Acknowledgements: The authors would like to thank the Archivists at the National Records of Scotland for assistance with their many enquiries, and Robbie Duschinsky, Rab Houston and Tim Stretton for providing helpful references.
1At first glance, the trial precognition of the sexual crime committed against Ann Innes reads like many other cases of rape or sexual assault that were heard by the criminal courts in the nineteenth century. On Wednesday 27 September 1865, seventeen-year-old Ann was sent by her mother from her home near the burgh of Lossiemouth in north-east Scotland, to fetch milk from a local farm. As the oldest daughter in a family of nine children, the walk along the field-lined track close to the sea, which connected her home to the farm, had become part of her daily routine.
2She carried a basket to collect butter for a neighbour, and a bottle to be filled with cream for another. Having completed her errands, Ann began her journey home, but was met by fifteen-year-old John Murray, a farm servant and apprentice carpenter, who was driving a horse and cart for his Master. John so frightened Ann that she dropped her pail and basket, and ran away into the Links next to the seashore, but he followed her and chased her into a place near “Cooper’s Ditch”. It was alleged that John did then:
Wickedly and feloniously attack and assault Ann Innes… and did seize hold of her by the body and by her clothes and drag her about, and did strike her with his fists several or one or more blows about the head or face and threw her down on the ground and did raise her cloths and lie upon her and attempt to have carnal knowledge of her person forcibly and against her will.
3Ann was left crying by the side of the road, but when another girl passed by, she refused to walk Ann home. Approaching a shepherd in the Links, Ann told him what had happened, and he told her to go home and report John’s behaviour to her father. Ann delivered the butter and milk first, arriving home so late that her mother had sent one of her other children to look for her. Her mother and both her neighbours could see that she had been crying, one noting that Ann had a “scared” look about her. The next day, Ann told her mother everything John had done, and said that he had “threatened to drown her in the Ditch if she would not lie still and be quiet.” Her mother called a doctor who examined Ann’s body, finding the “external orifice of the vagina matted with hardened blood”, and concluding that all the bodily signs were that Ann had “sustained sexual violence”. “A good deal of blood came from me after I was hurt”, Ann recalled.
4Physically violent, frightening, painful and bloody, the descriptions of this assault were nothing unusual in prosecutions for sexual offences. But Ann Innes’s case was exceptional. For John’s crime had been “aggravated” by the fact that Ann was of “weak or imbecile intellect”. When John Murray was tried for rape at the Northern Circuit court in Inverness the following spring, seventeen witnesses testified against him, including Ann’s mother. Since Ann had suffered a severe attack of measles when she was five-years-old, her mother explained, “she has never been herself… She is quite childish in her manner and simple”. That a sexual crime had been committed against her daughter was shocking: “I could scarcely believe that any person would have attempted to have carnal connection with my daughter considering her weakness”, she told the court.
- 1 National Records of Scotland, Edinburgh (thereafter N.R.S.), AD14/66/224, N.R.S., JC26/1886/49, H (...)
5Ann’s court case attracted an untypical degree of attention from medical practitioners and lawyers. As well as supplying statements regarding their physical examination of Ann after the attack, two physicians gave assessments of her mental capacity to consent to sex. Lawyers questioned her ability to act as a legal witness because it was decided that she did not understand the nature of an oath. They also debated whether her mother’s account of what Ann had reported to her after the assault could be admitted as evidence. The court’s decision was deemed of sufficient legal importance that it was subsequently recorded in the Justiciary Reports. Hence, an unprovoked attack one September afternoon in a remote corner of Aberdeenshire, on a “simple” minded girl, had resulted in scrutiny and discussion far beyond her home and well after legal judgement was passed on John Murray. Yet the jury unanimously found the charge against John Murray “not proven”. Ruling that Ann did not understand the meaning of an oath, she was not allowed to testify. Only the words spoken to her mother on the day of her return, that “Cattell’s man had kept her”, were permitted as evidence, not the wider account of the attack she gave the next day. Thus, Ann Innes’s case exposed the limitations of legal norms to accommodate her mental condition.1
6This article examines eight cases of sexual assault or rape that involved people of “weak or imbecile intellect” and were heard at the High Court of Justiciary, Edinburgh or at one of its three circuit courts in the nineteenth century. Beginning with an examination of the historical context in which sexual crimes against imbeciles and the weak-minded were committed, this article will then discuss the nature of our legal precognition sources. The immediate responses of those who lived alongside imbeciles are contrasted to the legal challenges these crimes presented. In particular, it will be argued that the rules of evidence governing Scottish criminal law made convictions difficult to achieve and aggravated the sexual vulnerability of this social group who were already on the margins of society.
7Historians describe nineteenth-century Scotland as subject to significant economic and social change, notably through industrialisation, which transformed social structures. Iron and coal industries attracted male labour and itinerant labourers pursued employment in agriculture, coal-mining and rural industry in Fife, the Central Belt and the Highlands. The movement of labour encouraged casual encounters between farm servants and labourers, leading to higher rates of illegitimacy, as well as the bolstering of a male drinking and violent culture (Smout, 1986; Devine, 1999; Whatley, 2000). These dislocations of traditional social ties, and the mobility of individuals in search of livelihoods, left imbeciles and the weak-minded exposed. The female imbecile’s vulnerability confronted a less safe anonymising world.
- 2 Jackson (1998), Houston (2000, 164-171), Cockayne (2003), Shuttleworth (2010), Sandland (2013).
8This article’s focus consists of individuals who were not medically classified as insane, but whose minds and social behaviours were nevertheless deemed abnormal. For contemporaries, what marked them out publicly was their lack of mental development, and their differences in daily conduct reflected in the expression of a childlike social competence. The terms “weak-minded”, “idiot” and “imbecile” were often used interchangeably, and alongside a new classification that was popular by the late nineteenth century, the “feeble-minded”. One marker of imbecility was a lack of verbal language skills: those who were born deaf often remained “dumb”, and this inability to communicate was assumed to be associated with underlying intellectual deficit. Considered a life-long condition, medical professionals paid far less attention to the imbecile than the insane. Until they were confronted by criminal cases involving imbeciles, lawyers were generally only interested in imbeciles in the rare instances when the property or inheritance rights of the wealthy were at stake.2
9Recognition of the special needs of imbeciles was aided, in part, because of developments in educational provision. While imbecility may have been viewed as incurable, contemporaries acknowledged that there were degrees of mental incapacity, and thus that there were benefits to offering a basic education to some groups of imbeciles (Anon., 1877, 108-110; Anon., 1878, 267). Accommodating imbeciles in lunatic asylums or workhouses was increasingly seen as inappropriate: in Scotland, two institutions opened for children: Baldovan Asylum near Dundee in 1855, and in 1863 the “Scottish National Institution for the Education of Imbecile Children” in Larbert, Stirlingshire. Larbert received support from the Scottish Society for the Education of Imbecile Children (Anderson, Langa, 1997; Hutchison, 2011; Anon., 1862, 53-62).
