruthful.”Footnote ⁶⁵ Other than what judiciary considered ”bad language” and possibly having a sexual history, there was no evidence presented to court that the girl was, in fact, of bad character, despite frequent references to it in the testimonies.

Consent and Resistance

Discussion of the girl's character and potential sexual experience was undoubtedly used to discredit her as a witness, but it was also used to imply consent to the events. Consent should not have been an issue in these trials, as in all the cases the victim was under the age of consent. To determine liability, the cases should simply have been about whether the act happened, as the victim by default had no capacity to consent. However, consent was often discussed as evidence of the victim's unreliability or wickedness or to argue that the man's actions were understandable. The focus on consent and resistance, over capacity, was closely related to the assumptions that working-class girls were precocious, sexually promiscuous, and untrustworthy, as discussed in the earlier sections. Requiring the victims, some under the age of 10, to reiterate their lack of consent or resistance, the courts demonstrated a remarkable lack of understanding of capacity, and of the pronounced aims of CLAA 1885.

As there was no statutory definition of consent at the time, the concept of “consent,” or lack of it, was given a new interpretation at every trial.Footnote ⁶⁶ Although the trials often focused on resistance and force, consent became an increasingly important concept throughout the period. The later influential case of Camplin, for example, took a more nuanced perspective on consent and argued that the victim's ability and freedom to make a choice should have been taken into account when determining whether she had consented.Footnote ⁶⁷ In lower-level trials, however, this nuance was often missing, and more emphasis was placed on resistance, even when the victim legally lacked capacity to consent because of her youth.

Understanding of consent and capacity overall varied trial by trial, and at times even politicians intervened in the proceedings when they felt that the defendant had been dealt with too harshly in the circumstances. In the 1889 appeal by E.A. for the rape of a child 12 years of age, the Prisoner's Petition was entirely based on the argument that the victim gave consent and that she was to blame.Footnote ⁶⁸ The petitioner, who was 18 at the time of the trial, produced letters between himself and the victim as part of his petition. When read in a contemporary light, the letters show E.A. grooming the girl for some months. The victim and E.A. had intercourse six or seven times over a period of months but the victim said that this was “done out of fright,” and that she was too scared to tell her mother what had happened.Footnote ⁶⁹ A number of influential men including the local MP Rear Admiral Mayne wrote in support of E.A.'s appeal, reinforcing that the victim had in fact consented, and that there was a strong local feeling that E.A. should be released because of the petitioner's young age and the victim's apparent consent to the relations.Footnote ⁷⁰ Viscount Curzon, another MP, also wrote in support, expressing that he had doubts about the girl's character. He also stated that the girl appeared to have been “precocious” and to have encouraged E.A.Footnote ⁷¹ As the victim was 12 years old and below the age of consent, the issue of consent should not have been introduced, yet, it was discussed at length during the petition, and even by MPs who had an official part in the proceedings. No questions about the victim's capacity to consent because of her young age were raised in the proceedings. E.A. had been sentenced to 5 years, but this sentence was reduced, and he was released after 3 years. The case of E.A., heard some years after the CLAA came into force, is particularly demonstrative of how the spirit of protection in the CLAA did not translate into everyday court proceedings. The victim, 12 years of age, was a child who did not have the legal capacity to consent and ought to have been treated as such. Yet, the interventions from high profile men and the emphasis on the “local feeling” that E.A. had been the victim of injustice are telling of a limited understanding of consent and capacity, and the circumstances that could render consent invalid, such as persistent “grooming.”

At times, victims themselves explained their lack of consent explicitly as lack of choice or lack of willingness, yet the courts were reluctant to accept those terms, instead requiring physical evidence of resistance and physical violence. During 1880, the trial of C.G., charged with rape of S.S. under the OAPA 1875, the victim stated clearly and strongly, when questioned again about her response to the act, “I repeat that I did not consent, but resisted the prisoner as best I could.”Footnote ⁷² Absence of consent was rarely discussed in such explicit terms, prior to or after the CLAA, but more frequently was framed as resistance of some kind. It was often the physical signs of rape that the trial dwelled on rather than symptoms such as pain.Footnote ⁷³ Medical expert testimonies were expected, and did usually include descriptions of genitalia, in particular identifying signs of harm and resistance. In the early twentieth century, judges began to recognize that consent is a complex issue, but jurors still focused on the physical aspects of resistance.Footnote ⁷⁴ Yet, often evidence focused on the physicality of the act, on the amount of blood, torn clothing, or physical injuries. The narrative of consent as physical resistance was replicated in these cases too, although at times the victims themselves articulated consent distinct from resistance, as lack of choice or lack of willingness. During the trial of R.S.C. for the rape of and assault on his daughter, the victim said, “I was afraid to scream as he threatened to kill me. I did not consent to what the prisoner did.”Footnote ⁷⁵

