History of rape
From the classical antiquity of Greece and Rome into the Colonial period, rape along with arson, treason and murder was a capital offense. "Those committing rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular." In the 12th century, kinsmen of the victim were given the option of executing the punishment themselves. "In England in the early fourteenth century, a victim of rape might be expected to gouge out the eyes and/or sever the offender's testicles herself." Despite the harshness of these laws, actual punishments were usually far less severe: in late Medieval Europe, cases concerning rapes of marriageable women, wives, widows, or members of the lower class were rarely brought forward, and usually ended with only a small monetary fine or a marriage between the victim and the rapist.
In Medieval Europe, a woman's parents could forcibly marry her to a stranger without her consent, and, once she was married, she could no longer refuse to consent to sex: the medieval concept of rape did not allow for the possibility of being raped by one's husband.
Medieval theologian Thomas Aquinas argued that rape, though sinful, was less sinful than masturbation or coitus interruptus, because it fulfilled the procreative function of sex, while the other acts violated the purpose of sex.[notes 1]
The rape of Chrysippus by Laius was known as "the crime of Laius", a term which came to be applied to all male rape. It was seen as an example of hubris in the original sense of the word, i.e., violent outrage, and its punishment was so severe that it destroyed not only Laius himself, but also his son, Oedipus, his wife Jocasta, his grandchildren (including Antigone), and members of his extended family.
In Roman law, raptus (or raptio) meant primarily kidnapping or abduction; sexual violation was a secondary issue. The "abduction" of an unmarried girl from her father's household in some circumstances was a matter of the couple eloping without her father's permission to marry. Rape in the English sense of "forced sex" was more often expressed as stuprum, a sex crime committed through violence or coercion (cum vi or per vim). Raptus ad stuprum, "abduction for the purpose of committing a sex crime," emerged as a legal distinction in the late Roman Republic. The Lex Julia de vi publica, recorded in the early 3rd century CE but dating probably from the dictatorship of Julius Caesar, defined rape as forced sex against "boy, woman, or anyone".
Although Roman law in the historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths and legends of early Rome. The Augustan historian Livy seemed "embarrassed" by the rape motif and emphasizes the redeeming political dimension of traditional stories. The "rape" of the Sabine women was interpreted as showing that Rome was constituted as a "blended" population in which people resolved violence and coexisted by consent and treaty. The rape of the exemplary woman Lucretia by the king's son led to the overthrow of the monarchy and the establishment of the Republic. In the 50s BCE, the Epicurean poet Lucretius condemned rape as a primitive behavior outside the bounds of an advanced civilization, describing it as "a man's use of violent force and imposition of sexual impulse."
Intercourse by force or compulsion, even if it took place under circumstances that were otherwise unlawful or immoral, left the victim legally without blame. The official position under the emperor Diocletian (reigned 284–305 AD) held that:
The laws punish the foul wickedness of those who prostitute their modesty to the lusts of others, but they do not attach blame to those who are compelled to stuprum by force, since it has, moreover, been quite properly decided that their reputations are unharmed and that they are not prohibited from marriage to others.
As a matter of law, rape could be committed only against a citizen in good standing. The rape of a slave could be prosecuted only as damage to the owner's property. People who worked as prostitutes or entertainers, even if they were technically free, suffered infamia, the loss of legal and social standing. A person who made his or her body available for public use or pleasure had in effect surrendered the right to be protected from sexual abuse or physical violence. Men who had been raped "by the force of robbers or the enemy in wartime (vi praedonum vel hostium)" were exempt by law from infamia.
There was no statute of limitations for rape; by contrast adultery, which was criminalized under Augustus, had to be prosecuted within five years. The rape of a freeborn male (ingenuus) or a female virgin is among the worst crimes that could be committed in Rome, along with parricide and robbing a temple. Rape was a capital crime, and the rapist was subject to execution, a rare penalty in Roman law.
The victim's consent was usually not a factor in Roman rape cases, since raptus could refer to a successful seduction as well as abduction or forced sex. What had been violated was primarily the right of the head of household (paterfamilias) to give or withhold his consent. The consequences of an abduction or an elopement were considered a private matter to be determined by the couple and their families, who might choose to recognize the marriage.