10In their efforts to retrieve the lives of imbeciles, historians have certainly benefited from the records of these specialist institutions. Yet they have produced a distorted picture. Baldovan and Larbert only offered a home and education to children: most were discharged when they reached their mid-teens; whether their futures were positive is a mystery. Furthermore, pioneering as they were, these two institutions could not hope to support all Scottish children with mental impairments. While a distinctively Scottish system of “boarding out” put an increasing strain on the resources of families and communities, most imbeciles remained living with their struggling families (Anderson, Langa, 1997, 249, 256-257; Harriet, 1996; Sturdy, Parry-Jones, 1999).
11Compared to the lack of historical research on imbeciles as young people and adults, there has been far more attention given to the history of rape. As imbeciles were often treated developmentally as children in the eyes of the law, the publications of historians such as Shani D’Cruze, Tom Dunning, Sarah Toulalan and especially Louise Jackson on child rape are particularly relevant (D’Cruze, 1998; Dunning, 2007; Toulalan, 2016; L. Jackson, 2000). However, our understanding of sexual crimes committed in Scotland remains more limited than in England, and until now there has been no historical study of sexual crimes targeting Scottish people with mental disabilities and how Scots law responded.
- 3 Hume (1797, vol.1, 22-36), Alison (1832, 644-661), Shuttleworth (1884), Marchetti (2015).
- 4 Alison (1832, 644-645, 655, 667), Macdonald (1877, 11-12), H.M. Advocate v. Robertson (1836) Swin (...)
- 5 Foucault (1978, 31), Foucault (2003, ch. 11), Taylor (2017, 30-34), Tremain (2013).
- 6 N.R.S., AD14/48/473, N.R.S., JC26/1847/688.
12Instead, historians of crime and criminal justice have hitherto focused their attention upon the nineteenth-century development of the law on lunacy (Walker, 1968; Smith, 1981; Farmer, 1996, 121-122; Kennedy, 2016). The question of criminal liability was one that exercised contemporaries, and led to a new criminal typology, the “criminal lunatic”. At the end of the nineteenth century, the “discovery” by psychiatrists of certain pathologies, such as split personality, added new complexity to discussions concerning the relationship between mental disorder and criminal behaviour.3 Yet the criminal responsibility of imbeciles and the weak-minded was never as fully explored by legal authorities as that of the insane, and they remained marginal in the debates of the period.4 Michel Foucault raised the neglected issue of imbecility in his study of Charles Jouy within his History of Sexuality, and later collection of lectures, Abnormal. Jouy, a man who was “more or less the village idiot”, lived in the Nancy region of France and in the autumn of 1867 was accused of “almost rape” by the parents of a “little girl”, Sophie Adam. Foucault has been rightly criticised for arguing that Jouy was the innocent victim of a “new system of control and power”, in which “the figure of the abnormal individual was psychiatrized.” Following examinations by doctors, criminal proceedings were dropped, and Jouy was confined in an asylum for the rest of his life. Foucault refuses to acknowledge Sophie as a sexually abused victim.5 Yet Foucault’s focus on the assailant also distracts from the fact that people who were weak-minded, and female were far more likely to be the victims not the perpetrators of sexual crime. The records of the High Court of Justiciary in Scotland reflect this: during the nineteenth century it heard just one case for rape in which there was consideration of the mental capacity, and thus culpability, of the accused. This was the 1847 case brought against Archibald Burke, known locally as “the dummy”, since he was deaf and dumb.6
- 7 Hume (1797, vol. 2, 1-5), Alison (1832, 209-211), Macdonald (1877, 167).
13This article’s focus is upon eight cases of rape or sexual assault committed between 1815 and 1900 in which the victim was an imbecile or weak-minded girl or woman. In Scottish law, rape was defined as “knowledge of the woman’s person, forcibly and against her will”. Although penetration was necessary to prove rape, emission was not.7 The most serious criminal offences in Scotland are dealt with by common law and Scotland relies upon public prosecutors to decide whether the accused should be indicted. As Lindsay Farmer explains, from 1707, the Scottish legal system has maintained its distinctiveness from English practice. Scotland had its “own courts, rules of procedure and evidence”, and it is only by understanding these that we can appreciate the nature of our surviving records (Farmer, 1996, ch. 2, quote at 21).
14When a sexual crime was reported a complaint was submitted locally to the procurator-fiscal. The procurator-fiscal gathered statements from witnesses examined individually, under oath and in private, to produce a precognition. It was then the procurator-fiscal’s decision whether a prosecution could be mounted. They could also determine whether there was a case for prosecution in the lesser county (Sheriff) or higher national (Justiciary) courts. If the precognition was transmitted to Edinburgh, the Crown Counsel, led by the Lord Advocate, or the advocates-depute for the circuits, again had to decide whether to prosecute. They might dismiss the case and liberate the accused, return the case to the county to be prosecuted in the Sheriff court by magistrates, or proceed to indictment and trial in the High Court (Alison, 1833, xiv-xx, 137-139; Riggs, 1997).
- 8 N.R.S., AD14/26/193/2.
- 9 Criminal Law Amendment Act 1885, 48 & 49 Vict. c.69, section 5 (2,15).
15The individual opinions of Scotland’s criminal procurator fiscals and advocates were thus vital in determining whether cases were prosecuted. As Paul Riggs states, “In Scots law, prosecutors were ‘masters of the instance’ and in individual cases they made critical decisions” (2012, 172). If a case proceeded to trial, their assessments of the gravity of a crime, and decisions about what type of court should hear the case, had consequences for the severity of punishment if the accused was found guilty. If there was deemed to be sufficient evidence, then the procurator fiscal would pass the information he had gathered to the High Court of Justiciary, which tried all cases of rape. For example, having been presented with information relating to the sexual assault upon the “semi-imbecile”, Nelly Aitchison, in July 1826, the Sheriff Depute of Roxburgh decided that the case be transferred to the High Court of Justiciary. His covering note was included at the end of the information sent to Edinburgh.8 Rape was often indicted together with the cognate charge of “assault with intent to ravish”. Two key changes in nineteenth-century statutory law with regards to rape applied to Scotland as well as England. If convicted of rape, until 1841 the sentence was death (Hume, 1797, vol. 2, 10). After 1841, in line with a reduction of capital punishment for other crimes, a guilty verdict could result in transportation or imprisonment including hard labour (Riggs, 2012). The 1885 Criminal Law Amendment Act “to make further provision for the protection of women and girls”, included a clause that made it an offence to have sex with “any female idiot or imbecile woman or girl, under circumstances which do not amount to rape, but which prove that the offender knew at the time that the woman or girl was an idiot or imbecile”.9 Conviction in these circumstances was judged a misdemeanour, and liable to a sentence of imprisonment of two years, with or without hard labour.
