Judith Rowbotham, Kim Stevenson, eds. Criminal Conversations: Victorian Crimes, Social Panic and Moral Outrage. Columbus: Ohio State University Press, 2005. xxxii + 318 pp. $49.95 (paper), ISBN 978-0-8142-0973-8.
Reviewed by Martin Wiener (Department of History, Rice University)
Published on H-Albion (June, 2005)
Rethinking Victorian Criminality
This collection of fifteen essays, drawn from a 2002 conference, and a successor to a similar volume, Behaving Badly, focuses, like its predecessor, not on crimes but on the social discourse surrounding and defining them. In toto, the essays make the case that, in the words of the editors, "socially offensive dimensions to lawbreaking could be at least as important as the legal dimensions when it came to convicting or acquitting defendants, and to believing or disbelieving witnesses and accusers" (p. xxi). As in the preceding volume, its contributors are a mix of historians and contemporary legal scholars, holding a special interest in the "ways in which Victorian experience resonates with present preoccupations" (p. xxii). Also like that volume, this work draws heavily upon the Victorian newspaper press, the mass medium of that age, arguing that press "conversations" helped construct the "sociocultural spirit of agreement" on which the operation of the legal system depended (p. xxiii).
Such social agreement, the editors argue, "was not automatically achieved"; thus the importance of closely examining the "conversations" shaping it. And indeed, the essays provide many illuminating moments of discourse analysis, placed in social context. As in any such collection, however, essay quality and importance varies. Some survey topics are too large to be adequately treated in such short compass and some add little to existing knowledge. This review will therefore focus on five of the most original and/or significant contributions.
Graham Ferris, Senior Lecturer in Law at Nottingham Trent University, examines the leading case of R. v. Ashwell (1885), which played an important role in the development of the law of larceny. But his essay is not an orthodox piece of "lawyers'" legal history. By highlighting what he calls the "invisible issues" and "the invisible judge" in this case, he gives in a short essay a new view of the case and its place, not only in English legal history, but in Victorian social and intellectual history. In doing so, he manages both to revise George Fletcher's by-now-standard interpretation of its legal significance, and to question the overall claim of the book's editors that moral or social panic was a prime motor in the development of the law. Ferris shows the active role of one judge, Lord Denman, in trying to extend criminal liability to more situations of dishonest appropriation, and his ultimate failure. After Ashwell's conviction, Denman referred the case to Queen's Bench, seeking ratification of the verdict and of his judgment. Very unusually, virtually every High Court judge--fourteen to be precise--heard it; they divided equally, and thus by the barest of margins sustained Ashwell's conviction. However, by their judgments a majority made clear their disagreement, pace Fletcher, with Denman's effort to more closely identify immorality and illegality. Following judgments made it clear that Ashwell had checked, not furthered, judicial activism and moralism, and that it had not, despite what is often thought, extended criminal liability in larceny.
Another essay focusing on a single landmark case is offered by Kate Gleeson, who is completing a doctorate in politics at the University of New South Wales. Her purpose is rather different from Ferris's, however; she is concerned not with its legal effect but with what it reveals of Victorian social assumptions. R. v. Clarence (1888) is known as the case that supposedly confirmed the "marital rape exemption." This litigation resulted from the upper middle-class Selina Clarence's bold attempt to seek redress for her infection with gonorrhea from sexual intercourse with her husband, who had kept the fact of his own infection secret. Her husband was indeed convicted not only of assault but of the more serious offence of inflicting grievous bodily harm, but the case was referred before sentencing to Queen's Bench and eventually reviewed by an again unusually large number of thirteen judges, who by a vote of nine to four quashed the conviction. Gleeson finds in the discussions of the Bench and the newspaper reporting evidence of fears that male prerogatives to purchase sex from prostitutes were under threat, as well as a general "panic over the sexual agency of women" (p. 216). Evidence for the latter is thin (modern historians seem to discover "sexual panics" wherever they look among Victorians), but the former--suggested by the readiness of several judges to shift the argument towards the (unlikely) possibility of encouraging prostitutes to litigate--is an original and interesting point that merits further study.
However, in her argument Gleeson acknowledges but quickly passes over without appreciation an important and little-known fact that points in the opposite direction from her claim about "sexual panic": the judgment quashing Mr. Clarence's conviction did not, as often assumed, establish or confirm a marital rape exemption. Indeed, the comments of many of the judges, both those who voted to sustain the conviction and some of those who voted to quash it, made clear that they believed that a charge of not only grievous bodily harm but rape could certainly be sustained against a husband for some kinds of fraudulent or violent sex with a wife against her will. Not only did they agree in characterizing Mr. Clarence's behavior as "abominable," the Chief Justice, Lord Coleridge could note that "of course everyone I suppose would desire to sustain the conviction in this particular case if it could be done without violating the principles of sound law."[1] However, as Fitzjames Stephen persuasively argued, in this case there had been proven neither any intent to harm nor any "certainty or near certainty" that the (sexual) act would in fact cause harm. The judges could have still followed the trial judge and found Mr. Clarence criminal in his reckless disregard for his wife's health, but that would have clearly enacted a major extension of criminal liability that (as in the nonsexual Ashwell case three years earlier) they were reluctant to endorse. The case actually shows judicial views of male prerogatives in marriage to have notably shifted against husbands, although insofar as "moral panics" were affecting Victorian law, it would appear they were producing convictions at assizes that judges sitting as appeals courts were then limiting or quashing for fear of what we would call "judicial activism."
