Rape in early modern England was considered a capital crime, however, it constituted about one percent of indicted felonies1. The majority of rape trials were held in silence due to the social restraints placed on women. Consequently, the silence of rape victims has resulted in a lack of historical records. Today, one identifies the crime of rape, as a violation of a woman, forcing her to submit against her will to sexual intercourse.
This definition regards the violation in terms of the female victim, but this was not necessarily the case of rape law in early modern England. Instead, what was witnessed was a legal system that denied women the right to their own sexual autonomy. In medieval England the majority of felonies were those in accordance with property. Rape crime became much like property crime, a felony that was done to male’s property. Much of the law in England pertaining to rape regarded the act as a violation of a father’s property, and a women’s assertion was viewed to be irrelevant.
Legislations passed in eighteenth century English law reflected a female’s lack of importance and rights, due to the fact that its purpose was for the protection of a father’s property interest in his daughter. Baine’s article states that rape was primarily a crime against property since it concerned the loss of virginity in rape. For instance the punishment of the rapist was dependent on the “quality of damaged property”2. The historical movement of rape law in England reflected a shift from the idea of protecting women as a particular form of male property, to preserving women’s integrity and her right to be free from sexual assault.
Although this represented a release from a male dominated legal framework thus posing as improvement for the view of women in society, what may be argued is that the legal system still acted as a vehicle portraying male supremacy. To determine if a shift occurred from female rape victims as property to person during the Medieval to Early Modern periods, the social restrictions placed on women, the laws pertaining to rape, and the way rapists were dealt with will be further examined. Due to the social restrictions in place women were discouraged to prosecute rape crimes.
It was painful and embarrassing for a woman to publicly prove in court that an attack had taken place, and that it was indeed a rape3. Only in few cases did women bring rape charges to court. For instance between 1660 and 1800 on average one case was brought to court in a year4. The cases that most commonly came forward had a particular character; either women were seriously injured, or the rape was interrupted by a witness5. Also cases came before the courts when women had to seek medical attention and the story would come out.
Others very often encouraged the prosecution in those circumstances. The Surrey Assize proceedings suggest that very few women on their own reported to a magistrate6. Thus, women were only encouraged to report rape crimes if it damaged a women physically or if there was a witness, not necessarily because it caused the victim emotional distress. Often the cases involving a sexual attack that did come to court were victims found to be children not women. Victims of rape were primarily those of lower social class such as servants.
Servants were seen as particularly vulnerable and were often sexually violated. The masters often sexually exploited the female servants, and if they were to get pregnant they were dismissed immediately7. Clearly those who were socially inferior were taken advantage of. Social customs and boundaries at this time in England placed a great deal of emphasis on chastity and women’s obligation to marry within their own class. Any doubt cast on a woman’s chastity would compromise her chances of finding a suitable husband.
The parents were forced to consider “whether they could make any match for their daughter other than the match proposed by the extortioner/kidnapper once the daughter’s reputation had been tarnished by her captor”8. The possibility of having a sexual violation occurred was sufficient to ruin a women’s reputation and as a “commodity” in the marriage market. Rape was not awful because of the emotional devastation inflicted on the victim but on account of the distress it causes her family and peers9.
Women were to submit to the authority of their fathers and husbands not only for the well ordering of family life, but to preserve the social order10. Clearly women were threatened by their social order to restrain from prosecuting rape crimes merely because it would disrupt her family life. In some instances when women did not report the crime themselves the indictment would be brought through the king’s name or the father’s voice. The father would report that his property is despoiled, which is in fact the loss of his daughter’s virginity11.
English law from the beginning of the medieval period has primarily been interested with property rights. This emphasis on property is portrayed in rape crime. Evidently statues at that time identified rape as a crime against family property12. Thus, the societal restraints and norms placed on women demonstrated that they were in fact property not autonomous individuals. The control of women by either their fathers or husbands invariably led to women becoming restricted within their own space.
During Medieval England women were expected to remain within their own boundaries. Men during this time felt the need to enclose women as a method of control, whether it was a women’s husband or father. It was generally assumed that “women who strayed from their designated space might be subject to sexual assault because they were neither under the protection of a responsible male nor in the accustomed space”13. Women during this time felt the societal pressure to stay within their boundaries otherwise they would risk humiliation or even rape.
Hanawalt expresses women could freely move only in specific environments such as, the home, castle, nunnery, village or city quarter14. If they had to move outside of those areas they did so with “proper dress, demeanor, and escort or they risked compromising their honor or their persons”15. Societal norms established that those women who were dressed inappropriately such as wearing “lewd” clothing on the streets were likely to be punished by rape16. Thus, rape was portrayed as a form of punishment to women who stepped out of their social boundary.
