Derry, Caroline. 2020. Lesbianism and the Criminal Law: Three Centuries of Legal Regulation in England and Wales. Palgrave Macmillan. ISBN 978-3-030-35299-8

Changes in understandings of Lesbianism in the 18th century can be illustrated by newspaper and legal accounts of “female husbands,” for example, the famous case of Charles/Mary Hamilton. Hamilton’s case was not particularly unusual, but the attention given to it was. Hamilton was working as a quack doctor, who courted and married the daughter of his landlady. Two months later, the bride announced that her husband was a woman and a legal inquiry resulted, including depositions by both partners. Hamilton had begun living as male at age 14, and worked for a traveling mountebank, selling quack cures. Hamilton’s wife testified that they had penetrative intercourse several times, supporting her belief that Hamilton was a man, but later became doubtful. No other details of the sex are recorded.

The wife had not made a legal complaint. Rather, the prosecution was brought by the town council who wanted Hamilton punished by whipping. The charge – after much debate – was brought as vagrancy. (Other similar cases were more often brought as fraud.) Hamilton initially pled not guilty, but the punishment was carried out and later he later withdrew the plea. There is no further evidence of what happened to Hamilton, but the case itself grew legs in the popular media, especially after being fictionalized by author Henry Fielding in The Female Husband, the popular term for such situations, and in some cases how the people engaged in them viewed themselves.

Newspaper accounts use various techniques to silence the lesbian aspects of these relationships: ridicule, attribution of financial motives, emphasis on elements that undermine the image of commitment, such as serial or bigamous marriages, or depicting the marriage as intended as a joke. Even when legal charges are mentioned, the specifics are not always clear, but financial fraud is a common theme.

The Marriage Act of 1753 was meant to address irregular marriages in general, but doesn’t seem to have had a noticeable effect on the frequency or treatment of female husbands. The wives of female husbands sometimes brought complaints, sometimes simply spilled the beans, and sometimes entered into or continued the marriage well aware of their husband’s nature and content with the situation. In one such case, the attempt to bring charges failed, as the wife refused to cooperate, but Derry attributes the lack of punishment in that case to the female husband’s professed heterosexual backstory and willingness to return to living as a woman. Some prosecutions might appear to be straightforward fraud cases, such as Charles/Ann Marlow, who married three women in turn to obtain money and clothing from them. But a comparison of the penalty (being pilloried) to similar offenses places the concern more into the category of sexual offences.

How do public trials and punishments constitute “silencing?” Prior to the Reformation, sexual offenses were handled by ecclesiastical courts. But in that era, secular courts rarely directly initiated cases, except for major offenses. Rather, lawsuits were raised by those affected, and courts had a great deal of discretion. That same discretion meant that when a court did choose to pursue a case, it could shop around for an applicable law, as in the vacancy charge against Charles Hamilton.

The chapter now turns to what we can decipher about the subjects of these cases. They were in general living marginal, and often semi-criminal lives. Their motivations for marriage are doubtless varied, and even when explanations occur in the legal record, they are not trustworthy, due to the motivation for telling specific types of stories to win sympathy. The alleged financial motivation (fraud) rarely makes sense when balanced against the risk of exposure. The place of romantic/sexual desire is debated by historians. Other plausible motivations are simple companionship, social expectations (contributing to the presentation as a man in society), or the practical logistics of running a household.

The role of the wives is also considered. Apparently, they neither feared nor experienced negative consequences for their marriages, even when they were not the complainant. The most plausible explanation is that, in the absence of a law against “lesbian sex,” there was no crime they had committed. But this isn’t sufficient explanation. If marriage between two women was “fraud” then the wife was as guilty as the husband (if she knew her husband was female). Derry suggests that the absence of prosecution against the wives was to divert attention from the true offense (lesbianism) as the wife could be framed as keeping to a traditional role of “wife.” [Note: A more straightforward explanation might be that the true "crime" was a woman appropriating a male role, hence the wife committed no crime.]

By focusing prosecution on the disruption of approved social rules, the underlying sexual anxieties could be kept out of the public record and view.

In 19th-century cases, the developing stereotype of women as sexually passive enabled a defense of ignorance, even when it flew in the face of actual female experiences. Even a presumption of sexual innocence and ignorance was not an overwhelming defense for the wives, as public opinion could generate persecution, even when the law assigned no guilt. Even so, if a wife no longer desired to remain in the marriage, she had a straightforward means of dissolving it with little financial penalty. These complexities mean that the wives of female husbands were never entirely passive agents in how things played out.

