DATE DOWNLOADED: Wed Aug 2 13:04:36 2023
SOURCE: Content Downloaded from HeinOnline
Citations:
Please note: citations are provided as a general guideline. Users should consult their preferred
citation format's style manual for proper citation formatting.
Bluebook 21st ed.
Cyril J. Smith, History of Rape and Rape Laws, 60 WOMEN LAW. J. 188 (1974).
ALWD 7th ed.
Cyril J. Smith, History of Rape and Rape Laws, 60 Women Law. J. 188 (1974).
APA 7th ed.
Smith, C. J. (1974). History of rape and rape laws. Women Lawyers Journal, 60(4),
188-207.
Chicago 17th ed.
Cyril J. Smith, "History of Rape and Rape Laws," Women Lawyers Journal 60, no. 4
(Fall 1974): 188-207
McGill Guide 9th ed.
Cyril J. Smith, "History of Rape and Rape Laws" (1974) 60:4 Women Law J 188.
AGLC 4th ed.
Cyril J. Smith, 'History of Rape and Rape Laws' (1974) 60(4) Women Lawyers Journal
188
MLA 9th ed.
Smith, Cyril J. "History of Rape and Rape Laws." Women Lawyers Journal, vol. 60, no.
4, Fall 1974, pp. 188-207. HeinOnline.
OSCOLA 4th ed.
Cyril J. Smith, 'History of Rape and Rape Laws' (1974) 60 Women Law J 188
Please note: citations are provided as a general guideline. Users should consult
their preferred citation format's style manual for proper citation formatting.
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
HISTORY OF RAPE AND RAPE LAWS
By CyrilJ. Smith *
Rape is no doubt as old as the human
race. We know it to be as old as our
brief six millenia of recorded history, also that it is embodied in the
legends of the pre-record era.
I first briefly call attention to rape
during periods of war. I do not want
overlooked this aspect of the subject
by a group of international lawyers
who can influence the mitigation of
this most humiliating form of violence. Fighting seems always to exist
somewhere in the world, which was
true even during the Pax Romana
and the Pax Britannica. In most
times and places throughout the ages
rape has been the arrogated privilege
of the soldiers of the victorious army
to indulge in to their full satisfaction
upon the women of the conquered
territory or fallen city.
According to legend, during the
sack of Troy many Trojan women
were raped by the victors. Even
Cassandra, the unheeded prophetess
and daughter of Priam, King of Troy,
was violated by the braggart, Ajax
the Lesser, a Locrian ally of the
Greeks. It is noteworthy that in this
early age the violation of a captured
princess of Cassandra's standing in
the ancient world was not condoned
by the Greeks. When Ajax dragged
her from the temple of Athena and
ravished her the Greek soldiers considered stoning him to death.
When Constantinople fell in 1453
to the twenty-three year old Sultan
Mohammed II the women and girls
of the city were unmercifully and
repeatedly ravaged by the Ottoman
troops, variously estimated to have
numbered from 70,000 to 250,000.
Most of the city's gallant garrison of
9,000 was killed in the fighting.
Among them was Constantine XI,
Emperor of Constantinople, whose
heroism and piety combined to
create a sunset glory for the empire
of this Christian prince, the last of
the Caesars. But Christian heroism
and piety could not save the women
of Constantinople.
You know the story of the city to
have suffered the most recent wholesale rape of its women: Nanking in
1937 when it fell to the Japanese
army. The "rape of Nanking," authenticated by numerous neutral
observers, became an expression
throughout the world.
These examples show that wartime rape has existed from earliest to
modern times, and with their mention I conclude this phase of the
subject.
The remainder of this paper is devoted to the history, particularly the
legal history, of the crime of rape in
civilized societies during peacetime.
Throughout the ages the concept
of rape has been the same. Of course,
*Excerpts from paper delivered July 30, 1974 during NAWL/IBA meeting in Vancouver, B.C. Mr.
