Sunday, 17 November 2013

Seventeenth-Century Rape Laws

"Rape is the carnal abusing of a woman against her will. But if the woman conceive upon any carnal abusing of her, that is no rape, for she cannot conceive unless she consent."
Sir Henry Finch, Law or Discourse Thereof (1627)

Finch died in 1625, making his book posthumously published, but his cruel legacy lived on. Most recently, some modern politicians have argued the same point. During the 17th century, scientists debated whether humans were formed from an egg, or if a baby was already fully formed from a man's "seed" merely to grow once inside the womb. In order for a woman to conceive, the belief was held that she must enjoy the sex act. Hence, Finch's law that a woman could not have been raped, if she had conceived.

Later in the century, Sir Matthew Hale uttered his infamous declaration:

"It is true that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made, hard to be proved, but harder to be defended by the party accused, tho innocent."

No words have severely affected modern women more. Even though the crime of rape has been shown to have no more false accusations than any other crime, Hale's statement, warning jurors that women are liars, has been repeated throughout courtrooms for centuries. In the U.S., the words weren't stricken from the courts until the 1970s.

In the 17th century, a woman who brought the charge of rape against a man was automatically regarded with suspicion. A girl's sexuality was controlled by her father, and once she was married that power shifted to her husband. Also according to Hale, a husband could not rape his wife: "But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." In other words, she was his property, and he was allowed to use his property in anyway he saw fit.

If a woman had been raped, her "protector" would bring the charges to the authorities. Women with no male protector were often looked upon as being unchaste and thought to readily consent their virtues to any man.

The American colonies adopted English Common Law in regard to rape. In Virginia, rape was a capital offense. Unfortunately, most of the colony's records have been lost, but existing General Court records reveal that no conviction for rape or attempted rape were successful before 1670. One record has been uncovered at a county level. Women were hesitant to accuse a white man of rape because they risked losing their homes, places in the community, punishment, or retaliation.

Due to the Quaker influence in Pennsylvania, rape became a noncapital offense in 1682. Men convicted of rape were to be whipped and forfeit one-third of their estate to the victim. Supposedly, they were also to receive a prison sentence for one year with a second conviction carrying a life sentence. In reality, all rape accusations were reduced to lesser crimes until the 18th century.

In Puritan Massachusetts, fourteen men were tried for rape and three men for attempted rape between 1630 and 1692. Like other areas, women were unlikely to report sexual assaults because the patriarchal system frequently blamed the victim. All in all, in many ways, little has changed from the 17th century. Rape survivors rarely reported the attacks, and the assailants, if prosecuted, used the defense that the sexual activity was consensual, and oftentimes, the victim's reputation was brought into question. Even now, many believe Hale's myth that women are liars and therefore, are vindictive. After 400 years, it seems more progress should have been made.

Kim Murphy
www.KimMurphy.net

1 comment:

Richard Hale said...

One mustn't construe the wrong meaning in Sir Matthew's comments. He is simply pointing out that whilst a detestable crime - it is an accusation easily made, but hard to defend even though the party might be innocent.. that is not stating that women are liars, just that there is the possibility that the accusation is false exists and should be taken into consideration. As with all accusations.