More on Ravishment!
Someone asked which Blackstone I was quoting for my definition. This is from COMMENTARIES, Book Four (Public Wrongs) Chapter XV (Of Offenses Against the Person of Individuals) sections III.
I quote it here in full because of the inherent interest in the subject. One can trace the evolution of the elements of the crime of rape away from a property crime against the father of the victim to a crime against the victim herself. The term ‘civil law’ is a term of art, and refers to the Roman law.
III. A THIRD OFFENCE, against the female part also of his majesty’s subjects, but attended with greater aggravation than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law, was punished with death in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel’s father, and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law.
The civil law punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offence of forcibly dishonouring them; either of which without the other is in that law sufficient to constitute a capital crime. Also, the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor’s edict, whether she consent or is forced: “sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum.” And this, in order to take away from women every opportunity of offending in this way; whom the Roman law supposes never to go astray without the seduction and art of the other sex: and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. “Si enim ipsi raptores metu, vel atrocitate pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere.” But our English law does not entertain quite such sublime ideas of the honour of either sex as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient in the crime of rape that it must be against the woman’s will.
Rape was punished by the Saxon laws, particularly those of king Athelstan, with death; which was also agreeable to the old Gothic or Scandinavian constitution. But this was afterwards thought too hard; and in its stead another severe but not capital punishment was inflicted by William the Conqueror, viz., castration and loss of eyes; which continued till after Bracton wrote, in the reign of Henry the Third. But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape) that the woman should immediately after, “dum recens fuerit maleficium,” go to the next town, and there make discovery to some credible person of the injury she has suffered, and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage. This seems to correspond in some degree with the laws of Scotland and Aragon, which require that complaint must be made within twenty-four hours; though afterwards, by statute Westm. 1, c. 13, the time of limitation in England was extended to forty days. At present there is no time of limitation fixed; for as it is usually now punished by indictment at the suit of the king, the maxim of law takes place that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the former period also it was held for law that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.
In the 3 Edw. I., by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within age, (that is, twelve years old,) either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days, and subjecting the offender only to two years’ imprisonment and a fine at the king’s will. But, this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw. I., found necessary to make the offence of forcible rape felony, by statute Westm. 2,c. 34. And by statute 18 Eliz. c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony, as well since as before the statute of queen Elizabeth; but that law has in general been held only to extend to infants under ten, though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. 1, the law with respect to their seduction not having been altered by either of the subsequent statutes.
A male infant under the age of fourteen years is presumed by law incapable to commit a rape, and therefore, it seems, cannot be found guilty of it. For though in other felonies malitia supplia ætatem, as has in some cases been shown, yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.
The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind; not allowing any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not judge so hardly of offenders as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life: for, as Bracton well observes, “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus consentire noluit.”
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