Smith received an A.B. from the University of Tennessee and an LL.B. and J.D. from Yale Law
School; he is the senior member of the law firm of Smith, Rowe, Hay & Bacon; author of TRADITION OF EVE
(1961 [2d ed. 1970] Gulf Publishing Co., Houston, Texas) reviewing women's
status in Western cultures, ancient and modern, and advocating her full equality in all phases of
society; in 1962 received an award from the Texas Federation of Business and Professional Women's
Clubs for his efforts in behalf of equal rights for women.
188
WOMEN
LAWYERS JOURNAL
there have been variations from time
to time and place to place, but they
are slight. The act has always been
universally designated as "rape" and
it has been said that there is no other
name for it. (State v. Christopher,
(1914) 167 Iowa 109, 149 N.W. 40). A
statute prescribing punishment for
"rape" but not defining the crime
has been held not to be void. (Oliver
v. United States, 230 F. 971, cert.
den. 241 U.S. 670; 75 CJS 763).
The oldest written laws making
rape a crime are contained in the
Code of Hammurapi, circa the early
part of the seventeenth century before Christ. For example, it provided
that if a man raped the bride of an
inchoate marriage while she was still
living in her father's house and she
was a virgin, the penalty was death.
Inchoate marriage was a status somewhere between a betrothal and a
marriage as we know it. The betrothal was considered binding,
hence the putative bridegroom had a
proprietary interest in the putative
bride and her rape was of consequence to him. No doubt the drastic
death penalty was in part for his
benefit; nevertheless it was a protection afforded the girl of few societies
throughout history and evidences a
high respect for her person in the
Babylonian society.
The early Hebrew laws, set forth
in the first five books of the Bible,
known as the Book of Moses or the
Pentateuch, also provided criminal
penalties for rape. At Sinai, Moses
virtually eradicated the cult of the
Golden Calf among the Hebrews,
and his own monotheistic cult of
Yahweh (latter called Jehovah) became predominant. Thereafter
Moses was recognized by all the
tribes as their leader in all things:
religion, conduct, government and
laws. He was lawgiver, judge, jury
and commander-in-chief. None challenged his resolute rule. And through
him the invisible god Yahweh spoke.
This one-god was wholly masculine;
and he would prevail over the ancient Phoenician Baals and Baalaths
of the Promised Land, and in time
even over the powerful gods and goddesses of Rome. No longer in the
West would be worshipped goddesses who exemplified the feminine
essences of love, passion and fertility. These inborn qualities would lose
their divine attributes, would become physical and ordinary, and
there would no longer be in the Mediterranean heavens an Earth Mother
to whom the maiden could direct her
prayers of desire for an ample blessing of these qualities. This change in
attitude in the Roman Empire,
where woman first gained equality
with man under the law, would be to
the detriment of woman, and would
last into our own day.
Moses restated as law by divine
revelation the customs or common
law of the Hebrews. This was probably during the early part of the thirteenth century B.C. His laws dealt
with the rape of young unmarried
girls, "damsels," more thoroughly
than with the rape of mature
women, married or unmarried, so I
will us6 examples of the former
taken from Deuteronomy, Chapter
XXII. The Chapter contains penalties for both rape and seduction and
it is not always clear to which a particular provision applies. It is clear
that if a man "force" a betrothed
damsel "in the field," the penalty for
him was death and no punishment
for her. "In the field" must, I feel
sure, be interpreted to mean in a
FALL 1974/VOL. 60
189
place where there were no other persons and it would do no good for the
victim to raise an alarm. On the other
hand, if the betrothed damsel was
"in the city," and a virgin, and a man
"lie with her," and she failed to cry
out, the penalty was death for both
of them. Force is not referred to in
this provision, as it is for the damsel
in the field, hence a literal and reasonable interpretation would exclude rape. Perhaps the damsel's failure to cry out raised the presumption or was at least evidence that she
consented. Again, I believe that "in
the city" must be interpreted to
mean in a place where there were
others within hearing range and
where it would be purposeful for the
damsel to call for help. Being a virgin
was not mentioned for the damsel in
the field who was forced, so evidently the punishment was death for the
rape of a non-virgin as well as for a
virgin, while the punishment for seduction of a non-virgin was not
death.
The death penalty for rape or seduction applied only to a betrothed
damsel. If she was not betrothed and
a virgin and a man "lay hold on her,
and lie with her," the man was required to marry her and to pay fifty
shekels of silver to her father. He
could never divorce her. Probably to
"lay hold on her" mean to force her;
but on the other hand, it could have
referred merely to the initial advance
in seducing her. Regardless, the man
had to do right by the damsel; and
never to divorce her was a sanction
of significance. Ordinarily the Hebrew man could divorce his wife at
will, whenever "it came to pass that
she find no favor in his eyes, because
he hath found some uncleanness in
her." (Deut. 24:1) It is not known
190
WOMEN
LAWYERS JOURNAL
today what "uncleanness" meant,
but whatever its meaning, it was the
husband-not a judge-who decided
whether or not it existed. As said,
the father of the raped or seduced
virgin was to be compensated. He
was the only male who had a proprietary interest in her. There was no
cause for the extreme punishment of
death since there was no prospective
husband whose honor must be saved.
The earliest English common law,
as we know it, was the written promulgations of the early kings starting
with Aethelbert of Kent, the first
Christian King of England, who is
known to have been ruling in 597
and to have died in 616 or 617. Hi
laws and those of the other early
kings seldom set forth a declaration
that an act was a crime or civil offense, but merely stated the penalty
or compensation therefor, the declaration of crime or civil offense
being implied. Nevertheless, the punishment for crime and the compensation for civil liability reflect the
mores and conditions of the times,
so I give examples pertaining to rape
taken from the laws of the best
known of the early kings of England,
Alfred the Great, as translated by
F.L. Attenborough in The Laws of
the Earliest English Kings. Alfred's
laws were issued probably in 892.
If a man "seizes by the breast a
young woman belonging to the commons, . . . throws her down ...
[and] lies with her, he shall pay
[her] 60 shillings compensation."
"If another man has previously lain
with her, then the compensation
shall be half this [amount] ." "If this
[outrage] is done to a woman of
higher birth, the compensation to
be paid shall increase according to
the wergeld." (Ch. 11) (Wergeld,
also spelled wergild, meant in
Anglo-Saxon and Germanic law the
value set upon the life of a person in
accordance with a fixed scale increasing from the churl to the king
and paid as compensation to the
kindred or lord of a slain person.) To
compare the 60 shillings paid to a
virgin commoner for her rape with
the compensation for other offenses,
it was 60 shillings for striking off a
person's nose (Ch. 48); 66 shillings,
6 pence and the third part of a penny
for knocking out an eye (Ch. 47);
and 30 shillings for striking off an ear
but 60 if the hearing was stopped
(Ch. 46). These comparable payments show the attitude towards
rape. But at least slaves were amply
discouraged from engaging in this
social diversion; they were castrated
for raping even another slave
(Ch. 25). To give a comparison of
the compensations for rape and
adultery, for lying with the wife of a
commoner, the husband was paid 40
shillings (Ch. 10). It cost considerably more to get caught lying with
the wife of a man of higher rank: 120
shillings if his wergeld was 1200 shillings, and 100 shillings if his wergeld
was 600 shillings (Ch. 10).
In later English common law rape
was defined as the unlawful carnal
knowledge of a female over ten years
of age by a man not her husband by
force and against her will, or without
her conscious permission, or where
permission was extorted by force or
by fear of immediate bodily harm;
and of a female under ten with or
without her consent. All jurisdictions based on the English common
law follow this definition with minor
variations, except that the age of
consent has been generally raised to
a more realistic level. This definition
embodies three elements: force, lack
of consent, and sexual intercourse.