16The filtering process operated by Scotland’s public prosecutors meant that an unknown number of sexual offences were either heard at the local level by the Sheriff or magistrate, or were dismissed. Archibald Alison, who updated Baron Hume’s authoritative statement of Scottish criminal law in two major texts on Scottish legal principles and practice published in 1832 and 1833, and was himself Sheriff of Lanarkshire, estimated that “several hundred” of the 800 to 1,000 cases annually transmitted to the Crown officers were dismissed (1833, xvi-xvii). When sexual assault was deemed to stop short of rape, or it was thought there was insufficient evidence to prosecute for rape, cases might be prosecuted in the Sheriff courts. But it is very difficult to retrieve evidence of these cases. Sheriff court records are not digitised or classified, and although registers may list names of parties, further biographical data, which would allow historians to identify imbeciles, is absent. We can gain occasional glimpses from contemporary newspapers, such as the report in the Aberdeen Journal of the case brought against John Macrobbie in November 1893, a labourer charged with “assaulting with intent a young imbecile woman named Fraser”. Macrobbie was tried at the Elgin Sheriff Court, found guilty of indecent assault and imprisoned for three months. Yet the report is very brief, and focuses on the non-appearance of a Dr Mackay as a witness. We learn little about the circumstances of the crime, or about Fraser, even her first name (Aberdeen Journal, 6 November 1893). There is no record of this 1893 case in the limited records of the Elgin Sheriff court.
- 10 Yet Shani D’Cruze has also shown their potential to reveal attitudes towards sexual violence (199 (...)
17While in the Macrobbie case, a press report provides the only evidence of a crime, nineteenth-century newspapers can be frustrating as sources for historians of crime. Their potential to reveal evidence of court proceedings is limited by Victorian standards of decency, which resulted in a reluctance to print details of sexual offences in case they offended readers, or corrupted public morals. By convention sexual offence trials were heard behind “closed doors”. When John Skillin Montgomery was tried at the northern justiciary circuit in Aberdeen in 1855, the case “was heard within closed doors”, due to, “its indelicate nature” (Montrose, Arbroath and Brechin Review, 28 September 1855).10
18In contrast to the organisation and survival of Sheriff criminal court records, those of the Justiciary, whether of its central criminal court in Edinburgh, or its three circuit courts in the west, south and north of Scotland during its spring and autumn circuits, are amenable to access. All Justiciary records are now held and indexed by the National Records of Scotland (N.R.S.), Edinburgh. The main records for the Lord Advocates department criminal cases (AD) are the precognitions (AD14 Series), for which sources that have survived begin in 1815. Since the precognitions are described in outline on an electronic database, the N.R.S. online catalogue and the Scottish Criminal Cases Index were searched using key terms to identify the case records relevant to the focus of this study. Trial records (JC26 Series), where available, were also examined to determine the verdicts and sentences of those tried. Precognitions provide much of the rich detail upon which the argument and substance of this article is based. For as Robert Shiels argues, precognitions were the “witting testimony of the crimes being investigated and unwitting testimony of the law and society of the time in which they were taken” (2015, 31). Precognitions illuminate the material living conditions and norms of communities, as well as the forensic nexus about the crime that had been committed (Crowther, 1995; Riggs, 2012).
19Synthesizing evidence from Crown Council Justiciary precognitions, trial records and nineteenth-century law reports produced by the legal profession for its members has resulted in the identification of eight cases involving the weak-minded or imbecile. A descriptive outline of these cases, including their N.R.S. AD14 identifier, is synthesized in Table I.
- 11 Hume (1797, vol. 2, 231-234), Griffiths (1992, 97-98, 112), Nicolson, Blackie (2013).
20Across the period, the numbers of cases of this type heard by the High Court of Justiciary remained comparatively extremely limited. The general search term “ravish” yielded for the period 1815-1900 a total of 1,281 sources in the N.R.S. Scottish Criminal Case Index. The term “rape” for the same period identified 1,228 sources in the N.R.S. database. Sexual assault against “a girl under the age of puberty” has 292 case records in the N.R.S. for 1815-1900. The “dark figure” of unreported crime is likely to have been especially significant for all sexual offences, and arguably more in the cases which this article explores, when feelings of individual or family shame and norms of social conformity would undoubtedly have contributed towards a reluctance to pursue official redress. In addition, one of the most characteristic features of Scottish criminal law is that key facts should be corroborated. Corroboration might have been harder to achieve in cases where victims were weak-minded, and thus were believed to be both unreliable and untrustworthy witnesses.11 Gaining corroboration and the status of the female victim would be likely to intensify the “dark figure”. As this article will now show, women who were labelled as weak-minded or imbeciles faced further challenges in the pursuit of justice after sexual assault or rape.
Table I. Scottish Criminal cases, 1815-1900
Name, age & status of the accused (where known)
|
Name & Status of victim
|
Indictment
|
Place of offence
|
Year of offence
|
Area of offence
|
Verdict & Sentence
|
Alexander Martin (28), itinerant labourer, former seaman
AD14/23/117
|
Christian Moir, deaf & dumb
|
Rape, and, Assault with Intent to Ravish
|
Woodland
|
1815
|
Dyce
|
Assoilzie simpliciter and dismissed
|
John Wintrup, son of a farmer or carter
AD14/26/193
|
Nelly or Helen Aitchison, “Semi-imbecile”-deaf & dumb
|
Rape, and, Assault with Intent to Ravish
|
Broke into her house (via window)
|
1826
|
Roxburgh
|
Assoilzied simpliciter and dismissed
|
Hugh McNamara (44), hawker
AD14/48/330
|
Jean Watt, aged 14, “of weak or imbecile intellect”
|
Rape, and Assault with intent to ravish
|
McNamara’s house
|
1848
|
Glasgow
|
Guilty – rape. Transportation – Life
|
John Skillin Montgomery (25), hawker
AD14/55/278
|
Ann Andrew, deaf & dumb
|
Rape, and, Assault with Intent to Ravish
|
Broke into the house where she has a room
|
1855
|
Peterhead
|
Guilty – assault.
Prison – 2 months
|
Edward Yates (31) & Henry Parkes (45)
AD14/51/519
|
Elizabeth Smith, “silly & weak in the mind”
|
Rape, and, Assault with Intent to Ravish
|
Outdoors (roads & paths – semi-rural)
|
1857
|
Airdrie
|
Guilty –
assault with intent to ravish. Imprisonment – 18 months with hard labour
|
John Murray (15), farm servant and apprentice carpenter
AD14/66/224
|
Ann Innes, “weak or of imbecile intellect”
|
Rape, and, Assault with Intent to Ravish
|
Outdoors (field)
|
1866
|
Elgin
|
Not proven, Assoilzied simpliciter and dismissed
|
John McGuire (55), labourer & Francis O’Brien (34), ironmaker
AD14/89/100
|
Martha McDonald, deaf & dumb, “weak intellect”
|
Rape
|
At a neighbour’s house
|
1889
|
Lanarkshire
|
Guilty, Penal servitude – 7 years
|
William Paterson (30), carter & William Kean (17), labourer
AD14/1900/58
|
Margaret Bone, “semi-imbecile”
|
Rape, and, Assault with Intent to Ravish
|
Outdoors
(urban)
|
1900
|
Lanarkshire
|
Guilty, Imprisonment – 8 years Rape of semi-imbecile girl. (Previous convictions: assault with intent to ravish) (Paterson)
Imprisonment – 5 years (Kean). Rape of semi-imbecile girl
|
Sources: N.R.S.: AD14 Series and JC26 Series, Scottish Criminal Case Index.
