Nicola Lacey is School Professor of Law, Gender and Social Policy at the London School of Economics. From 2010 until September 2013 she was Senior Research Fellow at All Souls College, and Professor of Criminal Law and Legal Theory at the University of Oxford. Nicola is an Honorary Fellow of New College Oxford and of University College Oxford, and a Fellow of the British Academy. She served as a member of the British Academy’s Policy Group on Prisons, which reported in 2014, and she co-directed, with Diane Perrons, the LSE’s Commission on Gender, Inequality and Power, which reported in 2015.
In 1722, Daniel Defoe sent out into the world one of the most remarkable female figures in English literature: Moll Flanders. Bold, beautiful and brilliantly resourceful, Moll was in many ways ideally qualified for her position as the heroine of one of the first novels in English. She did, however, exhibit one characteristic which we might have expected to exclude her from that position. For most of the novel, her occupation consists in a series of distinctly unromantic property offences, including shoplifting, swindling and even stealing from small children. Born in Newgate gaol of a mother who has escaped execution by ‘pleading her belly’, Moll escapes her origins at the heart of the criminal underworld, only to be forced to return to it after the death of her first husband, when want of wealth and birth prevent her from finding a secure position in respectable society. Using her beauty, ingenuity and cunning, Moll escapes poverty and makes her way through late 17th Century England by means of crime, before being caught, convicted and transported to Virginia along with one of her five husbands, himself a convicted highwayman. Adding colour to this pattern of thieving and deception, Moll enjoys an active and varied love life, encompassing incest and bigamy, with plentiful instances of the more quotidian diversions of fornication and adultery thrown in for good measure.
In the early 18th Century, then, Daniel Defoe found it natural to write a novel whose heroine was a classically dangerous woman: sexually adventurous; socially marginal; a property offender. Only half a century later, this would have been next to unthinkable, with Moll’s unabashed criminality replaced by female characters who, if no less spirited and full of agency, occupy a world of patriarchal authority, rich in the disciplinary norms of polite femininity which had become such a key hallmark of bourgeois identity. In a book published in 2008 – Women, Crime and Character; From Moll Flanders to Tess of the d’Urbervilles, I used the disappearance of Moll Flanders, and her supersession in the annals of literary female offenders in the realist tradition by heroines like Tess of the d’Urbervilles, as a metaphor for fundamental changes in ideas of selfhood, gender and social order in 18th and 19th Century England. Drawing on law, literature, philosophy and social and economic history, I argued that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalisation of women.
I focused in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about sexual difference, social order and individual agency. The sort of relationship which I attempted to trace is illustrated by the case of Sarah Fletcher, who died in 1799 in Oxfordshire. She must have been a woman of consequence, because she is buried in Dorchester Abbey, where her tombstone records that she died at the age of 29, ‘a martyr to an excessive sensibility’. The same year, many other women and men died, by contrast, victims of – if not martyrs to – an excessive criminal justice. My book told the story of the shifting relationship between informal codes of norms such as the ‘cult of sensibility’ and the formal system of criminal justice, and of the impact on women and on understandings of femininity of these complementary systems of discipline
We can illustrate this impact if we jump forward to the late 19th Century, and to a very different female heroine: Tess of the D’Urbervilles. Moll and Tess share certain characteristics: both are beautiful, proud and have an aspiration to transcend their difficult origins; both have significant resources of determination; and both commit offences. Here the resemblance ends. Notwithstanding her relatively respectable origins, Tess’s tale is one of a human being destroyed by her circumstances and, ultimately, by her own decisions. Her crime is a crime of passion: the murder of a man who, by raping her, set in motion the train of events which leads to her ruin. And her punishment is swift, decisive and annihilating. Hardy suggests a number of causes for Tess’s ultimate act of revenge, several of which evoke late Victorian images of criminal pathology and dangerous womanhood: a hereditary capacity for impulsive acts of violence and a dissociation of the will from the body notable among them.
Yet Tess is not – as one might have expected from a late 19th Century novel treating female crime – an image of female weak-mindedness or incapacity. Like most female offenders who feature in novels of this period – they are mainly husband-murderers, infanticides and prostitutes – Tess’s position as a woman underlines her social powerlessness: notwithstanding her sense of personal responsibility, and her creator’s indictment of the sexual double standard, this late Victorian heroine is not able to shape her own destiny. While Defoe allows Moll to assert her sense of self – at one point, cutting off a digression about her husband, she insists, ‘this is my story, not his’… – Tess’s self-assertion leads to disaster. By the age of Tess, women’s role as the cultural bearers of developing markers of polite manners had fed into a longer-standing image of women as less dangerous than men – as well as less fully endowed with capacities of self-control and understanding. But when women’s social position took them outside these emerging conventions – because of their poverty or sexual adventurousness, or their presence in urban areas in economically fragile positions – the increasingly organized state became interested in controlling them.
In making this argument about the changing terrain over which it was regarded as appropriate for women to act, I also explored what the emerging unthinkability of Moll Flanders signifies about the reality of women’s criminality in the 18th and 19th Century England. Beyond the mystery of Moll’s demise amid the modernizing process, a further reason for examining the development of attitudes to women’s responsibility lies in an intriguing debate between historians of crime about levels of female criminality during this period in which the cornerstones of the modern, adversarial criminal trial were being put in place. In the turbulent history of criminal justice, most criminologists agree that one of the few constants is the lower representation of women among those accused and convicted of crime. In England and Wales today, for example, women make up about a quarter of known offenders. Though the assessment of crime figures before the inception of public statistics is a notoriously tricky matter, the gradual accretion of research on local records allows for some estimates. These suggest that, in England, women made up a small minority of offenders proceeded against from at least the 14th Century.
