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History Notes > Crime and Punishment in England c.1280-c.1450 Notes

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The Medieval Law of Rape - C. Saunders (King's Law Journal, 11, 1 (2000)) pp. 19-48?Assumption that all medieval laws on rape treated women as property Rape was a topic of considerable interest and debate in the Middle Ages
~ England had its own peculiarly distinctive law of rape Late medieval law of raptus engages with contemporary concerns regarding ravishment of women
~ Key factors of status and virginity

Early Anglo-Saxon Laws:
? Came to be viewed as a distinct and grave crime against women - serious consequences for the offender
? Serious crime of devaluation - influenced by Germanic rather than Roman law
? Concepts of theft and property are central
? Yet do not blur rape and abduction in the same way as Continental and later English law
? Alfred's laws (c. 871-899) are sophisticated in discerning different sexual offences
? Compensation paid directly to women and differentiated by rank
? Distinguished from simple fornication and the woman is seen as an individual
? Growing influence of canon law blurred the distinction between rape and abduction Anglo-Norman Law Codes:
? Did not replace Anglo-Saxon law - gradually changed it with new social and political emphases
? No written laws
? Growth of a new system of punishment through physical dismemberment - castration The New Legal Scholarship:
? Continental study of Roman law
? Glanvill still sustains the typical Anglo-Saxon distinction between rape and abduction
~ Use of raptus refers exclusively to crime of rape
~ Emphasis on the rights of women - legal recognition as the victim
? Bracton - raptus is exclusively rape
~ Different categories of women
~ Gravity of raptus of virgins
~ Penalty of emasculation rather than Anglo-Saxon system of compensation
? Possibility of appeal - the woman thereby gains a legal voice 13th century Law and Practice:
? Yet Bracton only cites one example of loss of member in 1222
~ Pipe Rolls show many amercements - justices were not willing to carry out recommended penalties
? 1244 'abatement of a widow's appeal' was allowed 'because a woman can only appeal concerning the rape of her virginity'

??????Very few noblemen tried - too difficult to collate a jury of their peers Appeals may have been brought for the purpose of marriage against family wishes Walker - 'Ravishment was the forcible assumption of the rights of feudal wardship; ravishment did not mean rape or forcible coitus' (p. 34) Hanawalt - various cases of 'heir and heiress snatching'
~ Not gender specific or sexual crimes Settled with the same fine as rape - came to be little difference between cases of abduction and rape Considerably blurred by 1275
~ Westminster I shifts emphasis from loss of virginity towards abduction
~ Lessened importance of consent and including married women - due to highly political cases of abduction of noble wives, particularly in a case in Sussex in which the Crown had become involved Raptus is not to be treated as a felony but as a trespass ? fine followed by 2 years of imprisonment Concern for rights of king and family rather than those of the victim 1382 statute legally extended the object of wrong done in raptus from the woman to her family Plea of rape became a tool of families - more difficult to distinguish real rape from abduction or elopement 14th century - increasing legal concern over the crime of raptus and a legal marginalisation of the raped woman Hanawalt - because of the low value placed on life by contrast to the high value on property, this complicated legal process was rarely set in motion unless the rape was explicitly related to theft of property through abduction

Case Studies:
? Eyre of London 1321 - Reymund de Limoges raped Joan Seler who was also underage (11)
~ Acquitted due to a technicality - confusion of date
? 1313 Eyre of Kent - John raped Alice of her virginity
~ If Alice had not withdrawn her appeal, she could have torn out his eyes and cut off his testicles as the crime was committed before the 2nd Statute of Westminster
? Contrasting with these sexual cases, are others with the woman as property
? Appendix to Year Books of Edward II for 1310 - 2 cases of ravishment of wife and 'goods and chattels' where lists of the goods stolen accompany descriptions of the abduction of the wives
? 1319 - case between Alice and Roger where Alice is accused of abducting his wife and her daughter
? Trial of rape by a writ of trespass seems to have been increasingly common
? Complicated by popular medical belief that a raped woman could not conceive a child
~ 1313 Eyre of Kent - Charge of raptus brought by Joan was dismissed
~ Cornwall Eyre and in Year Books of Edward I for 1302 - clerk records words of Justice Spigurnel '...and I asked the woman whose child it was and she answered that it was W's and I said that it seemed to me that a child could not be begotten unless both were consenting parties'

?Legal practice came more and more to focus on notions of raptus as abduction and as a crime of property Language of rape as rhetoric

Medieval Women in Modern Perspective - J. M. Bennett (Washington: American Historical Association, 2000) pp. 1-49 An Early and Still Influential Conceptualisation of Medieval Women's History:
? Balance theory against practice
? Power - the true position of women 'was one neither of inferiority nor of superiority but of a certain rough-and-ready equality' (p. 4)
? Positive assessment of medieval gender roles
? Class as the critical marker of differences between women
? Power implicitly equated 'medieval women' with 'Christian wives'
~ 3 discrete social classes of feudal ladies, townswomen and countrywomen Difference and Medieval Women:
? Main categories of 'race, class and gender'
~ Yet are subcategories within these e.g. rural v. urban
? Marital status critically shaped the lives of medieval women
? Importance of religion
? Legal status - free, serf or slave
? Ethnicity - different customs and laws
? Sexual status ? medieval municipalities sought to segregate prostitutes from other women by prescribing special dress, accommodation and behaviours
? Region of Europe
? Confusion of widow with woman can lead to an overestimation of opportunities open to medieval women
? Greater similarity across classes than men
? Male privilege, not sexual egalitarianism
? 'in a medieval village, a young woman might have forfeited important legal rights when she married - thereafter, her husband could speak for her in court and control her land or earnings - but she gained a great deal in return: greater economic security (because husbands earned higher wages and held more land); enhanced social status (because marriage was normative); a more secure venue for sexual expression (because only sex within marriage was sanctioned by the Church); and, if she was lucky, the pleasures of a loving husband and loving children.' (p. 11) Women's Status during the Middle Ages and Beyond:
? Need to beware of overarching generalisations
? 'Patriarchal equilibrium' - stasis rather than change might best describe women's status across the centuries
? Change but much continuity - 'ever-fluid but self-adjusting system of male dominance' (p. 16)
? Women always had a low status in comparison to others, even if their individual prosperity may have increased

