Rape and “Consent to Force”: Legal Doctrine and Social Context in Victorian Britain A Thesis Submitted to the Faculty of Graduate Studies and Research in Partial Fulfillment of the Requirements for a Degree of Master of Laws in the College of Law University of Saskatchewan Saskatoon by Norma L. Buydens March 2007 The author claims copyright. Use shall not be made of the material contained herein without proper acknowledgment, as indicated on the following page. Distribution Notice In presenting this thesis in partial fulfillment of the requirements for a Postgraduate degree from the University of Saskatchewan, I agree that the Libraries of this University may make it freely available for inspection. I further agree that permission for coping of this thesis in any manner, in whole or in part, for scholarly purposes may be granter by the professor or professors who supervised my thesis work, or in their absence, by the Head of the Department or the Dean of the college in which my thesis work was done. It is understood that any copying or publication or use of this thesis or parts thereof for financial gain shall not be allowed without my written permission. It is also understood that due recognition shall be given to me and to the University of Saskatchewan in any scholarly use which may be made of any material in my thesis. Requests for permission to copy or to make other use of material in this thesis in whole or in part should be addressed to: Dean of the College of Law University of Saskatchewan Saskatoon, Saskatchewan S7N 0W0 Acknowledgments I wish to thank Professor Beth Bilson, Professor Wanda Wiegers, my thesis supervisors, Professor Mark Carter, of the University of Saskatchewan College of Law, and Dr. Dawn Flood of University of Regina, for wise counsel. I would also like to thank Professor Paul Chartrand, Graduate Coordinator, who was very kind in helping me to finish my program. Great gratitude goes to Brian Buydens, my husband and personal computer guru, and my children Stephanie and Adrien, for patience and confidence-building. Special thanks also to Dr. Kim Stevenson, co- founder of the SOLON project at Nottingham Trent University in England, for her encouragement and research, and to all the marvelous women of the Association for Research on Mothering, from Dr. Andrea O’Riley, founder, to conference participants. I dedicate this thesis to all of the women in my life involved with the task of responding to rapes, in whatever way. Abstract This thesis is an exercise in the historical use of legal analysis. It illuminates the social construction of gender in an era of changing social mores, by relating rape doctrines to demographic, economic, social, and cultural changes. Changes in the rape law of early Industrial Britain (1800-1860) are examined as: 1). results of ideological changes since the eighteenth century; and 2). causes of the creation of Victorian sexual culture. The ideology of “Separate Spheres” for men and women led to a fearful sexual regime which prescribed chaperoning to ensure women’s chastity. Law made women’s avoidance of being alone outside, where they could become prey of strange men, a requirement for sexual respectability, because rape became more difficult to prove. The 1817 rural Midlands murder case of Rex versus Abraham Thornton caused popular controversy because the judge said physical evidence of brutal sex was not inconsistent with consensual sex: the woman could have been “persuaded” by violence: reasonable doubt on the rape meant the accused was presumed to lack a motive to kill the deceased. Thornton was influential on law and gender ideology. “Consent to force”—the idea that a woman could meaningfully consent to sex after violence—was extended in later rape cases. Secondly, even though the public reacted against Thornton’s acquittal, popular culture interpreted it to support “Stranger Danger”—that women risk rape by strangers while out alone, and should remain at home unless accompanied by trusted men. “Consent to Force” and “Stranger Danger” worked at different levels of the social hierarchy. But both served to extend Separate Spheres to working class women. Law undermined traditional mores which had supported the North West European marriage system—late marriage, small age difference between brides and grooms, nuclear family households, and numerous adolescents working in others’ homes as servants, resulting in low rates of premarital births during long courtships. Young commoners had managed a sexual balancing act by engaging in sexual exploration while refraining from vaginal intercourse. Late marriage, very low illegitimacy, and high rates of prenuptial conceptions of first marital births, resulted from young couples engaging in sexual intercourse only when conditions