Lesbianism and the Criminal Law

Three Centuries of Legal Regulation in England and Wales

Caroline Derry

• Publisher: Palgrave Macmillan
• Year: 2020
• ISBN:
  9783030353001
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This book offers a comprehensive examination of the ways in which the criminal justice system of England and Wales has regulated, and failed or refused to regulate, lesbianism. It identifies the overarching approach as one of silencing: lesbianism has not only been ignored or regarded as unimaginable, but was deliberately excluded from legal discourses. A series of case studies ranging from 1746 to 2013 from parliamentary debates to individual prosecutions shed light on the complex process of regulation through silencing. They illuminate its evolution over three centuries and explore when and why it has been breached. The answers Derry uncovers can be fully understood only in the context of surrounding social and legal developments which are also considered. Lesbianism and the Criminal Law makes an important contribution to the growing bodies of literature on feminism, sexuality and the law and the legal history of sexual offences.

© The Author(s) 2020

C. DerryLesbianism and the Criminal Law https://doi.org/10.1007/978-3-030-35300-1_1

Begin Abstract

1. Introduction

Caroline Derry¹

(1)

Law School, The Open University, Milton Keynes, UK

Caroline Derry

Email: [email protected]

End Abstract

There is a surprisingly persistent myth that lesbians have never been punished by the criminal law of England and Wales because of Queen Victoria. She supposedly refused to believe that women would do such things (or, in an alternative version, ministers were unwilling to raise the subject with her). As a result, there could be no prohibition in the Criminal Law Amendment Act 1885 equivalent to that criminalising ‘gross indecency’ between men. Sex between women, the myth assures us, has been the subject of nothing worse than benign legal neglect.¹

The story is false: no amendment addressing gross indecency between women had been suggested. Even if it had been proposed and passed, the Queen could not have refused her assent to an individual section, only to the Act as a whole—and she would have caused a constitutional crisis in the process. That is even assuming that Victoria was as innocent of the possibilities as the story assumes, which is questionable (Weintraub 1987; Hall 2000; Loch 2015). And the tale does nothing to explain the lack of explicit criminalisation before 1885: the secular law had proscribed many other forms of ‘deviant’ sexual activity beginning with the Buggery Act of 1533, over three centuries before Victoria became monarch.

So much for Queen Victoria; what of the criminal law? This book seeks to challenge the mythology on several grounds. First, the absence of a specific crime should not be confused with benign neglect. Rather, it was central to a policy of silencing which aimed to keep lesbianism outside the knowledge of, or at least unspeakable by, ‘respectable’ white, British women of higher social class . That silencing was required precisely because of acute anxieties about female sexual autonomy: relationships between women were seen as a potent threat to the patriarchal family. Second, the lack of a discrete crime did not entirely prevent the prosecution of sex between women using other offences. Such relatively rare moments of legal visibility form many of the case studies around which each chapter is centred. These case studies allow us to identify both the consistent factors and the significant developments in the law’s approach over three centuries. Third, there has not been a smooth progression from invisibility to social acceptance, and this book will examine the ways in which the criminal justice system has responded to recent social and political changes. Now that straightforward silencing of lesbianism is no longer a realistic policy, there is a more troubled relationship between lesbianism, the criminal law, and their wider social contexts. In other words, demythologising this subject is important not only as a matter of historical accuracy but also because of its continuing—and damaging—effects today.

This book traces the emergence and evolution of silencing through case studies ranging from 1746 to 2013. These case studies encompass the distinct but interlinked approaches of courts and legislators, and relate these to the social and medical regulation of women’s sexuality. The earliest case study explores the prosecution of Mary/Charles Hamilton, severely punished by the courts for marrying a woman and thereby usurping patriarchal sexual and social privileges. It is followed by the very different prosecution of Victorian midwife Louise Mourey, who was convicted of indecent assault for examining a girl without her father’s consent. Her case, in which the legal status of sex between women was confirmed without reference to women’s sexual conduct, represents the high-water mark of silencing . Yet while silenced in the criminal courts, lesbianism faced medical regulation which could meet autonomous female sexuality with highly coercive responses including surgery or incarceration. Meanwhile, first-wave feminism challenged the sexual double standard and questioned the assumptions of female sexual passivity upon which silencing rested, prompting the first explicit parliamentary debate on lesbianism, our third case study. Not only feminists but also sexual scientists and doctors were complicating assumptions around women’s sexuality, particularly through newer models of ‘congenital inversion’. These treated male and female homosexuality as parallel phenomena and influenced the next case study: the prosecution of Victor/Valerie Barker in 1929. Yet social and medical challenges were slow to affect the criminal law, and silencing endured with surprising effectiveness until after the Second World War. The 1957 Wolfenden Report marked a turning point: rather than treating male and female sexuality as opposites, it took lesbians as the obvious comparators for gay men. By then immediately dismissing female homosexuals as less prevalent, troublesome, or libidinous than their male counterparts, it marked the start of a new form of silencing . Our final case studies, sexual assault prosecutions from the 1990s onwards, demonstrate that the criminal justice system continues to represent lesbians as lesser versions of gay men while nonetheless punishing them harshly when they do come to the courts’ attention.

