Rape in the Eighteenth-Century Metropolis: Part 2 (original) (raw)

Abstract

In opening a rape prosecution to an Old Bailey jury in 1789, the celebrated barrister William Garrow summed up the problems attendant on most rape cases, then as now. They were difficult for courts and juries to consider because by the very 'nature of the offence, it is almost always attended with a secrecy which makes it necessary for Courts and Juries to find their way as they can, and to judge from the probability and improbability of the story told by the person who complains of the injury'.' Contemporary notions about evidence often put complainants at a disadvantage. Prosecutions suffered from the traditional reluctance of juries to convict on capital charges in cases where most of the evidence was victim generated. Finally, complainants were always female, defendants usually male. In the eighteenth century, women were commonly felt to be more governed by their emotions and less 'rational' than men, yet the most important aspect of the Crown's case was usually the complainant's testimony. The Role of Complainant Reputation Complainant credibility went to the heart of rape cases. Blackstone felt that it was an indication of the compassionate nature ofEnglish law that, unlike some civil law jurisdictions, even a prostitute could be the victim of, and prosecute, a rape.2 However, the experience of Elizabeth Galloway, a prostitute who accused the Scottish Lord John Drummond (an erstwhile client) of the crime in 1715, would suggest that there was not much truth in this, though she did get her case past three examining JPs and had Drummond committed to Newgate for five days before the matter was thrown out by the Middlesex Grand Jury at the Old Bailey. (That his Lordship was a notorious Roman Catholic may help explain why the case progressed as far as it did.3) In reality, as even Blackstone candidly noted, the reputation of the victim was vital in any prosecution for the crime. Far more than today, rape trials were as much an examination of the complainant as of the accused man. Chastity played a crucial role. Women of bad reputation had little prospect of success, and any suggestion that a complainant had been sexually active outside marriage would hugely undermine her case. Indeed, in early modern Europe

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References (57)

