Men's and women's experiences of crime, justice and punishment
Virtually every aspect of English life between 1674 and 1913 was influenced by gender, and this includes behaviour documented in the Old Bailey Proceedings. Long-held views about the particular strengths, weaknesses, and appropriate responsibilities of each sex shaped everyday lives, patterns of crime, and responses to crime. This page provides an introduction to gender roles in this period; a discussion of how they affected crime, justice, and punishment; and advice on how to analyse the Proceedings for information about gender.
Contents of this Article
- Gender Roles in the Eighteenth Century
- The Nineteenth Century: Separate Spheres?
- Feminism and the Suffragettes
- Gender and Crime
- Gender in the Courtoom
- Gender and Punishment
- Researching Gender in the Proceedings
- Introductory Reading
In the twenty-first century western world, the idea that women and men naturally possess distinct characteristics is often treated sceptically, but this was an almost universally held view in the eighteenth century. Ideas about gender difference were derived from classical thought, Christian ideology, and contemporary science and medicine. Men and women were thought to inhabit bodies with different physical make-ups and to possess fundamentally different qualities and virtues. Men, as the stronger sex, were thought to be intelligent, courageous, and determined. Women, on the other hand, were more governed by their emotions, and their virtues were expected to be chastity, modesty, compassion, and piety. Men were thought to be more aggressive; women more passive. These differences were echoed in the faults to which each sex was thought to be prone. Men were prone to violence, obstinacy, and selfishness, while women's sins were viewed as the result of their tendency to be ruled by their bodies and their emotions, notably lust, excessive passion, shrewishness, and laziness.
Expectations of male and female conduct derived from these perceived virtues and weaknesses. In marriage, men were expected to rule over their wives, and all property (except in some cases property acquired by the woman before marriage) belonged to the husband. Men were the primary wage earners, while women were expected to be primarily responsible for housework and childcare, though both sexes participated in all these activities. Women's paid employment was typically low status, low paid, and involved fewer skills and responsibilities than men's. The types of work available to women were confined to a few sectors of the economy where the work could be seen as an extension of women's domestic responsibilities, such as domestic service, the clothing trades, teaching, and nursing. In politics, women possessed virtually no formal rights, though they could exercise influence informally. Beyond employment, women's public roles were generally confined to the exercise of their moral and domestic virtues through participation in religion and charity.
However, one should not exaggerate the differences between the sexes, since there were a number of activities, both public and private, engaged in by both. Particularly among the poor, men and women were forced to do whatever was necessary in order to survive, both in unpaid work such as housework and childcare, and in employment for financial gain such as street selling (pictured) and some aspects of weaving.
There were a few opportunities to step outside accepted gender roles. Both men and women occasionally dressed in the clothes of the opposite sex to participate in masquerades, and women occasionally dressed as men in order to gain access to opportunities (such as military service) otherwise denied to their sex. Within London's homosexual subculture, men sometimes cross-dressed as women and adopted effeminate characteristics.
It is often argued that the late eighteenth and early nineteenth centuries witnessed a significant change in gender roles, which led to the emergence of “separate spheres” in the nineteenth century. The growing influence of evangelical ideology placed an increasing moral value on female domesticity, virtue, and religiosity. It is argued that increasingly public life and work was confined to men, while women were expected to stay at home. New ideas about the female body led to a decline in the belief that women were the more lustful sex; now women were idealised as mothers (“the angel in the house”), while those who failed to meet expectations were censured as prostitutes with uncontrollable sexual desires.
Recently historians have begun to question some aspects of this story, pointing out that these ideas of gender difference were for the most part very old, and that women were not excluded from work and public life in the nineteenth century. Women were excluded from some occupations and activities, but they entered new ones, for example authorship, teaching, and charity work. Working-class women still had to work to support themselves and their families, though the range of occupations available to them may have narrowed and some work, such as “sweated labour” in the textile trades, took place in the home. Towards the end of the century new jobs outside the home became available, and many women became clerks, typists, and shop assistants.
It is true that the concept of the respectable male “breadwinner”, who had the responsibility for providing financially for his entire family, was increasingly influential in this period. Consequently, women were frequently expected to give up their jobs when they got married. With the development of empire and a new wave of prosecutions of homosexuals in the 1890s, men were increasingly expected to demonstrate the masculine traits of muscle, might, and sexual attraction to women, combined with chivalrous concern for the weaker sex.
While gender differences may thus have been accentuated, the spheres of male and female activity were by no means totally “separate”, even at the end of the nineteenth century. As the Proceedings indicate, both men and women were present in many aspects of public and private life.
From the mid-nineteenth century women’s inferior social position was increasingly questioned by feminist writers and in campaigns to eliminate discriminatory practices. Women (and some men) demanded, with some success, increased employment and educational opportunities for women, reform of married women’s property law, more equitable divorce laws, and repeal of the Contagious Diseases Acts, which subjected alleged prostitutes to examination for venereal disease.
From 1866, the suffrage movement campaigned to get women the vote, which had been given to property-owning men by the 1832 Reform Act, and was extended to working-class men in 1867 and 1884. During this campaign arguments for the female vote developed into critiques of the ideology of separate spheres and the understandings of masculinity, femininity, and sexuality on which it was based. Women, it was argued, should no longer be defined as “the sex”, simply as receptacles for male sexual activity.
From 1905, frustrated at the lack of progress, the suffrage campaign turned militant. Under the leadership of Emmeline and Christabel Pankhurst, the Women’s Social and Political Union staged demonstrations and engaged in acts of vandalism such as breaking windows by throwing stones. Some of those arrested were tried at the Old Bailey: see the trials of Emily Davison in 1912 and Emmeline Pankhurst in 1912 and 1913. Some of those imprisoned (including Pankhurst) went on hunger strikes. In May 1913, Davison jumped in front of the King’s horse on Derby Day and was trampled to death. World War I intervened, but women over the age of 30 were finally given the vote in 1918.
In every study of serious crime ever conducted, men's and women's criminality has appeared different. Women are always accused of fewer, and different, crimes from men, and this was also true at the Old Bailey. Women account for only 21% of the defendants tried between 1674 and 1913, but this figure masks a significant chronological change. While women accounted for around 40% of the defendants from the 1690s to the 1740s (and, highly unusually, over half the defendants in the first decade of the eighteenth century), over the course of the period this proportion declined significantly, so that by the early nineteenth century only 22% of defendants were women and by the early twentieth century the proportion had declined to 9%. By this point serious crime had come to be perceived as essentially a masculine problem. Increasingly, female deviance was perceived as a consequence and aspect of sexual immorality rather than crime, and was addressed through other agencies of protection and control.
Throughout the period, female defendants in the Proceedings account for a significant proportion of the accused in only a small number of offences, particularly certain kinds of theft (pickpocketing, shoplifting, theft from lodging houses, theft from masters, and receiving stolen goods) and coining, kidnapping, keeping a brothel, and offences surrounding childbirth. On the other hand, relatively few women were accused of deception, other sexual offences, breaking the peace, and robbery.
The explanation of these patterns is complicated. Certain offences were legally or practically sex-specific: only men could be guilty of rape (though women could be accessories) and except in very rare circumstances of sodomy, while women were most likely to be accused of infanticide, concealing a birth, and unlawful abortion. Although prostitution itself was not tried at the Old Bailey, keeping a brothel was, and women account for about a third of those prosecuted.
Beyond this, there are two sets of explanations for the gendered pattern of prosecutions at the Old Bailey: different attitudes towards male and female criminality; and different patterns of crime actually committed, owing to contrasts in the lives led by women and men.
According to their prescribed gender role, men were expected to be violent and aggressive, and consequently male deviance was perceived to be more threatening, was more likely to be interpreted as crime, and was more likely to be prosecuted. Because women were generally perceived to be more passive, they were not thought to be prone to criminality, and therefore the crimes they did commit were seen as unusual, rather than as part of a general pattern. At this time only a small fraction of crimes were actually prosecuted, and the less threatening crimes were least likely to be formally prosecuted. Although women who stepped far outside expected gender roles (through the use violence towards children, for example) were prosecuted severely, most crimes committed by women were likely to be dealt with by less formal judicial procedures, such as informal arbitration and summary prosecution, or at the Quarter Sessions courts, and such cases do not appear in the Old Bailey records.
A second explanation for the appearance of fewer women at the Old Bailey, and their being charged with different types of crime, is that women may have actually committed fewer and different crimes than men because of the nature of their lives. Women, for example, were less likely to carry weapons or tools, or to spend time in alehouses, so they were less likely to become involved in spontaneous fights, and when they did they rarely had a lethal weapon to hand. Since they spent more time in the home they may have had fewer opportunities to commit crime, particularly temptations to steal. On the other hand, women were never confined to their own homes and most had plenty of opportunities to commit theft.
It is certainly likely that male and female patterns of theft differed, owing to the different types of work and leisure engaged in by each sex. Thus prostitutes stole from their clients and were accused of pickpocketing; female servants stole from their masters; and female customers, possibly motivated by desires to keep up with the latest fashions, stole from shops. In addition, women's participation in trading networks gave them skills suitable for buying and selling stolen goods. On the other hand, men were far more likely to be involved in thefts from places of work such as ships, warehouses, docks, and places of manufacture; and, in rural areas, thefts of livestock.
Overall, women did account for a significant proportion of theft prosecutions, particularly early in the period, and this can be related to the significant economic hardships women encountered in London, particularly young recent migrants. New immigrants to the metropolis were often cut off from networks of support such as family and friends, and women's wages were typically significantly lower than men's, and their jobs less secure.
Historians disagree about the cause and significance of the major decline in the proportion of female defendants tried at the Old Bailey between the early eighteenth and early twentieth centuries. Malcolm Feeley and Deborah Little argue that this decline reflects real changes in women’s lives, particularly the separation of home and work and women’s exclusion from the public sphere, leading to a decline in actual female criminality. The extent of these historical changes in women’s lives has been questioned, however. In contrast, Peter King argues that the decline in both the number and proportion of women tried at the Old Bailey was not linear, reflected significant fluctuations in the number of men prosecuted in times of war and peace, and was not mirrored in the records of other English courts. Perhaps most importantly, he notes that the late nineteenth-century decline in the number of women prosecuted reflected jurisdictional changes, as a large number of minor theft cases (which frequently involved women) were transferred to the lower courts. Ultimately, it is dangerous to draw wider conclusions about gender directly from evidence of the number of offenders prosecuted in a single court.
Appearing as a defendant at the Old Bailey must have been a significantly more intimidating experience for women than it was for men. All court personnel, from the judges and jury to lawyers and court officials were men; the only other women present would have been witnesses or spectators in the gallery (the latter were empanelled whenever a jury of matrons was needed in order to determine the validity of a convicted woman’s plea that she was pregnant). There is some evidence that juries treated evidence presented by female witnesses more sceptically than that delivered by men (and female testimony was more likely to be omitted from the Proceedings). At the same time, other evidence suggests that juries may have been more reluctant to convict women since, as explained in gender and crime, female crime was generally perceived as less threatening than that committed by men. The legal principle of the feme covert, by which women could not be held responsible for crimes committed in the presence of their husbands (since they were presumed to be following their husbands' commands) was not often applied, but it may have led juries to exonerate some married women, particularly when their husbands were convicted for the same crime.
Only about a seventh of the victims or prosecutors of crime at the Old Bailey were women. The most important reason for this is the fact that theft was the most common offence prosecuted, and most marital property was deemed to be in the possession of the husband. Thus, even if a woman's clothes were stolen, if she was married her husband would have been labelled as the victim of the crime. It is also possible, however, that women on their own were reluctant to prosecute cases in the male-dominated environment of the Old Bailey courtroom. Women account for a higher proportion of the victims who used less formal legal procedures such as summary jurisdiction and informal arbitration to prosecute crimes.
The pattern of punishments for convicted women was significantly different from that for men, though when punishments for the same offence are compared the differences are not so great. There are some legal reasons for these differences, many of which reflect ideas about gender at the time:
- Before 1691, women convicted of the theft of goods worth more than 10 shillings could not receive benefit of clergy. Unlike men, such women had to be sentenced to death (in practice, they were often acquitted, convicted on reduced charges and sentenced to a lesser punishment, or pardoned).
- Women convicted of treason or petty treason were sentenced to death by being burned at the stake (until 1790); men convicted of the same offences were to be drawn and quartered. There appears to have been a reluctance to open up women's bodies in public.
- Women sentenced to death who successfully pleaded that they were pregnant had their punishments respited, and often remitted entirely. From 1848, reprieves granted to pregnant women were always permanent.
- Following the suspension of transportation to America in 1776, a statute authorised judges to sentence male offenders otherwise liable to transportation to hard labour improving the navigation of the Thames (they were incarcerated on the hulks), while women, and those men unfit for working on the river, were to be imprisoned and put to hard labour.
- The public whipping of women was abolished in 1817 (having been in decline since the 1770s), while the public whipping of men continued into the 1830s (and was not abolished until 1862).
- Only men could be sentenced to military or naval duty, or receive this punishment as the result of a conditional pardon.
The ideas behind these differences--women's unsuitability for hard outdoor labour and military service, concerns for their children, and the growing reluctance to punish women physically in public--also shaped punishment patterns more generally. Owing to the desire to populate the colonies with those capable of building up their economies, for example, many fewer women were selected for transportation than men, especially after 1787 when transportation to Australia began. In addition, women were much less likely than men to be sentenced to death, public whipping or the pillory (no women were sentenced to the pillory after 1762), sometimes even when convicted of the same offences.
Sentencing decisions were no doubt influenced by the ever present perception that female criminality was less threatening than male criminality, in part because it was committed less frequently. Since one of the main purposes of punishment in this period was thought to be deterring others from engaging in crime, punishing women served a less useful purpose than punishing men. But in certain circumstances female criminals appeared more threatening than men, and the court punished them accordingly. By the early nineteenth century, as serious crime came to be "masculinized", most crime committed by women was seen as essentially a sexual rather than a criminal form of deviance, and those few women who were identified as serious criminals were sometimes punished more harshly than men. In effect, such women suffered for transgressing their expected gender roles.
There are four principal ways of analysing gender in the Proceedings.
- Using the statistics search page, it is possible to count types of crime, punishment, verdict, and number of cases per year or decade, breaking down the figures by either defendant gender or victim gender. This will allow you to see how general patterns of crime, verdicts and punishments varied according to the gender of those involved. Note that there may be some cases that fall into the "unclassified" category, because there was no evidence in the trial to indicate a gender or the victim was an institution or collectivity.
- Searching by crime, you can find all the cases of gender-specific crimes like infanticide, rape, and sodomy.
- Using the custom search page, you can find all cases meeting specific criteria which involve defendants and/or victims of a specified gender. For example, selecting defendant's occupation/status=”servant” and defendant=”male”, you will find a large number of trials involving male servants, and much valuable contextual information about their lives.
- Using the keyword search, you can search for words or short phrases which were used to describe men and women, or particularly male or female attributes, and look at the contexts in which such terms were used. Try "female", "masculine", "mother", "boy", "girl", "elderly man", etc. Not all terms will generate useful results, but many will. Words like "chaste", "compassion", "courage", "lazy", "meek", "modest", "obstinate", and "proud" will also produce interesting results, though such words were rarely used to describe only one sex - that itself is a significant finding.
- Arnot, Margaret and Usborne, Cornelie, Gender and Crime in Modern Europe (London, 1999)
- Beattie, J.M., "The Criminality of Women in Eighteenth-Century England", Journal of Social History 8 (1975), 80-116
- Earle, Peter, A City Full of People: Men and Women of London, 1650-1750 (London, 1994)
- Feeley, Malcolm and Little, Deborah, "The Vanishing Female: The Decline of Women in the Criminal Process, 1687-1912", Law and Society Review 25 (1991), 719-57
- Kent, Susan Kingsley, Gender and Power in Britain, 1640-1990 (London, 1999)
- Kermode, Jenny and Walker, Garthine, Women, Crime and the Courts in Early Modern England (London, 1994)
- King, Peter, Crime and Law in England, 1750-1840 (Cambridge, 2006), chapter 6
- McKay, Lynn, "Why they stole: Women in the Old Bailey, 1779-1789", Journal of Social History 32 (1999), pp. 623-39
- Palk, Deirdre, Gender, Crime and Judicial Discretion, 1780-1830 (Woodbridge, Suffolk, 2006)
- Shoemaker, Robert B., Gender in English Society 1650-1850: The Emergence of Separate Spheres? (Harlow, 1998)
- Walker, Garthine, Crime, Gender and Social Order in Early Modern England (Cambridge, 2003)
For more secondary literature on this subject see the Bibliography.