Handbook on Sexual Violence (9 page)

Temkin, J. and Krahe´, B. (2008)
Sexual Assault and the Justice Gap; a question of attitude
.

Oxford: Hart.

Chapter 1
‌

Sexual violence in history: a contemporary heritage?

Shani D’Cruze

Meet Shani D’Cruze

Shani D’Cruze first found herself researching the history of sexual violence when the 99 per cent male academic department where she was a junior researcher proposed a project on that topic. The department soon gave up the idea, but she went on eventually to publish a monograph,
Crimes of Outrage: Sex, Violence and Victorian Working Women
(UCL Press 1998). Most of her academic publications are on gender and the history of violence. After a career based in English universities she has run away to Greece where she combines academic research and writing with Cretan rural living. She is currently Honorary Reader in the Research Institute for Law, Politics and Justice at Keele University. Recent publications include:
Murder: Social and Historical Approaches to Understanding Murder and Murderers
(with Sandra Walklate and Samantha Pegg, Cullompton: Willan Publishing 2006) and
Women, Crime and Justice since 1660
(with Louise Jackson, Basingstoke: Palgrave 2009).

Introduction

This
chapter reviews the social and cultural history of sexual violence between the medieval period and the new interpretations of Second Wave Feminism in the late twentieth century. Many of the sources historians use come from the law, the courts and the police. Therefore, much of what can be known about sexual violence in the past becomes visible when it became a matter of criminality; something that occurred only rarely. Historically, there were very few rape, attempted rape or indecent assault cases (around 1 per cent of known felonies in the Early Modern period) and much sexual violence has remained socially and criminologically opaque (Walker 1998: 1). This is perhaps especially true for sexual violence experienced by men and boys; until very recently a different legal framework was applied and the constraints on speaking publicly were often even heavier.

Recorded interpersonal violence in Western Europe declined significantly between the medieval period and the mid-twentieth century (Gurr 1981; Eisner 2003). This has been explained by increasing control through legal sanctions and a growing criminal justice system to enforce them combined with the shaping of modern social identities which privileged restraint over all kinds of bodily excesses. Consequently this ‘civilising process’ reduced interpersonal violence, mostly public violence between males intended to resolve disputes and preserve personal honour (Elias 1978; Carroll 2007). Sexual violence qualifies the ‘civilising process’ concept. Although there is a ‘dark figure’ of undisclosed and unprosecuted criminal activity of all kinds, the extremely low levels recorded since medieval times make sexual violence a special case.

In the UK in the early twenty-first century a range of studies indicate that only something like 5 per cent of rapes reported to the police end in conviction. Furthermore fewer than half of rapes are ever reported – in some studies the non-reporting figure is between 80 and 90 per cent (Bourke 2007: 390–94). While we do not have comprehensive crime figures for earlier historical periods, the very low numbers tried, together with the appearances of sexual violence in the records of different offences, suggest persuasively that there has been a consistent historical continuity in non-reporting. For this reason alone, it cannot be assumed that sexual violence has followed the long- term downward trend of other kinds of interpersonal violence. Furthermore, crime statistics have numerous shortcomings in documenting the incidence of sexual violence, and shifting perceptions and categories of sexual violence over time mean that we cannot know how much of what would now be thought of as sexual violence took place at any historical period. In fact, recent historical investigation is demonstrating that sexual violence has long been an opaque matter for criminal justice systems; both symbolically highly transgressive but difficult to read in particular instances. We cannot assume that behaviours which would now count as sexual violence were always considered as such. The injuries that laws on sexual violence were intended to punish have also changed over time. The sexed body, and violence directed towards it, are therefore produced historically at the intersections of discourse, power and pain (Scarry 1985; Bourke 2007).

