Written by Sophie Whitehead
Content Warning: Discussion of mental health, sex work, murder, and generalised discussions about crime.
The focus on women and their role within the criminal justice system often falls into the trope of looking at women as victims of crimes rather than as criminals themselves. This is unsurprising – women represent just three percent of the UK prison population – with the most common offence women were convicted of in 2019 being television licence evasion, in which women represented a total of seventy-four percent of those convicted, and those convicted represented thirty per cent of all female convictions. However, this has not always been the case. According to renounced legal scholar Lucia Zedner, just a century ago, women had much greater representation within prison populations, where they made up seventeen percent of the population. In recent years this increased understanding of the role that women have historically played in the criminal justice system has led to an offshoot of criminology: feminist criminology. This article shall attempt to delve into some of the historiography concerning female crime, then moving to consider the crimes women were often disproportionately convicted of – shoplifting, prostitution, and infanticide – in order to establish what female criminality can reveal about attitudes towards women and femininity in late-eighteenth and nineteenth century Britain.
Arguably the history of feminist criminology has two major starting points – firstly, Foucault’s Surveiller et Punir (1975), which was of monumental significance regarding the study of institutions such as the prison, the reformatory and finally the asylum. The second, which more specifically addresses female criminality comes from J. M. Beattie whose work The Criminality of Women in Eighteenth-Century England (1975), is often cited by historians, such as Manon van der Heijden, as being the hallmark for feminist criminological study. Prior to this, there was very little work historicising female criminality and criminology, something which Zender comments on as being strange, particularly when it is considered that women were more represented in the nineteenth century criminal justice system than that of the present day. Much of the historiography since Beattie’s seminal work has focused on how criminalising women and the commentary around their criminalisation was often an antifeminist tool used not only to hold women accountable for their wrongdoings but to show them as being deeply deviant members of society.
There has also been a great deal of focus on the increasing medicalisation of crime where according to Daniel Murphy there is evidence of a “dual standard whereby men are criminalised for their offences and women are medicalised.” Whilst the argument of the medicalisation of female crime is most certainly corroborated by the court records, it has been argued, most convincingly by Zedner, that whilst there was a medicalisation of female crimes, this did not replace moralisations of the late-eighteenth and early-nineteenth century. Instead, it was used to prove moral laxity on the part of the women. What is most evident in the study of female criminality is that female crime was seen as somehow more horrific than male crime. Zedner’s study of social reformers such as Rosamond Davenport Hill, has most clearly revealed these attitudes.
According to Hill (1864), “the conduct of the female sex more deeply affects the well-being of the community. A bad woman inflicts more moral injury on society than a bad man”. These attitudes towards female deviance are a pertinent reminder of the view that female crime was somehow worse than male crime. It could be argued that the reason for the increased disapproval was two-fold – firstly, female crime represented not only moral deviance, but a deviance away from the norms expected of the female gender, evidenced by the focus on ‘individualised programs of ‘moral regeneration.’ Crime was seen as being, if not completely conducive to male behaviour, then at least not transgressive of their gendered expectations, whereas this was most certainly not the case for women. The second way which female crime was seen as being worse than male crime was the idea that-
‘Female crime has a much worse effect on the morals of young men and is therefore of far more powerfully depriving character than the crimes of men… the influence and example of the mother are all powerful: and corruption, if it be there, exists in the source and must taint the stream.’
The second fear of female criminality once again comes down to the idea that women are historically often seen only for their role as child bearer and mother – with little stress on the role and responsibilities of the father. The attitudes towards female crime in general reveal the baked in attitudes of misogyny within the criminal justice system, the idea that female crimes are more serious than male crimes on the grounds of their “double deviance” (the ideas of crimes representing both gender and moral deviation) and on the grounds that women, whose sole role is considered to be that of mother, will taint their offspring through their participation in crime.
The most obvious place to see these two parallel concerns play out is the concern about female sex work. Whilst sex work, or ‘prostitution’ as it is referred to in most historical records, was never criminalised per see, it has been regulated through legislation. One way in which sex work was regulated was through the Vagrancy Act 1824, which stated that:
‘Every common prostitute wandering in the public Streets or public Highways, or in any Place of public Resort, and behaving in a riotous or indecent Manner… shall be deemed an idle and disorderly Person within the true Intent and Meaning of this Act; and it shall be lawful for any Justice of the Peace to commit such Offender… to the House of Correction, there to be kept to hard Labour for any time not exceeding One Calendar Month.’
Whilst this act did go some way in regulating sex work, it could be seen to be more of an ‘out of sight out of mind’ approach than a moral crackdown. The Contagious Diseases Acts of 1864 and 1866, arguably went further in regulating the profession of sex work. The Acts meant that women who police suspected of being sex workers in certain ports or army towns could be arrested and then subjected to compulsory VD checks. The women who were declared to be inflected would be locked up for a three-month period via the 1864 act and up to a year through the 1869 act. The literal medicalisation of women as a form of punishment corroborates the argument from Daniel Murphy, cited earlier, that female crime was medicalised whilst male crime was criminalised. Essentially the act was passed to keep army and naval men, who often frequented brothels, safe from venereal disease, whilst still allowing them to visit the establishments. Women who participated in sex work can arguably be seen as triple deviants – transgressing moral and gender norms and also posing a risk to public health.
