History of rape

This article is about the social and legislative historical evolution of the crime of rape. For the book authored by Randy Thornhill, see A Natural History of Rape.

The concept of rape, both as an abduction and in the sexual sense (not always distinguishable), makes its first historical appearance in early religious texts.

Classical antiquity

Greek mythology

The rape of women or youths is a common theme in Greek mythology. Among the rapes or abductions committed by Zeus, the supreme deity of the Greek pantheon, are Europa and Ganymede.

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.

Ancient Rome

For more details on this topic, see Sexuality in ancient Rome.

In Roman law, raptus (or raptio) meant primarily kidnapping or abduction;[1] sexual violation is 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.[2] The Lex Julia de vi publica,[3] recorded in the early 3rd century AD but dating probably from the dictatorship of Julius Caesar, defined rape as forced sex against "boy, woman, or anyone".[4]

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 seems "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.[5] In the 50s BC, the Epicurean poet Lucretius condemned rape as a primitive behavior outside the bounds of an advanced civilization,[6] describing it as "a man's use of violent force and imposition of sexual impulse."[7]

Intercourse by force or compulsion, even if it took place under circumstances that were otherwise unlawful or immoral,[8] left the victim legally without blame.[9] The official position under the emperor Diocletian (reigned 284–305 AD) held that:[10]

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.[11]

Although the law recognized the victim's innocence, rhetoric used by the defense indicates that jurors might harbor attitudes of blame.[12]

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.[13] 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.[14] 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.[15]

There was no statute of limitations for rape; by contrast adultery, which was criminalized under Augustus, had to be prosecuted within five years.[16] 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.[17] Rape was a capital crime, and the rapist was subject to execution, a rare penalty in Roman law.[18]

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.[19]

Christian Empire

Attitudes toward rape changed when the Roman Empire became Christianized. St. Augustine interpreted Lucretia's suicide as a possible admission that she had secretly encouraged the rapist,[20] and Christian apologists regarded her as having committed the sin of involuntary sexual pleasure.[21] 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.[22]

The first Christian emperor Constantine redefined rape as a public offense rather than as a private wrong.[23] 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."[24] As a participant to the rape, she was punished under law by being disinherited, regardless of the wishes of her family.[25] Even if she and her family consented to a marriage as the result of an elopement, the marriage was legally void.[26]

Type of crime

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.[27]

The penalty for rape was often a fine, payable to the father or the husband, as they were in charge of household economy.[28]

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:[29]

Islamic conception

In Islamic criminal jurisprudence, the overwhelming majority of Muslim scholars believe that there is no punishment for a woman forced to have sex.[31] 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.[32] Most scholars treat rape as hirabah (disorder in the land).[33]

Rape is defined as 'zina biljabr' fornication/adultery with the use of coercion or compulsion. Note it has to be extra-marital i.e. fornication/adultery; the rape charge can not be brought against the husband by the wife, i.e. it can not be within marriage, as indeed was the case in English Law until 1991 when the House of Lords ruling in R v R [34] stated it was anachronistic to maintain such position in modern western society. 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, such as Pakistan's Hudood Ordinance, under General Zia ul-Haq, which arguably criminalise 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.[35]

War rape

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 would take captive of both women and boys of the defeated peoples for them to rape, as one of the spoils of war.[36][37] 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.”[38]

Bride kidnapping

Main article: Bride kidnapping

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.

Modern re-evaluation

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.[39] 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 [1991] 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.[40] 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.[41]

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 blame 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.