  1. I . Old Bailey Sessions Papers [henceforth 'OBSP'], y December 1789. Trial of Thomas Cole.
  2. William Blackstone, Commentaries on the Laws of England: I 660-1 800, 4 vols (Oxford
  3. Anon.], The Case of the LordJohn Drummondin Relation to a Rape (London 1715). p.3.
  4. Manon Van de Heijden. 'Women as Victims of Sexual and Domestic Violence in Seventeenth-Century Holland: Criminal Cases of Rape, Incest and maltreatment in Rotterdam and Delft', Journal ofsocial History 33,110.33 (2000). p.623. 1769), iv.213.
  5. OBSP, 8 December 1731, Trial of John Ellis.
  6. OBSP. 27 April 1715, Trial ofHugh Leeson and Sarah Blandford.
  7. Hugh Leeson. Capt. Leeson's Case: Being an Account of his Trgal, for Committing a Rape (London 1715). p. I I . [Anon.], The Tryal ofcolonel Francis Charteris, printed for Sylvanus Pergat (London 1730).
  8. OBSP. 20 April 1757, Trial of Daniel Laskey.
  9. Matthew Hale, History ofthe Pleas ofthe Crown, 2 vols (London 1736). i.634-35. OBSP, 10 December 1707, Trial of William Kite. OBSP. 5 April 1769, Trial of John Gyles. OBSP. 13 July r715, Trial ofDaniel Bonnely. OBSP. 7 December 1757, Trial ofThomas Crosby. K v Brasier (177y), T Leach ryy. OBSP, 14 July 1742, Trial of Ann Glass. OBSP, 12 September 1733, Trial of John Cannon. OBSP, 25 June 1788, Trial of Joseph Fyson. John Langbein, The Origins of Adversary Criminal Trial (Oxford 2003). p.239-40. OBSP, 22 February 1727, Trial of Thomas Padget. ORSP, 30 May I 754, Trial of William Kirk. OBSP. 17 Tanuarv 1779. Trial of Tohn Adamson.
  10. -.-, Antony 'Simpson. 'Vulnerability and the Age of Female Consent: Legal Innovation and its Effect on Prosecutions for Rape in Eighteenth-Century London', in Sexual Underworlds of the Enlightenment, ed. G. S. Rousseau and R. Porter (Manchester 1987). p.187. 25. OBSP. 15 January 1748. Trial of William Page.
  11. Stephan Landsman, 'One Hundred Years ofaectitude: Medical Witnesses at the Old Bailey: I 717-1817', Law artdHistory Review 16 (1988). p.452-61. There was a tendency for prosecution medical evidence to be adduced at the end of the Crown's case. By contrast, defendants who called such evidence commonly opened their cases with it.
  12. OBSP, 30 May 1754. Trial of William Kirk.
  13. OBSP. 6 December 1721. Trial ofSamuel Graff.
  14. Landsman, 'One Hundred Years of Rectitude', p.452-61.
  15. OBSP. 7 September 1748, Trial of William Garner.
  16. OBSP. 25 June 1752. Trial ofPatrick White. 32. Elements of Medical Jurisprudence, ed. Farr, p.43.
  17. Dr Daniel Turner, Syphilis. A Practical Dissertation on the Venereal Disease, 2nd edn (London 34. The London Chronicle or Universal Evening Post, 1-3 September 1757. 35. Van de Heijden. 'Women as Victims of Sexual and Domestic Violence', p.623.
  18. OBSP, I May 1717, Trial of Henry Burt.
  19. Henry Fielding, Rape upon Rape: or Thelustice Caught in his Own Trap (London 1730), p.55.
  20. ORSP, TO May 1769, Trial ofRichard Green.
  21. Antony Simpson, "'Blackmail Myth" and the Prosecution of Rape and its Attempt in 18th- Century London: The Creation of a Legal Tradition'. Journal of Criminal Law and Criminology 77 (1986). p.101-50.
  22. I . LaurieEdelslein (1998) 'An Accusationeasilyto be made?: Rape andMaliciousProsecution in Eightecnth-Century England'. AmericanJournal ofLegal History 42 (1998). p.351-go. 42. For a discussion of this regular phenomenon, see The Post Boy, 16-18 October 1707. 43. ORSP, 7 December I 71 5, Trial of William Willis.
  23. ORSP, I T September 1735. Trial of Phillip Brown. 1724), P.14,40.
  24. '<t 36. OBSP. 11 September 1771, Trial of Simon Frazier. Thomas Hodges and John Hasley. 45. OBSP, 8 December 1742, Trial of William Remue.
  25. Timothy Hitchcock, "'Unlawfully begotten on her body": Illegitimacy and the Parish Poor 47. Anna Clark, Women's Silence, Men's Violence: Sexual Assault in England I 770-1 845
  26. John Motherill. The Case ofJohn Motherill. The Brighthelmstone Taylor who Was Tried at East 49. OBSP, 8 December 1731, Trial of John Ellis.
  27. Kim Stevenson, 'Unequivocal Victims: The Historical Roots of the Mystification of the 51. Elements of Medical Jurisprudence, ed. Farr, p.43.
  28. Blackstone, Commentaries on the Laws ofEngland, iv.213.
  29. See, for example, OBSP, 6 September 1677, Trial of an Anonymous 'Lusty Man'.
  30. OBSP, 21 April 1762, Trial of John Clark.
  31. OBSP. 14 October 1747. Trial of Matthew Cave.
  32. In the case of Commonwealth v Cleary (1898), 172 Mass 175.
  33. Blackstone, Commentaries on the Laws of England, iv.211.
  34. OBSP, 15 January 1748, Trial of William Page.
  35. Blackstone, Commentaries on the Laws of England, iv.214.
  36. OBSP, 10 May 1769, Trial ofRichard Green.
  37. OBSP, g December 1789, Trial of Thomas Cole.
  38. Anon.], The Case of the Ld. John Drummond in Relation to a Rape (London I 715)% p.3. 63. Elements of Medical Jurisprudence, ed. Farr, p.42.
  39. Leeson, Capt. Leeson's Case, p.12.
  40. OBSP, 20 February 1793, Trial of John Curtis.
  41. OBSP, 14 October 1747, Trial of Matthew Cave.
  42. OBSP, 10 May 1780, Trial of James Purse.
  43. Julie Gammon, "'A denial of innocence": Female Juvenile Victims of Rape and the English Legal System in the Eighteenth Century', in Childhood in Question: Children, Parents and the State, ed. A. J. Fletcher and S. Hussey (Manchester 1999), p.89.
  44. in St Luke's Chelsea', in Chronicling Poverty, ed. Hitchcock (Basingstoke 1997), p.70-87. (London 1987). p.27.
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  46. Female Complainant in Rape Cases', Feminist Legal Studies 8 (zooo), p.343-44.
  47. Simpson. 'Vulnerability and the Age ofFernale Consent', p.187.
  48. Anon.], The Last Dying Speeches and Confessions, Confessions and Adventures of the Three Unfortunate Malefactors, Executed this Morning before the Debtors Door, Newgate (London 1798).
  49. OBSP, I 3 January 1699, Trial of William Pheasant, and The Flying Post, 24-26 January 1699.
  50. Antony Simpson, 'Popular Perceptions of Rape as a Capital Crime in 18th-Century England: The Press and the Trial ofFrancis Charteris in the Old Bailey, February 1730', Law and History Review 22, no.1 (2004), p.27-70 (p.53).
  51. Leeson, Capt. Leeson's Case, p.4.
  52. Stevenson, 'Unequivocal Victims', p.346.
  53. OBSP, 27 August 1725, Trial ofRobert Lander.
  54. Simpson, 'Vulnerability and the Age of Female Consent', p.189. Similarly, five of the eleven attempt trials at the Bailey produced guilty verdicts (four of these occurring in the 1720s).
  55. Anon.], A Sermon Preach'd at Isleworth in the County of Middlesex, on Sunday, Feb I 0, I 722, Occasioned by the Rape and Murder Committed on the Body of Anne Bristow, January 2 2 , on Smalbury-Green in that Parish (London 1723), p.11-12.
  56. The Tryal and Condemnation of Mervin, Lord Audley Earl of Castlehaven. ed. [Anon.] (London 16991, p.12.
  57. Netta Murray Goldsmith, The Worst of Crimes: Homosexuality and the Law in Eighteenth- Century London (Aldershot 1988), p.34-36.