Sexual Forensics in Victorian and Edwardian England

Age, Crime and Consent in the Courts

Victoria Bates

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137441720
• Topic: History
• Subtopic: Social History
• Index: History

Drawing on court records from London and the South West, Sexual Forensics in Victorian and Edwardian England explores medical roles in trials for sexual offences. Its focus on sexual maturity, a more flexible concept than the legal age of consent, enables histories of sexual crime to be seen in a new light.

1

Knowledge: The Foundations of Forensics

In May 1880, Harry Ernest Magrath was tried at London’s Central Criminal Court at the Old Bailey for raping his seven-year-old daughter.¹ Upon being found guilty of the offence, the court sentenced Magrath to 20 years of penal servitude. A persuasive part of the case against Magrath came from three different medical witnesses, one of whom had a recognised specialism in forensic medicine and lectured on the subject. At the request of the Metropolitan Police, this forensic expert conducted a microscopical examination of the victim’s linen and found ‘blood cells’ to corroborate the alleged offence. This case provides a representative example of high-level trials for sexual offences in Victorian and Edwardian London, in which it was common for a range of medical practitioners to testify and for those practitioners to have some access to laboratory facilities.² It also reflected the growth of medico-legal specialism, although specific training and employment in forensic medicine was largely limited to Edinburgh and London before the twentieth century.

The Old Bailey has been a focus of many historians’ work on crime and forensic medicine, although few transcripts of sexual crime trials survive for the modern period.³ This court is an important part of the history of forensics, as it often provided the site for extensive and specialist medical evidence. However, the Old Bailey differed greatly from the day-to-day practice of forensic medicine in mid-level courts. Mid-level courts tried indictable misdemeanours, such as attempted rape, instead of felonies, such as rape, or lesser crimes such as ‘common assault’ that came under the jurisdiction of police courts without a jury. The practice of these courts and the evidence given within them differed greatly from higher courts such as the Old Bailey. Despite the lower profile of mid-level trials such as the Middlesex Sessions, a high proportion of cases passed through these courts. The Old Bailey, which covered the City of London and the County of Middlesex, held 2476 trials for non-consensual sexual offences in the period 1850–1914 and the Middlesex Sessions alone held 1424 in the same period.

Courts such as the Old Bailey could draw upon cutting-edge diagnostic methods, but forensic evidence given in mid-level courts was more representative of the day-to-day practice of medicine in the Victorian and Edwardian periods. The specific value of these courts is indicated by a comparison between the above Old Bailey case and another tried at the Middlesex Sessions in the same year. The Middlesex court prosecuted an alleged indecent assault on a girl of the same age, seven years old, but differed in that only one medical practitioner testified in court.⁴ He was consulted by the parents of the complainant, made no reference to use of a microscope and testified extensively on his discussion with the young girl and her understanding of the repercussions of lying (going ‘to hell’).⁵ Such discussions of religion and non-scientific matters was by no means unusual in local and mid-level courts, particularly in the provinces where relationships between the police and medical practitioners were less formalised and there was only limited access to laboratory facilities. Such cases provide invaluable insights, but not into the scientific aspects of forensic medicine. Instead, they shed light on the intersections between medicine and general middle-class cultures and on shifting medical thought about age, gender and sexuality.

This chapter explores the knowledge base of sexual forensics in mid-level courts, with a particular focus on physiology – especially that related to sexual maturity – as the primary framework for diagnosing sexual offences. While higher courts shifted towards some bacteriological and chemical approaches to the body, as well as bringing in expertise on the mind over the late-nineteenth and early-twentieth centuries, most local courts’ evidence base remained firmly grounded in the body. Rather than shifting towards the use of new specialisms, medical witnesses at the Middlesex Sessions and county Quarter Sessions drew upon new understandings of variable bodily norms and the age of sexual maturity in order better to understand the ‘abnormal’ body. They drew particularly upon the growth of anthropometric and social science research, which in the nineteenth century fed into a growing interest in the statistically typical population.⁶ The ‘normal’ as typical, in addition to healthy and ideal, had a significant impact on understandings of the body in general and more specifically on medical evidence in cases of suspected sexual crime. In 1914 there was still a school of medical writing that focused on selected individuals, anecdotes or exceptional cases, but over the course of the nineteenth century statistical methods had increasingly supplemented – and in some contexts replaced – the traditional case report.⁷ For sexual forensics, bodily norms created a new evidential framework. Although medical practitioners had long identified typical ages of puberty in broad terms, statistics provided a scientific basis for claims about relative rather than absolute forms of ‘normality’; if a girl reached puberty later than the norm or was well developed ‘for her age’, it changed the meaning of her physical signs. Statistical norms allowed for a more nuanced approach to the body, taking into account its variability and recognising a law of errors rather than only averages.

Medical witnesses needed to draw upon an understanding of the ‘normal’ body at different ages and developmental stages in order to give meaning to physical signs. Beyond high-profile London courts, sexual forensics was generally not a pursuit of trained expert witnesses. Many lacked laboratory facilities as English police had no in-house forensic laboratories until the late 1930s and no specific ‘rape examination suites’ until the 1980s.⁸ Instead of shifting its focus to the laboratory in the Victorian and Edwardian years, sexual forensics remained grounded in the naked-eye diagnosis of bodily signs. Naked-eye diagnosis relied not on extensive tests, but instead on knowledge about the ‘normal’ body, which was unstable and ambiguous. Physiology was therefore the cornerstone of sexual forensics, particularly research on puberty at which bodily norms apparently changed significantly. Female sexual maturity brought the capacity for sexual consent and significant physical changes, which altered the meaning of signs such as bloodstains, genital dilation (both of which became potentially ‘natural’ at puberty) and even marks of resistance as girls gained strength.

