A Peculiar Way of Acknowledging F/F Sexual Possibility

The central premise of this chapter Is to examine how the law came to acknowledge the existence of sexual “indecent assault” by one woman against another. But the case used to illustrate this concerns a midwife who was hired to examine the virginity of an underage girl being procured for prostitution. The case had a number of complicating factors. The men doing the procuring were anti-prostitution activists and journalists, working to demonstrate how easy it was to obtain such victims. One focus of such campaigns was to raise the female age of consent from 13 to 16. And the nonconsensual examination falls more rationally in the realm of medical practice than sexual activity.

The use of this case study is in support of the motif of “silencing”. Even in the context of female-on-female assault, the legal language declines to specify what might constitute “indecent” actions between women.

The social context includes a shift from viewing sex crimes against women as a property crime against a male patriarch to a moral crime against female innocence. “Innocence” was conditional. Prior to 1880, there was no fixed age of consent for women and the assertion of consent – even for a child of six – was defense against sexual charges. (That was the year when the age of consent was established as 13.) In theory, the Mourey case established that this age of consent also applied to acts between female persons.

Female husbands did not disappear in the 19th century, but became less of a legal concern. The most significant legal case involving lesbianism in the early part of the century was the libel claim in which to school teachers (Pirie and Woods) sued the guardian of one of their pupils for spreading the rumor that they were having sex, resulting in the failure of their school. In secret legal hearings, the strategy was formed of attributing even the idea that women could engage in lesbian sex to the debased imagination of the student – a mixed race Anglo-Indian girl – and to a servant at the school. Thus reinforcing the idea that respectable women would not even be aware of such things but foreigners and the lower classes might. The court records explicitly note that admitting the possibility of lesbianism between white middle-class women would destroy the foundations of society, which relied on confidence in “the purity of female manners” given the free access women had to each other.

While the suspicion of lesbianism might persist for working class women, it was so thoroughly excluded from the scrutiny of the law that female husbands were no longer subjected to even tangential charges. When Bill/Mary Chapman was found to be female, when acquitted of an assault charge involving his common-law wife, Isabella Watson, the judge noted of the domestic situation “I know of no law to punish her.” There was no longer a legal context for turning public disapproval into official action.

When Harriet Stokes wanted to leave her abusive husband, Henry, she mentioned that some time ago she had discovered that Henry was a woman, but though this aided in getting a satisfactory separation, the authorities recorded that “no legal procedures have been, or indeed could be, taken.” When John Smith/Sophia Locke was revealed after death to have been female, his female partner acknowledged awareness and asserted the arrangement was economic, which was seized on by the press, who proclaimed there could be no motive other than abetting the disguise.

The preceding cases are from the 1830s, and no subsequent female husband cases have been identified. Female husbands might be mentioned in criminal records, but only in the context of unrelated offenses, such as domestic violence or employment-related crimes. The difference is that while the cross-dressing and domestic arrangements might be noted as background in the trial, there is no suggestion that they are criminal in and of themselves.

There is a discussion of the changing stereotypes regarding women’s roles, and how the official image of the “domestic married woman” conflicted with reality. In 1851 it is estimated that half of British women were not married, that a quarter would never marry, and that a quarter of married women were employed outside the home. At the end of the century, it’s estimated that one third of women were employed outside of the home, although this included domestic servants.

The minority of women fit the image used to argue for women’s inherent domesticity and inability. That illusion also included the assertion of women’s sexual passivity and ignorance. But passivity and ignorance were enforced by patriarchal society. One emerging means was by medicalizing women’s sexual agency via psychiatric diagnosis and “treatment” including the extreme approach of clitoridectomy for women engaging in masturbation or lesbianism, fortunately a relatively short-lived treatment. Within this medicalization, lesbianism was not defined or identified specifically, but was lumped in with any type of sexual urge or activity that did not center men’s desires, as well as other behaviors that showed resistance to approved feminine behavior.

The chapter briefly notes the continuing professionalization and standardization of criminal trials, as well as examples of the sexual double standard that excused men’s behavior as “natural” while stigmatizing women’s as “criminal.”