Assoilzed means “To acquit of a charge; to declare innocent or free from liability”, Robinson (1999, 18).
- 12 N.R.S., AD14/66/224.
- 13 N.R.S., AD14/55/278.
- 14 N.R.S., AD14/1900/58.
- 15 N.R.S., AD14/23/117, Aberdeen Press and Journal (29 November 1815).
21The neighbourly support given to female victims of sexual assault or rape demonstrates social and emotional attachments to imbeciles; their abuse was perceived to be unnatural and disturbing. The shepherd approached by Ann Innes after she had been attacked confronted John Murray the next day, asking him why he had “bad used the girl”? One of her mother’s neighbours, hearing what had happened, encouraged her to report Murray’s offence, saying that he should be punished.12 In early summer 1855, Mary Milne, a young girl aged fourteen or fifteen, was alerted to the harm that was being committed against the deaf and dumb Ann Andrew, known locally in Peterhead as “the dumbie”: the peculiar sound of her screeching drew attention to her plight. Going up to her house window, she could see Ann lying on the floor, with John Montgomery straddling her. She wasted no time: rushing to gather one male neighbour and four married women, including Ann’s cousin, Barbara Seller, who lived “seven houses off”. The women, running to the scene, surrounded John, “rating” him “for what he had done to ‘the dumbie’” and telling him he would be punished for it. One fetched a policeman.13 On occasion the intervention of neighbours protected these vulnerable women from more serious injury: when the imbecile Margaret Bone was attacked by William Paterson and William Kean in a close near the green in Lanark in the autumn of 1900, one of them “did not get his lust fulfilled” because he was scared off by the arrival of “some folk”.14 Even when neighbours arrived too late to prevent the sexual assault they set off in immediate pursuit without considering their own safety. While they comforted the deaf and dumb Christian Moir after she had been sexually assaulted by Alexander Martin in some woodland, others set off in pursuit, following him through difficult terrain until he escaped in a fishing boat he stole to cross the River Don.15 The pursuit of natural justice by community members suggests that despite their comparatively limited agency imbeciles were respected and protected.
- 16 N.R.S., AD14/1900/58.
- 17 N.R.S., AD14/1889/100.
- 18 N.R.S., AD14/48/330, N.R.S., JC26/1848/500.
22Confident that justice would be done, witnesses provided accounts that detailed the consequences of sexual assault. Margaret Bone’s mother said her daughter was “trembling like a leaf and very white” after she had been attacked by the two men, and that “she has been in an excited state ever since and has refused to take food.”16 Martha McDonald, “a hunchback” of “weak intellect”, and “deaf and dumb from her birth”, was left in such a “nervous state” after her rape by John McGuire and Francis O’Brien in June 1889, that she was too frightened to leave her home.17 Her shock was represented as transforming her psychological condition from one of idiocy to insanity: on finding Christian Moir one witness “was afraid she would lose her reason”; Elizabeth Smith, a girl “who had previously been of weak intellect”, became “insane” three or four days before the trial of her attackers, and was therefore unfit to give prosecution evidence. After a decade of caring for their imbecile daughter, Jean Watt, following an accidental fall on her head when she was about four-years-old, it was her rape in May 1848 by Hugh McNamara, a widower and hawker, and a migrant from Ireland, which prompted her involuntary admission to the Gartnavel Royal Lunatic Asylum, Glasgow.18
- 19 N.R.S., AD14/55/278.
- 20 N.R.S., AD14/1900/58.
- 21 N.R.S., AD14/66/224.
23Women judged vulnerable were the targets for often solitary male sexual predators in part because of their difficulties verbalising their lack of consent to sexual advance. This could give assailants the opportunity to exploit a line of legal defence: John Montgomery denied assaulting the deaf and dumb Ann Andrew, arguing that although “she made a kind of speaking” noise, “I did not understand her meaning.”19 But even if she could speak, a weak mind could remove a woman’s capacity to consent. In civil law, an idiot or imbecile was barred from marriage precisely for this reason. Following rape, supporters of weak-minded or imbecile victims argued that their mental condition meant that evidence of a refusal to give verbal consent was unnecessary. According to Margaret Bone’s mother, “she cannot speak very well. Sometimes I think she is mentally deficient and she does not at any time understand things like you and me.” Barely able to communicate to her mother, Margaret was incomprehensible to others: one witness said, “she was soft and simple and one you can get no words out of”. With a “soft” and pliable mind, her words could carry no weight because she was judged incapable of understanding. “She is so silly that no man should have anything to do with her”, explained her sister: “she is quite incapable of giving consent”.20 To be an imbecile was besides greater dependency, to be denied sexual agency: as well as providing evidence of his examination of Ann Innes’s body following her rape, the physician and surgeon gave his view that “the girl is altogether imbecile and incapable of consent to such intercourse.”21 Such precognition records suggest that the sexual understanding of these women was either absent or very rudimentary.
24In rape indictments Scottish legal authorities emphasized physical force: “the knowledge of the woman’s person must be against her will, and by force”, wrote Baron David Hume. Yet it was allowed that this rule should “always be understood in a reasonable and consistent sense”, so that if a woman “from natural infirmity” was unable to oppose her assailant, Hume giving the example of “a poor cripple lame lass of sixteen years old”, he could still be charged with rape. Evidence of physical force being met with resistance might also be evaluated according to the age of the victim. A child under the age of puberty:
- 22 See also, Alison (1832, 211-214).
Because of her simplicity, and defect, as well of intelligence and discretion, as of passion, the female, at those years, is incapable of a due consent to this act, and cannot, in any proper sense, be said to have a will in the matter; so that the deed may justly be said to be without her will, even where she makes no resistance (Hume, 1797, vol. 2, 1-5).22
- 23 H.M. Advocate v. McNamara (1848) Arkley 521, Macdonald (1877, 169).
- 24 H.M. Advocate v. Murray (1866) 5 Irv 232.
25Without “proper sense”, the imbecile could similarly be considered without a “free will”. Indeed, former Lord Advocate John Macdonald was still citing Hume’s example of the cripple in his authoritative treatise on Scottish criminal law, first published in 1867, and declaring that in terms of physical resistance, “an idiot is in the same position as a child” (1877, 168-169). In mid-Victorian England, Martin Wiener has argued that “the very notion of consent was reconstrued” in rape trials, so that “forms of resistance less than total began to be accepted”. Initially applied to cases in which the prosecutrix had been drunk, “the ruling was quickly extended to weak-minded victims as well” (Weiner, 2004, 76-77, 109-112). In Scotland, change was less decisive. Judges agreed that mental weakness lessened the requirement of physical resistance to prove non-consent. So in 1848 it was ruled following the case of Hugh McNamara for the rape of Jean Watt, a girl aged about fourteen, “of weak or imbecile intellect”, that “any physical resistance to however small an extent”, would prove rape, “in consequence of her inability to give a mental consent”.23 But uncertainty about how to assess mental weakness, and awareness that the extent of imbecility could vary with the individual, led to judicial hesitancy. In Ann Innes’s case, heard in 1866, although Lord Ardmillan instructed the jury that they might allow for a lesser amount of physical resistance than would be required “in ordinary cases of rape”, because a medical witness stated that Ann was “very imbecile”, yet “not a perfect idiot”, she was deemed to not be “wholly incapable of giving consent”.24
26Imbeciles and the weak-minded raised difficult questions about their capacity to consent to sexual relations, but if sexual assault took place, there were additional problems determining their capacity to distinguish between truth and falsehood. Without knowing that imbeciles understood the nature of an oath, the legal legitimation of mental capacity, they could be barred from appearing as legal witnesses in court. Hume disqualified “all those persons… in a state of idiocy, or of madness”, on this indicator. Similarly, Hume declared that children under the “years of puberty” were “incompetent witnesses”. This was because children:
May not always be sufficiently attentive, or intelligent, rightly to understand, and judge, of what they have occasion to see or hear: and they may not be so thoroughly confirmed in their attachment to truth, or their sense of obligation to an oath (Hume, 1786-1822, vol. 5, 331).
- 25 H.M. Advocate v. Murray (1866) 5 Irv 232.
27Whilst idiots, like young children, might be permitted to make a declaration, or statement to the procurator fiscal, as Ann Innes found, if the case went to trial, there were inherent limitations attached to that evidence (Alison, 1832, 224; Macdonald, 1877, 473-474). Ann was prohibited from appearing as a witness, and Lord Ardmillan only allowed other witnesses to repeat what Ann had told them “immediately after the alleged outrage”. He told the jury that this evidence should be regarded as “an incidental fact, like the cry of a child, or even the scream of any animal”, but he prevented anything that she said the day after her assault being repeated in court. Compared to children and even animals, the instantaneous or primal response of a weak-minded woman might be considered, but not her subsequent words, he adumbrated. Concern that the rules of evidence should be strictly upheld, meant that Ann’s spontaneous cries could be admitted as “res gestae”, but that anything she told witnesses in the days that followed was “hearsay” and therefore inadmissible.25
- 26 N.R.S., AD14/51/519, N.R.S., AD14/51/519/3.
28Even in providing initial statements of what had happened to them, these girls and young women faced problems because of their communication difficulties and, no doubt, also normative views about their abilities and limitations. They lacked a proficiency in verbal skills and logical reasoning. Janet Smith, the wife of a grocer, said of Elizabeth Smith, “she wanders in her statements and in telling any story she frequently jumps from one thing to another”. Janet’s statement was supported by Agnes Tryney, a straw hatmaker, who declared that Elizabeth could not tell a “connected” story.26
29For the deaf and dumb, these intellectual and social limitations were magnified. Mr Taylor, a teacher at the Deaf and Dumb Institution in Aberdeen, was brought before the High Court of Justiciary in Edinburgh during the trial of Alexander Martin for the sexual assault of Christian Moir. Christian was not allowed to stand as a witness until Taylor had told the court that having been “under his instructions for a short time… He was of the opinion that she was capable of comprehending the distinction between truth and falsehood, and the nature and obligation of an oath.” The assault had taken place in 1815, some eight years before Martin’s trial. When Martin had initially absconded and fled from justice he was declared an outlaw in April 1816. After he was apprehended and brought before the sheriff of Aberdeen in the autumn of 1822, he managed to break out of the tollbooth by cutting a hole in the roof of his cell. Time may have been on Martin’s side in 1823: reliant upon Taylor for her “voice”, subsequent reports of the case focused on Christian’s inability to speak for herself, and subsequent failure to identify Alexander Martin as her assailant. In contrast, there was fulsome praise for Taylor’s intellect and skills:
It is but justice to Mr Taylor to state, that the Court, and the Counsel on both sides, were fully satisfied of the accuracy and fidelity with which he interpreted the witness’s meaning and complimented him on the ability and intelligence displayed in conducting her examination.
- 27 N.R.S., JC4/14, The Scots Magazine (1823), vols. 91-92, 118-119, Caledonian Mercury (3 July 1823) (...)
30Newspapers paid more attention to the “interesting account” that Taylor gave to the “manner of teaching words and communicating abstract ideas to deaf and dumb persons”, than to the crime committed against Christian Moir. The court was indebted to his expertise and bowed to his authority: it was Taylor who administered the oath to her, and “other persons who resided in her neighbourhood” were only permitted to state that they believed Christian Moir was capable of knowing the difference between truth and lies, but only after Taylor had given his expert judgement.27 Moir’s courtroom experience bears similarities with that faced by the deaf in the English criminal courts. For rather than relying upon family and friends as interpreters and paying attention to the gestures or “home signs” that the deaf used to communicate, in the nineteenth century these courts became progressively more respectful of “expert” witnesses and/or evidence that was submitted via institutionally formalised systems of sign language (Stone, Woll, 2008; Woll, Stone, 2013). While Scotland had been pioneering in its education for the deaf and dumb, with the opening of Braidwood’s school in Edinburgh in 1760, the status and recognition of deaf and dumb people in law remained problematic. In his nineteenth-century legal treatise, Macdonald advised that the deaf and dumb could be admissible as witnesses in the criminal courts “provided they know right from wrong, and are aware of the existence of a God, and of the evil of telling what is untrue”. Yet he followed this with discussion of the difficulties of determining this understanding, and included a case from 1864 in which a deaf and dumb girl had been admitted, but in Macdonald’s view, given that the girl had no idea of God, and her mother could not be certain that she understood what was a lie, the case went “rather too far” (Macdonald, 1877, 474).
- 28 H.M. Advocate v. Montgomery (1855) 2 Irv 222.
31The diminished position of the deaf and dumb woman who was additionally a victim of rape was also highlighted in the case of Ann Andrew in 1855. Unlike Christian Moir, Ann Andrew was “uneducated” and did not even know the “dumb language”. A Mrs Cordiner offered to be an interpreter for Ann when her attacker was tried for sexual assault at the northern justiciary circuit, Aberdeen. Ann had developed her own private language, communicating through personalised signs that only Cordiner and her family claimed to appreciate. Montgomery’s defence counsel objected to Ann’s evidence being admitted, arguing that there was no way to validate the accuracy of what she was trying to communicate. Whereas Christian Moir’s case had established the legal principle that a deaf and dumb woman could give evidence of rape if a “sworn interpreter” could assure the court that “she was of sufficient capacity to understand an oath”, in Ann’s case it was deemed not enough to rely upon the women who knew her best to be her interpreters (Alison, 1832, 224-225). Instead, an expert male witness was called. John Weir, another teacher from the Aberdeen Deaf and Dumb Institution, was brought into court. Weir believed, “from the conversation we had”, that Ann understood the reason for the court proceedings, the difference between right and wrong, and that “to offend the Supreme Being is a sin”. As a result, the judge, Lord Cowan, agreed to proceed, but to “view this person as in the same situation as an infant”, who should be examined, but not under oath.28 Tests of legal capacity were psychological, religious and implicitly moral.
