Having previously criticised my comrades in the leadership of the IS/SWP for not having done enough to think politically about sexual violence over many years, the three pieces that will follow are an attempt to set out an alternative historical and materialist approach to it. Trainspotters of the left will be able to detect the influence of various women, and men, in the IS tradition, especially in the next two pieces, which will be about domestic violence and sexual harassment. This is not “mansplaining”. I am not explaining feminism or plug to solve imaginary gaps in feminist theory. The point of these pieces is rather to address a significant omission in Marxism
The crime of rape as we think of it today, is an offence against the person being raped, not her father or husband. It is a crime against the victim’s autonomy. Everywhere it is seen as a serious crime. The average sentence in England and Wales is around 8 years, longer than even manslaughter (Travis, 2011).
Previous societies had an idea that it was wrong for a man to abduct and have sex with a woman, but their understanding of “rape” was not the same as ours and their reasons for thinking that rape was wrong were different to our own. It follows that in order to understand rape you have to ask when the transition happened to something like our modern rape consciousness and our contemporary rape laws.
The relative absence of a crime or even of a political consciousness of rape does not mean that women did not suffer, did not have their dignity and selfhood stripped away, were not invaded or defamed or left powerless or afraid over hundreds of years. Of course, in this sense, rape began when the first woman’s body was breached through penetration against her will, when she could not fight back, when she was too scared to say no, when her body was occupied. But from the perspective of the state, or even of most of civil society, the women who survived this, which we now call “rape” had no remedy. Indeed, in so far as there was a process by which some rape survivors might seek some justice it was a desperately narrow minority of those affected by what we now consider rape who even asked for justice, and for those who asked their prospects were in general derisory.
The legal recognition of rape, this piece will argue, was recent. It was made possible by the new ideas associated with the rise of capitalism from the sixteenth century onwards which gave a vastly greater place to human individuality, and by the campaigns of the “second wave” of women’s liberation from the 1960s onwards.
Our present understanding of rape, including the acceptance of the possibility of rape in marriage, which has transformed rape’s meaning, is barely 20 years old.
It follows that if you want to understand why there is still such resistance to the idea of rape, and such an extraordinary willingness to recycle old rape myths some of which have been misused for centuries, part of the answer may be precisely the longevity of this older, oppressive consciousness, and the relatively short period of time in which the contemporary understanding of rape has been established.
Rape in history
Every literate society with a law code has criminalised certain kinds of male and female sexual behaviour. The oldest slave societies distinguished only haphazardly between rape and adultery. In the Code of Hammurabi of third millennia BCE Sumeria, there was a single crime of rape but its punishment depended on the status of the victim. If she was a married or betrothed woman (i.e. the property of a man), the ordinary punishment for raping her was death. If she was unmarried, the punishment was a ransom in money. On occasion, the rapist might be required to marry his victim (Gadotti, 2009, p80). The literature of Pharonic Egypt has no real consciousness of rape, nor a prohibition on sex between two unmarried adults; it was an offence for either men or women to have sex with someone who was already married, the punishment for adultery was death (Capel and Markoe, 1996, p216).
In the Jewish legal code recorded in the Old Testament, rape is portrayed as a crime against the male ownership of women. The Book of Deuteronomy, for example, addresses rape through a discussion of adultery. If a man sleeps with a married women, and the woman does not protest (i.e. is not raped) both should be put to death. But if the man forces a married woman to have sex with him, only the man should die. The reason to punish the man was his crime against other men: “there is in the damsel no sin worthy of death: for as when a man riseth against his neighbour, and slayeth him, even so is this matter” (Deuteronomy, n. d., 22: 25-27).
Our modern word “rape” derives from the Latin raptus, meaning kidnapping or abduction. Two Roman myths about rape give a sense of how the crime was understood in the slave societies of the ancient world. Shortly after the foundation of the city of Rome by Romulus in the eight century BC, it is said that there were an abundance of men in the city. The Romans attempted to negotiate with the neighbouring Sabines, for the collective purchase of their women, but the Sabines would not agree. During a feast with their neighbours, Romulus’s men took large numbers of Sabine women who they later married. This mass abduction was not portrayed as a neutral but rather as a necessary act. The abduction disgraced the Sabine men, who then attempted to invade Rome in response. In the historian Livy’s account, the war with Rome ended as a result of the Sabine women interceding with their fathers not to fight Rome but to make peace with the new state (Livy, n. d., 1 12-13).
