Some Thoughts on . . .

The Victim Pays the Price


In early English courts, the victim had to pay the costs of prosecution. The fact that women who brought an unsuccessful prosecution for rape in 18th-century England were responsible for paying their own court costs has been seen as an injustice reflecting patriarchal prejudice against women as victims.

However, during the 18th century virtually all court cases in England for felonies and misdemeanours had to be paid for by the prosecutor, and they had to pay the costs whether they won or lost. The government paid for prosecution only in cases of coining, counterfeiting, robbing the mails, treason, and maybe a couple of other crimes deemed to affect the monarch or country. Even prosecutions for murder had to be brought and paid for by relatives of the deceased. Sometimes the court graciously granted subsidies to especially poor people. Sometimes prosecutions were paid for by the Societies for the Reformation of Manners (e.g. sodomy prosecutions after 1726; before that all such cases, including the rape of boys, had to be paid for by the prosecutor, e.g. the boy's mother). Anyone who had their watch stolen had to pay the costs of prosecuting someone for theft. It wouldn't be proper to single out raped women as being especially victimised by this state of things, as it applied to all victims of all violent offences, and all victims of theft etc.

The costs of prosecution, however, weren't particularly high; mainly they consisted of paying the costs of witnesses to come to court for the day to testify on your behalf, and the costs of collecting evidence. It wasn't common to hire attorneys unless you were fairly wealthy. Also, the prosecutor did not have to pay the costs incurred by the defendant to build and defend their cases. Each party paid their own costs. I'm speaking about felonies and misdemeanours, not about civil cases where of course people were sued for damages etc. In order to encourage prosecutions in the ordinary criminal courts, the government offered rewards for convictions for theft, and occasional other crimes, and local town councils also offered rewards for particular crimes (but not, I think, for rape).

It wasn't until the very late 18th century that people started developing the idea of a state prosecutor's office who undertook and paid for prosecutions of felonies and misdemeanours on behalf of victims, but I don't think such a system became formal until later in the 19th century.

I understand that the situation was different in the American Colonies. For example, in Massachusetts during the 18th century, persons convicted of sexual crimes had to pay court costs and fees, and there don't seem to be any cases where the victim had to pay the fees.

The British government was concerned about this anomaly (i.e. people who pressed charges against criminals having to pay for the prosecution of them), but didn't do very much about it. An Act for preventing theft and robberies, 1752 (25 Geo. II, cap. 36), provided: "And whereas many persons are deterred from prosecuting pesons guilty of felony upon account of the expense attending such prosecutions, which is another great cause and encouragement of thefts and robberies; in order to encourage the bringing of offenders to justice, be it enacted that it shall and may be in the power of the court . . . at the prayer of the prosecutor and on consideration of his circumstances, to order the Treasurer of the County . . . to pay unto such prosecutor such sum of money as to the said court shall seem reasonable." So if a prosecutor were poor she or he could request financial assistance, and such assistance might be provided by the court – but this was by no means automatic.

J. A. Sharpe in his book Crime in Early Modern England 1550–1750 (London and New York, 1985) says "we must remind ourselves of the essential personal nature of law enforcement in the early modern era" (p. 45). Not only was the prosecutor put to the expense of travelling to court and not earning money at work for the day etc., but "Once at court, expenses would multiply rapidly, for the clerical staffs of the assizes, quarter sessions, central courts and ecclesiastical tribunals all depended upon fees for their living. Accordingly, a charge was made at each step in prosecution, and the total expenses incurred could be very heavy for a man of moderate means" (pp. 44–45); "the costs of prosecution must have acted as a powerful deterrent" (p. 45).

In 1753 the Fielding brothers persuaded the government to allow poorer people 4 shillings towards the cost of prosecution. This, again, was graciously allowed by the court in individual cases, and not universally granted.


Copyright © 2007, 2014 Rictor Norton. All rights reserved. Reproduction for sale or profit prohibited. My comments originally appeared during a discussion of this subject in the History of Sexuality Discussion List during October 2007.


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