This encourages the notion that women were merely treated as property. Therefore the societal restrictions placed on women literally restricted them from moving about in fear of rape. The belief that women were to remain within their own space remained into the early modern period of England. Robert Shoemaker states “By the 1820’s the notion that sexual violence made the streets unsafe for respectable women was rarely questioned”17. Therefore this fear of rape, which limited women’s freedom of movement, did not even diminish in the early modern period.
It can be stated that women were held within a particular boundary, and thus have not evolved from property to person in the early modern period due to the societal restraints placed upon them. The rape laws from Medieval to Early Modern England changed but failed to establish that women were to be treated as autonomous individuals in the eyes of the law. In the Medieval period rape law was “constructed around the protection of male property in the form of their movable goods, their wives and daughters, their bequeathed inheritances, their future heirs”18.
Women had limited access to the legal system except through their fathers or husbands, of whom they were merely extensions 19. Baines indicates that medieval law was designed to protect a rigid class structure based on bloodline, as well as property20. During this time when rape crime took place it was a crime against the king’s peace, not against the woman. This emphasis of women as property during the medieval period is evident and is also portrayed in the law. For instance the first Statute of Westminster in 1275 essentially made the punishment of rape a trespass rather than a felony.
It tried to regularize the appeal of rape, giving women forty days to make an appeal and prescribing two years imprisonment and ransom at the king’s pleasure in case of conviction21. Ten years later the second Statute of Westminster declared that the conviction of rape would carry the death penalty, since judges and juries were prescribing that punishment for less heinous crimes22. Rape appeals were constraining and caused the victim emotional pain. As soon as a crime of rape had been committed she was to go to the nearest place and show “trustworthy men” the injury done to her by her torn clothes23.
Her testimony was then made to an audience of men in a public setting and the narrative was then repeated to the hundred reeves, to a coroner on a later date, to the country court, and to the royal justices24. Undergoing the trauma of rape was no excuse at this time to not disclose the story the necessary amount of times. Not only was it traumatic for a woman to have to repeat this story a number of times; but also the women would have to tell the story correctly following a particular formula, otherwise she would be imprisoned or fined for making a false appeal25.
However, rape charges could be settled prior to judgment, that is if the women was willing to marry the defendant, this was a notion passed on from the medieval period that continued to exist until the early modern period. This solution allowed for a family to keep their honor after such “illicit defloration”26. This concept would not necessarily work in every situation not only because women would find it degrading, but also rape victims were often young girls. Persecutions during the medieval period almost always pertained to cases involving the virginity of young girls27.
Primarily because rape was a crime against property and thus the law was concerned with the loss of virginity in rape. Bracton, the most prestigious authority of the Middle Ages explains how he felt “that payment in life and member (true felony) was only applicable in conviction for rape of a virgin, whereas a man convicted of raping a married women or widow would suffer corporal punishment only”28. Dependent on the women’s virginity, rape would be essentially either considered a felony or a trespass. It is clear that the loss of virginity, which was viewed as property value, influenced legal discourse.
From the earliest statute of Westminster I, girls under the age of twelve years old were assumed incapable of giving her consent29. The reason being that girls that young were incapable of becoming pregnant, and pregnancy corresponded directly to consent. If a woman conceived as a result of rape then it was unquestionable she consented to it, because it was further assumed that women became pregnant only if they had an orgasm. These ludicrous assumptions about female sexuality resulted in defendants becoming acquitted if a child was conceived.
The male assumptions about female sexuality played a role in the interpretation of law and consequently disadvantaged mature, married women30. The laws and statutes during the medieval period were no great deterrent to rape because women were silenced regardless of the law, either because she was “so little offended with the injury, or so ashamed to confess the outrage”31. Nevertheless, women were punished by being disinherited and were considered a loss of family property, and this notion carried on into the early modern period. During the medieval period there was little distinction made between rape and abduction.
The will of a woman was clearly irrelevant at that time, and the laws mirrored that belief. Laws were clearly designed to protect patriarchal interests32. During the Early Modern period changes in the law did occur; however, changes in the depiction of the rape victim did not. In 1576 a statute denied the benefit of clergy to rapists, and men continued to be hanged for it in the eighteenth century. Also, in 1555 and 1597 statutes were passed to separate the two offences of rape and abduction. Baines states it inadvertently separated these two offences and thus placed greater emphasis on a woman’s will33.