Medieval Ideologies of Gender:
? Power - medieval thought about women was 'an inconsistent and contradictory thing' (p. 20)
? Dichotomy between caricatures of Eve and veneration of the Virgin
? Virginity made women admirable but it also made them not-women
~ A virgin nun was seen as a virago - a woman who had triumphed over the base sexual urges characteristic of her sex
? Intercessory acts of the Virgin
? Legal practice of coverture - whereby a married woman's rights to property were largely ceded to her husband
? Medieval culture was misogynous but it was an ambivalent sort of woman-hating, cloaked in misogamy (hatred of marriage) as well as misogyny and strongly inflected by humour, genre and tradition
? Was misogyny a mere literary pastime?
? Yet they suffered from these ideas
~ Were perceived as naturally greedy, oversexed and untrustworthy - male brewsters came to be preferred to supposedly unruly brewsters and eventually commercial brewing became a trade of men
~ All women were thought to use sex in order to gain money, position and advantage
~ Karras - the prostitute was seen as 'simply the market-orientated version of a more general phenomenon' (p. 23)
? Also a long standing defence of women tradition
~ Declared God's special concern for women
~ Rejected culpability of Eve
~ Listed exemplary women from the past
~ Asserted women's moral superiority over men
? Literature written by women
? Stories about women being disruptive - female resistance
? Struggle with simultaneous humanity and otherness of women - necessary but inferior, needed to act but never freely, could be saved but were evil

Crime in Medieval Europe 1200-1550 - T. Dean (Harlow: Pearson Education, 2001) pp. 73-95?

Widespread practice of social endogamy Importance of marriage

Gender and Crime:
? Violence is often claimed to be a gendered behaviour
~ Part of masculinity and not the construct of femininity
~ Yet has recently been argued that violence was part of a culture of honour and shame which women participated in as much as men
? England mid-13th century - less than 10% of accused killers were women and in the 1st
1/2 of the 14th century women were accused of only 10% of felonies
? Women were prosecuted very little for homicide
? Physical violence had different objects and was more against other women and without actual weapons - rarely life-threatening
? Prosecuted little for fraud or counterfeiting
? Petty theft more than robbery
? Abused positions of trust rather than confronting victims with force
? Predominantly female crimes of infanticide and infraction of sumptuary laws????

In law courts, it has been suggested that they were arrested less often and punished less severely Can also postulate that women's disputes were taken less seriously and denounced less often 13th century manual Modus Tenendi Curiae on English court procedure - 'all bloodshed by to be presented in the hundred , save mere squabbles among boys and old women
~ Women are reduced to role of children - impotent and with no criminal responsibility In England, a woman was allowed to make a private appeal only in 3 specific cases - her husband killed in her arms, her own virginity ravished or an infant slain in her womb
~ Accusations made outside these limits were not allowed to proceed Even victims of rape found it difficult to press their case Yet also found it easier to escape severe punishment
~ In law, penalties were to be equal in gravity with variations only in mode of execution - death by fire for women rather than by the rope
~ In practice, women found it easier to obtain pardon or release from prison
~ Were less frequently subject to corporal punishments such as whipping Argument of feebleness - fragilitas sexus
~ Used by jurists and judges to justify lighter punishment of women In England, when husband and wife acted together in committing a crime, jurors would convict the husband but acquit the wife on the grounds that she 'could not contradict her husband's wishes'
~ Marriage was seen as removing some of woman's moral responsibility

~ Similarly, it was the husbands in England who were prosecuted when their wives were suspected of thieving Infanticide:
? Very low number of prosecutions
? Diocese of Canterbury - about 1 a year
? Dealt with entirely by the ecclesiastical courts - sin requiring penance rather than a crime requiring punishment
? Canterbury Church court - same prosecution as cases of negligence such as overlaying
? Reflect positions of unmarried lay woman - could not afford, financially or morally, the burden of an illegitimate child Rape:
? Stands out for apparent ineffectiveness of the law
? Powell's study of the Midlands in the first 3 decades of the 15th century - were 280 indictments for rape but not a single conviction
? 1275 - law was changed to allow state prosecution
~ Yet only residual power if no private accusation was made within 40 days
? Increasingly severe approach to autonomous choice - ideas of elopement
? Greater emphasis on the injury of the father or the husband than the woman
? 1382 Statute of Rapes - disinherited both the ravisher and his 'victim' ? prosecution by woman's family
? Difficulties of proof Prostitution:
? Rape victims could become prostitutes
? Yet this conceals the facts of cooperation
? Constant tension between exclusion and integration
? Could be seen as useful in combating sodomy and adultery

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