When the law code prescribed harsh penalties, it was common for them to be mitigated by pardons. Further, penalties might be very specific to the offense, and judges had discretion about how to charge the offender. Most serious offenses were property crimes, and the legal concern with sex was largely restricted to penetration (rape and sodomy, using the narrow definition of anal intercourse). In contrast, a female husband’s offense was a challenge to male privilege. Thus when legal charges were brought, they focused on those elements, especially the “property crime” issue of fraud. Sexual intercourse came into it only as a means of supporting the fraud. The emotional aspects of sex could be excluded from the record.

Women living as men in 18th century England were rarely prosecuted. And given the legal and social constraints on women’s lives, there were many non-romantic motivations for gender disguise. The law restricted its concern to cases involving marriage.

What were the changes that led to this hostility to female husbands? Social hierarchies were being overturned by the Industrial Revolution, the rise of the mercantile class, the injection of colonial wealth, and anxieties sparked by the French Revolution. All of this became intertwined with anxieties about gender roles and “respectable” sexual conduct. The proportion of never-married women dipped in mid-century, and women trended to a younger age of first marriage, in part due to (men’s) expanded wage-earning potential. (In England, age at marriage related to the accumulation of enough money to establish a separate household.) Another factor was an increasing focus on PIV sex relative to other non-procreative sexual activities that previously had been widespread. Sex became viewed as an economic activity for the production of children, rather than being focused on pleasure. This narrowed definitions of sex to those aimed at conception.

All of this created a hostility to single women, who were increasingly viewed as sexually suspect, rather than as part of the continuum of options for women. In contrast to men, wage earning possibilities for women were narrowing and becoming less viable. This increasingly pressured unemployed single women into domestic service, attaching them to a patriarchal household.

One escape from these narrowed options for women was to become a man. Increasing mobility and urban job concentrations meant that a change of identity was more possible than in a less mobile society. All of these shifts, of course, simplify a complex picture. General hostility can be contrasted against individual examples of sympathy and support for female husbands. Press reports interleaved hostility with curiosity and even celebration, mitigated by an emphasis on how each case was “extraordinary.”

Toward the end of the 18th century, the press became increasingly close-mouthed about the salacious details of sexual offenses, advertising how their reports could not offend sensitive readers. (And thus depriving those readers of actionable suggestions.)

To the extent that sapphism was visible in the press, it was presented as a lower-class phenomenon (or, in contrast, an upper-class decadence) that threatened to “infect” the middle-class readership of the popular press. In contrast, close female friendships (non-sexual) were valorized for middle-class women, making it all the more important to establish clear lines between appropriate and inappropriate behavior.

Medical theories about gender and sex were also shifting in the 18th century. [Note: though, as many have noted, this shift was not absolute, and different models prevail in parallel during most eras, emphasized in different contexts. See Laqueur 1990 for a discussion of the shift from a “one sex” to “two sex” model that is under discussion here.]

A significant consequence of this shift was the rise of the idea that men and women were fundamentally different, enabling the rise of the model of the passive, passionless, sexually-indifferent woman as the ideal. It also gave ammunition to resistance to movements for women’s social and legal equality.

In parallel, a consequence of the focus on PIV sex and discouragement of non-procreative erotic activity was a rising concern with masturbation. For women, this included concern that clitoral-focused pleasure (only officially recognized in the preceding couple of centuries) was inherently detrimental to health. The specter of sexual activity using (or causing) a large clitoris became an underpinning to horror of lesbianism. But in parallel with this came a rise of the idea of same-sex desire as a social phenomenon, rather than a physiological one. Hence the fading traces of concern in the case of female husbands that there was a physical cause for their behavior.

Finally, changes in the practice of justice came to bear on the question. The combination of victim-driven rather than state-driven prosecutions, combined with significant judicial discretion, meant that 18th century, female husband prosecutions could be idiosyncratic. But across the century this began to change, with civic concerns beginning to drive prosecutions and trials becoming more professionalized, especially in terms of the participation of defense counsel and standardized procedures. Punishments, too, were becoming more formalized, and shifting away from community-driven penalties, such as the pillory. These shifts contributed to the ability of the courts to enforce silencing of the topic of lesbianism.

The question remains: if lesbianism itself was not illegal, why were female husbands punished? One element is that, regardless of the actual (absence of) statutes, the public viewed lesbianism as criminal behavior, as illustrated by many references in literature using that word. (More overt references to lesbians in 17th and 18th century literature largely occur in male-focused pornography.) To some extent, it is only in comparison to punishments for male sodomy that the punishments for female husbands seem light. Sentences of whipping, imprisonment, and pillorying were among the harshest available for non-capital crimes and often harsher than the typical ones for fraud and vagrancy.

