Cameron Miranda
The history of rape and rape laws is extensive and dates back to ancient times. One of the earliest known sets of written laws, the Code of Hammurapi or Hamurabi, promulgated around the 17th century B.C., included provisions related to sexual crimes. This ancient law considered the rape of a virgin as property damage against her father, reflecting the societal view of women as possessions. Over time, various legal systems and cultures have defined and addressed rape differently, with English law in the 1600s making a significant shift by redefining rape as the carnal knowledge of any woman above the age of 10 years against her will. The age of consent has since been raised, and the definition of rape has evolved, with activists and feminist movements playing a crucial role in advocating for legal change and the establishment of rape crisis centers.
| Characteristics | Values |
|---|---|
| Oldest written laws designating rape as a crime | Code of Hammurapi, c. 17th century BC |
| Hebrew/Jewish laws | Criminal penalties for rape; considered a civil wrong against the fathers and a crime of theft (of virginity) |
| Athenian Law | Female slaves were expected to produce offspring for their owners, so free women and virgins were more likely to report rape |
| English Common Law, starting with King Athelbert of Kent (597 AD) | Rape defined as "the unlawful carnal knowledge of a female over 10 years of age by a man not her husband through force or against her will" |
| Salic Law, 500 AD | Punishment for rape was a fine and death |
| Middle Assyrian Laws, c. 1400 BC | Introduced the "marry your rapist" law |
| 1600s, France | First notations of women's emotional state after rape were found in court records |
| 1662, United States | A law stating 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 |
| 1861, United States | A black woman could file rape charges against a white man |
| Late 1800s, United States | Temperance and suffrage activists successfully advocated to raise the legal age of consent from 10 to between 14 and 18, depending on the state |
| 1971 | Opening of the first rape crisis center in San Francisco, named Bay Area Women Against Rape (BAWAR) |
| 1974 | Michigan created the first successful attempt to legally redefine rape with the Criminal Sexual Conduct Law, outlawing spousal rape |
| 1975 | The country's first federal "rape shield" laws prohibited a survivor's past sexual history and reputation from being presented as evidence in court |
| 1996 | Georgia, the last of the 50 states, outlawed marital rape |
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What You'll Learn
The Code of Hammurapi, 1700 BC
The Code of Hammurapi, also known as the Code of Hammurabi, is widely regarded as one of the earliest written laws to designate rape as a crime. It was promulgated around the beginning of the 17th century BC, during the reign of Hammurapi (or Hammurabi), the sixth king of the Amorite First Dynasty of Babylon. Hammurapi ruled from approximately 1792 to 1750 BC, and his code of laws was inscribed on a diorite stele (a stone slab or pillar) discovered in 1901 in Susa by the French Orientalist Jean-Vincent Scheil.
The Code of Hammurapi is considered one of the most complete and perfect extant collections of Babylonian laws. It consists of Hammurapi's legal decisions, which were collected towards the end of his reign and inscribed on the stele, which was set up in Babylon's temple of Marduk, the national god of Babylonia. The stele is now displayed in the Louvre museum in Paris, in Room 227 of the Richelieu wing.
While the Code of Hammurapi is one of the earliest known codes of law, it is not the earliest. Three earlier collections were discovered after the initial discovery of the Code of Hammurapi: the Code of Lipit-Ishtar (discovered in 1947), the Laws of Eshnunna (discovered in 1948), and the Code of Ur-Nammu (discovered in 1952).
With regards to the specific provisions on rape, the Code of Hammurapi stated that sexual acts with one's betrothed were forbidden and that female slaves could not be raped as they were expected to submit to their masters' desires. Rape was considered a civil wrong against the father of the victim and was treated as a crime of theft or property damage. This perspective, viewing rape as a violation of a woman's father's or husband's property rights, persisted for a long time in various legal traditions.
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Hebrew and Jewish Law
The history of rape laws is a complex and multifaceted topic, with its roots reaching back to ancient times. While it is challenging to pinpoint the exact enactment of the first rape law, examining ancient legal codes and religious texts provides valuable insights into how different societies addressed sexual violence. One of the earliest known legal codes is the Code of Ur-Nammu, enacted around 2100 BCE in ancient Mesopotamia. This code includes provisions that address sexual crimes, such as adultery and sexual misconduct, indicating the ancient recognition of the need for laws governing sexual behavior.
