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Rape History in United Kingdom

Rape Legal History of Rape English Common Law

Introduction to Rape History

During the 12th and 13th centuries, an elaborate system of law based on judicial decisions, known as the common law, developed in England. The common law made rape a crime and provided for punishment of the rapist (but not of the victim). Rape was defined as sexual penetration of a woman forcibly and against her will. However, because the common law treated wives as the property of their husbands, a woman’s husband could not be found guilty of raping her, regardless of whether he used force against her to obtain sex. As a result of the wedding contract, wives could not legally refuse to have sex. Therefore, the law considered marital rape an impossibility.

In addition to creating complete immunity for husbands, English law also contained a number of legal and procedural requirements that made the prosecution of rape difficult. Under the utmost resistance doctrine, a man could be found guilty of rape only if his victim could demonstrate that she had physically attempted to fight off the rape but had been overpowered. A woman who was not physically bruised had little hope of proving a case of rape. If a woman did not promptly complain of a rape, under the fresh complaint rule her case could not be heard. The fresh complaint rule was based on the theory that a delayed report of rape was more likely to be fabricated.

Both the utmost resistance doctrine and the fresh complaint rule were based on assumptions that reflected the status of women in society. These doctrines were explicitly designed to protect men from false accusations of rape, indicating that English society placed more value on preventing false accusations than on protecting women from actual rapes. Legal decisions applying these doctrines assumed that women were likely to fabricate rape accusations, either because they were ashamed at having consented to sexual intercourse, because they had been rejected by their lover and wanted revenge, or because they had fantasized the rape.

Under English common law, certain rules of evidence also helped men defend themselves against charges of rape. Evidentiary rules governed what information was available to the jury during a trial, as well as the weight the jury should assign to the information. Special rules made it difficult to achieve convictions and made the trial an ordeal for the victim. Under these rules, a woman who reported a rape could expect to be questioned in great detail about her sex life. For example, the victim could be extensively cross-examined by the accused rapist’s attorney to show that (1) she had consented to sexual intercourse with the defendant (accused rapist) on that or another occasion, (2) she had consented to sexual intercourse with another man or men, or (3) she did not have a good reputation for chastity.

Although it was difficult to obtain a conviction under the common law, the punishment for rape was severe when prosecution was successful. During most eras, English law treated rape as a capital offense-that is, a crime punishable by death. See Capital Punishment.” (1)

Resources

Notes and References

  • Information about Rape History in the Encarta Online Encyclopedia
  • Guide to Rape History

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    Schema Summary

    • Article Name: Rape History
    • Author: Danny W.
    • Description: Rape Legal History of Rape English Common Law Introduction to Rape History During the 12th and 13th centuries, an elaborate [...]

    This entry was last updated: August 24, 2014

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