Shani D'Cruze, a historian at Manchester Metropolitan University and author of Crimes of Outrage: Sex, Violence and Victorian Working Women, has also focused on a single case, like Gleeson with the aim of getting at its cultural meanings and specifically its implication for gender relations. Her case, like Gleeson's from the upper-middle class but even more "sensational," is the 1849 murder of Harriet Novelli by her brother-in-law, Alexander, a Manchester businessman, and his subsequent suicide. Closely reading the press coverage of the deaths and the coroner's inquests, she seeks to uncover how "the murdered body of a young, highly respectable middle-class widow was used ... as a surface on which to inscribe a romantic and speculative narrative of compromised respectability and fractured domesticity." As one might imagine, this case roused powerful anxieties about social order and personal morality, expressed most interestingly in small details of description and association, which she perceptively picks up. On occasion it seems to me that D'Cruze presses her feminist views beyond the evidence: to claim that madness (clearly attributed to Alexander, the killer of Harriet and of himself) "feminized male subjects because it fractured their autonomy" is to impose a later ideology on a time in which madness was as much associated with men as with women, when the figure of the mad man was a frequent cultural resource. This minor point aside, however, D'Cruze's analysis is original and perceptive, and brings a forgotten past scandal very much back to life, and historical relevance.
Kim Stevenson, Senior Lecturer in Law at the University of Plymouth, highlights the way legal and social discourses around sexual violence could work against justice for its female victims. Examining a number of rape cases from the 1860s, and building on an argument first put forward by Anna Clark, she shows how Victorian "encryptions" of sexual violence in an arcane special language of evasion, in the press and in court, made it extraordinarily difficult for women to provide the clear and explicit evidence the law required. The results in many cases were unjustified acquittals or at best convictions on lesser charges. Her essay successfully demonstrates the overall thesis of the volume that language is a crucial element of the process of justice.
Susan Edwards, Professor of Law at the University of Buckingham, discusses Victorian domestic violence and the law, a subject she has dealt with previously in publications extending over almost a quarter-century. She calls attention to the key role played by later Victorian feminists in pushing change in the law and its administration in this area, and to the widespread tolerance in popular life of the practice of wife beating. However, she also refuses the opportunity this volume offered of rethinking or revising her previous work on the subject, offering rather a restatement, with some fresh information, of her previous arguments on the gross inequity in later Victorian legal treatment of wife abuse. Here I have to introduce a note of self-pleading: my recent book on this subject, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England to which she briefly refers without comment, marshals a good deal of evidence in making a number of criticisms of Edwards' past writing. She has chosen not to engage with any of them, or with the arguments of the book more generally, as is her right. But it leaves her essay as little more than a summary of arguments first put forward a generation ago.
An example of Edwards's resistance to rethinking is her clinging to the myth of the legal "rule of thumb"--that wife beating was permissible as long as the stick were not thicker than a thumb. "Nineteenth-century interpretations," she then repeats here, "proclaimed that 'A man can beat a wife with a whip or a stick but he cannot knock her down with a cudgel or an iron bar.'" Her only citation for this is a minor work aimed at a popular audience, subsequently seized upon by a best-selling twentieth-century popular work (in which she seems to have found it), not a legal judgment of any kind. She notes that "subsequent debates have raged over whether in fact it ever existed in law" (p. 249). That is one way, perhaps not the most direct, of putting it: in fact, the claim has been clearly shown to be a myth, and no one, Edwards included, has been able to advance evidence showing otherwise. Indeed, many Victorian judges went out of their way to denounce this notion.
More generally, Edwards condemns Victorian measures directed against wife abuse as half-hearted and ineffective, implying that nothing of importance was done to deal with this until recent decades. My book tries to show, as concretely as possible, that this is a seriously misleading picture, and that the later Victorians were the first people, possibly anywhere, to make this evil a major public issue and take serious legal measures against it. It is past time to update our understanding of later Victorian criminal justice as well as later Victorian gender issues.
Fortunately, many of the essays in Criminal Conversations do attempt fresh thinking. Taken together, they underline the fluidity of the category of "criminality" and the crucial role in criminal justice issues, in the nineteenth century as today, of media representations and discourse. For specific illustrations of these generalizations, this volume will be most useful.
Note
[1]. 16 Cox's Criminal Cases, p. 543.
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Citation:
Martin Wiener. Review of Rowbotham, Judith; Stevenson, Kim, eds., Criminal Conversations: Victorian Crimes, Social Panic and Moral Outrage.
H-Albion, H-Net Reviews.
June, 2005.
URL: http://www.h-net.org/reviews/showrev.php?id=10605
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