LHMP #445a Derry 2020 Lesbianism and the Criminal Law Chapter 1

Derry begins by contradicting the myth that Queen Victoria was the reason there were no laws in England against lesbianism. There are three problems with this myth: no such law was proposed; if it had been, the queen wouldn’t have any power to block it; and such a blockage wouldn’t explain the earlier absence of such laws. But the lack of specific laws doesn’t equal the “benign neglect” suggested by some historians. The main policy against lesbianism was silencing. Laws would recognize lesbianism as “a thing,” whereas silencing was aimed at preventing it from being imaginable.

That doesn’t mean there were no laws or sanctions brought to bear when lesbianism was seen as a threat. Nor was the progression of legal attitudes toward lesbianism consistent. The book uses specific case studies to examine the progression of official responses (both legal and medical) to the specter of sex between women. [Only two of the case studies fall before 1900, so my consideration of much of the book will be more cursory.]

Several themes emerge: the obscuring of lesbianism through denial or through equating lesbians with gay men; the connection between attitudes toward lesbianism and more general attitudes towards female sexuality; and the focus of the law on challenges to hetero-patriarchal privilege.

The next section of the chapter contains definitions. The focus of the book is on the regulation of lesbianism, not of lesbians, but the legal system for the most part avoided naming or recognizing lesbian relations or persons. The focus is on how the legal system viewed and treated people, not on self-identity or applicable modern identities. The book recognizes that the use of “lesbianism” is potentially anachronistic, but rejects some of the other scholarly approaches to the question and trusts the reader to understand the context just as with “family” or “marriage.”

While avoiding putting forth a definition for “lesbian” the law is clear about defining its concerns. It is concerned with relationships that represent a “facsimile of heterosexual marriage” while sidestepping the question of sex. Alternately, it is concerned with specifics of sexual activity: genital contact, penetration, analogues of PIV intercourse. In neither case is the law concerned with individual identity, but rather with whether the subjects can be rehabilitated to heterosexuality and her place in patriarchal society. Temporary deviations from hetero-patriarchy were of little interest, only sustained or permanent deviations. Affective bonds could be more threatening than sex. In that context, the book discusses the value to using the word “lesbian” rather than abandoning it as undefinable.

The legal record, in defining lesbian identity, avoids defining it via sex, even though sex is a constant specter. Further, defining lesbianism in terms of sexual activity first requires agreeing on what acts are categorized or understood as sexual. If sex is defined as PIV intercourse, then lesbians don’t have sex. Consider also that participation in specific sex acts is never required to categorize someone as heterosexual. Some historians have suggested using a cluster of practices, including genital, sex, emotional attachment, marriage avoidance, cross-dressing, and transgressing sexual norms. Any definition of lesbianism is inherently political.

With regard to the lesbian/trans-masculine question, this book is concerned with how the law treated individuals, without trying to sort out how they view themselves.

Silence around lesbianism can have many motivations, but by “silencing” the author means the “deliberate suppression of communication.” In particular, the suppression of a concept so that women do not have access to it, and specifically so that “respectable” women did not have access to it.

(There is a long discussion of silencing in a legal context.)

Part of the silencing included the displacement of lesbian possibilities onto the “other”: non-white, non-British, non-middle-class. The silencing was the opposite of “benign neglect” as rendering lesbianism unspeakable made defense against the accusation impossible. The author argues that the policy of silencing emerged in the 18th century, when sexual offenses moved from being the concern of the church to the concern of the court, and when prosecution shifted from concerning individual harm to general public harm. Reaching its apex in the 19th century, silencing has never entirely disappeared, though changed inform and focus.

Silencing has been one component of legal approaches to m/m sex (“unspeakable,” “sin not to be named,” etc.) but the primary tool in that context has been specific statutes and prosecutions. While m/m sex has been literally “policed”, f/f relations have largely been left to social control, in line with the control of women’s sexuality in general. Women are socially “policed” against crossing invisible lines on old manner of axes. Thus lesbianism need not be specified, except as one more transgression among the many. Women’s independence and agency were controlled in many ways that diminished lesbian possibilities without needing to name them. At the same time, the visibility of lesbianism in satire, classical text, medical, literature, and pornography did not contradict legal silencing as those media were socially restricted to a male audience.

The remainder of the introductory chapter contains a literature review, a discussion of primary sources (court and crime reporting), the methodology of the study, and a map of the contents of the book.