England and Wales

See Rape in English law#History

See also

References

  1. ↑ 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.
  2. ↑ Moses, "Livy's Lucretia," pp. 50–51.
  3. ↑ Digest 48.6.3.4 and 48.6.5.2.
  4. ↑ 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 [34] on legal definitions of rape that included boys.
  5. ↑ 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.
  6. ↑ 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.
  7. ↑ Lucretius, De rerum natura 5.964: Violenta viri vis atque impensa libido.
  8. ↑ See further discussion at Marriage in ancient Rome#Adultery and Sexuality in ancient Rome#Fidelity and adultery).
  9. ↑ 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.
  10. ↑ Gardner, Women in Roman Law and Society, p. 120.
  11. ↑ Digest 9.9.20.
  12. ↑ Richlin, "Not before Homosexuality," p. 564.
  13. ↑ 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.
  14. ↑ Gardner, Women in Roman Law and Society, p. 119; McGinn, Prostitution, Sexuality, and the Law, p. 326.
  15. ↑ 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 3.1.1.6).
  16. ↑ Gardner, Women in Roman Law and Society, p. 118.
  17. ↑ Quintilian, Institutio oratoria 4.2.69–71; Richlin, "Not before Homosexuality," p. 565.
  18. ↑ Gardner, Women in Roman Law and Society, p. 118; Richlin, "Not before Homosexuality," pp. 562–563.
  19. ↑ 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.
  20. ↑ 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.
  21. ↑ Staples, From Good Goddess to Vestal Virgins, p. 164.
  22. ↑ 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.
  23. ↑ Brundage, Law, Sex, and Christian Society in Medieval Europe, p. 107.
  24. ↑ Gardner, Women in Roman Law and Society, 120.
  25. ↑ 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."
  26. ↑ Theodosian Code 9.24.1.2–3; Cod. 9.13.1; Brundage, Law, Sex, and Christian Society, p. 107.
  27. ↑ Catherine Orenstein, Little Red Riding Hood Uncloaked p 36 ISBN
  28. ↑ Sedney, M., "rape (crime)". Grolier Multimedia Encyclopedia. Scholastic Library Publishing, 2006 <http://gme.grolier.com>
  29. ↑ Great Debates in Criminal Law, by Jonathan Herring, pp.92- 98
  30. ↑ http://www.researchgate.net/publication/31473687_Why_Sexual_Penetration_Requires_Justification
  31. ↑ According to Ibn Qudamah, "This is the view of Umar, al-Zuhri, Qatadah, al-Thawri, al-Shafi'i, and others and we do not know anyone who has departed from this view." (Although this seems to indicate unanimity, Ibn Qudamah himself uses the language "overwhelming majority.") Muwaffaq al-Din Ibn Qudamah, al-Mughni (Beirut: Dar al-Kitab al-'Arabi n.d), Vol. 10, p. 159, quoted in http://www.geo.tv/zs/Zina_article_Final.pdf.
  32. ↑ Sunan Abu Dawud Sunan Abu Dawood, 38:4366.
  33. ↑ See, e.g., http://www.thenews.com.pk/top_story_detail.asp?Id=1369 and Asifa Quraishi. "Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective," in Windows of Faith: Muslim Women Scholar-Activists in North America, Gisela Webb (Ed.), Syracuse University Press (June 2000). Mentioned in verses [Quran 5:33]
  34. ↑ R v R [1992] 1 A.C. 599, House of Lords
  35. ↑ Abou El Fadl, Khaled. [Commentary: Terrorism Is at Odds With Islamic Tradition]. Muslim Lawyers
  36. ↑ 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.
  37. ↑ Sara Elise Phang (2001). The marriage of Roman soldiers (13 B.C.-A.D. 235): law and family in the imperial army. BRILL. p. 268. ISBN 90-04-12155-2. Retrieved 2010-11-28.
  38. ↑ Napoleon Bonaparte, “Address to the Army of Egypt,” Napoleon: Symbol for an Age, A Brief History with Documents, ed. Rafe Blaufarb (New York: Bedford/St. Martin’s, 2008), 44; J. David Markham, Napoleon for Dummies: A Guide for the Rest of Us!, (Hoboken: Wiley Publishing, Inc., 2005), 106.
  39. ↑
  40. ↑ Fourth Annual Report of ICTR to the General Assembly (1999), accessed at August 13, 2014
  41. ↑ Sixth Annual Report of ICTY to the General Assembly (1999) accessed at March 23, 2007

Further reading

External links

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