„ The key finding from my research is that even after the age of consent was raised, courts were reluctant to believe victims and to enforce the legislation fully. The Act that raised the age of consent, the Criminal Law Amendment Act 1885, received a mixed response in courts. While archival records from courts are sparse, the cases that have been preserved in the archives show that some judges welcomed it as a step in the right direction, but many others raised suspicion. The cases discussed here can best be described as cases of child sexual abuse as the victims in question were below the age of consent, often younger than 12. Despite the young age of the victims, the courts often failed to view them as victims. It appears, from the court archives, that it was often as if the victims were on trial, as much as the defendants, as the courts questioned their sexual history, character, and whether they had consented to the sexual activity in question.
In 1893, a judge presiding over an appeal of a man convicted of raping his young daughter, wrote to the Secretary of State asking for guidance on whether the conviction should stand as the case relied heavily on victim’s testimony. In the letter, the judge spoke about “young girls of her class and condition” and said, “it is very difficult in these cases to make a jury feel, as I do, the utter unreliability of the evidence of somewhat abandoned and precocious girls and the danger of acting upon it.” This quote is telling. It not only reveals the attitudes of certain judges towards women and girls who were in the courts, but it is also telling of the class prejudices that some judges showed. In most cases recorded in the late nineteenth century, both the victims and defendants were described as working-class. The class prejudices that the judges showed towards working-class girls and women are often evident in the court files and transcripts. Working-class girls were often presumed to be sexually active and even victims who were below the age of 12 were often questioned about their sexual history and medically examined for signs of loss of hymen and/or evidence previous sexual encounters.
Sexual abuse cases were, and remain, particularly problematic from an evidentiary perspective as they often rely on testimonies and other evidence might be sparse. When the girls were giving testimonies or their testimonies were discussed, their character was often called into question and they were repeatedly quizzed about their trustworthiness. Victorian rules of evidence made it difficult to prove an offence had taken place because the evidence of women and children had to be corroborated. While children’s testimonies had to be corroborated, they could be heard in court regardless of their age. Hale’s, now infamous, statement that rape “is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent” was frequently relied upon in courts. While some judges had sympathetic words for the victims, there was also clearly a deep distrust in the girls’ word, regardless of her age, often based on her class, parents’ drinking, and her own suspected sexual history.
Discussion on the victims’ character and potential sexual experience was undoubtedly used to discredit their testimonies but I show in my article that it was also used to imply consent to the events. Consent should not have been an issue in these trials as in all the cases the victim was under the age of consent. To determine liability, the cases should simply have been about whether the act happened, as the victim by default had no capacity to consent. However, consent was often discussed as evidence of the victim’s unreliability or wickedness or to argue that the man’s actions were understandable. The first definition of consent in sexual offences cases in England and Wales was given only in 2003, with the Sexual Offences Act 2003. As there was no statutory definition of consent at the time, the concept of “consent”, or lack of it, was given a new interpretation at every trial. ”
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The following users say it would be alright if the author of this post didn't die in a fire!