I'm not really an expert on this, though I suppose the "being a trained historian" part at least means I have some idea how to find and interpret sources...
At least as far as English law goes, part of the confusion is that there were three conflicting sources of law: traditional custom, where there wasn't really any place for strict definitions; canon law, imposed by the Church; and Statute law, laid down by the King and Parliament. As far as I can discover, the earliest formal legal definition of rape in England came from King Edward I's Statute of Westminster in 1275:
"The King prohibits that anyone should ravish or take away by force any underage girl (neither by her own consent, nor without), nor any wife or maiden of full age nor any other woman against her will."
So consent was there from the beginning.
However, when we come to canon law, the picture gets murkier. The Church considered any sexual activity between unmarried people to be sinful, and it had the power to impose fines on offenders. Canon law used the same word raptus, which is the origin of our own word rape, to describe both what we'd call rape today -- but also instances of seduction and even elopement where the woman was consenting, but acting without the sanction of society and her parents or husband. That's why mediaeval court cases have instances of both the man and the woman being punished for a crime of "raptus", or even them being ordered to marry each other to make things legal. The idea that a woman was 'defiled' by having sex outside marriage, and that this, rather than the question of her consent, was what most deserved punishment, was therefore much stronger in the writings of Church authorities like Gratian than in secular law codes of the time.
Of course, canon law applied everywhere in Europe while English statute law was obviously confined to England. I don't know what the secular laws in mediaeval Austria or the Heiliges Römisches Reich had to say on the matter... (or what Roman law said).
I don't know the answer to your last question, I'm afraid.
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carisma_sensei
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Date: Jun. 8th, 2010 05:35 pm (UTC)At least as far as English law goes, part of the confusion is that there were three conflicting sources of law: traditional custom, where there wasn't really any place for strict definitions; canon law, imposed by the Church; and Statute law, laid down by the King and Parliament. As far as I can discover, the earliest formal legal definition of rape in England came from King Edward I's Statute of Westminster in 1275:
"The King prohibits that anyone should ravish or take away by force any underage girl (neither by her own consent, nor without), nor any wife or maiden of full age nor any other woman against her will."
So consent was there from the beginning.
However, when we come to canon law, the picture gets murkier. The Church considered any sexual activity between unmarried people to be sinful, and it had the power to impose fines on offenders. Canon law used the same word raptus, which is the origin of our own word rape, to describe both what we'd call rape today -- but also instances of seduction and even elopement where the woman was consenting, but acting without the sanction of society and her parents or husband. That's why mediaeval court cases have instances of both the man and the woman being punished for a crime of "raptus", or even them being ordered to marry each other to make things legal. The idea that a woman was 'defiled' by having sex outside marriage, and that this, rather than the question of her consent, was what most deserved punishment, was therefore much stronger in the writings of Church authorities like Gratian than in secular law codes of the time.
Of course, canon law applied everywhere in Europe while English statute law was obviously confined to England. I don't know what the secular laws in mediaeval Austria or the Heiliges Römisches Reich had to say on the matter... (or what Roman law said).
I don't know the answer to your last question, I'm afraid.