This book, in exploring the development of silencing and its changing forms, argues that some themes have remained relatively consistent. One is that lesbian subjectivities have been ignored and obscured, whether through outright denial that lesbians exist or through assuming that they can be equated with gay men. Another is that the treatment of lesbianism is closely connected to the wider treatment of women’s sexuality and that both have been fundamental to the maintenance of patriarchy . Lesbianism has become a matter for the criminal courts when heteropatriarchal privileges have apparently been threatened. In setting the scene for a substantive discussion of lesbianism and the criminal law, this introduction will explore several questions. First, what is lesbianism? Second, what is silencing , and why has it been used for women in particular? Finally, methodological approaches to writing the lesbian legal past and present will be discussed.

What Is Lesbianism?

So far, both ‘sex between women’ and ‘lesbianism’ have been used to discuss the subject-matter of this book, but they are clearly not interchangeable terms. Before defining the latter, it is worth repeating that this book is concerned with the regulation of lesbianism, which is not quite the same as the regulation of lesbians: not every defendant in these pages was a lesbian, but in most cases the courts believed or acted as if they were. (Midwife Louise Mourey, discussed in Chap. 3, is an obvious exception.) Further, the legal system did not use this terminology for most of its history and often took great care to avoid recognising that relationships were what we could term lesbian, so there are no formal legal definitions.

This book is focused upon what parliament and the legal system talked about and what they thought they were regulating. We will see that historically, there was little recognition of any deviance from heterosexuality other than lesbianism, and limited recognition even of that. In the eighteenth-century courtroom, the emphasis was not upon women’s own subjectivities but rather their lack of, and potential for, heteropatriarchal conformity and propriety. By the twentieth century, women who were not attracted uniquely to other women were ‘really’ pseudo-lesbians, potential heterosexuals deceived or corrupted into a same-sex entanglement. The courts, in other words, did not pay attention to bisexual or pansexual possibilities. Similarly, some of the defendants discussed in this book look to contemporary readers like trans men rather than lesbians, but the courts have generally treated them as women in male disguise (and, as we will see in Chap. 8, sometimes still do). As the legal system believed it was regulating lesbianism, its approach is relevant here whether or not the subjects thus regulated were in fact lesbians.

Anachronism?

Since this book covers a period of about 300 years, using ‘lesbianism’ is open to criticism as anachronistic. For that reason as well as the others discussed here, I have avoided describing individual women as ‘lesbian’ without some evidence that they were likely to have identified in that way (if not with that precise term), but I do use ‘lesbian’ and ‘lesbianism’ to describe types of activity or identities. I have not followed the practice of historians who modify ‘lesbian’ to constantly highlight its contingent or tactical use: Valerie Traub italicises it throughout her book to remind readers of its historical contingency, while Judith M. Bennett prefers the term ‘lesbian-like’ (Traub 2002, p. 16; Bennett 2006). I considered but ultimately rejected both strategies. Italicisation is distracting for the reader; while that effect is not without purpose, it can also disrupt reading in ways which are unhelpful (and physically uncomfortable for my own autistic brain). As for ‘lesbian-like’, the suffix ‘-like’ indicates ‘not lesbian’. Someone can be ‘child-like’ because they are not a child; ‘lawyer-like’ because they are not a lawyer. Bennett (2006, p. 118) argues that the term’s decentring of ‘lesbian’ brings ‘productive uncertainty’, which encompasses a wider range of women with affinities to the contemporary lesbian identity. However, decentring lesbianism would run counter to the very centring which this book attempts. It also means the shift from ‘lesbian-like’ to ‘lesbian’ would really matter, but when should we make that shift? The date at which something akin to contemporary sexual identities may have emerged has been moved further and further back by historians since Foucault suggested 1870: Vicinus is surely r...