Attitudes toward rape changed when the Roman Empire became Christianized. St. Augustine believed Lucretia's suicide was likely prompted by her shame at being violated and her fear over possible accusations of complicity. He also suggests that it might have been an attempt to expiate her guilt over involuntary signs of sexual pleasure which had encouraged Sextus in his abuse. Augustine's interpretation of the rape of Lucretia (in The City of God Against the Pagans 1.19) has generated a substantial body of criticism, starting with a satire by Machiavelli. Historian of early Christianity Peter Brown characterized this section of Augustine's work as his most vituperative attack on Roman ideals of virtue. Augustine redefines sexual integrity (pudicitia) as a purely spiritual quality that physical defilement cannot taint; the Romans had viewed rape and other forms of stuprum ("sex crime") within a political context as crimes against the citizen's body and liberty.
The first Christian emperor Constantine redefined rape as a public offense rather than as a private wrong. Since under Roman law raptus could also mean cases of abduction or elopement without the head of household's permission, Constantine ordered that if the female had consented, she should be punished along with the male "abductor" by being burnt alive. If she had not consented, she was still considered an accomplice, "on the grounds that she could have saved herself by screaming for help." As a participant to the rape, she was punished under law by being disinherited, regardless of the wishes of her family. Even if she and her family consented to a marriage as the result of an elopement, the marriage was legally void.
Under the Emperor Justinian I, new penalties were enacted for the abduction (raptus) of nuns. Even attempting the abduction of nuns for marriage or sexual purposes was to be punished by death. Constantine's law against sexual abduction was changed to shift blame to the man, on the assumption that the participation of the woman, even if voluntary, was caused by male seduction. The law for other kinds of sexual violence continued to be handled by means of the older Roman legal principles governing cases of 'stuprum.'
Type of crimeEdit
In some cultures, rape was seen less as a crime against a particular girl or woman than as a crime against the head of the household or against chastity. As a consequence, the rape of a virgin was often a more serious crime than of a non-virgin, even a wife or widow, and the rape of a prostitute or other unchaste woman was, in some laws, not a crime because her chastity could not be harmed. Furthermore, the woman's consent was under many legal systems not a defense. In seventeenth-century France, even marriage without parental consent was classified as rape.
The penalty for rape was often a fine, payable to the father or the husband, as they were in charge of household economy.
In some laws, the woman might marry the rapist instead of his receiving the legal penalty. This was especially prevalent in laws where the crime of rape did not include, as a necessary part, that it be against the woman's will, thus dividing the crime in the current meaning of rape, and a means for a couple to force their families to permit marriage.
Modern doctrines today have different views on the type of crime that rape is; it may be seen as:
- rape as violence (principal wrong is the application of physical violence to the body, it is a physical harm - focuses on the body, on physical pain, injury)
- rape as violation of autonomy (infringes on the right to decide with whom/when to have sexual relations, focuses on the mind; rape of men is seen as serious as rape of women; adopts broad definitions including rape by deception)
- rape as invasion of integrity (a combination of the above views - focuses moderately on both body and mind)
- rape as moral injury (an attack on the dignity of the woman victim, and by extension on the dignity of women as a class, a gendered crime)
- radical feminist explanations of rape (sexual intercourse must be understood in the context of patriarchal society where women face systematic coercion and subordination; under these conditions genuine consent is difficult to be given; Robin Morgan argues: "Rape exists any time sexual intercourse occurs when it has not been initiated by the woman, out of her own genuine affection and desire"). Michelle Madden Dempsey and Jonathan Herring argue in Why Sexual Penetration Requires Justification, that sexual penetration of a woman by a man is a prima facie wrong, meaning that it requires justification in order to validate it, because of "the use of physical force required to achieve sexual penetration, the occurrence and risk of harm posed by sexual penetration, and the negative social meaning of sexual penetration in patriarchal societies."
According to a Sunni hadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. Most scholars treat rape as hirabah (disorder in the land).
