Handbook on Sexual Violence (12 page)

Middle-class campaigners on moral (social purity) issues bundled sexual violence against children together with the issue of child prostitution. Their lobbying achieved a rise in the age of consent for girls to 13 in 1875. In the 1880s there were scares over ‘white slavery’ and the trafficking of English teenagers to Belgian brothels (Mort 2000: 102–6; Bland 1995: ch. 3). A big public campaign included a series of articles in the popular press, for which the editor of the
Pall Mall Gazette
actually procured a girl, ostensibly for prostitution (Gorham 1978; Walkowitz 1992: ch. 3). The 1885 Criminal Law Amendment Act (CLAA) raised the age of consent for girls to 16 and, as an afterthought, also criminalised ‘gross indecency’ (other than sodomy) between men. The 1885 CLAA also recognised other kinds of moral violence as rape. It confirmed the existing tendency in case law that intercourse obtained by fraud, against a drunk or drugged victim or with ‘imbeciles’ was also rape, and thus moved further towards a model of consent as rational and contractual while criminal justice practice continued to reflect dominant assumptions of femininity as non-rational. These statutes framed the law on sexual violence – and the philosophy behind it – until late in the twentieth century. The Victorian legal positioning of sexual violence as something that did not impinge on authority relations or intimacies within families meant that vaginal rape within marriage remained excluded from the criminal law until 1991

(1989 in Scotland). Nor was there a law against incest until 1908 (Temkin 1986: 59).

During the First World War legal and criminal justice attention to sexual disorder focused on the potential damage to fighting men. Some of the earliest official and unofficial policewomen were recruited to police the sexual behaviour of women in garrison towns. There were of course concerns about the disorderliness of the ‘licentious soldiery’ but even greater anxieties were focused on so-called ‘amateur prostitutes’, teenage girls driven by ‘khaki fever’ to undermine fighting fitness and spread venereal disease among the troops. The Defence of the Realm Act (albeit later rescinded) ordered the detention of a woman infected with venereal disease who had intercourse with members of the armed forces. On the home front in both World Wars questions of violence and coercion were largely subsumed to matters of morale and national defence (D’Cruze and Jackson 2009: 150–51).

There was a sustained increase in cases of sexual violence reported after the Second World War. In 1947 there were 240 rape cases in England and Wales. There were 1,090 in 1976, 2,471 in 1987 and 6,281 by 1997. The British Crime Survey, which records data by interview rather than police records, estimated in the 1980s that only around a quarter of cases were reported to the police, and women’s organisations which assist rape victims suggested even higher levels of non-reporting. As in earlier centuries, many cases were filtered out of the criminal justice process and failed to reach a verdict, let alone a conviction (Gregory and Lees 1999). From the late nineteenth century the police prosecuted criminal offences and became an important institutional site where sexual violence cases were filtered out of the criminal justice process. A Scottish study in the 1970s found that a quarter of cases reported as rape, or attempt to ravish, were marked as ‘no crime’ by the police. The Scottish Procurator Fiscal decided not to initiate proceedings in 30 per cent of the cases referred to him by the police (a much higher rate than for other kinds of crime) (Temkin 1986, 2002; Rumney 2001).

The 1956 Sexual Offences Act (SOA) consolidated but did not change the Victorian law. It specifically excluded the possibility of male rape. Homosexual acts between adult men in private were decriminalised only in 1967 (SOA 1967). As regards rape, complainants were if anything further disadvantaged by the SOA of 1976 which codified the decision in
DPP
v.
Morgan
the previous year and stated that a defendant could not be guilty of rape if he believed the complainant had consented, however unreasonable his belief was. This same Act turned a deaf ear to the Heilbron Report of 1975 which argued for a clearer statement that evidence of physical resistance should not be required. Case law of 1981 (Olugboja 1981 3 All ER 1382) reserved the matter of consent to the jury; juries might be even more influenced by victim-blaming rape myths than were judges and the police (Temkin 2002: 92).

Women complaining of sexual violence were still regularly disbelieved and treated harshly by police and criminal justice. The myths that it was impossible to rape a resisting woman, that women and girls lie about rape or that they say ‘no’ when they mean ‘yes’, were widely accepted. Post-war generations of (especially white, middle-class) Western women had greater access to education, paid work and, from the 1960s, to oral contraception.