The most serious crime that it is necessary to discuss to illustrate the attitudes towards female criminality is that of infanticide. Infanticide is the killing of an infant. The term is now outdated and those crimes which once came under the category of infanticide would now be categorised as murder. The crime of infanticide best illustrates the concept that female crime was often connected closely with female madness. Madness has always been a particularly feminine concept, with the word ‘hysteria’ coming from the Greek hystera meaning womb and the term ‘lunacy’ being associated with the Latin luna meaning moon (which has historically had connotations with periods, thought to be controlled by moon cycles). All that to say, the concept of madness being essentially feminine is deeply entrenched within society – and the historiography of female madness has been well developed by historians such as Elaine Showalter.
Case Law reveals that women were less likely convicted if insanity was used as an explanation for infanticide, Isabella Buckham is recorded as saying in her defence for her murder of her ‘male bastard child’ in 1755, “I was not in my senses; I do not know what I said or did. Had I been in my senses I should have been very loth to have parted with it.” The case law that developed, including that of Buckham’s case was codified in the Lunacy Act of 1845 and the County Asylum Act of 1845 which used the medicalisation of mental illness to diagnose women with ‘puerperal insanity’ meaning that they were given ‘an appropriate charge’ instead of a prison sentence. Milton Hardy has described ‘puerperal insanity as a condition developing “during the time of and by the critical functions of gestation, parturition or lactation, assuming maniacal or melancholic types in general”, in short, it would today be described as post-partum depression. Puerperal insanity was used in the defence of Eleanor Martha Browning’s murder of her female child, where in her defence Dr John Walkam stated that “[he] found her then suffering from puerperal insanity; that is a form frequently accompanying the stoppage of milk, and infanticide is one of its key characteristics… [he thought that] she would not know what she was doing when she committed this act.” The cases of infanticide are undoubtedly deeply tragic and reveal the importance of not simply medicalising mental health but taking actions in ameliorating mental health situations.
The medicalisation of infanticide is perhaps a reflection more of what was suitable for the treatment of a particular crime, whereas the public focus and obsession on the crime speaks more broadly to the treatment of female criminals. Infanticide is one of the only crimes where female criminals have been drastically overrepresented. The Old Bailey’s digitalised Proceedings list 430 cases of infanticide, where only 7 of those accused are male, none of whom were found guilty. The over representation of women is unsurprising when it is considered that the women were held responsible for the moral upbringing of children. The responsibility was formalised, particularly in relation to illegitimate children, through the Bastardy Clauses, originating from the Poor Law Amendment Act 1834, “placed full moral responsibility for the illegitimacy of a child on the mother, ensuring that mother carried the full financial burden of the child.” The Act meant that fathers had no legal requirement, if unmarried, to care for their children. The Act is particularly relevant, when considered that almost half of all of the infanticide cases recorded by the Old Bailey, expressly mention the fact that the victim was a ‘bastard’, and twelve mentioning that the child was illegitimate. Here comes to the brunt of the issue of the public obsession – the women who committed infanticide, were not only considered by them to be sexual deviants, and moral and legal deviants, but they were also seen to deviate from the very role, as they saw it of being a woman, motherhood.
The two crimes that have been discussed above rarely included discussion of the middle classes, but one area where the middle classes were perhaps overrepresented was in discussions about shoplifting. The urbanisation of the nineteenth century meant that people were living in an increasingly heterogeneous society – with some individuals in middle classes feeling the need to distinguish themselves from those above and demonstrate their aspiration through their participation in fashion. The increased participation in the consumption of fashion and trends, as well as the birth of the less intimate department store, led to the birth, or at least renaissance, of the crime of shoplifting, particularly of extravagant items. Much like the crime of infanticide, women were highly overrepresented in the crime of shoplifting: for every one man indicted, three hundred women were. When the generic treatment of female crime is considered, the crime of shoplifting very much goes along with this trend.
Firstly, those who were obsessed with fashion were “compared to prostitutes in their materialism”, and that’s before the aspect of crime is introduced. Women tempted into shoplifting were seen as being double deviants, as with most other female heavy crimes, psychoanalyses argued that they were tempted as a result of their repressed sexuality. The treatment of the crime also further corroborates the idea that female crimes were medicalised, kleptomania becoming a common diagnosis for female middle-class women, as is evidenced through the case of Charlotte Annie Fitzgerald. Fitzgerald was found not guilty to her crime of theft, with the verdict of non-compos mentis, with her kleptomania being used as her defence. Whilst the discomfort of female participation in shoplifting can be attributed to the discomfort surrounding double deviance, as has been convincingly argued by Tammy C. Whitlock, “the treatment of shoplifting as a crime highlights the social discomfort with the public role of women in the English economy, and their primary role in consumer culture”. Arguably this is another form of deviance once again, but this time a deviation from the assumed non-participation of women within capitalism.
The treatment of female crime throughout the nineteenth century, reveals many of the anxieties that were present surrounding gender roles, in a society which was becoming increasingly obsessed with gender boundaries. The participation of women within the prostitution reveals the concerns surrounding female sexual deviants, but that also there was an aim to punish women, whilst still protecting and perpetuating male visitation of prostitutes. The treatment of and obsession about infanticide cases, reveals what happens to those considered to be the most abhorrent double deviants, those going against motherhood, whilst also revealing the historic medicalisation of female crime and of the concept of puerperal insanity. Finally, the crime of shoplifting demonstrates how middle-class women were also affected by the trends in the treatment of female crime, as well as how criminalisation is often used in order to control anxieties, through the fear of female participation in the economy.
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