“Sexual Forensics before Forensics: Investigating Sexual Crime in Early Modern Britain”

Seth LeJacq (Duke University)

This paper explores the medico-legal investigation of sexual crimes in early modern Britain. Britons harbored deep concerns over sexual violations against both male and female victims as well as strong fears of false accusations. Legal commentary had long considered such crimes as among the most difficult offenses to know and prove, and alongside written law and traditional practice required “strict” physical proofs, especially when it came to the capital felonies of rape and sodomy. Yet while continental Europe had a significant corpus of forensic medical knowledge and practice bearing on these crimes, British practitioners by contrast had little by way of formal training, academic specialization, or any general organization within this area of legal medicine. Scholars working on related topics have long assumed that medical evidence was essential to these trials based on isolated examples that featured “expert” medical witnessing, but we in fact know little about the bodily evidence that featured in them, and who created legally important--and convincing--bodily knowledge. Drawing on a broad survey of British trial records from the late seventeenth century to the early nineteenth, including manuscript records from a range of courts and a variety of published trial accounts, this paper shows that the state of forensic medicine and strong cultural and professional pressures against engaging deeply with sexual crimes generally inhibited forensic practice in this area among officially-sanctioned practitioners. Laypeople instead provided the vast bulk of bodily evidence, and investigations and trials therefore provide us a rare window into complex lay understandings of sex, sexuality, and sexual crimes.

“The Science of Child Sexual Abuse in Nineteenth-Century France”

Claire Cage (University of South Alabama)

Child sexual abuse emerged a distinct criminal category in France during the mid-nineteenth century as a result of changing as conceptions of childhood and sexuality. While child sexual abuse was a prevalent problem, most forensic experts devoted little attention in their written works to the subject. Nonetheless, there were a considerable number of cases of child sexual abuse in which medico-legal experts intervened, although the degree to which their reports and testimonies were decisive in the prosecution or conviction of those accused of sexual assault is difficult to determine and quantify. Doctors frequently found no evidence of sexual abuse when called upon to examine child victims. They also called into question the reliability of children who reported sexual abuse, and some published studies concerning children’s propensity to lie. Some prominent medico-legal experts who published works on the subject of child sexual abuse strongly warned fellow medical practitioners to avoid mistaking the signs of masturbation or poor hygienic practices among the lower classes for the signs of sexual abuse.

While some medico-legal experts expressed confidence in their ability to determine whether sexual abuse occurred, others were less certain and more circumspect about their involvement in cases for which they had little experience or training and for which the signs of abuse were ephemeral in nature. Through their interventions in child sexual abuse cases and public proclamations on the subject, medico-legal experts played an important role in shaping attitudes toward sexual assault and the criminal prosecution of these cases.

“Criminal Responsibility and Sexual Psychopathy in late-Victorian Britain”

Catherine Evans (University of Toronto)

In the late nineteenth century, European physicians with interests in psychiatry and the burgeoning field of criminal anthropology published works that described what German psychiatrist Richard von Krafft-Ebing called ‘sexual psychopathy.’ In court, medico-legal experts could call defendants’ legal responsibility into question by diagnosing them with a sexual disorder that perverted their desires and afflicted them with irresistible, pathological compulsions.

This paper explores how the concept of sexual psychopathy inflected British debates about criminal responsibility in the late nineteenth century. British civilization seemed, to some Victorian medical and scientific commentators, at risk of a biological and social degeneration brought on by rapid modernization and imperial overreach. Sexual deviance, consistently described as a product of physical and psychological decadence, sharpened this anxiety. Like the controversial ‘moral insanity’, which warped a patient’s emotions and judgment while leaving his cognition intact, sexual psychopathy seemed to suggest that a person could be insane without experiencing the theatrical delusions or intellectual impairment presumed in the criminal law definition of insanity. This more expansive understanding of insanity, favored by psychiatrists, struck many jurists as an attack on their authority in cases of violent or sensational crime. Histories of criminal insanity tend to emphasize its mitigating and exculpatory dimensions, especially in murder cases. However, sexual psychopathy cut both ways. Defendants found not guilty by reason of insanity traded the ostensible certainty of judicial punishment, meted out in fixed terms of imprisonment or, for some, in the promise of death, for indefinite detention in asylums.