When medieval European governments began to nationalize criminal justice, rape shifted from a tort against a husband or father to a crime against the state, which ostensibly represented the interests of women and society but in practice tilted the scales well toward the side of the accused. The fact that a false charge of rape is easy to make and hard to defend against was used to put an insuperable burden of proof onto the prosecutrix, as a rape victim was termed in many legal codes. Judges and lawyers sometimes claimed that a woman could not be forced into sex against her will because “you can’t thread a moving needle.”
36
Police often treated rape as a joke, pressing the victim for pornographic details or dismissing her with wisecracks like “Who’d want to rape you?” or “A rape victim is a prostitute that didn’t get paid.”
37
In court, the woman often found herself on trial together with the defendant, having to prove that she did not entice, encourage, or consent to her rapist. In many states women were not allowed to serve on juries for sex crimes because they might be “embarrassed” by the testimony. 38
The prevalence of rape in human history and the invisibility of the victim in the legal treatment of rape are incomprehensible from the vantage point of contemporary moral sensibilities. But they are all too comprehensible from the vantage point of the genetic interests that shaped human desires and sentiments over the course of evolution, before our sensibilities were shaped by Enlightenment humanism. A rape entangles three parties, each with a different set of interests: the rapist, the men who take a proprietary interest in the woman, and the woman herself. 39
Evolutionary psychologists and many radical feminists agree that rape is governed by the economics of human sexuality. As the feminist writer Andrea Dworkin put it, “A man wants what a woman has—sex. He can steal it (rape), persuade her to give it away (seduction), rent it (prostitution), lease it over the long term (marriage in the United States) or own it outright (marriage in most societies).”
40
What evolutionary psychology adds to this analysis is an explanation of the resource that backs these transactions. In any species in which one sex can reproduce at a faster rate than the other, the participation of the slower-reproducing sex will be a scarce resource over which the faster-reproducing sex competes.
41
In mammals and many birds it is the female who reproduces more slowly, because she is committed to a lengthy period of gestation, and for mammals, lactation. Females are the more discriminating sex, and the males treat restrictions on their access to females as an obstacle to be overcome. Harassment, intimidation, and forced copulation are found in many species, including gorillas, orangutans, and chimpanzees.
42
Among humans, the male may use coercion to get sex when certain risk factors line up: when he is violent, callous, and reckless by temperament; when he is a loser who cannot attract sexual partners by other means; when he is an outcast and has little fear of opprobrium from the community; and when he senses that the risks of punishment are low, such as during conquests and pogroms.
43
Around 5 percent of rapes result in pregnancies, which suggests that rape can bring an evolutionary advantage to the rapist: whatever inclinations sometimes erupt in rape need not have been selected against in our evolutionary history, and may have been selected for.
44
None of this, of course, implies that men are “born to rape,” that rapists “can’t help it,” or that rape is “natural” in the sense of inevitable or excusable. But it does help explain why rape has been a scourge in all human societies.
The second party to a rape is the woman’s family, particularly her father, brothers, and husband. The human male is unusual among mammals in that he feeds, protects, and cares for his offspring and for their mother. But this investment is genetically risky. If a man’s wife has a secret dalliance, he could be investing in another man’s child, which is a form of evolutionary suicide. Any genes that incline him to be indifferent to the risk of cuckoldry will lose out over evolutionary time to genes that incline him to be vigilant. As always, genes don’t pull the strings of behavior directly; they exert their influence by shaping the emotional repertoire of the brain, in this case, the emotion of sexual jealousy.
45
Men are enraged at the thought of their partner’s infidelity, and they take steps to foreclose that possibility. One step is to threaten her and her prospective partners and to enforce the threat when necessary to keep it credible. Another is to control her movements and her ability to use sexual signals to her advantage. Fathers too can display a proprietariness toward their daughters’ sexuality that looks a lot like jealousy. In traditional societies, daughters are sold for a bride-price, and since a virgin is guaranteed not to be bearing another man’s child, chastity is a selling point. Fathers, and to some extent brothers and mothers, may try to protect this valuable resource by keeping their girls chaste. The elder generation of women in a society also have an incentive to regulate the sexual competition from the younger one.