32In an analogous developmental position to a child, in the eyes of the law an imbecile could not be trusted to know the difference between truth and lies. A woman like Ann was incapable of intentionally telling a lie, but nor could she reliably recognise the truth. As Agnes Tryney explained of the rape victim Elizabeth Smith, “I would not be inclined to rely implicitly upon any statement made by her — the reason for this is not that I would suspect her of telling a deliberate falsehood, but because she is weak in the mind”. Without a developed moral conscience, it could not be assumed that Elizabeth was inclined to be immoral, as a physician from Glasgow Royal Infirmary confirmed after he had examined her. “No doubt she is somewhat silly and evidently very facile”, he said, “but her judgement though weak is not clouded.”29 There was no wickedness to distort her judgement, but she might still provide inadequate testimony because she could not seemingly discern truth from fiction. The socially normative nature of imbecile appraisal is apparent throughout these legal, moral and educational investigative procedures.
33Seeking justice through the law for weak-minded and imbecile women who had been harmed by sexual violence proved very challenging in nineteenth-century Scotland. Demonstrating that an assault had been “against her will” was legally complex when a refusal to give consent could not be conclusively established on any recognised existing measure of intellectual capacity. Struggles over communicating with these women hindered judicial progress in accommodating their apparent psychological and social distinctiveness from others in their communities. While the sciences of the mind were in their infancy, and judges’ reliance on expert witnesses still limited, especially in the early nineteenth century, court adjudications were often dependent on questionable normative tests of common sense to establish mental capacity (Kennedy, 2016). The weak-minded presented the legal profession with a complex demography who exhibited none of the crippling delusions or putative dangerous psychosis of the insane, yet their mental processing and social understanding was perceived to be under-developed for their chronological age. Significantly, their problems of communication denied weak-minded and imbecile girls and women the “autonomy of speech as witnesses in/of their own interests”, which was afforded in English and Scottish courts to women who were subjected to rape and sexual assault in this period (D’Cruze, 1998, quote from 4, see also ch. 7). Unable to tell their stories in court, the accounts of women like Ann Innes were confined to evidential precognitions. Thus, criminal law reinforced their childlike, abject and marginal position, and not only enhanced their sexual victimisation, but stunted any opportunity for consensual sex. Yet, as the next section will argue, even sympathy for these victims of sexual violence was tempered by the troublesome belief that these women may not have been entirely blameless for the crimes they alleged to have been perpetrated against them.
34Historians of English women who made accusations of sexual assault and rape in this period, Anna Clark, Carolyn Conley, D’Cruze and Victoria Bates, have shown that if legal proceedings began, the veracity of their claims was assessed in the light of their personal appearance, employment record, reputation and sexual history (Clark, 1987, esp. 2, 4, 8, 56-58; Conley, 1991, 90-95; D’Cruze, 1998, ch. 6 and 7; Bates, 2016, ch. 3). As Wiener explains, “a virtual prerequisite for a rape conviction was a chaste victim” (2004, 83). A consequence was that it could be the victim rather than the assailant who became the focus of attention in criminal justice. Yet whereas other women could point to evidence of their unblemished character with respect to their previous relationships with men, the imbecile or weak-minded woman who was the victim of rape or sexual assault, depended upon statements of their total innocence of all sexual matters including sexual activity. It rested upon them, or more often those who spoke on their behalf, to prove their innocence about sex and sexual conduct.
- 30 N.R.S., AD14/66/224.
- 31 N.R.S., AD14/1900/58.
- 32 N.R.S., AD14/23/117, N.R.S., AD14/55/278, N.R.S., AD14/1889/100.
- 33 N.R.S., AD14/66/224.
35Thus in 1866 the sexual naivety of Ann Innes was deliberately emphasised by her mother. For all that Ann’s body had matured (she began to have her “monthly discharge” when she was thirteen-years-old), until she was raped, she was innocent of the facts of life: “I have since explained to my daughter what it is for a man to have a connection with a woman”, her mother said. Others described Ann as a “harmless imbecile”.30 In 1900, Margaret Bone’s mother said that she had “no ground to suspect her of misconduct with men” after she was raped. She may have felt the need to draw attention to Margaret’s untarnished reputation, since she admitted that in her large family, of some seventeen children, she had “a good deal of trouble”, with “some of them misbehaved”, but “this one was not fit for anything”. Indeed, a male witness said of the Bone’s: “The family all bear a loose character”, but that “I could say more about the other females of the family, than about her”. Margaret had “not wrought a day for herself in her life”: her weak-mindedness had hitherto prevented her from any kind of engagement with the adult world, and this had protected her sexual innocence.31 In a similar way, earlier in the nineteenth century, Christian Moir’s mother declared that she had “never heard the least impure” thing said about her twenty-year-old daughter, and a female neighbour of Ann Andrew declared she was “an inoffensive decent person.” The deaf and dumb Martha McDonald, despite being in her thirties, described all men as “big fathers”, and had “never been used to the company of men”, according to her mother.32 Martha’s childlike vocabulary resonates with the way in which Ann Innes’ described her assault: “He put my legs apart and put a long thing into my private part and hurt me and lay with me a long time and he jumped and moved upon me.” Ann had neither the words nor the knowledge to explain the pain she felt.33
- 34 N.R.S., AD14/66/224, N.R.S., AD14/1889/100.
- 35 N.R.S., AD14/1900/58.
36In a period when forensic medicine was developing as a profession, doctors gave statements that drew attention to these women’s sexual innocence and bodily anxieties (Bates, 2016). These were women who were not used to being touched by men, and for whom even a medical examination was an embarrassing intrusion. “It was with some difficulty that we obtained an examination of her person”, Dr MacKay remarked of Ann Innes; “she is extremely modest and I had great difficulty in getting her examined”, stated the doctor who saw Martha McDonald after she was attacked.34 The doctor who saw Margaret Bone declared, “I have no information as to the girl being of loose and immoral character”, although he knew that “the character of the family is low.”35
- 36 Pick (1989, ch. 7), Zedner (1991, ch. 7), Jackson (2000, ch. 5), Wright (2001, ch. 10).
37Yet such “gatekeeper” statements were only necessary in a culture that held doubts about the sexual appetite and morality of the weak-minded or imbecile female. In contrast to the prosecution of child rapists, which according to Dunning, was aided in Scotland by the idea “of the asexual innocence of childhood”, there existed a reluctance to accept that adult women might also be sexually innocent (2007, 115). Rather than being regarded as sexual innocents, at the close of the nineteenth century, and in the early twentieth century, the rise of deterministic social Darwinism and associated eugenicist arguments, would have serious consequences for how the sexuality of the weak-minded, idiots, and a more numerous group of the “feeble minded” would be viewed.36 The questioning of these women’s sexual morality and knowledge during rape cases in the Victorian period foreshadowed these later fears of the consequences of them procreating (Benyon-Payne, 2015). As Ralph Sandland has argued from his analysis of six cases of rape involving idiots that were recorded in English law reports between 1846 and 1873, it was from these “isolated legal engagements with individual female idiots and their sexuality”, that the “systematic engagement with the sexuality of mentally defective women as a class, and as a socio-political problem” emerged (2013, 89-93).