Reliable contraception loosened the connection between sexuality and reproduction, though this could prove an ambiguous benefit. While it liberated some women from anxieties about pregnancy it also reinforced masculine assumptions about women’s sexual availability. Being ‘on the pill’ could be taken to imply ongoing consent. Jobs and careers meant the risk of sexual harassment in the workplace (Gregory and Lees 1999). The greater autonomy that Western women obtained in the post-war era ironically could be held to increase their complicity. In 1982 in Britain a man was merely fined for raping a young woman hitchhiker. A judge commented that ‘it is the height of imprudence for any girl to hitchhike at night. . . . She is in the true sense asking for it.’ The following year another judge said of the statutory rape of a seven-year-old girl by her father’s friend that it was ‘one of the kind of accidents that could almost happen to anyone.’ In 1982 an episode of a documentary TV series on police work showed hostile treatment of a rape complainant by Thames Valley Police and caused a marked public reaction (Adler 1987: 2–3; Temkin 2002: 3).

As late as 1984/5, a Royal Commission refused the opportunity to rethink or expand the legal definition of rape and other sexual offences, except in setting aside the marital rape exemption where couples were legally separated (Temkin 2002: 83–4). Britain lagged behind other countries in seriously reviewing its laws on sexual violence (Temkin 1986: 26, 36). Male rape was recognised only in 1994 (Criminal Justice and Public Order Act 1994) and a comprehensive overhaul in the law was delayed until the SOA 2003 (Stevenson
et al
. 2004).

Sexual violence, penality and medical science

Although the Victorian law on sexual violence had become focused on the harm of moral violence, by the early twentieth century, the identification of sexual violence with deviance and marginality had become authorised by the emergent discourses of criminology, psychiatry and subsequently psychology. Between 1860 and 1914, progressively less indictable crime including fewer violence offences came to court; key evidence for the ‘civilising process’ (Gurr 1981: Eisner 2003). However, sexual offences increased in number. This has been explained as reduced tolerance for sexual violence and rather greater gender equality (Fuchs 2005: 67); even so, it qualifies the nature and extent of any ‘civilising process’. Furthermore, many of these cases involved the sexual assault of children, and less than a third resulted in conviction (Jackson 2000: 23-4). From a different perspective, these trends indicate new and intensified disciplinary regimes directed at poor families. A wider complex of combined penal and welfare measures in the first half of the twentieth century enabled a role for social workers, psychologists, probation officers and police, many of them women. What Garland has termed the ‘penal-welfare’ complex (Garland 1985) confronted sexual violence in a number of ways. Growing numbers of sexually abused girls were placed in children’s homes alongside both young offenders and girls needing care for other reasons, despite concerns that they would morally corrupt the other children (Children’s Acts 1908, 1933).

Notwithstanding emergent criminological and psychological knowledges, their treatment continued to combine moralistic and therapeutic approaches well into the twentieth century. To adopt Garland’s terminology, Victorian and modern cultures of penality persistently remained combined (Garland 1991: 127). Both of these perspectives targeted sexual promiscuity and knowingness as the key danger, thus obscuring issues of sexual violence and coercion (Jackson 2000: 68, 71, 150; Cox 2003: ch. 6).

This was contested professional territory. In Scotland medical and legal professionals explained child sexual abuse by citing an unsubstantiated popular belief in the ‘virgin cure’ for sexually transmitted disease. This countered the moral arguments of feminists and social purists and allowed professionals to focus on the physical rather than the emotional damage caused (Davidson 2001). Differences of opinion among psychologists, following Freud’s change of mind over whether adult neuroses were rooted in child abuse or were the outcome of hysteria, helped submerge the violence of child abuse in diagnoses of family dysfunction and adolescent girls’ sexual waywardness. The incidence of child sexual abuse is extremely hard to determine. There is some evidence of a reduction during the two World Wars but an increase thereafter (Jackson 2000: 25-6). The issue resurfaced in the 1970s. The identification of numbers of children as sexually abused in Cleveland turned on medical diagnoses of abuse and marked something of the limits of professional interventionism. Children were taken into care, some apparently mistakenly. Later moral panics about the ‘satanic’ abuse of children have proved more indicative of cultural anxiety than actual practices (Itzin 2000).