Of course, women as well as men are jealous of their partners, as a biologist would predict from the fact that men invest in their offspring. A man’s infidelity brings the risk that his investment stream will be alienated by another woman and the children he has with her, and this risk gives his partner an incentive to keep him from straying. But the costs of a partner’s infidelity are different for the two sexes, and accordingly a man’s jealousy has been found to be more implacable, violent, and tilted toward sexual (rather than emotional) infidelity.
46
In no society are women and in-laws obsessed with the virginity of grooms.
The motives shaped by evolutionary interests do not translate directly into social practices, but they can impel people to lobby for laws and customs that protect those interests. The result is the widespread legal and cultural norms by which men recognize each other’s right to control the sexuality of their wives and daughters. The human mind thrives on metaphor, and in the case of women’s sexuality the recurring figure of thought is
property
.
47
Property is an elastic concept, and laws in various societies have recognized the ownership of intangibles such as airspace, images, melodies, phrases, electromagnetic bandwidth, and even genes. It’s no surprise, then, that the concept of property has also been applied to the ultimate in unpossessability: sentient humans with interests of their own, such as children, slaves, and women.
In their article “The Man Who Mistook His Wife for a Chattel,” Margo Wilson and Martin Daly have documented that traditional laws all over the world treat women as the property of their fathers and husbands. Property laws entitle owners to sell, exchange, and dispose of their property without encumbrance, and to expect the community to recognize their right to redress if the property is stolen or damaged by others. With the woman’s interests unrepresented in this social contract, rape becomes an offense against the enfranchised men who own her. Rape was conceptualized as a tort for damaged goods, or as the theft of valuable property, as we see in the word
rape
itself, a cognate of
ravage, rapacious
, and
usurp
. It follows that a woman who was not under the protection of a highborn, propertied man was not covered by rape laws, and that the rape of a wife by her husband was an incoherent notion, like stealing one’s own property.
Men may also protect their investment by holding the woman strictly liable for any theft or damage of her sexual value. Blaming the victim forecloses any possibility of her explaining away consensual sex as rape, and it incentivizes her to stay out of risky situations and to resist a rapist regardless of the costs to her freedom and safety.
Though the more blatant tropes of the women-as-property metaphor were dismantled in the late Middle Ages, the model has persisted in laws, customs, and emotions into the recent present.
48
Women, but not men, wear engagement rings to signal they are “taken,” and many are still “given away” at their weddings by their fathers to their husbands, whereupon they change their surname accordingly. Well into the 1970s marital rape was not a crime in any state, and the legal system underweighted the interests of women in other rapes. Legal scholars who have studied jury proceedings have discovered that jurors must be disabused of the folk theory that women can be negligently liable for their own rapes—a concept not recognized in any contemporary American code of law—or it will creep into their deliberations.
49
And in the realm of the emotions, husbands and boyfriends often find themselves cruelly unsympathetic to their partners after they have been raped, saying things like “Something has been taken from me. I feel cheated. She was all mine before and now she’s not.” It’s not uncommon in the aftermath of a rape for a marriage to unravel.
50
And finally we get to the third party to the rape: the victim. The same genetic calculus that predicts that men might sometimes be inclined to pressure women into sex, and that the victim’s kin may experience rape as an offense against themselves, also predicts that the woman herself should resist and abhor being raped.
51
It is in the nature of sexual reproduction that a female should evolve to exert control over her sexuality. She should choose the time, the terms, and the partner to ensure that her offspring have the fittest, most generous, and most protective father available, and that the offspring are born at the most propitious time. As always, this reproductive spreadsheet is not something that a woman calculates, either consciously or unconsciously; nor is it a chip in her brain that robotically controls her behavior. It is just the backstory of why certain emotions evolved, in this case, the determination of a woman to control her sexuality, and the agony of violation when it has been forcibly wrested from her.