for marriage were right. Young men had to marry pregnant sweethearts, because communities could identify putative fathers. Industrialization threw the North West marriage system out of balance: young men became more mobile and able to evade forced marriage. It also became more difficult for young men, especially artisans, to achieve the status traditionally associated with marriage. This sexual crisis was exacerbated by upper class libertinism spreading to commoner men. The Thornton case promoted libertinism among all men, to allow men of higher class to approach lower class women for prostitution. The moral denigration of lower class women under rape law after Thornton was the flip side of the association of marriage with making wives consent to sex upon demand by their husbands, under Fraternal Patriarchy. Categorizing women as “bad girls” or “good girls” became central to rape law, yet illusory. Lower class women “persuadable” by force were subjected to similar constraints as wives: both were to think selflessly about fulfilling men’s “needs”. Bourgeois wives, like domestic servants, entered lifelong contracts to serve heads of households upon demand. Domestic torts based upon the property right of masters of households to service provided by wives and children, as well as servants, linked treatment of different classes of women. But because lower class women were not marriageable to elite men, their premarital chastity was not considered as valuable. Working class women’s gender value was discounted; working class men were emasculated as potential heads of households, by economic instability interfering with marriage, the displacement of men’s authority over wives to their employers, and the 1834 New Poor Law , which proposed removing wives and children from working class husbands and fathers when they went onto relief. De-gendering of lower class women and men was reflected in the difficulty that lower class men had in obtaining damages for domestic torts. Privileging of the bourgeois with respect to gender contributed to the failure of feminist and labour movements to cement a political alliance. Industrial-era rape doctrines were ultimately applied to all women rape complainants, regardless of class status, and became the basis for the anti-victim rape laws which second wave feminists analyzed and opposed. Modern rape law still presents women with similar challenges, based upon rape myths like Stranger Danger. Contents INTRODUCTION TO THE HISTORY OF RAPE LAW . ...........................1 A. THE HISTORICAL VALUE OF UPSIDE DOWN LAW . ....................1 B. WHY LAWYERS SHOULD PAY ATTENTION TO LEGAL HISTORY ..............13 C. HISTORICAL CONTEXT AND SOCIAL REALITY . ....................23 PREFACE: REX VERSUS ABRAHAM THORNTON ......................................31 A. INTRODUCTION: MUCH ADO ABOUT THE THORNTON CASE . ................31 B. INTERPRETATIONS OF FACTS ....................... ......................36 C. LEGAL BUSINESS AND DIRTY BUSINESS . .....................45 D. SUMMARY: THE INFLUENCE OF THORNTON . ...................53 CHAPTER ONE: COURTSHIP AND RAPE LAW: THE STRANGE HISTORY OF ABRAHAM THORNTON AND MARY ASHFORD .......................... ..................54 A. INTRODUCTION: COURTSHIP AND MARRIAGE IN A TIME BEFORE "STRANGER DANGER" ............................................ ...............54 B. FROM "THE WORLD WE HAVE LOST" TO INDUSTRIAL COURTSHIP ...........62 C. LAW AND RAPE MYTHS: THORNTON AND RESISTANCE ....................71 D. STATUS, RANK, CLASS, AND GENDER: SEX AND THE REGENCY DOMESTIC SERVANT ............................................ ...............81 E. LEGAL LIBERTINISM: "CONSENT TO FORCE" AND THE "PUBLIC WOMAN" . 108 F. SUMMARY: LAW AND THE CONSTRUCTION OF A "NEW NORMAL" FOR SEX . 117 CHAPTER TWO: WHAT IS A GOOD GIRL?: THE SEXUAL CONTRACT AND THE RAPE LAW ................................................... ........................119 A. INTRODUCTION: REACHING FOR SEXUAL AUTONOMY . 119 B. BACKGROUND TO THE PROBLEM: POLITICAL LIBERALS AND "ANOREXIC" FEMALES ............................................ 123 C. MATRIMONIAL LAW AS A REFLECTION OF CONTINUING PATRIARCHY . 134 .................................................. ........................149 D. FRATERNITY AND TACIT CONSENT: THE CLASS POLITICS OF THE MARITAL EXCEPTION .......................................... 149 E. THE IMPACT OF VIOLENCE ON A FINELY-TUNED SOCIAL SYSTEM ...........171 F. THE (BOURGEOIS) MAKING OF THE "FEMININE" WOMAN . ..................181 G. INDIVIDUALISM: (MALE) ENTITLEMENT AND (FEMALE) REPUTATION . 190 G. SUMMARY: FRATERNAL PATRIARCHY, RAPE AND MARRIAGE . 200 CHAPTER THREE. RETROGRADE MOVEMENT IN THE LAW OF RAPE: THE EARLY NINETEENTH CENTURY AS THE SOURCE OF MODERN RAPE MYTHS . 202 A. INTRODUCTION: