Handbook on Sexual Violence (10 page)

The medieval laws established the legislative framework for the criminal prosecution of sexual violence against women and girls until the nineteenth century. Statutes of 1555 and 1597 indirectly established abduction and rape as separate offences. In 1576 rape became a capital felony. However, there is no sign that greater clarity in the law led either to larger numbers of charges or to a higher conviction rate (Baines 1998: 72).

Interpreting Early Modern cases

The greater production and survival of court records for the Early Modern period (the fifteenth to eighteenth centuries) has meant that by examining cases of fornication, adultery, defamation, sodomy and assault as well as those for rape and attempted rape, historians have been able to ask more detailed

questions about narrative construction and cultural meanings of sexual violence than has generally been possible for the medieval period. Both rape and sodomy were widely written about as heinous offences which destabilised social order. However, as specific criminal offences they were extremely difficult for the law to ‘see’ (Herrup 1999: 27, 29). Cases often pitted younger or lower-status complainants against adult men in a society where credibility depended on social status and where unequal social status frequently legitimated the use of force (Walker 1998: 29; Gowing 2003: 90).

As an offence, sodomy was differently positioned than rape since the ‘property’ element did not apply. Sodomy first became a secular offence in the 1530s as part of the legislative programme which accompanied Henry VIII’s break with the legal authority of the Catholic Church in England. It was defined as penetrative sex between male partners, between human and animal, or anal sex between men and women, and was an offence for both parties irrespective of consent, unless one of them was either a boy below the age of criminal responsibility (14) or a girl below the age of sexual consent (effectively 10). Male homosociality, clientage and patronage underpinned much of Early Modern public life. The idea that homosexual practice defined a distinct sexual identity emerged (arguably) only much later in the Early Modern period. Sodomy was seen as unfettered desire, and this disturbed social rather than sexual order. Sodomy was dangerous not primarily because it involved unauthorised sexual choices, nor because it might involve coercion, rather because it manifested a lack of the self-control that was becoming increasingly necessary to ideals of manhood. Because of this, ‘sodomy ‘‘existed’’ only when someone chose to see it’ (Herrup 1999: 35); that is, where a man’s conduct disturbed the prevailing social order, usually on a local or sometimes on a wider scale. King James I and Francis Bacon, Earl of Verulam were two of several examples of high-status men accused of sodomy together with other allegations of misconduct in public life (Herrup 1996, 1999: 33–4; Shepard 2003; Breitenberg 1996: 59–61).

Probably the most widely publicised case of rape and sodomy was that of the Earl of Castlehaven (1631). Castlehaven was a rare example of a high-status man found guilty and executed for sexual offences, which included abetting the rape of both his wife and daughter-in-law and sodomy with his servants. Although analyses of the case since the eighteenth century emphasise the Earl’s sexual transgression, at the time the case seemed most disturbing because of his failure to maintain proper decorum in his own household. The (orderly) Early Modern household was the microcosm of hierarchical society and the kingdom itself. During the 1630s, as King Charles I’s relations with his parliaments worsened, such disruption within an elite household had particular political resonance and mirrored what seemed rotten in the Stuart state (Herrup 1996, 1999).

Sexual violence in warfare has been a recurrent event across centuries of history and can be located at the most extreme reaches of a continuum of violence since it is about inflicting pain and humiliation on communities and nations over and above that which it causes to specific individuals. I shall take up these issues in more detail when reviewing the modern period. However, the historical nuances were equally complex at earlier periods and, as Herzog

comments, sexual violence in war has figured in the spectrum of torture, killing and mutilation visited on defeated and often civilian populations ‘in quite distinct historically and geographically specific ways’ (Herzog 2009: 4). The 1641 Irish rebellion arose from native (Catholic) Irish indignation at what they saw as the illegitimacy of the rule of the English king and the threats to their own independence and culture. Narratives of the ordeal of Protestant settlers in Ireland, seeking recognition of losses in the rebellion, included stories of rape in which the degree of wrong, blame and dishonour was adjudicated from a community perspective. Rape underlined the atrocity but only when a woman’s existing reputation was good, or the circumstances rendered blame impossible to attribute to her. Even in wartime, sexual violence was in the eye of the commentator (Hall and Malcolm 2010).