52
The history of rape, then, is one in which the interests of women had been zeroed out in the implicit negotiations that shaped customs, moral codes, and laws. And our current sensibilities, in which we recognize rape as a heinous crime against the woman, represent a reweighting of those interests, mandated by a humanist mindset that grounds morality in the suffering and flourishing of sentient individuals rather than in power, tradition, or religious practice. The mindset, moreover, has been sharpened into the principle of
autonomy:
that people have an absolute right to their bodies, which may not be treated as a common resource to be negotiated among other interested parties. 53Our current moral understanding does not seek to balance the interests of a woman not to be raped, the interests of the men who may wish to rape her, and the interests of the husband and fathers who want to monopolize her sexuality. In an upending of the traditional valuation, the woman’s ownership of her body counts for everything, and the interests of all other claimants count for nothing. (The only tradeoff we recognize today is the interests of the accused in a criminal proceeding, since his autonomy is at stake too.) The principle of autonomy, recall, was also a linchpin in the abolition of slavery, despotism, debt bondage, and cruel punishments during the Enlightenment.
The idea, seemingly obvious today, that rape is always an atrocity against the rape victim was slow in catching on. In English law there had been some rebalancing toward the interests of victims in the late Middle Ages, but only in the 18th century did the laws settle into a form that is recognizable today.
54
Not coincidentally, it was also during that era, the age of Enlightenment, that women’s rights began to be acknowledged, pretty much for the first time in history. In a 1700 essay Mary Astell took the arguments that had been leveled against despotism and slavery and extended them to the oppression of women:
If absolute Sovereignty be not necessary in a State how comes it to be so in a Family? or if in a Family why not in a State? since no reason can be alleg’d for the one that will not hold more strongly for the other....
If
all Men are born free,
how is it that all Women are born slaves? As they must be if the being subjected to the
inconstant, uncertain, unknown, arbitrary
Will of Men, be
the perfect Condition of Slavery
?
55
It took another 150 years for this argument to turn into a movement. The first wave of feminism, bookended in the United States by the Seneca Falls Convention of 1848 and the ratification of the Nineteenth Amendment to the Constitution in 1920, gave women the right to vote, to serve as jurors, to hold property in marriage, to divorce, and to receive an education. But it took the second wave of feminism in the 1970s to revolutionize the treatment of rape.
Much of the credit goes to a 1975 bestseller by the scholar Susan Brownmiller called
Against Our Will.
Brownmiller shone a harsh light on the historical indulgence of rape in religion, law, warfare, slavery, policing, and popular culture. She presented contemporary statistics on rape and first-person accounts of what it is like to be raped and to press charges of rape. And Brownmiller showed how the nonexistence of a female vantage point in society’s major institutions had created an atmosphere that made light of rape (as in the common quip “When rape is inevitable you might as well lie back and enjoy it”). She wrote at a time when the decivilizing process of the 1960s had made violence a form of romantic rebellion and the sexual revolution had made lasciviousness a sign of cultural sophistication. The two affectations are more congenial to men than to women, and in combination they made rape almost chic. Brownmiller reproduced discomfitingly heroic portrayals of rapists in middlebrow and highbrow culture, together with cringe-inducing commentaries that assumed that the reader sympathized with them. Stanley Kubrick’s 1971 film
A Clockwork Orange
, for example, featured a Beethoven-loving rapscallion who amused himself by beating people senseless and by raping a woman before her husband’s eyes. A reviewer from
Newsweek
exclaimed:
At its most profound level,
A Clockwork Orange
is an odyssey of the human personality, a statement of what it is to be truly human.... As a fantasy figure Alex appeals to something dark and primal in all of us. He acts out our desire for instant sexual gratification, for the release of our angers and repressed instincts for revenge, our need for adventure and excitement.
56