The elements typically involved are cross-dressing and the presence of sexual activity, with the usurpation of male identity being key. But this conflicts somewhat with the lack of similar responses to female cross-dressing when marriage was not involved. [Note: Derry doesn't focus on it here, but there is also an absence of legal involvement when sex, but not cross-dressing, is present. This is touched on in the following chapters.] Derry argues that the essential factor in bringing the force of law is: women living together, separate from any male presence. They were not simply taking economic advantage of male identity and establishing emotional relationships with women, but were doing so with a rejection of any type of male oversight or authority. They dared to be self-sufficient and independent.

The chapter has a final note about dildos. An essential element of how female husband cases were presented to the public was in discounting and denying any meaningfulness of the marriages. They were fraud. They were shams. They were jokes. They had no basis for being successful as no penis was involved. When the existence of a dildo is invoked in the records, it is talked around. It is considered unmentionable, unnameable. It is considered a tool for fraud, not for pleasure. The dildo is “not fit to be mentioned.” By the mid 18th century, the dildo was no longer treated as a toy used by sexually frustrated women, but rather as a symbol of masculine desire in women. Even the (silenced) focus on the function of a dildo in these marriages erases the possibility of non-phallic pleasures.

In summary, the key elements of female husbands that drew legal attention was not cross-dressing alone, not emotional bond between women alone, not even sexual activity between women alone, but the combination – which created the image of female independence and autonomy from male authority. They dared to make men irrelevant. It was that possibility that required suppression and silencing.

In 1921, Parliament debated, but did not pass, a bill that would have criminalized “gross indecency between female persons” as part of a general male reaction to the new freedoms and social power women were obtaining. There was a belief that if women engaged in lesbianism, they would never again be interested in men. Unlike in previous discussions, lesbianism was named and discussed explicitly, though the proposed law still danced around it, using the general term “indecency.” This clause was added to a bill that would have closed some loopholes around sexual crimes, and Derry asserts that adding lesbianism was meant as a deliberate poison pill to derail the original. Arguments against the lesbianism clause included the idea that enshrining it explicitly would give women ideas, via the ensuing press coverage of trials. (The original bill was raised again and passed in the next session, but without the lesbianism clause.)

The chapter discusses reasons why lesbianism was chosen as a poison pill, as well as why it was proposed seriously. There were suggestions that women were luring girls into their houses for sexual exploitation. A rising familiarity with sexology, and its concern with lesbianism, was also prevalent though this is rarely referenced in the parliamentary debate. The clause was presented as creating gender-neutral laws regarding sex crimes. Feminist groups that in general supported the revisions to sex crime legislation were often vulnerable to suspicion of lesbianism, with many unmarried and sharing their lives with female companions.

Lesbianism was becoming a more visible theme in popular consciousness. During World War I, women as well as men were identified as blackmail risks due to homosexuality. Dancer Maud Allan, appearing in a private performance of Oscar Wilde’s Salome, faced charges of lesbianism that she met with a libel case, with a key argument being that Allan’s familiarity with the word “clitoris” was proof of her lesbianism. Lesbianism was a suggested to be a symptom of a general national degeneracy. These arguments were entangled with historical theories about the decline of classical civilizations, and the concerns of the new eugenics movement (though some eugenics proponents argued that lesbianism was harmless as it was self-limiting in reproductive terms).

The following are my somewhat less coherent notes about the content of the chapter.

Arguments against increasing the penalties for homosexual behavior included that anti-homosexuality laws created the opportunity for blackmail. The medicalization of sexuality was at that time viewed as progressive rather than homophobic. There was an increasing reaction against legislating morality generally. More specifically, conservative views weren’t ready to embrace the equivalence of male and female sexuality that anti-lesbian laws presumed.

There is a discussion of sexological theory and differences between continental versus English attitudes towards lesbianism. The medicalization of homosexuality occurred earlier for women than for men. The feminist movement of “new women” was challenged as causing/reflecting women’s moral and physical weakness.

What did parliament think they were addressing in terms of lesbian sexual acts? The details don’t appear in the speeches, but some hints show up in private correspondence. One letter refers to legislating against “the sale of any implements required” (which may presumably be understood as dildos). While both “gross indecency” and “buggery” were addressed separately for men with different penalties, there was no conception of non-penetrative “indecency” between women – or at least that fell within the topics that Parliament considered unspeakable. Discussions indicated a discomfort about criminalizing romantic female friendships. “Female inverts” were imagined as always “masculine” and socially nonconforming.