Rape is defined as 'zina biljabr', fornication/adultery with the use of coercion or compulsion. Note that it has to be extra-marital, i.e. fornication/adultery; the rape charge cannot be brought against the husband by the wife, i.e. it cannot be within marriage. The Islamic law approach to rape provides a range of possible charges, and thus penalties, which the qadi may posit, hirabah being but one, yet the most severe of them. Thus the charge of zina may bring about a penalty of 100 lashes upon the perpetrator and the element of the use of force and or compulsion may be quantified, and thus punished serially or consecutively, that is a year's banishment, a prison sentence, a corporal sentence etc. It is to be noted that Hirabah is a Hadd penalty (i.e. one predicating a fixed choice, which in the case of Hirabah has three options at the discretion of the qadi). If the offence is deemed to not be a Hirabah offence then the penalties available to the qadi would be those of ta'zeer and will not be permitted to reach the level of either severe retributive physical harm (i.e. more than ten lashes of a whip) let alone execution. The interpretation and application of these laws is very controversial, not least due to modern ill-fated legislation,[according to whom?] such as Pakistan's Hudood Ordinance, under General Zia ul-Haq, which arguably criminalizes the victim who fails to produce four witnesses, thus perverting the aim behind the law, to protect the victim of rape and grant her justice.
In Islamic military jurisprudence, classical jurists laid down severe penalties for rebels who use "stealth attacks" and "spread terror". In this category, Muslim jurists included abductions, poisoning of water wells, arson, attacks against wayfarers and travellers (highway robbery), assaults under the cover of night, and rape. The punishment for such crimes were severe, including death, regardless of the political convictions and religion of the perpetrator.
Rape, in the course of warfare, also dates back to antiquity, ancient enough to have been mentioned in the Bible. According to the Roman ius gentium ("law of nations" or international law), inhabitants of a conquered town were spared personal violence if the war or siege ended through diplomatic negotiations. But if the army victoriously entered the town by force, the conquering men could and would rape women (and sometimes adolescent boys) of the defeated peoples as one of the spoils of war. Some portion or all of the population of a town taken by force might also become slaves, who lacked legal protections against rape and who might be exploited as prostitutes or non-consensual sexual companions.
Rape, as an adjunct to warfare, was prohibited by the military codices of Richard II and Henry V (1385 and 1419 respectively). These laws formed the basis for convicting and executing rapists during the Hundred Years' War (1337–1453).
Napoleon Bonaparte found rape committed by soldiers particularly distasteful. During his Egyptian Expedition, he declared that “everywhere, the rapist is a monster” and ordered that “anyone guilty of rape would be shot.”
Bride kidnapping may feature rape, but this is not necessarily so. The practice of bride capture has become elaborate and ritualised in some cultures, with suggested links to the origin of the honeymoon. Bride capture is common in the cultures of Central Asia, and is also found in Southern Europe and is additionally practised traditionally by the Hmong.
In 1563, the Council of Trent expressly declared that legal Catholic marriages had to be done with consent of both parties, but did not require parental consent, essentially declaring forced marriages invalid. This was not universally accepted: for example, in France, women were not granted the right to marry without parental consent until 1793.
The criminal justice system of many countries was widely regarded as unfair to sexual assault victims. Both sexist stereotypes and common law combined to make rape a "criminal proceeding on which the victim and her behavior were tried rather than the defendant".
Adult women were often extremely reluctant to bring up charges of rape: public admission of having been raped was severely damaging to one's social standing, courts tended to be skeptical of the charges, conviction rates were low, and, in the event that the accusation could not be proved, the victim could then be accused of committing adultery with the rapist (traditionally a serious offense that could have been punished by mutilation or even death). Certain classes of women, such as prostitutes, were banned from raising accusations of rape altogether.
Since the 1970s, many changes have occurred in the perception of sexual assault due in large part to the feminist movement and its public characterization of rape as a crime of power and control rather than purely of sex. In some countries the women's liberation movement of the 1970s created the first rape crisis centers. This movement was led by the National Organization for Women (NOW). One of the first two rape crisis centers, the D.C. Rape Crisis Center (), opened in 1972. It was created to promote sensitivity and understanding of rape and its effects on the victim.
