provides a historical perspective on capacity to consent to sex. It examines who could make decisions about sex, whose consent mattered and why. The article draws from legal history and from transcripts and testimonies in unreported sexual offence cases in England, heard in the Central Criminal Court in London and the regional assizes between the years of 1918 and 1950. These cases, often involving vulnerable complainants below the age of consent and those with mental disabilities, show that the concept of capacity was neither fixed nor clearly articulated. The article argues that, historically, capacity was not a biological or med- ical construct, but rather a social one, influenced by notions of class, gender and even eugenic ideals. The article demonstrates that, during this period, sexual offence law enabled social and population control, and that, despite significant legislative advances, capacity remains a fraught concept.
Lammasniemi comments
Who is allowed to consent to sex, and whose consent matters? How does a child gain capacity to consent, and can adults lose it? In this article, I will examine these questions in a historical context. Specifically, I will analyse the boundaries imposed upon women’s and girls’ capacity to consent by criminal law, and how those boundaries were interpreted in English criminal courts in the early 20th century, during the decades leading up to the enactment of the Sexual Offences Act 1956.
In this article, I advance an argument that the undefined concept of capacity, as used in criminal courts, was neither a biological nor a medical assessment, but rather a social one, influenced by notions of class, gender and eugenic ideals. To support this argument, I will trace the legal history of capacity in this context and draw extensively from transcripts and testimonies in lower-level sexual offence cases. In so doing, I will build upon existing historical scholarship on sexual offences and show that the law failed vulnerable complainants in two distinct ways. First, it failed to sufficiently protect vulnerable people against sexual exploitation and harmful sexual activity. Secondly, it failed to protect the autonomy of those with different capacities, often labelled ‘mentally defective’, and prohibited them from engaging in consensual sexual encounters and romantic relationships. This article and the arguments within are drawn from an analysis of nearly 200 case files of sexual offence cases heard in lower-level courts, namely the Central Criminal Court in London and the assizes outside London, in the years 1918–50. Of these 200 cases, 135 were accessed through a privileged agreement with the Ministry of Justice. In line with that agreement, all names, locations, dates and identifiable data have been removed, and pseudonyms are used throughout. These cases represent a small fraction of all cases heard in the period, and the files that remain in the archives are fragmented—particularly those from the early years of the 20th century—and consist of partial details of transcripts, testimonies and depositions given at the police station. While record-keeping improved during the interwar years, there are significant gaps in the records; for most cases heard in the period, there were no surviving records beyond names in the Court Books. Where partial details of the case exist, the case details have been triangulated using other available sources—mainly online newspaper archives, along with census and workhouse records—to form a fuller picture of the case or to find the sentence imposed.
The argument and methods used in this article are significant in three ways. First, I demonstrate that—historically—capacity was a crucial, if undefined, tenet in sexual offences law. There is little legal historical scholarship on capacity to consent to sex. Throughout history, capacity and incapacity have been legislated through medical and mental health law, and therefore most scholarship on capac- ity is focused on this context.6 Yet, there is related historical literature on mental disabilities and institutions7 and on the age of consent, both of which touch upon the concept within a criminal context. Out of this broader, rich scholarship on institutions and regulatory regimes on mental disabilities, I will draw pre- dominantly on scholarship on ‘mental deficiency’, as laws regulating ‘deficiency’ directly interacted with sexual offences law. By analysing the legal history of the concept and associated narratives in criminal courts, I will demonstrate that, historically, capacity as it was used in the courts was not objectively assessed. Instead, this assessment, both in law and in practice, was clouded by external factors such as social class, gender and the ideals of the eugenics movement. Secondly, by examining a range of previously unanalysed, unreported lower-level cases, I shed light on women’s lived experience of law during the period. Analysis of these lower-level trials, rather than those in the then appellant courts of the Court for Crown Cases Reserved or the Court of Criminal Appeal, gives an insight into how criminal law functioned in practice. This practice was often far removed from set principles in the period. The analysis illustrates the difficult experiences of women and girls within the criminal justice system, and how they attempted to navigate that system. Both these contributions are of wider impor- tance, as it was during this period of the late 19th century and early 20th century when legal principles were solidified, and the conceptual foundations of modern sexual offences laws were laid.
Finally, gaining a better understanding of that legal history is of contemporary relevance, as issues related to capacity are yet to be resolved, despite significant legislative advances in the 2000s. While an assessment of capacity is now built into the language of the law,11 there remains ambiguity over its definition, and the extent to which intoxication, power relations or mental disabilities can impact capacity.
This article assesses the concept of capacity in the following three sections. In section 2, I discuss the fragmented laws on sexual offences in the period, to illustrate the importance of capacity to the contemporary sexual offences framework, and its conceptual inconsistencies within that framework. In section 3, I focus on children and young people, arguing that, despite clear boundaries setting a minimum age of consent, working-class girls in particular had to attest to their incapacity. Finally, I focus on prosecutions under the Mental Deficiency Act (1913, and discuss capacity and incapacity in the context of mental disability and institutionalisation. The case analysis in section 4 also illustrates the extent to which criminal courts enforced and opted into social control and eugenics, and the impact this had on the lives of women caught in those regulatory regimes.