In the Early Modern period there was a cultural acceptance of women’s sexual pleasure. However, outside marriage the sexually desiring woman very often appeared tainted by ‘whorishness, witchcraft . . . [or] . . . sin’ (Gowing 2003: 85). Sexual violence is rare in Early Modern records, but some women and girls did come to court to protest against the personal injury of sexual violence even though the odds were stacked against them and they could articulate their wrongs only in muted form. This was an era that often understood emotional states through their social effects and consequences, through religion and the workings of providence, or even through the action of the supernatural, not as in modern society through interiority and the psyche. Although there are examples of women suffering emotional hurt following sexual assaults (Macdonald 1981: 87, 106), the chief injury of sexual violence was considered to be to reputation, rather than the modern view which prioritises psychological damage. Women’s reputations were crucial in shaping their social position and depended on sexual chastity even more than on their work and household duties (Walker 1996). Loss of virginity was not the only concern. Married women, who arguably had greater access to the range of metaphor and allusion with which rape could be described in court, made up the majority of the complainants in Laura Gowing’s research, which uses ecclesiastical court records (Gowing 1996, 2003). Given the cultural complexities of sexual violence and the power dynamics in the legal institutions that tried it, courtroom narratives need to be appreciated as multilayered and allusive texts which, with careful reading, can shed some light, however tangential, on sexual identities and cultures as well as on legal process.

Anthropologist Mary Douglas argued that rituals or talk about dirt and pollution sign social and cultural disruptions and things out of place (Douglas 1991). Miranda Chaytor has used a psychological approach to read the silences and metaphors in women’s court depositions, which, she proposes, were a narrative means of skirting around the shame and dishonour implicit in a woman’s description of the injury done to her. Although there was no pattern of ‘honour killing’ as can, for example, be identified in mid-twentieth century Greece (Avdela 2010), metaphors of pollution, of disruption, or assertions of honour founded in non-sexual matters provided a way of signalling the sexual violence which, Chaytor argues, might be sufficiently shameful to be repressed in direct memory (Chaytor 1995). However, as Garthine Walker points out,

such an approach tends to read modern perceptions of sexual violence back in time (Walker 1998: 1). In fact the legal definition of rape shaped seventeenth- century narratives in a variety of contexts.

Such accounts navigated understandings of sex grounded in men’s activity

and women’s passivity (Walker 1998: 3–4, 2003: 53–60; Gowing 2003: 86). Husbands’ long-established rights of ongoing sexual access to their wives meant that inequalities were easily generalised to other sexual relationships. Gender was one of several intersecting axes of subordination which together meant that women’s rights over their own bodies were constrained. Women ‘submitted’ to intercourse and submission implied consent even when forced. Women testified that they had been ‘thrown down’ when they were describing both consensual and forced intercourse (Gowing 2003: 100) and courtroom stories emphasised fear, powerlessness and silence. Other cases explained sexual violence as the perpetrator’s overweening passion and so mirrored the understanding of sodomy as excessive desire. Men’s counter- stories suggested entrapment or seduction and Capp has argued that, alongside insults alleging sexual impotence or cuckoldry, accusations of sexual violence were feared by Early Modern men and could be damaging to male reputation (Walker 1998: 9–11; Shepard 2003; Capp 1999). In general rape was described in terms of men’s violence, not of sex. One woman told how a man

tooke my horse by the bridle beateing me on the face with his fist till I was bloddy and forced me to alight telling me I should stay till morneing, and being downe he fell upon me, strugling with me, almost stranglinge me with my hood and there forceably ravished me and had the Carnall use of my bodye against my will, I cryeing out but none came to helpe me. . . . All which being done . . . [he left her].

(Walker 1998: 7)

The sexual intercourse is neither described nor elaborated by adjectival emphasis. The woman stressed her physical struggle against strangulation but when raped she called for the help of (absent) others. Few women who escaped sexual violence through their own physical force underlined the fact. Crying out, being rescued or running away were narratively more successful strategies, which could hope to distinguish a rape from the kind of forced submission which, in the dominant understanding, amounted to consent. Early-nineteenth century texts on the emerging discourse of medical jurisprudence, which inherited and documented this formulation of consent, argued that ‘contusions on various parts of the extremities and body . . . are compatible with final consent on the part of the female’ and also ‘it is to be recollected that many women will not consent without some force’ (Farr 1815: 45; Beck 1825: 55–7; cited by Clark 1987b: 17).

Because the courts aimed to police sexual morality, seventeenth-century records also include plenty of stories of consensual and enthusiastic sexual activity (particularly heterosexual). However, rape narratives which emphasised female passivity were culturally dominant. Forced intercourse outside marriage was understood as causing personal and social injury which, where it could be articulated, demanded severe punishment, but at the same

time it remained always on the map of (authorised) sexual behaviour. Within marriage, sexual violence was perhaps even harder to articulate, though by the eighteenth century at least, nervous illness was one indirect means for genteel women to signal the injuries of an abusive marriage (Foyster 2002). There was therefore a very complex relationship between such stories and sexual culture, which some historical analyses of sexual violence miss (Gowing 2003: 108–10).

For example Edward Shorter argued that the rape of adult women declined by the late nineteenth century because of the greater opportunities for consensual sex in industrial society (including earlier marriage and contraception) (Shorter 1977). Shorter was correct that the social conditions of sexuality had changed over time. However, his theory means projecting a twentieth-century model of male heterosexuality as an innate drive requiring libidinous release, back into the sixteenth and seventeenth centuries. He did not perceive how sexual cultures and sexual practices might change historically and was also overly confident in the extent to which criminal statistics might reflect the social incidence of sexual violence.

Sexual violence, sexual culture and the transition to modernity

Shorter’s work (Shorter 1975, 1982) can be positioned with other research that aims to construct metanarratives about modernisation and cultures of sexuality, family and procreation and which directly or indirectly raises questions about violence in sexual culture. Lawrence Stone argued that modern society gave greater priority to companionate sexual intimacy (Stone 1977). The egalitarian nuclear family, affective intimate relations and (by implication) consensual, romantic sex between married couples was the eventual outcome of social historical changes that originated in the middle classes from the later eighteenth century. By this token, violence should arguably have been displaced from intimate relations, including sexual ones, in parallel with the decline of public violence suggested by the ‘civilising process’.

More recent work (inspired in part by Foucault) also suggests that with the approach of modernity, sexuality became more central to identity and, by extension, that sexual violence became increasingly an aspect of sexuality. Randolph Trumbach detects cultural changes whereby a specifically homosexual identity (the third sex) took shape around sexual subcultures centred on certain inns known as ‘molly houses’ which became centres of same-sex encounter in eighteenth-century London (Trumbach 1988). Never- theless, homosexual sexual practices did not in general shape an individual’s social value in the same way as loss of chastity did for women and girls. Sexual violence and coercion in all-male locations (in the Navy or the universities) was hardly unknown though rarely became a matter for the courts. A conviction for sodomy required evidence of penetration and ejaculation, to be confirmed by two witnesses. Unsurprisingly, few acts of sodomy came to court, and even fewer where the sex was consensual. Most cases involving homosexual sex were tried as indecent assault. The evidential requirements were less exacting and the penalties imprisonment or the pillory (Hitchcock 1997: 60–4).

Both Trumbach and Hitchcock argue that the cultural priority was for eighteenth-century heterosexual men to demonstrate their difference from ‘sodomites’. Heterosexual masculinity had to be demonstrated aggressively by penetrative sex with women and avoiding masturbation and same-sex practices. Hitchcock sees masculine phallocentrism and penetrative sex replacing a pattern of premarital intimate relations that included a wide range of sexual play and avoided intercourse. This cultural change can explain the increasing numbers of illegitimate births by the early 1800s, something earlier accounted for (for example by Shorter) by the early development of industrial society, population increase and the growth of towns (Hitchcock 1997).