The cases in which victims used the language of consent were exceptions, and in the majority of cases, the victims instead emphasized the pain they had experienced, and that they had communicated “no” to the defendant, often by screaming emphasizing the physicality of the “no”. Despite the victims in the majority of these cases being very young, (the files include depositions from victims as young as 7 years old), they articulated clearly that they did not like what the defendant did or that they had asked him to stop, indicating both that they had the capacity to understand the wrongfulness of the defendant's actions, and also the importance of communicating this to the court.Footnote ⁷⁶ Overall, in these cases, the nature of consent should have been irrelevant in the proceedings, because by virtue of their age, the victims were deemed not to have to the capacity to consent; however, it was frequently discussed to both strengthen and undermine the case against the defendant. It is clear that lack of consent was associated with physical resistance, and medical experts were seeking signs not only of intercourse but also of abrasions and other injuries, reinforcing the stereotypes of violent resistance as a sign of lack of consent. Yet through the victims’ testimonies, a more nuanced and complex articulation of consent emerges: one that related the offense not to physical resistance but to genuine lack of choice and agreement.

The Family and the Community: Threat and Protection

The perceptions about the general lack of moral fiber in the family life, as highlighted in the first part of this article, were echoed in courts. Courtroom narratives often reveal an excessive focus on alcoholism, overcrowding, and perceived sexual impropriety of both the mother and the victim. This section focuses on those narratives, in light of the role of fathers and mothers in particular, to demonstrate that the stereotypes of the working-class family played out in courts too. This final section argues although mothers in particular were often vilified in courts as absent or neglectful, a remarkable leeway was also given when dealing with child sexual abuse within the family.

If intoxication and the young age of the defendant induced sympathy in juries, familial relations did not seem to have an impact on the way that cases were dealt with, or on the level of sentencing. There was no explicit legislation criminalizing incest until the Punishment of Incest Act 1908, and sexual abuse within the family was dealt with under the CLAA until then. Stevenson has argued that incest remained a taboo subject, rarely discussed because of its abhorrent nature,Footnote ⁷⁷ yet, the cases heard under CLAA do not reveal a particular condemnation of abusive fathers. There were even cases in which lack of physical resistance was used to dismiss a case against the father, completely ignoring the impact of familial power relations and dynamics on the girl's capacity to consent.Footnote ⁷⁸

The moral and physical dangers associated with overcrowding were discussed openly in the courts. If the daughter had shared a bed with her parents, this was often mentioned in cases in which the father was on trial for rape or assault on the daughter both to highlight their squalid living conditions and as a mitigating factor. This notion of proximity and immorality was discussed in Parliament debates that preceded the CLAA too. In the House of Commons debates on the bill in 1885, Broadhurst MP had proposed that boys below the age of 16 who live in overcrowded spaces would be exempt from liability, as boys who had lived in overcrowding and who shared spaces with girls of that age could not be expected to have “as high a code of morality as children brought up in the well-to-do houses.”Footnote ⁷⁹ He withdrew his amendment following resistance from other MPs, who felt that liability could not be based on class status, even if “many of them [young men] were brought up without any conception of purity.”Footnote ⁸⁰ This sense that lack of moral purity and squalid living conditions could be used as a mitigating factor was brought in appeals too, highlighting the inherent lack of morality in these families. During the 1894 appeal in the case of T.S., a 44-year-old tradesman, who had been convicted of raping his 16-year-old daughter, the fact that they were sharing a bed was introduced as part of the appeal against conviction. Concern was raised that the victim had shared her parents’ bed when only her father was present, and it was noted that, “the fact that she was lying in bed with her father at ten o'clock in the morning, that she stated she did not know that her mother had gone out, and that the doctor found no trace of violence, made it difficult to believe that her resistance was very serious.”Footnote ⁸¹ The statement, full of judgement, implies that the girl was squarely responsible for what had happened and that the petitioner's sentence had been too severe and should be reduced after a 10-year term. Whether intercourse took place was not disputed, yet the father was not deemed fully liable for it because of what the court perceived to be moral and other failures of the family and the daughter.

The general lack of moral fiber in family life was highlighted through not only overcrowding but also through alcoholism and implied sexual impropriety of the mother as well as the victim. If for women alcoholism and squalid living conditions were a sign of untrustworthiness, for men it was used as a mitigating factor. This overall lack of morality within the family was discussed almost as an excuse, particularly in cases in which the defendant or petitioner was the father of the victim. In the case of T.S. just discussed, the petitioner argued not only that the daughter was partially to blame, but also that he was very drunk at the time of the rape.Footnote ⁸² It was noted that “under these circumstances, the sentence of life for T.S. seems too severe,” and he was set to be released after 10 years. Intoxication was raised in a number of similar appeals as a mitigating factor, even in the case of a rape of a 14-month-old baby.Footnote ⁸³ It was also commonly used in cases dealing with a father raping his daughter. In the 1893 appeal petition by W.B., the court accepted that the father had been drunk, “yielding to overwhelming temptation.”Footnote ⁸⁴ Although a defendant's good character and family circumstances were at times mentioned as mitigating factors, young age and intoxication were by far the most commonly raised mitigating factors both in trials and in appeals.

