Policing Sexual Morality: Percy Shelley and the Expansive Scope of the Parens Patriae in the Law of Custody of Children
8.2 Nineteenth Century Gender Studies Online Journal (Summer 2012)
18 Pages Posted: 12 Oct 2015 Last revised: 18 Oct 2015
Date Written: 2012
In 1817, the poet Percy Bysshe Shelley lost custody of his children because he insisted on his right to educate them to be government critics, reformists, and atheists (Shelley). In 1827, William Wellesley Pole lost custody of his children because he taught them to swear, smoke cigars, play with street urchins, and because he exposed them to life with his mistress (Wellesley). In 1851, a clergyman father lost custody of his children because he engaged in homosexual relations in the back room of taverns and inns, most often with “common soldiers” (Anonymous). In 1870, the widowed Helen Skinner lost custody of her daughter when she converted to Islam and entered into a polygamous marriage (Re Matter of Victoria Skinner). In 1879, Annie Besant lost custody of her daughter to her estranged husband, the Rev. Frank Besant, because she had written a book on birth control, a book the Lord Chancellor deemed to be obscene (Re Besant). Throughout the nineteenth century, judges faced a variety of petitioners asking for the removal of children from their parents or guardians because the children were abused, neglected, exposed to religious beliefs or forms of sexuality that violated social norms, or because it was feared their property was at risk. When children were removed from parents it was always based on a judicial determination that the child’s welfare required interference with the legal rights of a parent or guardian. The state’s power to remove children lies in the parens patriae jurisdiction, a doctrine invoked by judges to protect the interests of persons unable to protect themselves at law; i.e., infants, lunatics, imbeciles, and married women. But protect them from what? Prior to the nineteenth century, the child welfare standard protected children from physical harm (violence or sexual abuse) or economic harm (squandering of their estates). Mental abuse, corporal punishment, neglect of children’s educations or religious or moral values, and forcing children into unhappy marriages may have been considered social evils, but they were not illegal. Courts did not interfere in parenting decisions that they believed did not endanger the life or limb of children. Religious and moral training was left to parents, and judges did not impose their own views, or the views of a traditional public morality on parents. Throughout the seventeenth and eighteenth centuries, when asked to intervene, judges did so cautiously and only when there was palpable physical or economic harm. The Shelley case in 1817 profoundly changed that, expanding the doctrine to include removal to protect children from the social stigma of non-conforming parents who created what judges believed were immoral home environments.
The Victorian period is, of course, well known for its construction of a repressive sexual morality, from the public scandals surrounding George IV and Queen Caroline to the obscenity trial of Annie Besant and the gross indecency trial of Oscar Wilde. The public debates over divorce reform in mid-century and the rise of the temperance movement coalesced around the goal of maintaining the purity of the marital bedroom and reining in illicit sexuality (Wright 244-49). And judges and lawmakers became quite avid proponents of using the coercive power of law to punish what they considered to be a variety of activities that contributed to the decline in sexual morals, enacting laws against abortions, infanticide, adultery, publication of obscene materials, and prostitution. But one of the most lasting changes came in the expansion of the parens patriae jurisdiction of the Chancery to allow the court to remove children from their parents’ custody when parents exposed children to sexual practices and ideas that deviated from acceptable sexual norms.
A detailed examination of the origins of the parens patriae and the expansion of the jurisdiction in the nineteenth century in cases involving non-traditional sexuality reveals both the limits of judicial doctrine as well as the legacy of nineteenth-century attitudes of sexual repression. Fearing that children would grow into licentious harlots or libertines, nineteenth-century judges added their weight, and the weight of law, to the creation of a society in which children were to be protected from adult sexuality until they reached an age when they could express their own sexuality in socially acceptable ways. But as the acceptable forms of sexual expression became more constrained, the scope of judicial interference became greater, and judges stood alongside religious leaders, temperance advocates, and social reformers to infuse the child welfare standard with normative values about what was socially acceptable sexual behavior and to punish deviant parents with the stigma of the loss of their children.
Keywords: parens patriae, child welfare, non-traditional sexuality, immorality, sexual norms, Percy Bysshe Shelley
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