Against Our Will: Men, Women, and Rape (5 page)

Under Talmudic interpretation, a raped virgin was no longer required to marry her rapist.
If
she had acquired a semi-indepen dent status and her age fell between three and twelve and a half the rabbis were real sticklers about the age of bona fide virgins she was permitted to receive the fine of fif ty coins herself . Allowing a female to keep the money tampered with the hallowed concept of rape as the thef t of virginity. In time the award came to be seen as punitive damage for injury to a female's body, as well as pay ment for enjoying sexual intercourse with a virgin. This was real progress for women, hard won. The great Jewish theologian Maimonides was forever arguing that in his view a raped virgin had no right to receive monetary compensation. He did not prevail.*

Concepts of rape and punishment in early English law are a

*
Maimonides dominated Jewish philosophic thought in the twelfth century and beyond, but on matters pertaining to women this strict constructionist was of ten overruled by other rabbis.
It
is a little-known fact that in addition to his other accomplishments, the great Maimonides was the author of a slen der sex manual that had quite a vogue in its day. Women figure hardly at all in his little book, which is mainly about food. Not to put too fine a point on it, Maimonides' manual is a collection of recipes guaranteed by the author to sustain an erection.

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AGMNST OUR WILL

wondrous maze of contradictory approaches reflecting a gradual humanization of jurisprudence in general, and in particular, man's eternal confusion, never quite resolved, as to whether the crime was a crime against a woman's body or a crime against his own estate.

Before the Norman Conquest of
1066
the penalty for rape was

death and dismemberment, but this stern justice pertained exclu sively to the man who raped a highborn, propertied virgin who lived under the protection of a powerful lord. Feudalism took root in the early Middle Ages as ownership of land became an inherited right, "the lands passing by immemorial custom from father to son . . . maintained, among other ways by the system of wardship and marriage." Since females were allowed to inherit property, a matter of necessity if there were no extant male heirs, "trading in marriages," to borrow a telling phrase from G. G. Coulton, was a lucrative enterprise among the nobility, practiced in much the same manner ''as men trade in shares and investments today." For obvious economic reasons a landed heiress could not marry without permission of her overlord, under penalty of losing her inherited fortune. Yet once the nuptials had taken place, their legal and churchly sanctity could not be challenged, and so the custom of "stealing an heiress" by forcible abduction and marriage became a routine method of acquiring property by adventurous, upward mobile knights. As a matter of record, not until a fif teenth-century edict of Henry VII was heiress-stealing ruled a felony unto itself .

Gothic literature has made heiress-stealing a subject of great romance, replete with midnight assignations, loyal maidservants and a great thundering of horses' hooves, but in actuality it was predicated on the desire for land, not love.
If
a captured virgin managed to escape before her forced marriage, or if an errant knave had merely taken her on the spot, she could attempt to seek redress in the court of her lord's manor. Trial for capital crime in those days was by physical ordeal, and grueling tests by water and hot irons were probably employed to arrive at the "truth."

Henry of Bratton ( Bracton ) , who lived and wrote in the thir teenth century, is our best authority for these ancient Saxon times, accepted by Coke, Hale and Blackstone, the later giants of English jurisprudence. Bracton informs us that during the tenth-century rule of King Athelstan, if a man were to throw a virgin to the

ji j
ground against her will, "he forfeits the King's grace; if he shame-

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lessly disrobes her and places himself upon her, he incurs the loss of all his possessions; and if he lies with her, he incurs the loss of his life and members." Vengeance did not stop at death, for, Bracton continued, "even his horse shall to his ignomy be put to shame upon its scrotum and tail, which shall be cut off as close as possible to the buttocks." A similar fate awaited the rapist's dog, and if he happened to own a hawk, "Let it lose its beak, its claws and its tail."

Af ter his animals were cropped and his own human life was taken, a rapist's land and money were supposed to be given to the ravished virgin. But one manner of redemption was possible. As a benevolent way of saving him from terrible death, a raped virgin might be permitted by King and Church to accept her ravisher in marriage. Since consolidation of property was uppermost in the minds of men, we may assume that a violated virgin was encour aged or
not
encouraged toward matrimony depending on which arrangement of the land was most beneficial, or least inconvenien t, to the domain of Church and King.

Punishmen t for raping a virgin of property was thoughtfully reduced to castration and the loss of both eyes by William the Conqueror. The mode of trial under William also switched from ordeal to combat, so we may assume that u nless the stakes were high, few virgins were actually championed by their chivalrous kin. Speaking to this point, the English legal historians Pollock and Maitland remark, "In one respect a woman's capacity of suing was curtailed by her inability to fight."

Castration and blinding was still the appropriate penalty for raping a virgin in Bracton's day and he explained the law's intent "member for member"-with these words: "Let him lose his eyes which gave him sight of the virgin's beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust."

King Henry II, the Plantagenet who married Eleanor of Aqui taine, brought the principles of Frankish law to England during his twelfth-century reign.
If
a raped virgin filed a civil suit or "appeal" and an indictment was obtained, the resulting trial was by jury in the king's assize instead of by combat or duel. This was clearly an advance in procedures. Bracton was most meticulous as to the proper form the suit should take. He entitled his instructions "An appeal concerning the rape of virgins." An appeal concerning the

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rape of nonvirgins does not appear anywhere in his compendium, for Bracton was describing the king's jurisdiction, which by this time included murder, mayhem and major thef t. "Minor" offenses were still being handled by the manorial courts. In fact, Bracton tells us that a raped virgin's appeal and a wife's appeal in the matter of a husband "slain within her arms" were the only suits a woman could bring to the courts of the king. The procedure a raped virgin was to follow went like this:

She must go at once and while the deed is newly done, with the hue and cry, to the neighboring townships and there show the in

jury done to her to men of good repute, the blood and her clothing
stained with blood, and her torn garments. And in the same way

she ought to go to the reeve of the hundred, the king's serjeant, the coroners and the sheriff. And let her make her appeal at the first county court, unless she can at once make her complaint directly to the lord king or his justices, where she will be told to sue at the county court. Let her appeal be enrolled in the coroners' rolls, every word of the appeal, exactly as she makes it, and the year and day on which she makes it. A day will be given her at the coming of the jus tices, at which let her again put forward her appeal before them, in the same words as she made it in the county court, from which she is not permitted to depart lest the appeal fall because of the vari-ance . . .