Sexual intercourse at its minimum, as it relates to rape, is the
penetration of the male organ into
the female vulva or labia, it does not
have to reach the vagina, and one
penetration for one moment is sufficient. Even though ordinary intercourse is considerably more consummate, a woman is raped by the
penetration described if force and
lack of consent are present. It follows that emission is not an element
of rape. If it should occur prior to
and without penetration, the woman
has not been raped. The rhale and
female parts can touch and that is
not rape-mere touching is not penetration. If the female is not sufficiently developed to enable the
slightest penetration, there can be no
rape, even though the male tries and
their parts touch. The youth or age
of the male does not per se relieve
him of being guilty of rape, but his
immaturity is presumptive evidence
of incapacity or inability to achieve
penetration. As to consent, a woman
may give it and prior to penetration
withdraw it; if the man then forces
her, he is guilty of rape. She may
agree to intercourse on certain conditions, may bargain; and if the man
does not meet her requirements, gets
tired of her haggling and proceeds to
force her it is rape. Chastity of the
woman is not an essential of the
crime; and her unchastity, in the absence of a statute to the contrary, is
neither a defense nor mitigation. It is
also rape if the woman is asleep, has
fainted, or is otherwise unconscious
and a man has intercourse with her,
though actual force is absent. It is
implied. However, if the woman
continued on page 207
FALL
1974/VOL. 60
191
Bibliography
Amir, Menachem, Patterns of ForcibleRape, Chicago, 1971.
Decrow, Karen, Sexist Justice. Random House, 1974.
Griffin, Susan, "The Politics of Rape," Ramparts Magazine, 1971.
Hibey, Richard A., "The Trial of a Rape Case: An Advocate's Analysis of Corroboration,
Consent and Character." Am. Crim. L. Rev. 1973, 11/2.
Jackson, Marguerite, "Forcible Rape: The Victim" Unpub., Vancouver, 1974.
Kirkpatrick, Clifford and Kanin, Eugen, "Male Sex Aggression on a University Campus"
Am. Soc. Rev., Feb. 1957, 22 (1).
LeGrande, Camille, "Rape and Rape Laws: Sexism in Society and the Law" 61 Cal.
Law R. 919
Mead, Margaret, The Mountain Arapesh (Vol. 1 and 2 ) Natural History Press, 1968.
Mead, Margaret, Sex and Temperament in Three PrimitiveSocieties. London, 1935.
O'Faoalin, Julia and Lauro Martines, Not in God's Image. Temple Smith Ltd., 1973.
Patterson, David and Stephens, Cheryl, "Rape in Vancouver." Unpub., Vancouver, 1974.
Report of the Royal Commission on the Status of Women in Canada.Ottawa, 1970.
Rosaldo, Michele Zimbalist and Louise Lamphere, Women, Culture and Society, Stanford
University Press, 1974.
Stephenson, Marylee, Women in Canada, Toronto, 1973.
Wolf, Margery, Women and the Family in Rural Taiwan. Stanford University Press, 1972.
Wood, Pamela Lakes, "The Victim in a Forcible Rape Case: A Feminist View," Am.
Crim. L. Rev. 1973 11/2.
History of Rape and Rape Laws
continuedfrom page 191
awakens or regains consciousness
during the act and does not resist, it
is not rape. Her consent is implied.
Under some Statutes intercourse is
rape by fraud if a woman is given
without her knowledge a substance
which unduly excites her sexual desires or which unduly prevents or
lessens her resistance. If she knows
the effect of the substance and
voluntarily drinks or takes it, intercourse with her is not rape.
For more information on IWY '75
write to Director Ruth Bacon, U.S.
Center for International Women's
Year, Meridian House International,
1630 Crescent Place, N.W., Washington, D.C. 20009. January 11, 1975,
is launching day for IWY '75.
FALL 1974/VOL. 60
207