The 1921 debates existed within a wider anxiety around gender roles, particularly among elite men. Women were entering previously exclusively-male fields, such as police, parliament, and law. There is a discussion of changes in the social make-up and visibility of class and race. Feminists were not unified in their attitude towards lesbianism. Some grounded their philosophy in the idea of “separate spheres” seeing lesbians as unfeminine, while others embraced a rejection of marriage and motherhood that was more supportive of lesbianism.

Women were only beginning to be able to vote and stand for parliament. (There was only one female member of parliament in 1921.) Women were beginning to enter legal professions, and be able to serve as justices and jurors. All this meant that female voices did not contribute directly to the 1921 debates and lesbianism was still framed as a topic whose discussion was restricted to men.

[Note: it is actually rather hard to do a very condensed overview of these chapters that are of less interest to the Project. I’m trying to get much more high-level for these last few chapters.]

A 1957 committee considered potential changes to the legal treatment of “vices”. One goal of the changes was to keep activities in this category, such as prostitution and homosexuality, out of public view. Even decriminalization was not intended for the benefit of the accused, but to suppress knowledge of the activities.

This process included a shift from addressing “homosexual acts” to concerning itself with homosexual people, though only the former were criminalized, and “homosexual” was tacitly understood as referring only to men. Lesbians, when considered, were treated as analogues to gay men, but with the awareness that lesbian acts were not illegal as such. Even though lesbianism was discussed by the committee, it was deliberately excluded from the conclusions. Even the offense of “indecent assault by a female on a female,” though included in detailed lists of offenses, was omitted from summaries of the resulting laws. The report itself claimed that no case of such an act had been found.

At the same time, girls—far more often than boys—might be detained in institutions for “moral danger,” under which umbrella lesbianism could be silently categorized. The lack of laws against lesbianism, as such, did not mean that women were not prosecuted for being perceived as lesbians.

In general, the tide was shifting to a view that people’s private lives were not the law’s concert. But not all people or activities were considered to fall within the category of “private” for this purpose. Certain sexual activities were still considered to have public consequences and be a public concern (e.g., the category of “moral danger”). To the extent that this shift began decriminalizing sex between men, its purpose was to impose the same silencing and hiding from public awareness that had long been applied to lesbianism. To the extent lesbianism was brought up in deliberations, it was to note the injustice of prosecuting homosexual conduct only for men and not women. The hazard of this line of argument was a growing discussion of penalizing lesbianism, rather than removing penalties from male homosexuality. But the details of these discussions and arguments were largely omitted from the final report. There is a continuing thread in the evidence that lesbianism was not considered of concern because it was functionally invisible. Prior suppression of the visibility and awareness of lesbianism now meant that those debating the laws had little data on which to base arguments.

[Note: we are now moving on into the 40s and 50s.]

Medical models of homosexuality were shifting from a “congenital invert” model to a Freudian psychological one. A psychological approach lead to greater interest in medical “treatments.” [Note: A medical approach did not mean a beneveolent one. Keep in mind that medical “treatment” in this era included lobotomy and chemical castration.]

Situational lesbianism, e.g., during wartime organizations, was a concern, but excused as long as the “right type of women” were involved and their relationships weren’t seen as preventing a return to heterosexuality. Female, military branches needed to address lesbianism because, although not illegal, it was against military discipline. At the same time, there was pressure, not to officially recognize lesbianism as a visible concern. Silence was considered a useful preventive measure—the old “don’t give them ideas” approach. Such practices as sharing beds and displays of physical affection could be dismissed as “normal working-class customs” among women.

In the postwar period, some new archetypes of lesbianism arose. One was the image of lesbians as “marriage breakers,” although hard evidence of prevalence of this phenomenon was scarce. Divorce courts were eager to accept that even same-sex relationships that caused marital discord could be framed as “friendships.” Another archetype was the violent “unnatural friendship” in which “morbid affections” and jealousies led to violence and criminality. Though lesbianism couldn’t be the core of the prosecution, it might be considered as a contributing cause and aggravating factor that led to enhanced penalties.

By the 60s, social visibility was increasingly hard to suppress. The reforms of the 1967 “Sexual Offenses Act”, though superficially more tolerant, actually resulted in increased prosecution. But male and female homosexuals were beginning to make common clause, alongside second wave feminism, and this resulted in the law beginning to address male and female homosexuality in parallel, but often to the detriment of lesbians.