The chapters in this volume each engage in different ways with Liz Kelly’s feminist concept of sexual violence as a continuum of behaviours that are threatening, degrading, or humiliating within the context of intimate contact (Kelly 1987, 1988). Historically, the criminal justice process since the medieval period, the Early Modern church courts which policed sexual matters as sin rather than as violence, and the medico-legal constitution of offenders and victims especially since the nineteenth century, have all tended to define sexual violence both narrowly and imprecisely. Those who have experienced sexual violence have frequently been held as at least in part culpable. Of course, it was central to the feminist politics of Liz Kelly’s research to demonstrate the limitations of pre-existing definitions and to place the blame for sexual violence emphatically with the perpetrator. However, the idea of a continuum of violence does have some limitations in historical analysis. It is a concept that emerges out of feminist readings of modern sexual identities and

as such mounts a powerful critique of the insidious presence of violence in contemporary sexual culture. Superficially, the same kinds of things seem to have happened through history. As a feminist researcher one recognises and empathises with the stories of those who have experienced sexual violence, even in the far distant past. However, it is also important to distinguish this emotional and political reaction from historical analysis. Historians are now sensitive to the histories of superficially timeless aspects of human existence. The body, sexuality, reproduction, intimacy and emotion are physiological and psychological ‘facts of life’ but they are also culturally produced and reproduced and shift over time in meaning and how they are experienced. It is therefore questionable how far we can read back modern formulations of sexual violence into past societies in which both violence and sexuality figured rather differently than they do today.

This is not to say that modern feminist theory, such as the idea of the continuum of violence, has been ignored in historical analysis. Recently, gender historians have read the historical material against the grain, looking outside of the criminal justice system’s own definitions and boundaries. The historical record is inevitably incomplete and these interpretations are always contingent and often tentative, though they are expanding knowledge about the intersections of violence and sexuality over time. Furthermore, the changing nature of the sources means that different questions can be asked and answered for different periods and also the varying concerns of historians researching specific eras means that sexual violence crops up rather differently in their writing. Nevertheless, it is possible to detect changing perceptions of sexual violence in the law, medicine, psychiatry and later psychology from the nineteenth century which, by the twentieth century, coincided with recognisably modern sexualities. In the later twentieth century, a new generation of feminists challenged the blind spots about power and gender in these dominant perceptions both theoretically and politically, not least by developing concepts such as the continuum of sexual violence.

Rape law and medieval society

Research on the medieval period has explored the origins of the laws on sexual violence. These differed from current formulations, but established principles and assumptions which proved historically enduring, despite the changes in the social contexts of sexual violence which were brought about by centuries of historical change. Social experience of sexual violence and people’s uses of the medieval courts are harder to recover, but there are indications of tensions between the written law, legal practice and individuals’ sense of injury (Carter 1982, 1985).

There were few cases of sexual violence in the medieval legal system and the conviction rate was significantly lower than for other crimes (Jones 2006: 78). This period saw the growth of written law and the development of criminal justice. The individual harm to women and girls was de-emphasised in new statute law on rape (Gourlay 1996). The trend was to conflate laws against rape (bodily sexual assault) with the punishment of
raptus
or

ravishment (the abduction of women, in particular of virgins).
Raptus
/ ravishment was a crime against property, and as such it attracted severe punishment (Bashar 1987). It was also sometimes used to prosecute the abduction of male servants, or to discipline clergy who had reneged on celibacy (Hawkes 2007: 126; Jones 2006: 77; Bullough 1982). These laws were a complex and uncertain amalgam of two evolving legal traditions. Roman law, as adopted in continental Europe, also underpinned the ecclesiastical law enforced in the English church courts. This gave greater emphasis to the element of abduction. A more oral Germanic tradition, originating in Anglo- Saxon England, distinguished rape from abduction and treated rape as personal injury and the loss of a woman’s sexual reputation – something vital for her social worth. In post-Conquest England the formal (rarely applied) penalty was castration and blinding (Saunders 2001: 73–6). The law on
raptus
did not address sexual violence against men and boys. Sodomy, a moral crime for which both parties were triable, was a matter dealt with, if at all, by the ecclesiastical courts (Bray 1990).

