The Evolution Of Rape Laws: A Historical Perspective

The concept of rape has been addressed in various forms of legislation since the early days of civilization. The Code of Hammurabi, one of the earliest sets of written laws, considered the rape of a virgin as property damage against her father. The word 'rape' is derived from the Latin word 'rapere', meaning 'seize'. In the 11th and 12th centuries, rape began to be viewed more as a violent sexual crime against the victim rather than a violation of social morality. Early American colonies defined rape as carnal knowledge of a woman 10 years or older, forcibly and against her will. Over time, the age of consent was raised, and marital rape was criminalized in all 50 US states by 1993.

The Code of Hammurabi: the first written law designating rape as a crime

The Code of Hammurabi, composed around 1750 BCE, is the first written law to designate rape as a crime. The code was inscribed on a basalt stele and rediscovered in 1901 in Susa, present-day Iran. It is written in the Old Babylonian dialect of Akkadian and is the longest, best-organized, and best-preserved legal text from the ancient Near East.

The Code of Hammurabi is often cited as the oldest written law, but it was predated by at least two other ancient codes of conduct from the Middle East. These earlier codes, created by the Sumerian rulers Ur-Nammu of Ur and Lipit-Ishtar of Isin, date back to the 21st century BCE and bear a striking resemblance to Hammurabi's commands in style and content.

The only law in the Code of Hammurabi that scholars universally agree relates to rape is § 130, which states:

> "If a man forces the (betrothed) wife of another who has not known a male and is living in her father's house, and he lies in her bosom and they take him, that man shall be put to death and that woman shall go free."

This law is similar to §6 of the Code of Ur-Nammu and §26 of the Laws of Eshnunna, which are also considered to be about rape. The latter has been compared to Deuteronomy 22:25–27, which states:

> "If a man gives bride-money for a(nother) man's daughter, but another man seizes her forcibly without asking permission of her father and her mother and deprives her of her virginity, it is a capital offence and he shall die."

The Code of Hammurabi is one of the most famous examples of the ancient precept of "lex talionis," or the law of retribution, commonly associated with the saying "an eye for an eye." The code includes many bizarre and gruesome forms of punishment, with capital crimes often met with unique and grisly death penalties. For instance, if a son and mother were caught committing incest, they were burned to death.

The laws varied according to social class and gender. While one law commanded, "If a man knocks out the teeth of his equal, his teeth shall be knocked out," committing the same crime against a member of a lower class was punished with only a fine. The severity of criminal penalties often depended on the identity of both the lawbreaker and the victim.

Hammurabi's Code was ahead of its time when it came to laws addressing subjects like divorce, property rights, and the prohibition of incest. It also established a minimum wage for workers and is among the earliest legal documents to put forth a doctrine of "innocent until proven guilty."

Rape as a property crime: the rape of a woman was considered a property crime against her husband or father

The notion that rape was a property crime against the husband or father of the victim has deep historical roots. The concept of rape first appears in early religious texts, such as the Hebrew Bible, where it is framed as a crime against a father's property or honour. This interpretation of rape is also reflected in the Code of Hammurabi, which dates back to around the 17th century BCE. In this code, the only law that scholars unanimously agree relates to rape concerns the rape of a virgin who is betrothed to another man. The law states that the rapist should be put to death, while the woman should go free.

This interpretation of rape as a property crime was also prevalent in medieval English law. The rape of a high-born, propertied virgin was considered a more serious crime than the rape of a married woman, widow, nun, or prostitute. In these cases, the rapist could be redeemed by marrying his victim, thereby transferring her lands and property to him. This interpretation of rape as a property crime was also reflected in the concept of 'heiress-stealing' or 'bride capture', which involved the abduction and rape of a woman by a man who then claimed her as his wife.

However, in the 13th century, the Statutes of Westminster extended the concept of criminal rape to include the violation of wives, widows, nuns, and prostitutes. This marked a shift towards viewing rape as a violent, sexual crime against the victim rather than a property crime. Under the rule of Edward I, the Crown acknowledged that the protection of all women was a matter of state concern, not just the protection of landed virgins.

The interpretation of rape as a property crime was also applied in the context of war. In ancient times, it was considered lawful for armies to rape women after a battle, as the 'spoils of war'. This interpretation of rape as a property crime was also reflected in the practice of slavery, where the systematic sexual abuse of enslaved women was justified as the rightful 'property' of their owners.

Despite these historical interpretations of rape as a property crime, it is important to note that the concept of rape has evolved over time. In the late 20th century, the crime of rape underwent significant changes in definition, particularly in Western countries. The marital rape exemption, which stated that a husband could not be charged with raping his wife, was abolished in many countries during this period. Today, rape is widely recognised as a violent crime against the victim, rather than a property crime.

Rape in the US: the history of rape laws in the US, including the exclusion of black women

The history of rape laws in the US is deeply intertwined with the history of racism and sexism. The earliest written laws and texts defined rape as a property crime, with the male head of household or family as the victim. Over time, rape became a crime against a person, but the legal definition of rape in the US has historically excluded women of colour, particularly Black women.

Early Definitions of Rape

The English Common Law definition of rape, which most clearly influenced US laws, was "carnal knowledge of a woman 10 years or older, forcibly and against her will". This definition excluded male survivors and normalised acts that would now be considered statutory rape.

Exclusion of Black Women from Rape Laws

Many states excluded both free and enslaved Black women from their rape laws. A 1662 law stated that any children resulting from intercourse between an enslaved woman and a white man were not legally free, creating an economic incentive for white slave owners to rape enslaved women. This effectively legalised sexual violence against Black women.

Black women were unable to file rape charges against white men until 1861. Even after this, sexual violence against Black women continued to be used as a political tool. During the Civil War, Union soldiers raped enslaved women as a show of power against the Confederacy, but these cases rarely made it to court. White women's cases were more likely to be heard, but they faced further barriers such as testifying to all-male juries.

Collective Action Against Rape

Collective action against rape in the US began with African American women. Following the abolition of slavery, rape was used by white men as a tactic of violence and control over Black women and communities. Perhaps the first women to break the silence about rape were African American women who testified before Congress after being gang-raped by a white mob during the Memphis Riot of 1866.

Second Wave of Activism

The second wave of women's activism in the 1950s and 1960s gave hope that committed citizens could fight against injustice, institutional violence, and racialised sexual violence. The first rape crisis centres in the US were formed in the 1970s, and in 1975, Susan Brownmiller's book *Against Our Will: Men, Women and Rape* framed sexual violence as an attempt by men to exert control over women.

Recent Developments

In 1993, marital rape was outlawed in all 50 states, and in 1994, the first federal Violence Against Women Act (VAWA) was passed. However, approximately a dozen states still provide legal protections to perpetrators in situations of marital rape.

The #MeToo Movement, founded in 2006, has increased the visibility of issues surrounding sexual violence and amplified the voices of survivors calling for change.

Rape shield laws: rules limiting the defendant's ability to probe into the alleged victim's sexual behaviour

The concept of rape and its legal interpretation have evolved over the centuries, with early religious texts and ancient laws addressing sexual offences in varying ways. The Code of Hammurabi, dating back to around 1750 BCE, contains what scholars agree is the first law pertaining to rape, stipulating the death penalty for the perpetrator. Ancient laws from various states and cultures often focused on the social order, particularly concerning a man's actions towards a woman he was not married to.

In the modern era, the legal definition of rape has expanded significantly. It now encompasses sexual assault initiated by one or more persons against another without their consent, including physical force, threats, manipulation, impersonation, or the involvement of someone incapable of giving valid consent. The term "consent" itself varies by law and is influenced by factors like age and mental capacity.

Rape shield laws, introduced in the late 20th century, are designed to protect the victims of sex crimes during criminal proceedings. These laws limit the defendant's ability to introduce the accuser's sexual history as evidence during a rape trial, preventing character attacks and humiliation. The first rape shield law was enacted in the US state of Michigan in 1974, and within two decades, almost every US state had followed suit. While these laws are popular, they have also faced criticism for potentially violating a defendant's Sixth Amendment right to confront their accuser.

In the 1980s, Canada implemented a federal rape shield statute, but part of it was struck down in 1991 as it made mounting a defence too challenging. Revised legislation was later passed, strictly limiting when a victim's sexual history could be used as evidence for the defence. Similar laws have been adopted in Australia, India, and the Philippines, aiming to prohibit the admission of evidence related to a complainant's sexual reputation and history.

Rape shield laws apply to both federal and state criminal and civil rape cases, except in specific circumstances like when the accuser's consent can be established or when there is a shared history between the accuser and the accused. While these laws aim to protect victims from public shame and disincentivise them from reporting sex crimes, they also face legal challenges related to the right to confront one's accuser and issues of self-incrimination.

Marry-your-rapist laws: the practice of restoring a raped woman's honour by marrying her rapist

Marry-your-rapist laws, also known as rape-marriage laws, are rules of rape law in a jurisdiction under which a man who commits rape, sexual assault, statutory rape, abduction, or other similar acts is exonerated if he marries his female victim or, in some jurisdictions, at least offers to marry her. The terms for this phenomenon were only coined in the 2010s, but the practice has existed in a number of legal systems throughout history and continues to exist in some societies today in various forms.

Ancient Laws

Such laws were common around the world until the 1970s. The Code of Hammurabi, composed around 1750 BCE, contains a provision that some believe to be a marry-your-rapist provision. Deuteronomy 22:28-29 in the Hebrew Bible, composed in the 7th century BCE, also contains a similar provision. The Middle Assyrian Laws, developed between 1450 and 1250 BCE, stipulated that if a man "took by force and ravished" an unmarried virgin woman, the virgin's father would be allowed to marry his daughter off to the perpetrator for a price.

Modern Laws

In the 20th and 21st centuries, marry-your-rapist laws were adopted in several Middle Eastern and North African countries upon achieving independence. These laws were carried over from a mixture of pre-existing local Arab traditions, Ottoman imperial laws, and European colonial laws. In 1997, fifteen Latin American countries had laws that exonerated a rapist if he offered to marry the victim and she accepted. By 2017, all but four of these countries had definitively repealed these laws.

Current Status

As of 2021, only 20 countries were believed to still have marry-your-rapist laws. However, the practice of forcing victims of rape to marry their rapists continues in some countries where the laws allowing this have been abolished or never explicitly existed in the first place. This includes Ethiopia, Afghanistan, and Somaliland.

Criticism

Many activists and organizations believe that these laws violate the dignity of women, degrade them by allowing them to be traded as possessions between families, imply that rape is not a serious crime, and blame the victim instead of the perpetrator. Opponents of rape-marriage laws claim that they promote impunity for rape and further victimize rape victims. Mental health problems, including PTSD, anxiety disorders, rape trauma syndrome, and depressive disorders, are common in rape victims.

Support

Advocates for rape-marriage laws argue that they shield the victim and her family from the shame of rape, which was particularly important in ancient cultures where virginity was highly prized and a woman who had been raped had little chance of marrying. These laws forced the rapist to provide for their victim.

Frequently asked questions