Rape was perceived as a result of these laws to have placed a greater emphasis as a crime against person as opposed to property. At first it may have seemed that there was an improvement of the way the rape victim was portrayed; however, statistical data indicates the contrary34. Statistics show that convictions of rape were still very rare, and “almost always involved the rape of a child or young girl whose virginity was presumed forfeited”35. Thus, women were still depicted as male’s property since virginity was still seen as a valuable attribute.
However, in the Early Modern period the number of indictments pertaining to older women did increase, although, the percentage of convictions did not. Male supremacy in the courts was a reality and in effect did not change the attitude that rape crime was against property and class hierarchy36. Baines determines that women’s subjectivity during the Early Modern period was constructed as both property, or a person “invested with agency with the will and discernment that define consent”37. Thus, women had the ability to prove that they did not consent; however, court realities suggest that male supremacy surmounted the law.
For instance the courts were likely to discount a women’s testimony if it could be shown that she had not reported the attack immediately, or had not at least told someone about it38. Also it was considered a weakness if during the attack she had not made an attempt to cry out for help39. The inability to understand the traumatic conventions of rape by male authorities resulted in laws that suppressed women. Nonetheless, there was an attempt to give women more ability to prosecute offenders during the early modern period. Women could charge their attacker with attempted rape.
This was considered a misdemeanor and therefore not a capital offence40. Rape victims found this to be a less demanding method in convicting offenders since they did not have to prove that penetration occurred, but simply that was what the attacker had in mind41. Otherwise women had to be put through the disgrace of proceeding with a number of trials, and thus reducing her status in society. Another advantage of charging attempted rape was that it could be tried at the quarter sessions since it was a lesser offence, and therefore would be less expensive42.
By the eighteenth century there were twice as many charges of attempted rape over rape itself because women did not have to be cross-examined. During the early modern period laws did not drastically change in regards to rape. Even though some laws did change the traditional views cast on the female rape victim did not. For instance the notion that if a women conceived she consented still remained prominent during the early modern period. The view that women were treated as property remained even though laws may have suggested otherwise. Punishment to the rapist much like the law was not a great deterrent since it was rarely practiced.
The punishment to rapists before the statute of Westminster was castration and blinding. However, this was not practiced very frequently. The punishment to the rapist was dependent on the “quality of the damaged property”43. Thus, loss of virginity being the most detrimental. Essentially the laws that later developed were to make the punishment more realistic. Writers of legal theory such as Bracton, addressed that rapists should be sentenced to death (in case of virgins) and corporal punishment for older women. However, in practice defendants were subject to monetary fines or imprisonment44.
Therefore, even though the Statute of Westminster II required punishment in life and member it was not frequently practiced. Between Westminster I and II thirty-seven rape cases appeared in the plea rolls, and only one of the men appealed of rape was convicted45. Thus, the reluctance in courts to accept evidence of appeals was extremely rare. Punishment to rapists were merely what the text of law suggested not what necessarily occurred. Following Westminster II twelve percent of indictments ended up in conviction, since indictment replaced appeals of rape. However, the successful convictions were usually cases of young virgins46.
Although conviction rates were considerably low, many women attempted to indict merely because statistics were not kept at that time, therefore, were not aware of the unsuccessful conviction rates. Otherwise, in order to prevent the humiliation women would undergo in the court system they would compromise with the offender to give them a monetary payment in replace of their, “loss of virginity and any other complications that this might cause in the marriage market”47. Thus, several women at this time ought to have been aware of the lack of justice that occurred in the courts since they asked for monetary payments instead.
Even though the punishment of rape was not carried out offenders were nonetheless outlawed since a number of them would flee the community. Accordingly, the victim’s stories did hold some credit and impacted the offender. It is clear to state that women continued to be depicted until the early modern period of England as property as opposed to individuals with will and integrity. The laws of England attempted to overcome the traditional belief of women as a form of male property; however, they failed to do so since male supremacy represented the justice system.
A disparity existed between the text of the law and its practice, that is to say the severity of the laws and the will to apply them in regards to rape in medieval and Early Modern periods48. This disparity has resulted in women being unable to speak out against rape crimes due to their feelings of embarrassment and humiliation in a society highly based on social class and custom. The social restrictions placed on women created an environment where they invariably had little control over their own bodies.
The emerging laws in early modern England attempted to give women more control; however, the laws and practices of punishment were not followed through. Although offenders were not punished the way the law imagined it did illustrate the way the society was constructed. That is the rule of law was no the practice of law, and is evident with regards to rape crime. Women continued in the early modern period to be portrayed as property regardless of what laws became enacted, since male supremacy was the construct of those laws.