Marital rape first became a crime in the United States in the state of South Dakota in 1975. In 1993, North Carolina became the last state to outlaw marital rape. The marital rape exemption was abolished in England and Wales in 1991 by the House of Lords, in its judicial capacity, in the case of R v R  1 AC 599 (more details).
In the 1980s, date or acquaintance rape first gained acknowledgment. Rape crisis centers were created to serve survivors of all forms of sexual violence during any phase of their healing process. Rape crisis centers and other community-based service providers continue to grow and serve their communities by providing direct services and prevention programming.
On September 2, 1998, the United Nations International Criminal Tribunal for Rwanda delivered a precedent-setting verdict that made sexual violence a war crime. This was followed in November 1998 by the decision of the International Criminal Tribunal for the former Yugoslavia that acts of rape may constitute torture under international humanitarian law.
Current topics being debated are the marginalized victims of rape — domestic violence and rape victims, marital rape victims, male rape victims of both male and female rapists, female-female rape victims, parental-rape incest victims, and child sexual abuse victims. Other emerging issues are the concept of victim blaming and its causes, male rape survivors, male-male rape, female sexual aggression, new theories of rape and gender, date rape drugs and their effects as well as the psychological effects of rape trauma syndrome.
The ius primae noctis ("law of the first night") is a term now popularly used to describe a fictional legal right allowing the lord of an estate to take the virginity of his serfs' maiden daughters since little or no historical evidence has been unearthed from the Middle Ages to support the idea that such a right ever actually existed.
- Thomas Aquinas, Summa Theologica, question 154. "...it follows that in this matter [the sin of unnatural vice] is gravest of all. After it comes incest... With regard to the other species of lust they imply a transgression merely of that which is determined by right reason, on the presupposition, however, of natural principles." Here, unnatural vice includes, in decreasing order of sinfulness, bestiality, homosexual intercourse, any unconventional form of heterosexual intercourse, and 'uncleanness' (masturbation). 'Other species of lust' include intercourse with a consecrated virgin or a nun, rape, adultery, seduction of a virgin, and 'simple fornication' (consensual intercourse between unmarried people.)
- "The Medieval Blood Sanction and the Divine Beneficene of Pain: 1100–1450", Trisha Olson, Journal of Law and Religion, 22 JLREL 63 (2006)
- Eckman, Zoe (2009). "An Oppressive Silence: The Evolution of the Raped Woman in Medieval France and England" (PDF). Historian: Journal of the Undergraduate History Department at New York University. 50: 68–77.
- Alan Soble, Sexual Investigations, NYU Press, 1998, p.10-11.
- Vern L. Bullough, Bonnie Bullough, Human Sexuality: An Encyclopedia
- Daphne Hampson, After Christianity
- Diana C. Moses, "Livy's Lucretia and the Validity of Coerced Consent in Roman Law," in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Dunbarton Oaks, 1993), p. 50; Gillian Clark, Women in Late Antiquity: Pagan and Christian Life-styles (Oxford University Press, 1993), p. 36.
- Moses, "Livy's Lucretia," pp. 50–51.
- Digest 188.8.131.52 and 184.108.40.206.
- Amy Richlin, "Not before Homosexuality: The Materiality of the cinaedus and the Roman Law against Love between Men," Journal of the History of Sexuality 3.4 (1993), pp. 562–563. See also Digest 48.5.35  on legal definitions of rape that included boys.
- Mary Beard, J.A. North, and S.R.F. Price, Religions of Rome: A History (Cambridge University Press, 1998), vol. 1, pp. 1–10, as cited and elaborated also by Phyllis Culham, "Women in the Roman Republic," in The Cambridge Companion to the Roman Republic (Cambridge University Press, 2004), p. 158.
- Pamela Gordon, "Some Unseen Monster: Rereading Lucretius on Sex," in The Roman Gaze: Vision, Power, and the Body (Johns Hopkins University Press, 2002), p. 105.
- Lucretius, De rerum natura 5.964: Violenta viri vis atque impensa libido.