- 37 N.R.S., AD14/51/519/4.
38The case of Elizabeth Smith shows how public willingness to support a weak-minded woman was compromised if she was known to have had sexual relationships prior to her assault. Elizabeth was subjected to multiple sexual assaults over the course of one night in October 1851 by two whisky intoxicated itinerant migrants from England, Edward Yates and Henry Parkes. Tried at the High Court, Glasgow, a map was produced showing the seven different locations in a Lanarkshire coalfield, all within six- to seven-hundred yards of “Pit No.3”, in which Elizabeth had been assaulted.37 Elizabeth provided a very lengthy and detailed precognition. She described meeting the two men as she walked from Airdrie past the collieries towards Calderbank where her sister lived. After refusing “to have some connection with them”, and “some dirty conversation”, Yates damned her and “swore he would have what he wanted”. Threatening to stab her with a knife if she was not quiet, he threw her down, hit her on the face and broke a tooth. Parkes held her legs up as Yates raped her, and for the next eight hours she was repeatedly raped by these two men. Becoming unconscious on several occasions, the men became increasingly drunk, and progressively more ruthless.
39Elizabeth’s horrific ordeal could have been curtailed. After she regained consciousness following one assault by Parkes, she saw two other men walking near Bellsdyke Colliery. One was James Allan, who later described seeing Elizabeth “foam at her mouth as if she had been in a fit”. Elizabeth cried, “Save me from these two blackguards”, and “Don’t let these two men touch me.” But according to Elizabeth, the two men did not intervene to rescue her, so that Yates and Parkes dragged her away, and began to assault her again. Later that night she also recalled “two Collier Boys” passing, and she “cried to them for help”, but they ignored her and continued. Why? Elizabeth was known locally to police as a street-walker. An unmarried woman aged nineteen-years-old, she admitted that before the assault she had “carnal connection several times with different men”. The Inspector of the Poor House in Monkland where she had periodically lived for the last two years believed, “she is a girl of loose habits and in the habit of going with men.”
40Elizabeth’s sexual history was held against her, but she attributed her current mental problems to an earlier more clandestine sexual intrusion in her domestic space which traumatised her. Two years before she was raped by Yates and Parkes she had been working as a household servant for a shopkeeper in Glasgow. “I got a fright by my Master concealing himself under my bed in the night”, Elizabeth explained, and “never felt right thereafter.” Elizabeth had always been weak-minded; a kindly neighbour who occasionally let Elizabeth stay with her, and who sent her on simple errands, considered her “not daft, but weak flighty and simple”. But this “fright”, followed by the multiple rape by Yates and Parkes, was enough to remove her sanity.
- 38 N.R.S., AD14/51/519, N.R.S., JC26/185/372, H.M. Advocate v. Yates and Parkes (1851) Shaw 528.
41Yates and Parkes were both found guilty of assault with intent to ravish and were each sentenced to eighteen months imprisonment with hard labour. The principle “in law that rape might be committed on a prostitute” was upheld in the case’s law report. But just as Elizabeth’s sexual reputation had been questioned in court, so she found her experience affected her being accommodated socially by her local community. Already living on the margins of a poor community, unable to live with her father because she did not “agree” with her stepmother, and struggling to make a living from odd jobs, sewing and possible prostitution, Elizabeth was further ostracised after her rape. Janet Thomson, the wife of a grocer and spirit dealer, had previously treated Elizabeth with warmth and charity, her daughter had even made her a gown. But she “prohibited her” from coming to her house after hearing that she had been raped.38 Jackson has described “the problematic position of the sexually abused girl in Victorian and Edwardian society”, showing how such children were viewed as “a polluting presence” and as “corrupted” (L. Jackson, 2000, 6-7). Yet while a child victim could be “reformed” and to some extent be reintegrated into her community, in Elizabeth’s case, the social and emotional pain to the weak-minded and imbecile woman was deeper and enduring.
42All raped women were tainted with stigma, but for weak-minded and imbecile women, there could be no recovery of social position when popular and political discourses were beginning to encourage links between idiocy and sexual promiscuity. A line was crossed when Elizabeth was raped. Tacit acceptance and even tolerance of her sexual conduct, which was founded on an understanding that her mental incapacity left her economically vulnerable, gave way to social rejection. Her attackers were guilty of a crime, but Elizabeth’s occupation as a prostitute allowed these men’s legal defence to argue that her “character” was “such as to imply that there had been no forcible connexion.”39 Elizabeth freely admitted to having casual sex with several men before her assault. She epitomised a woman who experienced illicit sex without apparent shame. Her rape exposed her as a woman whose lack of mental development was aligned to a seeming absence of personal morality and restraint. Victorian society was fascinated by the figure of the “fallen woman” who might be “rescued” and start life afresh (Ward, 2014, 118-148). But Elizabeth’s representation as a woman who had no understanding of social or moral norms meant there was no possibility of her redemption. She did more than offend public decency, she endangered it.
- 40 Dunning (2007, 122), Toulalan (2014, 33, 38-46), Toulalan (2016).
- 41 N.R.S., AD14/1900/58.
43Whereas many child rapists were also accused of infecting their victims with venereal disease, this was absent in Scottish rape cases involving imbecile women.40 This may be a result of the small number of our retrieved cases, but it could also reveal something deeper about developing historical understandings of imbecile sexuality. Adult men tainted innocent children in a way that they could not contaminate the weak-minded adult female. Instead of evidence of venereal disease, the doctor who examined the seventeen-year-old Margaret Bone in 1900 described how “she had almost finished menstruating… as her underclothing was stained with what appeared to be parts of menstrual fluid, and also there were traces of the same within the vagina”. As well as a reminder that despite her childlike mind, Margaret’s body had the physical maturity of an adult woman, Margaret’s blood was also a powerful, and in her case, negative symbol of her body’s potency and fertility. She was capable of producing feeble-minded children, it might be her blood, not her attacker’s semen that stained and polluted.41
44The presence of mothers as key witnesses bore an extra symbolic significance. Mothers played a prominent role in cases of child rape, but they also played a function when their daughters were mentally weak (D’Cruze, 1998, 164-167). Ideas about hereditary weakness, which would be developed by British scientist Sir Francis Galton (1822-1911), and medical-psychiatrist Sir Henry Maudsley (1835-1918), placed primary importance on nature over nurture, in explaining intellectual and other individual differences. Explored in literature as well as science, notions of biological inheritance meant that when imbeciles became involved in crime, even as victims, the spotlight was on mothers as well as their daughters (Gillham, 2001; Pick, 1989, ch. 7). The statement given by Elizabeth Smith’s father anticipated the eugenic nightmare of the feeble-minded breeding: Elizabeth was illegitimate, he said, and her mother was also “silly in the mind.”42 Elizabeth’s mother had died some years before, but women who were alive when their daughters were raped, could be viewed as failed mothers. Held responsible for bearing weak-minded daughters, they had then been unable to protect them from harm (Carlson, 2001, 132-133).