By the late twentieth century fears about the sexual danger to children had multiplied. Child sexual abuse was reconfirmed as a problem of families and neighbourhoods, but the potential this offered for insights into how sexual violence might be embedded into ‘normal’ intimate relationships was blunted by the more terrifying ‘stranger danger’ of the paedophile and the psychopathic murderer of children. The paedophile and the psychopath are psychiatric identity constructions that located sexual violence in specific, pathological individuals and superseded definitions of nineteenth-century sexual offenders as socially deviant, marginal and impoverished. Until extremely recently, these identities have been exclusively male (Bourke 2007: 127–9, ch. 10).

Nineteenth-century doctors were increasingly authoritative adjudicators of the bodily signs of sexual violence and physical resistance to it, though they were often reluctant to detect rape. From the 1880s there was closer medical and psychiatric scrutiny of the offender. By 1900 the science of criminal identification accompanied explorations of criminal physiognomies and other bodily identifiers. The Italian criminologist Lombroso worked to an evolutionary model which positioned sexual offenders as atavistic throw- backs. Criminological attention then moved from the body to the mind as Krafft-Ebing and other criminal psychiatrists elaborated taxonomies of sexual perversion and interpreted the harm of sexual assault as victims’ psychological trauma (Davidson 2001; Cole 2002: ch. 2; Garvey 2005: ch. 1;

Bourke 2007: 92–7).

For decades, convicted sexual offenders, from rapists to homosexuals, were subjected to medicalised regimes intended to cure them of their deviancy. Moreover, whereas some sexual offenders, including homosexuals, were considered as inadequate masculinities, rapists and other heterosexual violent offenders were thought of as displaying exaggerated masculine behaviour, positioning them as deviant but at the same time validating the potential for violence in ‘normal’ sex. From the early twentieth century sex offenders were ‘treated’ by sterilisation or castration intended to calm their sexual desire. Results were ambiguous, but there was some evidence that castrated offenders reoffended less frequently and became more socially conformist. Nazism and its genocidal programmes reduced the public credibility of surgical castration as a treatment for sexually violent offenders following the Second World War and there was contrary evidence that it did not necessarily destroy sexual function. From the 1940s chemical castration using synthetic oestrogens and other drugs was (and is) also used on both male and female offenders. This technique, directed mostly at male paedophiles, persisted despite psychological and physiological side effects, including in some cases the development of breasts. Attempts to cure violent sex offenders by lobotomy or leucotomy (surgically destroying particular neural pathways in the brain) also had variable outcomes. Psychological analysis was too protracted and expensive a procedure to be considered on any scale, though from the 1920s behaviouralist and conditioning techniques were used to reorientate rapists’ patterns of sexual arousal. Group therapy and psychodrama were employed in prisons in the late 1940s. Better educated offenders appeared to be more suited to softer ‘talking cures’. More forceful interventions were applied to resistant prisoners. Punishment and control have been disproportionately directed towards men who were already disadvantaged, often by race or class (Bourke 2007: chs 6, 7, 10). At the same time, the sexual violence intrinsic in many prison subcultures (a part of inmate power hierarchies rather than an expression of homosexuality) was dismissed as inevitable among a deviant offender population (Bourke 2007: ch. 12).

As Joanna Bourke argues, rape discourses produce the subjects they claim to describe. For example, indecent exposure had been classified under nineteenth century laws against vagrancy as a minor breach of order. By the mid- twentieth century it was defined as a sexual offence produced by a psychiatric condition. Such identifications enabled compliant sex offenders to occupy legitimated if deviant subject positions. Such constructions became sufficiently entrenched to take on other, less scientific meanings. The psychopath and the paedophile eventually became late-twentieth century hate figures in popular retributive moralism. By this time the penal-welfare complex had been substantially dismantled, and the influences of medicine and psychiatry in knowledges about and the treatment of sexual offenders were retained only insofar as they had become harnessed to more punitive strategies (Bourke 2007: 398, ch. 9).