In many cases, the defendant's youth was used as a mitigating factor, and at times a combination of being intoxicated and young led to disproportionately lenient sentences, as in the 1888 case of 28-year-old J.W., who was sentenced to only 4 months’ imprisonment for raping a 9-year-old girl. In this case, the jury explicitly recommended leniency because of his having been drunk at the time of the offense.Footnote ⁸⁵ The role that alcohol, and the judgment over misuse of alcohol, played in how working-class families were viewed in these cases cannot be overstated. Alcohol and alcoholism were used as an excuse for fathers for assaulting their daughters, and to apportion blame to mothers who had not raised their daughters well enough because of drunkenness.

Earlier in the article, I argued that reform campaigns framed criminal law as a surrogate parent, to protect children in working-class families, because of perceptions of the moral and material neglect of such children. Mothers in particular were framed as drunks, promiscuous, or simply absent when they were discussed; for example, leniency was sought for a father who had raped his daughter, and the mother's tendency to “go with men for drink” was noted in the appeal documents.Footnote ⁸⁶ The negative stereotypes of working-class mothers were replicated in courts where their trustworthiness was doubted or their alcoholism was discussed, despite having little bearing on the crime in question. Mothers were also frequently blamed for the abuse of their daughters, either indirectly by highlighting their moral failings, or directly because of their absence. This discussion concerning alcoholism often foregrounded discussion of the daughter's bad character or unreliability, or reasons why the father might have “yielded to temptation.”Footnote ⁸⁷ Furthermore, comments such as this from the case of W.E., “In the absence of his wife, prisoner had connection with his eldest daughter a girl of 13 ¼ yrs one Sunday afternoon” were frequently repeated in the appeal notes,Footnote ⁸⁸ as if lack of regular sexual access to their wives provided an explanation for the defendants’ actions.

Despite the vilification of mothers in courts, the cases discussed throughout this article challenge that presumption of neglect, and through the trial details, another narrative emerges: that of working-class mothers, siblings, and family friends as a protective force. In the vast majority of cases in which sufficient details were reported, it was the close female relatives, mothers, and siblings who reported the crimes and pursued prosecutions, often against men in their own communities and families, and at times against their employers. In the high-profile case of F.J.B., who was accused of raping a 14-year-old servant girl in his house, the victim's mother stated in her deposition that as soon as she heard of the assault, she “went straight to the Police Station and lodged a Complaint and I then went and fetched my child away from the [Bs].”Footnote ⁸⁹ In the case of F.J.B., the victim told her mother only some weeks later what had happened. In many of the cases in which the victims’ depositions have survived, a similar pattern occurs. Victims often did not disclose the assault to anyone, and when they did some days or weeks later, this was to their sisters or aunts, often highlighting how they had not told their mothers, or were too scared to tell their mothers.Footnote ⁹⁰ In only one case in the sample, it appears that the mother reacted extremely badly and had beaten the victim, not believing her account of the events.Footnote ⁹¹ In other cases, not telling the mother seems to have been driven most commonly by fear, as in the words of a 15-year-old victim: “Why I did not mention it to my mother before was I was afraid of being killed.”Footnote ⁹² The fact that the victims had confided in sisters, aunts, or mothers, challenged the reformers’ perceptions of absence of familial and community support networks.

Similarly, Jackson has argued that often family members, neighbors, and family friends provided vital support and a collective response to abusive men within their communities.Footnote ⁹³ These cases not only challenge the narrative of the absence of wider familial support networks, they also challenge the notion that sexual abuse was seen as a purely private family affair. In many appeal files, there were depositions from the neighbors, who were willing to contribute to proceedings after a report by someone else, or even took it upon themselves to report the crime.Footnote ⁹⁴ In the case of B.E., charged with raping his 9-year-old daughter repeatedly following the death of his wife, the neighbors, who said that they thought that the father had been beating the child, had heard the girl's screams and shouted at the defendant repeatedly to leave her alone, every Friday when the abuse happened. According to the victim, on the final occasion she heard the neighbor scream that “If you don't leave the little girl alone I shall get a policeman and lock you up.”Footnote ⁹⁵ Following this, she confided in an aunt and the aunt's landlady, who took her to the police station to report a crime. In the same appeal, a number of women within the community, from neighbors to the aunt's colleagues and friends of the family, gave depositions against the defendant.Footnote ⁹⁶ Although there are many cases that never made it to court and many more that were never reported or even discovered, the cases that did make it to court demonstrate that the way that families and communities dealt with sexual abuse was more complex and often more supportive than reformers could have imagined.