Books of medical jurisprudence, which guided medical testimony in court, indicate the significance of puberty for sexual forensics. Francis Ogston, a Scottish expert in forensic medicine who held a chair in medical jurisprudence, divided his 1878 book Lectures on Medical Jurisprudence into ‘1st, The violation of the female under the age of puberty. 2d, After puberty, and previously to her having otherwise had sexual connection. 3d, After puberty, and when the person had been accustomed to such connection’.⁹ Ogston’s work corresponded closely to that of Alfred Swaine Taylor, whose popular books of medical jurisprudence followed similar divisions throughout their many editions of the late-nineteenth century. Taylor divided his chapter on sexual offences into ‘rape on children’, ‘rape on young females after puberty’ and ‘rape on the married’.¹⁰ It was not until 1910 that Taylor’s work reflected the law on sexual consent, by dividing into ‘rape on infants and children up to the age of sixteen’ and ‘rape on women and girls over sixteen’, rather than the physiological and social categories of puberty and marriage.¹¹

Despite a general acceptance that the ‘normal’ (as typical) provided a useful framework for understanding the body, and by extension sexual crime, defining ‘normal’ puberty was not a clear-cut process. The lengthy and multifaceted nature of puberty posed problems for medical efforts to identify a single typical pattern of maturity. Physiology texts generally discussed sexual maturity in terms of three main features: physical maturity, such as the ability to reproduce; the ability to experience sexual sensations and pleasure; and sexual curiosity or the ability to understand sex.¹² A number of new theories emerged to explain the processes involved in sexual maturation over the course of the late-nineteenth and early-twentieth centuries, most significantly the concept of ‘hormones’ in 1905.¹³ However, the central belief that puberty was a multifaceted process was unaltered. Across mainstream and specialist medical genres, authors conceptualised puberty as a ‘gradual’ process or ‘evolution’ that involved stages of physical and psychical maturation and that resulted in sexual differences being more clearly defined.¹⁴ To complicate matters further, puberty marked the hastening of processes that could start many years earlier. There was no homogeneous category of ‘childhood’ within medical thought; the closer to the ‘normal’ age(s) of puberty, the less ‘childlike’ a girl or boy was thought to be.

In the nineteenth century, medical writers shifted away from early modern models of sexual maturity in which menarche (first menstruation) and sexual desire came together.¹⁵ A specific order of development was put forward in many texts, which began with the emergence of secondary sexual characteristics including hair growth in both sexes, breasts in girls and vocal changes in males. Reproductive capacities apparently followed, prompting sexual sensations and the capacity for pleasure: for the male, physiologist William Carpenter wrote in 1855, ‘sensations … may either originate in the sexual organs themselves, or may be excited through the organs of special sense’; and, for women, according to physician Elizabeth Garrett Anderson in 1874, the ‘functions of womanhood awaken instincts’.¹⁶ In turn, these sensations would apparently stimulate curiosity and bring an ability to comprehend the nature of sex, bringing finally the psychological aspects of sexual maturity. Alienist Thomas Clouston even argued that ‘for years after puberty boys and girls are still boys and girls in mind’.¹⁷ Despite this apparently clear pattern of maturity, sexual maturation was not expected to be only a linear process. Most medical authors implied, and in some cases stated explicitly, that development of the three component parts of sexual maturity involved phases of both parallel and non-parallel development.¹⁸ As puberty was seen as a life stage at which the body and mind developed at different times and rates, with mental capacity coming relatively late, there could be a few years in which the sexual body had reached maturity without a girl or boy yet having the capacity to understand or control it. This perceived pattern of development explains why puberty was such a concern for Victorian and Edwardian society, which increasingly valorised self-control, and why it was difficult for medical practitioners to identify any single ‘normal’ age for sexual maturity.

Although many aspects of sexual maturity had implications for sexual forensics, statistical studies of puberty were only possible for a few specific signs. Medical writers paid little attention to male bodies, in part because they struggled to pinpoint a clear and measurable marker of male sexual maturity. Secondary sexual indicators such as hair growth, they emphasised, emerged over a lengthy period of time and presented no clear means of measuring a typical age of sexual development.¹⁹ The reproductive capacity in boys was also difficult to identify because young and physically immature males could produce semen without spermatozoa.²⁰ For girls the onset of menstruation, menarche, was a clearer indicator of maturity than the first male emission of semen. Blood had a symbolic value both as an indicator of womanhood and as a form of ‘pollution’ that needed controlling.²¹ It was also an important sign for practitioners of sexual forensics who would need to use knowledge of the age of menarche to distinguish between ‘natural’ and ‘unnatural’ bloodstains. Statisticians generally ignored other aspects of puberty, such as mental capacity, and kept to general observations about the relatively belated nature of psychological maturity. Only sexologists made any attempt to analyse when girls achieved the capacity for sexual pleasure or the ability to understand sex, with studies that were limited in scope because of the difficulty of measuring these features of maturity.²²

A number of high-profile writers turned to statistics to identify the average age of menarche in the late-nineteenth century. These studies often found averages of between 14 and 15 for menarche, which broadly corresponded to ages cited in early modern texts before the rise of statistical forms of ‘normality’.²³ New statistical studies also strengthened long-held beliefs about the variable nature...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figures
• Acknowledgements
• Introduction: Sex, Sexuality and Sexual Forensics
• 1 Knowledge: The Foundations of Forensics
• 2 Injury: Signs and the Sexual Body
• 3 Innocence: Chastity and Character
• 4 Consent: Violence and the Vibrating Scabbard
• 5 Emotions: Medicine and the Mind
• 6 Offenders: Lust and Labels
• Conclusions: Medicine, Morality and the Law
• Selected Bibliography
• Index