- See further discussion at Marriage in ancient Rome#Adultery and Sexuality in ancient Rome#Fidelity and adultery).
- Ariadne Staples, From Good Goddess to Vestal Virgins: Sex and Category in Roman Religion (Routledge, 1998), pp. 81–82; Jane F. Gardner, Women in Roman Law and Society (Indiana University Press, 1991), p.118ff.
- Gardner, Women in Roman Law and Society, p. 120.
- Digest 9.9.20.
- Richlin, "Not before Homosexuality," p. 564.
- Under the Lex Aquilia: Thomas A.J. McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford University Press, 1998), p. 314; Gardner, Women in Roman Law and Society, p. 119.
- Gardner, Women in Roman Law and Society, p. 119; McGinn, Prostitution, Sexuality, and the Law, p. 326.
- Richlin, "Not before Homosexuality," pp. 558–559, citing the jurist Pomponius, "whatever man has been raped by the force of robbers or the enemy in wartime (vi praedonum vel hostium)" ought to bear no stigma (Digest 220.127.116.11).
- Gardner, Women in Roman Law and Society, p. 118.
- Quintilian, Institutio oratoria 4.2.69–71; Richlin, "Not before Homosexuality," p. 565.
- Gardner, Women in Roman Law and Society, p. 118; Richlin, "Not before Homosexuality," pp. 562–563.
- Gardner, Women in Roman Law and Society, pp. 120–121; James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (University of Chicago Press, 1987, 1990), p. 107.
- Augustine, “The City of God,” (Hendrickson, 2004), p. 14-15.
- Staples, From Good Goddess to Vestal Virgins, p. 164, citing Norman Bryson, "Two Narratives of Rape in the Visual Arts: Lucretia and the Sabine Women," in Rape (Blackwell, 1986), p. 199.
- Peter Brown, Augustine of Hippo: A Biography (Faber, 1967); see also Carol J. Adams and Marie M. Fortune, Violence against Women and Children: A Christian Theological Sourcebook (Continuum, 1995), p. 219ff.; Melissa M. Matthes, The Rape of Lucretia and the Founding of Republics (Pennsylvania State University Press, 2000), p. 68ff. (also on Machiavelli); Virginia Burrus, Saving Shame: Martyrs, Saints, and Other Abject Subjects (University of Pennsylvania Press, 2008), p. 125ff.; Amy Greenstadt, Rape and the Rise of the Author: Gendering Intention in Early Modern England (Ashgate, 2009), p. 71; Melissa E. Sanchez, Erotic Subjects: The Sexuality of Politics in Early Modern English Literature (Oxford University Press, 2011), p. 93ff.
- Brundage, Law, Sex, and Christian Society in Medieval Europe, p. 107.
- Gardner, Women in Roman Law and Society, 120.
- Charles Matson Odahl, Constantine and the Christian Empire (Routledge, 2004), p. 179; Timothy David Barnes, Constantine and Eusebius (Harvard University Press, 1981), p. 220; Gillian Clark, Women in Late Antiquity: Pagan and Christian Lifestyles (Oxford University Press, 1993), pp. 36–37, characterizing Constantine's law as "unusually dramatic even for him."
- Theodosian Code 18.104.22.168–3; Cod. 9.13.1; Brundage, Law, Sex, and Christian Society, p. 107.
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- Abou El Fadi, Khaled (2001), "Commentary: Terrorism is at Odds with Islamic Tradition", Los Angeles Times, archived from the original on 2017-08-23,
... Under the category of crimes of terror, the classical jurists included abductions, poisoning of water wells, arson, attacks against wayfarers and travelers, assaults under the cover of night and rape. For these crimes, regardless of the religious or political convictions of the perpetrators, Muslim jurists demanded the harshest penalties, including death...CS1 maint: BOT: original-url status unknown (link)
- On ancient Rome, see Sara Elise Phang, Roman Military Service: Ideologies of Discipline in the Late Republic and Early Principate (Cambridge University Press, 2008), pp. 244, 253–254, 267–268 et passim. See also Sex in the Roman military.
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