In 1981, however, Malcolm Feeley and Deborah Little published what has become an influential paper on the decline of women in the criminal process from 1687 to 1912. The paper presented figures from the Old Bailey, London’s main criminal court, showing that the proportion of women charged with felonies was a hefty 40% in 1680, dropping to a mere 10% by the end of the 19th Century. In the first decade of the 18th Century, women even outnumbered men as defendants. This was followed by a steady decline, punctuated by spikes related to social conditions such as war or economic disruption. On the basis of this evidence, the plausibility of Moll Flanders in the early 18th Century, succeeded by her literary unthinkability by its close, seems to map on to a real decline in the recorded criminality of women.
The strikingly high proportion of women prosecuted at the Old Bailey in the late 17th and early 18th Centuries must have some significance; and the juxtaposition of this peak of female criminality with the appearance of Moll Flanders is telling. What do the attitudes to women represented in literature – attitudes to their capacity for responsible agency and social role – suggest about their likely treatment in the criminal process, and how do these match up with what we know about women’s position in contemporary society?
The key factor here, I argued, was the nexus between changing ideas of responsibility and ideas of femininity and of the proper exercise of female agency. Beyond an assumption of capacity (which could be displaced by evidence of manifest insanity), the 18th Century criminal trial was focused not on internal questions about the defendant’s state of mind but rather on external facts of conduct. Where evidence about conduct was questionable, the patterns of attribution based on knowledge about character and reputation which dominated the pre-trial process also informed the trial itself. In effect, a judgment of criminal responsibility was a judgment of bad character. And while the 18th Century saw an emerging focus on internal markers of states of mind, evaluations of external markers of character remained central to the attribution of criminal responsibility. Despite the social changes which put it under pressure, the ‘economy of character’, outlived the stable, status-based world of credit for many decades – if indeed it has ever been effaced. This had an important upshot for how women’s agency and criminality were constructed. For the particular ‘economy of character’ prevailing in the early 18th Century may have been relatively hospitable to the acknowledgment of female transgression, while developments in conceptions of the female role during the course of the Century changed the perception of women’s conduct, giving birth to a new ‘economy of feminine character’ which was less hospitable to the plausibility of Moll Flanders: an active and transgressive woman, the central author of her own narrative.
By the early 19th Century, Moll Flanders, had been upstaged in the femininity stakes by a panoply of polite heroines. Witty or even dominant women continue to appear in novels – notably in novels written by women – but they were now the object of the novel’s didactic purpose, oriented to discipline and domestication. Women’s bad behaviour is no longer epitomized by Moll’s enterprising lawbreaking but by deficient manners, morals, or, above all, motherhood. The epitome of heroine status was, accordingly, no longer Defoe’s she-merchant but Austen’s self-denying home-maker. This was not a matter of feminine incapacity. Fanny Price of Mansfield Park is just as much an agent as Moll Flanders: she is just as rational, and, in her own way, just as strong. But the social terrain on which she is allowed to act has diminished to something approaching Jane Austen’s famous ‘little piece of ivory’, while the comportment which she must observe as she etches it must be every bit as controlled as the artist’s knife. By the time Fanny watches silently as almost everyone else in Mansfield Park behaves badly, the shade of Moll Flanders, the active, transgressive literary heroine of a century before, has paled to the point of invisibility.
In the age of Moll Flanders, then, attributions of criminal responsibility rested primarily on the evaluation of character as manifested in conduct rather than on the investigation of engaged capacity. And conceptions of bad or dangerous character – though doubtless gendered – could be applied readily enough to women. The institutional mechanisms needed to render subjective responsibility an object of proof in a criminal trial were not yet in place: nor was the lack of them yet felt to be a pressing practical or ethical problem in a world which had yet to make Maine’s famous move from ‘status to contract’. But this world was beginning to change; and the ‘long 18th Century’ saw the gradual assembly of many of the doctrines and institutional arrangements which we take for granted as features of criminal law today, with judgments of responsibility premised on the proof that the defendant’s cognitive and volitional capacities have been adequately engaged in their conduct. And during the 19th Century, as responsibility became increasingly premised on capacity, and prevailing ideas of femininity increasingly questioned women’s capacities, the primary understanding of female deviance became increasingly trained on madness rather than badness – as reflected in Hardy’s Tess.
I leave you, however, with the question of whether, in 2016, Moll Flanders is thinkable again – and, if so, whether this is a good thing or a bad. The history of criminology is littered with examples of – ultimately falsified – predictions that female liberation spells increased female criminality. But if I am right – as I have argued in my most recent research – that the idea of criminal responsibility as founded in dangerous character is experiencing a revival, might this have some important implications for the criminalization of women?
Jane Austen, Mansfield Park (1814: Penguin Classics 1996)
Daniel Defoe, Moll Flanders (1722: Penguin Classics 1989)
Malcolm Feeley and Deborah Little, ‘The Vanishing Female: The decline of women in the criminal process 1687-1912’ Law and Society Review (1981) 719
Thomas Hardy, Tess of the d’Urbervilles, (1891: Bantam Classic 2004
Frances Heidensohn, Women and Crime (New York University Press 1985)
Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (Oxford University Press 2016)
Nicola Lacey, Women, Crime and Character: From Moll Flanders to Tess of the d’Urbervilles (Oxford University Press 2008)
Ngaire Naffine, Female Crime: the construction of women in criminology (Sydney: Allen and Unwin 1987)
Carol Smart, Women, Crime and Criminology (London: Sage 1976)