- 43 The Scottish Review January 1862, 53-62, British Journal of Psychiatry 44, 1898, 557-558, Hutchis (...)
- 44 N.R.S., AD14/66/224, N.R.S., AD14/55/278, N.R.S., AD14/26/193.
- 45 N.R.S., AD14/48/330.
45For all that Scotland could be proud of its pioneering institution for the deaf and dumb in Braidwood, and its provision of special schooling for imbecile children at Baldovan and Larbert, a key similarity between all the female victims of sexual crime examined in this article, was their lack of formal education. Institutional provision simply did not have the reach or capacity in this period to accommodate all people with mental developmental difficulties. Nor did it cater for adults. For certain, the argument that education of the weak-minded, if possible in specialist institutions, was essential to crime prevention continued to be made throughout the nineteenth century in Scotland.43 But the fear of crime meant that a disproportionate amount of attention was given to the benefits of education for reducing the criminal potential of the weak-minded, when for the imbecile victim of sexual crime the disadvantages of little or no education were painfully apparent. Ann Innes had never been to school; Ann Andrew was “uneducated”; Nelly Aitchison could “neither read nor write”.44 This lack of education was problematic in a legal setting as it limited the women’s ability to tell officials about sexual assault, and raised questions about the truthfulness of their claims, undermining their credibility. Yet it also made it more likely for the women to become victims in the first place. The absence of education would inevitably damage their social status. Education helped to protect individuals from harm, and it integrated individuals, socially and occupationally. Schooling taught vital social skills and provided the opportunity for fostering positive social relationships between adults and children (Anderson, 1983; Mair, 2016). Without an education acquired through schooling, the weak-minded struggled to cope with adult relationships, especially sexual ones, and did not know how to interpret or react to threatening or other non-benign situations. Sexual predators took advantage of this, and as the cases of Elizabeth Smith and Margaret Bone show, made these women targets of a particular kind of sexual crime, “gang rape”. Without an education, the weak-minded remained naïve: Jean Watt “could be readily flattered to do anything she was bidden”. Her rapist, Hugh McNamara, was known as “Candy Hughie”, because he lured children to his room with sweets and homemade treacle. Jean did not recognise his criminal intention, until it was too late.45
46The families of women like Ann Innes tried to give them a role which would useful, even if they were incapable of earning a living. So they were given simple tasks, like collecting milk, an unchallenging habitual activity not requiring education. It was customary for children to run errands to support the family economy (Humphries, 2010). But for a sexual predator like Ann’s rapist, this freedom from more formalised supervision provided sexual opportunity for exploitative men. Ann’s routine meant that he knew that on a daily basis, she would be in the same place at the same time.46 Thus a perceived vulnerability to sexual attack should be added to the liability to “fraud, imposition, and inability to protect themselves from danger”, which Mark Jackson has identified as defining people with “defective minds” in the nineteenth century (1998).
47Scottish families and communities had a place for the weak-minded and imbecile in the nineteenth century. Their social and sensory differences did not necessarily alienate. Instead human similarities and bonds that the weak-minded shared with others of their class and neighbourhood came to the fore at moments of threat. The weak-minded or imbeciles were familiar individuals in Scottish communities, who lived alongside others, and were most frequently viewed as harmless, even if their labelling such as “dummy” or “silly” categorised them as appearing to be outside the mainstream “fit” demographic. The exception was Elizabeth Smith. Her mother’s death, and the breakdown of her relationship with her father, set her adrift. Forced to try and support herself independently, her acceptance of sex for money then condemned her when that sex became a violent assault.
- 47 N.R.S., AD14/55/278/3.
48In all other cases, weak-minded or imbecile women who were raped or sexually assaulted elicited sympathy. Perpetrators could expect no such understanding: in a letter written to John Skillin Montgomery by his wife, as he waited in gaol for his trial for the rape of Ann Andrew, she told him that although she was prepared to forgive him, her mother was not. His mother-in-law, she explained “is very angry at you”, and had said that “she would have forgiveing you for any thing, but this”, which was “such a disgrace”.47 While Ann had been surrounded by a crowd of supportive female relatives and neighbours following the rape, Montgomery’s crime had set him apart, physically and morally.
49This article has shown that following sexual assault weak-minded or imbecile women faced additional legal hurdles to those confronted by other women in nineteenth-century Scotland. An unknown number of offences were never pursued as criminal cases, or were deemed to have insufficient evidence to be heard in the Justiciary courts. Yet of the eight cases in this study that were heard at the High Court of Justiciary, or one of its satellites, five resulted in a guilty verdict. In two of these five cases, charging offenders with the double indictment (of rape, or assault with intent to ravish), offered juries the possibility of a guilty conviction on the lesser indictment if evidence for rape was not “beyond reasonable doubt”. The defendant had to convince the jury that he was innocent of all charges, whereas the prosecution only had to find him guilty on one charge to win a conviction. As one prosecutor commented following an 1813 case for the rape of a Scottish woman who was not an imbecile, the jury “thought him not guilty of rape but that he was so far culpable that he ought to be punished, and thus they found him guilty of the lesser crime charged” (Riggs, 2012, 182). While the law had to be procedurally exact, the double-indictment legal tool allowed juries scope to show sympathy for the victim. The proportion of guilty verdicts suggests that if cases reached the point of sentencing, there could be little leniency for the sexual offender who attacked weak-minded or imbecile girls and women.
- 48 “Scots rape laws ‘worst in the world’” The Scotsman (4 March 2008).
- 49 Aberdeen Press and Journal (29 November 1815), Caledonian Mercury (3 July 1823), Fife Herald (22 (...)
50Nevertheless, Scots viewed rape as a crime that was hard to prove in criminal law, which still remains the case today.48 In Victorian Scotland, when there was so much uncertainty about how to assess mental capacity legal justice was not always forthcoming for the weak-minded or imbecile victims of sexual crimes. If convictions were particularly difficult to achieve, however, this did not mean that historic offending was forgotten. While Alexander Martin “fled from justice” after he had attacked Christian Moir in woodland, and then was acquitted eight years later, his crime remained in community memory. Hence when Martin committed a violent robbery upon an elderly man and his daughter in their home a year after his trial for rape, newspapers reminded their readers that he was the man who had been previously charged with a “gross assault on a dumb girl in this neighbourhood”. Acquittal from rape charges, as Garthine Walker has convincingly argued from her study of crime reports of earlier English cases, was not necessarily understood as amounting to a presumption of innocence (2013). Newspaper reporting about Martin took the form of “naming and shaming” and “trial by media”, which David Barrie has shown was common in nineteenth-century Scotland (2015). Martin’s attack upon Christian did not result in a judicial guilty verdict, but his subsequent violence against another vulnerable member of the community, and after his conviction his refusal to confess to his earlier crime, condemned him in the eyes of the press. Newspaper coverage of his trial and widespread reporting of his subsequent execution, reflected the popular view that he had been guilty of her rape. For her community, justice for Christian was finally achieved when Martin mounted the scaffold.49