At the end of the sixth century BC, Rome was ruled by Etruscan kings. Sextus, the son of the King Lucius Tarquinius Superbus, is said to have visited the home of a Roman Prefect Collatinus. There he came into the bedchamber of Lucretia, Collatinus’ wife, at first offering to marry her and make her Queen, but then threatening to kill her and a manservant and falsely claim that the two of them had been having an adulterous relationship. Eventually, he forced her to have sex with him. The next day Lucretia called on Collatinus and her other relatives to avenge her, killing herself before them. They rose against the Tarquins and established the Republican government that lasted for centuries until the rise of Caesar (Livy, n. d., 1 58)
From these two stories we can see that the people living in slave societies understood rape in some ways similarly but in many ways differently from us. What they shared with us was the idea that rape was a crime of very great significance. It was important enough to cause the rise or fall of entire dynasties. But, in other ways, their understanding was not the same as ours. First, heterosexual rape was understood as a crime directed against men. Now even the Romans grasped that women were the immediate targets of a sexual assault, and that women could be harmed emotionally by it (in Livy’s story Lucretia was made so distraught by it that she killed herself), but the chief effect of the assault was to dishonour the father or the husband who had failed to prevent it, on whom the duty of revenge fell. Second, while consent was a defence to the crime of abduction, the only person who was capable of giving their consent was the father or the husband of the woman. So, where an unmarried man abducted an unmarried woman, the woman’s father might consent by authorising their subsequent marriage (as Sextus asked Lucretia to demand of Collatinus). It was irrelevant whether the woman herself consented. Third, if the relevant father or husband was not a Roman citizen, his consent was unnecessary (had the Sabines not possessed an army, the abduction would have gone unpunished; it was no crime under Roman law). A Roman citizen might have sex with a non-citizen or with a slave. No-one’s consent was needed.
The courts of the Middle Ages were no more interested than their predecessors in masters’ sexual harassment of their servants: “Prosecutions for rape are rare enough in the Middle Ages, but prosecutions of a man for the rape of his own servant are practically non-existent” (Karras, 2002, p163).
In the thirteenth century Anglo-Norman legal treatise, The Mirrour of Justice, rape is listed as one of several crimes associated with sex and marriage, alongside fornication, adultery and invest. “Rape”, the author explains, “is properly the taking away of a woman for the desire of marriage” (Horne, 1290, pp51-2). The author does not explain from where a woman was assumed to be taken from, but it was from the family, i.e. from a husband or from a father but in any event, from a man.
Where women brought rape allegations they faced even greater barriers than today. Writing in the thirteenth century, Henry de Bracton describes how a rape case had to be brought: a woman “must go at once and while the deed is newly done, with the hue and cry, to the neighbouring townships and there show the injury done to her to men of good repute, the blood and her clothing stained with blood, and her torn garments.” This was but the first stage of a lengthy series of preliminaries. Next, she was required to explain the crime to local officials of justice, the coroners and the sheriff. Then she had to take her case to the nearest county court. Her appeal then had to be copied word for word on the coroners’ rolls. Finally, she had to repeat her case before the justice (in contemporary language, magistrates), “in the same words as she made it in the county court from which she is not permitted to depart, lest the appeal [i.e. case] fall because of the variance”. Among the defences which Bracton acknowledged to rape (deficiencies in the pleadings, consent) is one which appears especially troubling today, that the accused “had had her as his concubine and amica before the day”, the assumption being that if a woman had consented to having sex with a man once, than she had consented for all time, whatever else he did or whether their relationship continued or not (Carter, 1985, p85).
Rape convictions were rare in early modern England – seemingly none at all during the reigns of Richard I and King John (1189-1216), followed by increasing numbers during the remainder of the thirteenth century, and in the fourteenth century, followed by relative decline again thereafter (Dunn, 2003, p74).
The Rape Act 1275 outlawed rape in a seemingly more familiar sense as ravishing (ravisez, i.e. sex) or taking away by force (i.e. by abduction) of either a child or “any other woman against her will”. “Any” person (i.e. the victim or a relative) had 40 days to sue the attacker. If the action succeeded, the possible punishments included, in the worst cases, blinding or castration (Pollock and Maitland, 1968, vii, p491). The Statute of Westminster of 1285 set the punishment, in cases brought by the King, at execution. Although the potential punishments were very severe, it has been suggested that a lesser punishment was almost always found, and that actual executions for rape took place at a frequency of only around 1 in every 50 years. In pre-revolutionary France, there was a similar frequency, save that execution was more common where the victims were children (Vigarello, 2000, p15)
Although these Acts seem to emphasise the woman’s consent, it is clear from thirteenth- and fourteenth-century records that the crucial lack of consent remained that of the victim’s family rather than of the victim herself. Records of fourteenth century court sessions record men being indicted for abducting women “against the will of Maud the mother [of the victim], and against the peace”, or of rape “against the will of the husband and against the peace of the lord King” (Goldberg, 1995, p252).
The majority of all trials in mediaeval and early modern England ended in acquittal, but the conviction rates for rape were derisory by any standard. One study of 280 rape indictments in the midlands between 1400 and 1429 found that not a single one of them resulted in a conviction of the accused (Dunn, 2003, p74). Between 1540 and 1692, there were just 49 rape prosecutions in Paris; ultimately only one in seven of those accused were punished (Vigarello, 2000, p28). It is not fanciful to assume to assume that there must have been thousands of occasions of unwanted or forced sex for every one of these convictions.
One of the reasons for the very low conviction rates is that the accused would normally try to negotiate with the complainant; and where the payment was deemed appropriate the state would not expect more. We can see multiple examples of this dynamic in court records from ancient regime France: as in the case of four soldiers who gang-raped a woman in Auxerre in 1733, killing one man who attempted to defend her and wounding another. On the payment of ten thousand livres to her family, the King agreed to grant the men a royal pardon (Vigarello, 2000, p10).
The shared mindset of pre-capitalist Europe distinguished radically between different categories of rape. There were extreme cases: as when an adult raped a child, or a servant raped a member of his or her master’s family. Under the customs of Bordeaux, “When anyone, whether agent or other servant being with his lord and master or mistress in service, or other people of whatever condition they may be, has stolen or taken away his lord’s wife, his daughter or a girl under his protection, either under colour of marriage or otherwise, he, being false and disloyal to his master, ought to lose his head without mercy” (Vigarello, 2000, p49).
The need to defend class hierarchies was an overriding consideration. Only in the most extraordinary case would a court investigate a servant’s complaint of rape by her master; and even in these cases, no court would require the master to do more than pay the servant a dowry to enable her to marry (Vigarello, 2000, pp18-20).
Pre-capitalist Europe saw very few complaints of male rape. One reason was that the common sense of the day held that it was impossible for an adult or a child to be raped without there having been at least a minimum level of consent. The victim of rape must to some extent have allowed the penetration to take place, whether by force or fraud or whatever. This meant, logically, that the male victims of male rape must themselves be sinners who in turn required punishment, usually (if the victim was over 12) death. The courts were often asked to be lenient, as in the case of a thirteen year old boy raped in Bar-sur-Seine in 1667, who by converting from Protestantism to the state religion of Catholicism was able to reduce his sentence from death to two months’ imprisonment (Vigarello, 2000, p33).
Save for these extreme forms, “ordinary” sexual ravishment was seen as a relatively minor sexual crime. The testimony of various accused attests to their bafflement that they were on trial at all; as in the case of a man who attempted to rape a shop assistant in Geneva, “Let me do it, it’s only from affection”, he had shouted when he was stopped. Or a married tailor who attempted to rape his servant, “How the devil, you scream, you bitch!”, he accepted saying, “it’s only a moment of pleasure I want to enjoy with you” (Vigarello, 2000, p24).
Similar dynamics could be found elsewhere in the world. A typical rape trial in eighteenth century Egypt involved a Christian man who was said to have raped a Muslim girl. The complaint was brought by the woman’s father. Two midwives were asked to testify, they confirmed that the woman had recently lost her virginity. The man then agreed to pay an amount in to the court to compensate for the woman’s loss of virginity. On his agreeing to pay to her father that sum, the man was let go and the authorities had took no further interest in him (Zilfi, 1997, p221).
Rape and capitalism
The emergence of the modern crime of rape is part of a series of measures under which capitalism, to a far greater extent than any previous modes of production, acknowledges a space for individuals to live and does not reduce all of a person’s significance to their caste, status group, or even their gender. In one of his earliest books, On the Jewish Question, Marx described the legacy of the French revolution (“the rights of man”) as being a language of freedom and individual expression. Marx, notably, did not treat this advance as an unambiguous good. It protected only “egoistic man … an individual withdrawn into himself, into the confines of his private interests and private caprice, and separated from the community” (Marx, 1844, I).
The space that individuals have been allowed under capitalism is only partial, for some people and in certain circumstances and at some times. Marx captured its limitations nicely when he spoke of the worker, under capitalism, as “free in the double sense, that as a free man he can dispose of his labour-power as his own commodity, and that on the other hand he has no other commodity for sale, is short of everything necessary for the realisation of his labour-power” (Marx, 1867, chapter 6).
Even for workers the space is not trivial. Compared to the autonomy that individuals were allowed under feudalism or slave societies, the potential has been very great indeed. And the space has grown with every successful social movement.
At the same time, this “freedom” was based on dispossession on an epic scale: the processes of slavery, war, enclosure and colonialism, which Marx termed primitive accumulation. For women in particular, it involved the violent destruction of the old, feudal family which whatever else its faults was in part a unit of production, and its replacement by market production. Silvia Federici describes how the disciplining of “rebel bodies” was a precondition for capitalist development; a process which encompassed widespread capital punishment of vagabonds and outlaws, and attacks on primitive religion and witchcraft, the latter’s animistic conception of nature being antithetical to the rationalistic, calculating ethos of capitalism (Federici, 2005).
The individuals who were first allowed autonomy under capitalism were the (usually male) owners of production, and then other (usually male) members of the middle classes, and only latterly workers and women. Here is Theodore Zeldin’s description of women’s rights at the dawn of the nineteenth century in France:
“The law still required the wife to obey the husband, in return for which the husband owed her ‘protection’. She had to reside wherever he chose and he was entitled to use force to compel her to do so. If she committed adultery, she was liable to imprisonment for a period of between three and twenty-four months, but he could engage in it with impunity. He committed a crime only if he actually maintained a concubine in the conjugal home, and then he was punished only by a fine of 100 to 2,000 francs. If he chanced to discover her committing adultery and killed her, he would not be guilty of murder – but she was not allowed to attack him in similar circumstances. She could not go to law without his permission, even if she had her own business and she could not sell or buy without his approval…” (Zeldin, 1993, p343)
Married women were allowed to hold property in the United Kingdom only from 1870, and only in part (for example, the first £200 only of any money inherited from a legacy); as recently as 1970 a shopkeeper could sue a husband where a wife had promised payment for goods taken on credit (Cornish and Clark, 1989, pp400-1). In America, married women’s property rights had to be won a state-by-state basis between 1839 and 1889 (Bourke, 2007, p327). In France, women acquired the right to be guardian of children in 1917, to join a union in 1927, the legal capacity to hold property only in 1938 and the vote only in 1944 (Zeldin, 1993, p357).
The history of rape is closely bound up with the history of the family. Under the first mini-epochs of mercantile and the early industrial capitalism, there was a sharp division, which has since been largely eroded, between the way in which the law treated working class and middle class families. The latter were closely governed by legal relationships, beginning with the marriage contract itself, which was a device by which two groups of property holders agreed to share their resources (incarnated in the woman’s dowry). After marriage, the law “treated the husband and father as a dominant, patriarchal figure, who would expect submissive obedience alike from wife, children and servants” (Cornish and Clark, 1989, p358).
The law in general took far less interest in working-class families, at a time when most workers lived in large family units in tiny homes, when the family was disrupted by childhood working, and widespread working in domestic service. Working-class marriage often took place informally without any religious service. Living apart following relationship breakdown was much more common than it was among the middle classes. The relative toleration of the breakdown of the nuclear family began to change only from around 1850, when pressures began to shape working-class families into the same mould as the families of the propertied. There were campaigns in the 1860s and 1870s to allow corporal punishment of working-class men who beat their wives. A different approach was followed in an 1878 Act allowing women to obtain a separation order and potentially maintenance from the criminal courts after their husband had been convicted of aggravated assault (Cornish and Clark, 1989, p358).
The relative lack of interest shown by the state in policing working-class sexual relationships before 1850 is reflected in the low number of prosecution for rape between 1805 and 1818. During that time, there were about a third as many rape convictions as there were murder convictions (76 to 229); whereas today rape convictions outnumber murder convictions by 5 to 1 (Harvey, 1991, p1). The motivation was not just that workers were beneath the law but also a pervasive sense that rape was not a serious crime or one that could be proved. The punishments for rape also reflected the general view that not merely workers, but women were of little interest to the law. A man convicted of rape at the Old Bailey in 1811 offered six witnesses to his good character; the judge recommended him for a pardon. Henry St George Tucker, Accountant General of Bengal was sentenced to six months in 1806 for attempting to rape the wife of one of his closest friends. She, a ruling class woman, required protection. On his release however the sentence did nothing to harm Tucker’s future career, and he ended up Chair of the East India Company (Harvey, 1991, p2)
Over time, the state tended to take an increasingly close interest in working class sexual relationships. But this change was slow; and for many years the shift could be seen more clearly in private institutions, such as charities, which were at least as important as the state in imposing middle-class values onto working-class lives. “Charitable discourses about the seduced woman”, Clark writes, “like legal discourses about the rape victim, centred more abound determining her character for chastity than whether or not she had been the victim of violence.” Clark illustrates this mentality with an extract from the proposals of the Victorian initiators of a Foundling (i.e. Orphans’) Hospital to describe the mother of their ideal orphan:
“A young woman having no means of subsistence, except those derived from her own labour, and having no opulent relations, previous to committing the offense bore an irreproachable character, but yielded to artful and long continued seduction, and an express promise of marriage; whose delivery took place in secret, and whose shame was known only to one or two persons, as for example, the medical attendant and a single matron, and lastly, whose employers or other persons were able and desirous to take her into their service, if enabled to earn her livelihood by the reception of the child” (Clark, 1987, pp76-7)
Subtle ideologies of working-class immorality were at work in the minds of the people who founded the Victorian charities, and by whom it was assumed that a woman’s “shame” was always something ultimately of her own choosing, which could be mitigated only by a spirit of deference to the benevolent rich. Had a woman stated unequivocally that she had been the victim of male sexual violence (i.e. rape) and that she was not entirely to blame for her downfall this would have offended the assumption of charitable benefactors that sex was always by consent, and would have diminished her chances of successfully placing her child in the Orphanage and of therefore being able to work and of to eat.
(Re-)Writing the law
We can see rape law developing in tandem with these changes in women’s place in society. As we have seen, in Britain, the criminal offence of rape begins with the statutes of the Middle Ages with their emphasis on abduction. In 1486, this was extended by a further Act making it unlawful to abduct a woman for “lucre” and to marry or ravish her as a consequence of the abduction. The Offences Against the Person Acts of 1828 and 1861 made changes to the punishment for rape (which was first made a capital offence, and then reduced to a maximum sentence of 3 years). There was however no attempt to define rape through statute. As late as the Sexual Offences Act 1956 statute provided only that “it is a felony for a man to rape a woman.” The definition of rape in common law (i.e. by the cumulative decisions of senior judges) was “unlawful sexual intercourse with a woman, without her consent, by force, fear or fraud”, a definition which went to go back to a seventeenth century judge Matthew Hale. Rape was given a statutory definition only in 1976; and its present definition is as recent as section 1 of the Sexual Offences Act 2003:
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
Similar patterns have been repeated elsewhere. Sixteenth and seventeenth century America took over from the English court system an idea of rape as a serious (capital) crime. Local laws were passed outlawing rape by state legislatures in Rhode Island (1647), Massachusetts Bay (1648), Connecticut (1672), South Carolina (1712) and Delaware (1719). Of the 73 known convictions in eighteenth century colonial rape cases, 68 resulted in a death sentence (Block, 2006, p142). Sir Matthew Hale was as much an authority in an American courtroom as he was in England. If there was a significant difference between England and America it was primarily in the different way in which the colonial courts treated rape as an act of rebellion by black and enslaved men: fourth-fifths of those convicted to death for rape between 1700 and 1820 were of African descent (Block, 2006, 128-9, 163).
In France, the Revolution resulted in a rapid acceptance of the autonomy of individual rights. The 1789 Declaration of the Rights of Man held that “Every man is the sole owner of his person and this ownership is inalienable”. Article 29 of the Penal Code of 1791 outlawed rape and removed the pre-capitalist requirement of abduction. The following year, divorce was legalised. Yet the continuing subordination of the woman in the family shaped rape law. In France, just as in Britain and the US, rape in marriage remained impossible (Vigarello, 2000, p88).
The pre-capitalist crime of abduction did not disappear. Under the Sexual Offences Act 1956 it remains an offence to abduct a woman against her will for sex or for marriage. More importantly, we retain the idea that it is a criminal offence to abduct a child without her parent’s consent, as in the widely-reported case of the 30-year old teacher Jeremy Forrest who was convicted in June 2013 for abducting a 15-year old pupil with whom he had fled to France, and was sentenced to five and a half years imprisonment. Two days after his conviction, the victim involved was quoted in the tabloids saying that she still loved him. This notion of wrongful abduction, a crime irrespective of the victim’s consent, is essentially the same offence as the one under which most pre-capitalist criminal codes considered rape. Sex without consent was once a rare prosecution, now it is the essence of the crime.
Three issues have been central to the development of the modern law of rape: first, can a married woman be raped, second who else is capable of being raped, and third, what must a woman prove to indicate her lack of consent?
First, in most countries until the 1990s, it was lawful for a man to have sex with his wife even in the absence of her consent. The justification for this doctrine lay in the notion of marriage which had emerged in middle years of the seventeenth century, that is, at the time of the partial victory and partial defeat of the bourgeois revolution in England. The figure who played the key part in developing this idea was a Puritan judge, Matthew Hale. A lawyer of ostensibly no political views, Hale played very little part in the revolution of the 1640s, remaining in London, and seeking to keep in with both Parliament and the King. He developed a successful legal practice during the Commonwealth years, often defending Royalists. He became a judge in 1653 (with considerable regret, for fear that he would be seen as a Parliamentarian), and (by now an MP) played a part in brokering Charles II’s return to England.
In 1662 Hale sat in the trial of two witches, Amy Denny and Rose Cullender, accused of having bewitched girls to vomit pins. He punished them with zeal, causing one historian Gilbert Geis to accuse him of misogyny (Geis, 1978). If this is right, Hale’s contempt for women was not merely of a sexual character but founded in a general hostility to human liberation. Hale was also the Judge who oversaw the execution of the regicides who had killed Charles I, treating those revolutionaries with an equal lack of pity. Sylvia Federici detects a relationship between class revolt and belief in witches, whose “claim to magical powers undermined the power of the authorities and the state, giving confidence to the poor in their ability to manipulate the natural and social environment and possibly subvert the constituted order” (Federici, 2005, p174). Hale’s role in the development of a legal theory of rape seems to show this same relationship in reverse; the simultaneous defeat of popular revolution and of women’s freedom.
Hale saw marriage as a contract merging the legal entities of husband and wife into one body, the body of the man. As such, the woman could neither hold property nor have any other rights in her own name. This caused him to hold, in a manuscript published decades after his death, but repeatedly cited thereafter by judges in Britain and America as an authoritative statement that rape in marriage was an impossibility, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” (Hale, 1736).
Shocking as it now seems, the judicial ban on marital rape continued in Britain until as recently as 1991 (R v R  1 AC 599), and in the US and in Australia until the same decade (Bourke, 2007, p307). Even in France, with its entirely separate legal tradition, and its different legal philosophy (i.e. a constitutional “civil law” system, as opposed to the “common law” in Britain and America), marriage rape was criminalised only in 1992 (Vigarello, 2000, p221).
In R v R itself, the case where the ban was overturned, Lord Lane in seeking to explain why Hale’s doctrine had continued to be seen as authoritative and binding for such a long time afterwards, drew on eighteenth century cases in the marriage courts which had emphasised the importance of presumed sexual consent as a defining feature of marriage itself, saying, “These concepts of the relationship between husband and wife appear to have persisted for a long time and may help to explain why Hale’s statement that a husband could not be guilty of rape on his wife was accepted as an enduring principle of the common law.”
The relationship between rape and marriage was and is key. Most rapes happen in long-term relationships; and even now the large majority of long-term sexual relationships are marriages (in Britain, the number of unmarried adults including single people surpassed the number of married adults for the first time as recently as 2011: Ramesh, 2012). The judicial hostility to the idea of rape in marriage (and therefore, to a significant extent, to the idea of rape itself) derived from a certain understanding of the family which now seems anachronistic, but was the idea of the family which dominated under capitalism until recently.
Once society started to see long-term relationships as being capable of resulting in rape, the policing of rape and its judicial punishment were utterly transformed. One place you can see this is in the academic study of rape. In the 1970s and 1980s, sociologists would attempt to study the incidence or motivation of rape. In so far as they attempted to estimate how many rapes there were each year, they focussed almost entirely on dysfunctional sexual relationships between teenagers. This was where there was the greatest turnover in relationships, and the greatest likelihood for them to go wrong. For example, one US study concluded in 1984 that 89% of rapes were caused by boyfriends, dates, lovers, etc, 8% by husbands and 3% by strangers (Russell, 1984; quoted without criticism in McGregor, 1989). The idea that only 8% of rapes were caused by people in long-term relationships was sustainable in the different world of the near-past, where a woman who had been raped by her husband could not complain to the police (it would be pointless to complain, he had committed no crime against her) and could expect only equivocal support from professionals such as social workers or housing officers. Rape was, in this approach, “stealing sex”, akin to burglary or robbery, an idea which “made sense” when most convicted rapists had convictions for other crimes (Pepper and Schwartz, 1977, p209).
By comparison, now that rape in marriage is a recognised crime, and now that the UK government has begun publishing annual reports on the incidence of rape and other sexual crimes, which it did for the first time in 2013, women’s self-reporting indicates that (in England and Wales) 56% of rapes are committed by partners, 10% by strangers, and the remainder by dates, boyfriends, family members, etc (ONS, 2013, p15). It is very unlikely than in 30 years the incidence of rape in long-term relationships has increased sevenfold. What has happened, rather, is that the vast majority of crimes which were by present-day standards rape (i.e. sex without consent) and were until 20 years ago outside the reach of the law have been taken back within it. As this transformation in our collective understanding continues to work its way through the generations, the proportion of women in long-term relationships (whether married or unmarried) reporting rape will, in all likelihood, continue to rise.
Second, the law has widened to encompass whole categories of people who, it is now accepted, are capable of being raped. Hale’s definition of rape excluded more people than just married women. The definition “unlawful sexual intercourse with a woman” excluded any kind of homosexual rape, as indeed any rape of a man by a woman. Meanwhile there have been many other groups of people, beyond married women, who have been excluded from the reach of the law. In Florida as recently as 1918, the Supreme Court declared that black women were “largely immoral”. It followed that there must be at least a starting assumption that a black woman complainant could not have been raped (Bourke, 2007, p75). It was impossible for the law to conceive of homosexual rape until first of all homosexual sex had been legalised, which it was (at first, only tentatively) in 1967. Hale’s definition also left unclear whether oral or anal heterosexual sex could be rape. The law tilted towards excluding the former from “sex” while treating the latter as always a criminal offence. Even consensual heterosexual anal sex remained a serious criminal offence (potentially carrying a life sentence) until 1994; oral sex without consent was only comprised within the definition of rape from 2003.
Third, Hale’s definition of rape, while formally ascribing a considerable importance to consent, limited a lack of consent to circumstances where sex had been obtained by “force, fear or fraud”,. One assumption which these terms reveal is the belief that there could be no sex without an element of submission on the part of the victim. When you look at these categories closely they are explanations for why a woman has submitted to sex (i.e. because she was forced into it, or because she was afraid, or because she was tricked). They concede, before there has been any analysis of consent, that there was some (admittedly, diminished) consent. They exclude from the outset the possibility that a woman did not submit, never consented, not to any extent at all.
The historian Joanna Bourke shows that this assumption, in the words of one mid-Victorian medical authority that “it is impossible to sheath a sword into a vibrating scabbard”, remained a staple of legal and medical theory until long after 1945. To cite just one of her sources, the book Crimes of Violence, published in 1973 by the Lawyers Co-operative Publishing Company: the “average woman” was “equipped to interpose effective obstacles to penetration by means of the hand, limbs, and pelvic muscles. Indeed many medical writers insist that these practical obstacles are practically insurmountable…” (Bourke, 2007, pp25-6). Into the mid-1970s, the California police manual Patrol Procedure advised officers that “forcible rape is one of the most falsely reported crimes … The majority of ‘second day reported’ rapes are not legitimate” (Brownmiller, 1975, p364).
How was a woman to prove that she had not consented? Taking Hale’s definition at face value, we would assume the typical form of rape to be violent rape, and therefore for a women’s resistance to be marked by the signs of an unsuccessful struggle on her part. For many years, doctors, lawyers and others were unwilling to take women’s refusal, without evidence of a fight, as proof of missing consent. As the Vice-President of the American Medical Association Horatio Robinson Stores wrote in 1868, women “coquet and dally”, giving an “appearance of refusal”, so that they might “add still greater value to the favors finally granted” (Bourke, 2007, p67).
Another problem of Hale’s definition of rape was that it left the burden on the woman to prove not merely that she had not consented to sex, but that the man knew she did not. The statutory definition of rape in 1976 became necessary as a result of extensive public outcry following the decision of the House of Lords (including former Conservative Lord Chancellor, Lord Hailsham) in DPP v Morgan  AC 182 that there was no rape unless a man actively intended to have sex with a woman who he knew not to consent. The circumstances of the case were that a man (Morgan) invited three friends to house, telling them to have sexual intercourse with his wife. He said that she would struggle but that they should ignore her as she had agreed to this ritual. The four men violently raped her; the three accomplices being acquitted because they said they believed her screams and protests were not genuine, and her husband because martial rape was not a crime.
Finally, until very recently the courts applied the notion that Hale had formulated that proving rape was an almost impossibly difficult task, because in the final analysis it concerned women’s complaints about men, which were difficult to investigate. Rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.” As late as 1973, Hale’s words remained part of California’s standard set of jury instructions for rape cases, followed by the warning, “Therefore the law requires that you examine the testimony of the female person named in the information with caution” (Brownmiller, 1975, p369). In 1975 Judge Sutcliff explained the underlying idea to a British jury: “it is well known that women in particular and small boys are likely to be untruthful and invent stories” (Kennedy, 2005, p124). Since then, the law has shifted towards asking whether it was reasonable for a man to have believed that a woman consented to sex.
What made rape a crime: capitalism or campaigning?
Judge Sutcliff’s remarks became notorious; one reason why they did and why the decision in Morgan was so controversial was that this was just the moment when society as a whole was no longer willing to accept old ideas about rape. The idea of rape as synonymous with abduction persisted after the transition to capitalism, but was anachronistic as soon as society began to treat women as fully equally human beings. At that stage, the insistence on a father or husband’s consent became unjustifiable.
Reform in 1976 was the consequence of lobbying by activists. In the US, key campaign included Speak Outs against rape organised by New York Radical Feminists and the National Black Feminist Organization in 1971 and 1974, the formation of a campaigning organisation Women Against Rape in 1971, the setting up of a Women’s Liberation Conference on Rape in 1972, and the launch of the country’s first Rape Crisis Centre in Washington DC in the same year.
By 1976, Estelle Freedman notes, there were over 400 rape crisis centres across America, providing counseling, social services, and legal support for women who had experienced sexual violence (Freedman, 2013, p278).
Susan Browmiller’s book Against Our Will appeared in 1975, and remains the most important attempt to cohere the nascent anti-rape movement. It is a diffuse book, its most famous statement “rape … is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear, is preceded seven pages earlier by an implied autobiographical disavowal in advance: “I have always considered myself a strong woman, although I understand that the strength I possess is a matter of style and, secretly, of theatrical bravura. I am combative, wary and verbally aggressive…” (Brownmiller, 1975, pp8-15).
Against Our Will employs historical and literary sources (the prison novels of Jean Genet, Last Exit to Brooklyn, the fiction of Ayn Rand of the New Right) to show the pressure on women to accept the conceit that there was not really any such thing as rape, and that women must always have consented. Brownmiller has often been described by Marxists as a “radical feminist” (e.g. McGregor, 1989; although compare the more sympathetic reviews that appeared in Barker, 1977 and Sullivan 1980), i.e. as someone who would see no useful role for men in the struggle against sexism, and therefore as politically wrong. Certainly her description of rape as a crime of all men gives this impression. But the message of the book as a whole is more nuanced. There are passages in which she suggests that the typical rapist was young and poor. And yet, she goes on, “it remains difficult to assess the true percentage of rapes committed by strangers. As the women’s movement continues to press a greater understanding of the crime of rape on the general public, women who have been assaulted by men they know will feel freer to report the crime and these reports will begin to be treated with the seriousness they deserve” (Brownmiller, 1975, p352). This is her book’s consistent message: that rape is a much more frequent crime than anyone had acknowledged. In this, her most important argument, she was right, and her critics wrong.
In Britain, the National Women’s Aid Federation was founded in 1975 and there were 200 women’s refuges within two years. The first Rape Crisis Centre was opened in London in 1976 (Rowbotham, 1997 p407).
Meanwhile this same period also saw a dramatic rise in campaigns against other forms of sexual violence against women, including sexual harassment. The latter term was first used by activists in 1975, and the first two books about sexual harassment were published in 1978 and 1979. These changes coincided with a legal discovery of sexual harassment. In Canada, the first successful trial for sexual harassment was a criminal trial for attempted rape (or in the Canadian legal vernacular, “sexual assault”). The 1974 case of Angione ended with the employer convicted and ordered to pay his victim 1000 Canadian Dollars (Backhouse, 2008, pp263-286). In the US, the first was a 1978 civil (tort) case for discrimination contrary to the Civil Rights Act, Williams v Saxbe-Bell (Mackinnon, 1979, pp 63-65)
Capitalism has allowed a space for the emergence of an idea of the rights of the individual. This relative autonomy could be achieved because of ideas of bourgeois equality and liberty, but while these were necessary conditions for the emergence of the modern concept of rape, they were far from sufficient for this revolution to take place. There also need to be active campaigns by political women and their male allies to change the meaning of consent and to put pressure on politicians, on judges and on the police. Until the rise of the postwar women’s movement, the crime of rape was different from what it is today; and in particular most rapes (i.e. rapes in long-term relationships) were excluded.
The defining moment in the emergence of the contemporary criminal law of rape was the judicial acceptance of the possibility of marital rape. This was the delayed product of the slow breaking down of a kind of marriage contract characterised by male ownership of property, by married women’s restriction to a role in the reproduction of children rather than in autonomous labour, and by the purpose of sexual relationships being procreation rather than pleasure. It is only since these habits have become outmoded that the modern understanding of rape has fully emerged, and, even then, the law lagged behind.
Meanwhile, the breakdown of the old marriage contract with its iron-fastened presumption of consent was not merely the consequence of social changes (the affordability of contraception, increase female participation in the workplace), but also a result of political campaigns: for access to divorce and abortion, against the criminalisation of homosexuality, and against the refusal of judges, the police and politicians of all stripes to treat rape with the seriousness it deserves.
Once women had access to cheap contraception, inevitably two things changed. Women’s work became more valuable, and the purpose of sex changed. The legalisation of homosexuality had exactly the same effect, increasing our idea that sex might be a pleasurable activity which need not result in children. The more that sex became a defining part of our personality, the less justifiable was it to say that a wife should always voluntarily submit to her husband. Finally, specific campaigns around battered and raped wives, against the police mistreatment of rape victims, etc, reinforced our shared sense of the enormity of the crime of rape.
Focussing on how recent rape law is makes possible an explanation of why it is that those over 40 in particular seem most resistant to understanding rape’s hurt. Here, as perhaps elsewhere in life, decades of concentrated social experience combined with a natural, human nostalgia for the decade in which you reached adulthood, is the wrong starting-point. It closes your mind to what is new, deadens your sensitivity to a revolution in human consciousness, and causes you to miss the revolutionary part played by others in acheiving a dramatic reform.
Rape (as we presently understand it) began only in 1991; the emergence of an idea of rape as an assault on women’s autonomy and therefore on women’s essential humanity reflects the broader establishment of women’s rights both under and against capitalism and in particular the struggles of activists (“feminists”) to achieve a degree of equality for women under the law.
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