Two key statutes known as Westminster I and II of 1275 and 1285 first codified the shift in the law on rape (Post 1978). Following the Westminster statutes ravishment was a capital felony defined as the abduction of a woman without her consent or, if she was under 14, irrespective of consent. Even if a woman subsequently consented, the crime was still to be tried and she was to be barred from any inheritance, thus dealing with situations where an abduction was the cover for (voluntary) elopement (Jones 2006: 77). Furthermore, the King was given the right to prosecute the crime if a woman had not lodged the case within 40 days. A statute of 1382 extended the right to prosecute to a woman’s male kin or guardians (Saunders 2001: 37; Baines 1998: 70).

The growth of the law and legal process in the medieval period was a consequence of monarchs’ attempts to establish a countrywide system of justice which would ensure the ‘king’s peace’ over and above the authority of local, manorial courts (Harding 1973). Punishment for all kinds of offences was generally more severe for those of lower social status (Hanawalt 1975). The law aimed to maintain social inequalities, including but by no means exclusively those of gender. The rape of virgin heiresses or nuns attracted higher penalties than that of poorer, lower-status women. An Act of 1487 specifically excluded bond women (servants) from the protection of the law on rape (Hawkes 2007: 127).

Following the Norman Conquest, primogeniture, the inheritance of property by the eldest legitimate (male) heir, became more common. Questions of family, legitimacy, the regulation of reproduction (and hence the control of women’s sexuality) were important to property transfer. There was therefore an overlap in the law’s intention to punish both sexual violence and the encroachment on the rights of fathers, husbands or other male kin to control a woman’s sexuality and reproductive capacity (Saunders 2001: 48). The laws on ravishment served the interests of the wealthy, and some cases amounted to dynastic power struggles fought out over the bodies of elite women. However, many cases were originated by women of more moderate social status.

In Emma Hawkes’s study of 132 later fourteenth-century indictments, around two thirds of cases involved married women and where the violence was against single women, the loss of virginity was not emphasised. However, indictments for the
raptus
or ravishment of wives also often mentioned the theft of their husbands’ property. On marriage women’s material possessions became legally owned by their husbands; the abduction of a wife meant the theft of the husband’s property in her clothing and personal items. Although medieval women were not chattels, women, reputation and family or household property were closely associated. Hawkes finds that indictments were careful to use different words to distinguish property theft from sexual violence. The prosecutions focused on personal injury, but in the legal instrument which defined the crime, elements of property, theft and the wrongs to male kin remained closely associated (Hawkes 2007).

Prosecuting a case was arduous for the woman or girl involved. It required prompt and rational action following the attack, the humiliating display of her violated body to male authority figures, repeated visits to court and having to remember and repeat her charge word for word (Saunders 2001: 63; Hanawalt 1978: 34, 61). The legal formulae required were precise; any error or deviation could lose the case. Declaring rape in public jeopardised sexual chastity and the possibility of future marriage. There was a requirement to show resistance, but this in itself could indicate a lack of feminine respectability. The problems of proof were exacerbated since pregnancy was widely taken as evidence of sexual consent, the theory being that conception required the sexual pleasure of women as well as men. Many cases were settled out of court or abandoned, sometimes with a cash settlement and sometimes by marriage. Where the woman or girl who brought the original complaint used the older legal process of appeal she was subject to imprisonment if the case was abandoned. Women bringing unsuccessful charges of rape might also face charges of defamation or fornication (Jones 2006: 78). Even if a verdict was obtained punishment was often light (Kittel 1982; Orr 1994; Walker 1987). However, Barbara Hanawalt has suggested that even when a rape prosecution resulted in acquittal, the opportunity to relate the events and name the accused might have proved sufficiently satisfying to ‘outweigh the danger to women’s own reputation’ (Hanawalt 1998: 133; Klerman 2002: 312).