Against Our Will: Men, Women, and Rape (6 page)

If
the man whom our raped virgin accused protested his mno cence,. "Let the truth be ascertained by an examination of her body, made by four law-abiding women sworn to tell the truth as to whether she is a virgin or defiled."
If
she proved to be defiled, the trial might continue; if she proved a virgin still, the case was dismissed and the false accuser was thrown into custody.

The man accused, Bracton writes, had several possible de fenses. He might say

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that he had her as his concubine and amica before the day and the year mentioned in the appeal . . . or that he had her and defiled her with her consent and not against her will, and that if she now ap peals him it is in hatred of another woman whom he has as his con cubine, or whom he has married, or that it is at the instigation of one of her kinsmen. He may also except that on the year and day the deed was supposed to be done he was elsewhere, outside the realm.

. Or he may also except on the ground of an omission made in the appeal. . . . Many other matters may constitute exceptions though I do not now call them to mind.

Despite a spirited defense, the male justices who heard the case might sometimes decide they had to convict, and then our victim-
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prosecutrix* would be given her old option of marrying her rapist as a benevolent way of saving him from gruesome mutilation.

Bracton allowed that this time-honored custom of redeeming a rapist through marriage could cause considerable mischief to the social structure, for "a common person might bring perpetual dis grace upon a woman of nobility and good family by a single act of defilement and take her to wife to the disgrace of her family." On the other hand, "But suppose that the ravisher is a nobleman and the woman raped a common person; will it be for the defiled person to exercise a choice and decide whether she will marry the nobleman or not?"

Apparently this was to be-if the nobleman valued his sight and his testicles-but the chance that a man of nobility might be convicted of raping a commoner would have been slight. "As a rule," Sidney Painter writes in his History of the
M iddle
Ages, "the nobleman's crime was blamed on his men." Pain ter reports on one case in which a young girl was abducted on the highway, taken to a knight's house, and raped by the knight and his men: "The court solemnly accepted the statement of the knight that he was horri fied to hear that she had not been in his house of her own free will . . . . Even in England," he continues, "if a member of the feudal class committed his crimes against anyone other than the king or a great lord, he was fairly safe from prosecution, or at least from punishment."

( "Even in England" is an important qualifying phrase, for while the Middle Ages was a time of savage wife beating, Court

* The term "prosecutrix" stems from this time in English history when a female had the burden of instituting a civil suit in order for a rape trial to take place. Today, of course, it is the state, not the woman, that prosecutes for rape, yet "prosecutrix" continues to appear with regularity in appellate briefs that are written by rapists' defense attorneys, where it is used interchangeably with "complainant" and "alleged victim." Much of legal language is archaic, but in this instance it is hard not to conclude that the word is favored for the harsh, vindictive quality of personal prosecution that it plainly connotes.

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AGAINST OUR WILL

prostitution, and general all-around lawlessness and feudal oppres sion, things seemed to be far worse for women on the Continent. The
jus
primae
noctis,
right of the first night or
droit
du seigneur, the custom of giving the manorial lord the right to take the virginity of the bride of any one of his vassals or serfs unless the bride and bridegroom paid a specific amount of produce in redemption dues

-certainly a form of rape-appears to have been enforced irregu larly in certain parts of Germany, France, Italy and Poland but not, however, in England. Still, it cannot be overstressed that "even in England" the law that evolved was feudal class law, designed to protect the nobleman's interest. Although it took place much later, the celebrated eighteenth-century trial and acquittal of Frederick Calvert, the seventh and last Lord Baltimore, for a rape upon the body of Sarah Woodcock, a milliner, is a case in point. Baltimore had the twenty-nine-year-old virgin hat-maker abducted and he kept her a virtual prisoner for more than a week. At the trial he claimed consent and pleaded, "Libertine as I am represented, I am sure I have sufficiently atoned for every indiscretion, which a weak attach ment to this unworthy woman may have led me into, by having suffered the disgrace of being exposed as a criminal at the bar." Apparently the judge and jury agreed. The wonder of Lord Balti more's case is that it came to trial at all.)

How was justice secured for raped women who were not prop ertied virgins, that is, as Bracton himself was careful to enumerate, for "matrons, nuns, widows, concubines and even prostitutes"? The legal scholar who so minutely described the procedures and punishments in regard to "an appeal concerning the rape· of vir gins" hurriedly passed by the rest of womankind's rapists with the comment, "Punishment of this kind does not follow . . ." al though he did report that it might be "severe." What precise punishment
did
follow he never records, and probably for good, practical reason. Either he had few convictions to go by, or the penalties were not uniform, or he and his fellow men did not consider the matter of any great legal concern. All three of these possibilities are highly likely in concert. Pollock and Maitland, the law historians, write, "Concerning these matters we find little case law. Appeals of rape were of ten brought in the thirteenth century; but they were of ten quashed, abandoned or compromised." But what is significant is that by Bracton's time
·
, the thirteenth century,
·
the legal concept of criminal rape had clearly, if haphazardly, been

broadened by the manorial courts to include at least in principle the rape of "matrons, nuns, widows, concubines and even prosti tutes." Bracton's glancing reference may be the first in written history.

The comprehensive Statutes of Westminster put forward by Edward I at the close of the thirteenth century showed a gigantic advance in legal thinking as the Crown, and by "Crown" Ameri cans should read "state," began to take an active interest in all kinds of rape prosecutions, not just those concerning violated vir gins. Our modern principle of statutory rape-felonious carnal knowledge of a child in which her "consent" is altogether immate rial-dates from this time and these statutes.

Of critical significance, Westminster extended the king's juris diction to cover the forcible rape of married women as well as virgins, with no difference in punishment to offending males. To further erase the distinction between the rape of a virgin and the rape of a wife, the old, ignoble custom of redemption through marriage was permanently banned under suits by the king. In concession to the proprietary rights of husbands-for the Crown had ventured into an area it had never ventured into before Westminster also saw fit to legislate a definition of lesser ravish ment, a sort of misdemeanor, applicable in cases where it could be argued that a wife did not object strenuously enough to her own "defilement." The aggrieved party in these cases was the husband, and the wife was peremptorily stripped of her dower. Within a marriage, the theory went-and still goes-that there could be no such crime as rape by a husband since a wife's "consent" to her husband was a permanent part of the marriage vows and could not be withdrawn.

To give the new law teeth, Edward I decreed that if a raped woman or her kin failed to institute a private suit within forty days, the right to prosecute automatically passed to the Crown. This bold concept, applicable only to virgins in previous reigns, was a giant step for the law and for women. It meant that rape was no longer just a family misfortune and a threat to land and property, but an issue of public safety and state concern.

The First Statute of Westminster, enacted in 1275, set the Crown's penalty for rape at a paltry two years' imprisonment plus a fine at the king's pleasure, no doubt to ease the effect of a major transition, for what had occurred at the Parliament of Westminster

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