Now, let's focus on Hebrew and Jewish Law, which have a distinct and intricate approach to addressing rape and sexual assault:
One of the earliest references to rape in Hebrew law can be found in the Torah, specifically in the book of Deuteronomy. The Torah outlines various laws governing the Hebrew society, including those pertaining to sexual conduct. Deuteronomy 22:25-29 provides one of the clearest examples of ancient Hebrew law's approach to rape: "If a man finds a betrothed young woman in the countryside, and the man forces her and lies with her, then only the man who lay with her shall die. But you shall do nothing to the young woman; she has committed no offense punishable by death. For this case is like that of a man attacking and murdering his neighbor, because he found her in the countryside, and though the betrothed woman cried for help, there was no one to rescue her. If a man finds a betrothed young woman and seizes her and lies with her, and it is proved, then the man who lay with her shall give to the father of the young woman fifty shekels of silver, and she shall become his wife because he has violated her. He may not divorce her all his days."
This passage outlines several key aspects of Hebrew law's approach to rape. Firstly, it recognizes the severity of the crime, prescribing the death penalty for the rapist. Secondly, it provides protection for the victim, ensuring that she is not punished or blamed for the assault. The law also takes into account the circumstances of the assault, recognizing the vulnerability of a woman alone in the countryside and the inability to call for help. Additionally, the law provides a form of restitution, where the rapist is required to marry his victim and is not allowed to divorce her, offering a measure of ongoing support and protection.
Hebrew law also recognized the concept of marital rape, which was a significant development at the time. Deuteronomy 22:23-24 states: "If there is a young woman, a virgin betrothed to a man, and a man finds her in the city and lies with her, then you shall bring them both out to the gate of that city, and you shall stone them to death with stones, because she did not cry for help in the city, and the man because he violated his neighbor's wife. So you shall purge the evil from your midst." In this case, both the rapist and the victim are punished, acknowledging the violation of trust and consent within a marital context.
Jewish law, building upon and interpreting Hebrew law, further developed intricate guidelines surrounding rape and sexual assault. The Talmud, a central text of Jewish law, jurisprudence, and ethics, contains extensive discussions and interpretations of Biblical laws. For example, the Talmud elaborates on the concept of consent, recognizing that a woman's silence does not imply consent and that clear and unequivocal consent is required. It also expands on the idea of restitution, providing guidelines for compensating victims and holding perpetrators accountable.
Over time, Jewish law continued to adapt and respond to changing societal circumstances. Medieval Jewish scholars, for instance, introduced the concept of "forced seduction," recognizing that a woman could be pressured or coerced into sexual relations without explicit force or violence. This recognition allowed for a broader understanding of rape and sexual assault, encompassing situations where a woman's consent was not freely given.
In conclusion, Hebrew and Jewish law offer a rich and complex perspective on rape and sexual assault, with a strong emphasis on justice, protection, and accountability. While the specifics of these laws have evolved and been interpreted over time, they provide a foundation for understanding how ancient societies grappled with sexual violence and sought to address it through legal means. The ongoing development of these laws demonstrates a commitment to adapting to societal changes while upholding core values of justice and respect for human dignity.
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English Common Law, 597 AD
The first written laws designating rape as a crime can be traced back to the Code of Hammurapi, which was enacted around the 17th century B.C. Hebrew laws, as set forth in the first five books of the Bible, also provided criminal penalties for rape.
In English Common Law, the earliest written promulgations date back to the rule of King Aethelbert of Kent in 597 A.D. The king's laws, as well as those of other monarchs, often did not specifically state an act as a crime or civil offence but instead indicated the penalty or compensation for that act.
Later English Common Law defined rape as the unlawful carnal knowledge of a female over ten years of age by a man who was not her husband, through force or against her will. This definition has been generally followed with some minor variations, including raising the age of consent to a more realistic level. Rape embodies force, lack of consent, and sexual intercourse, i.e., penetration of the male organ into the female vulva or labia.
Over time, the legal understanding of rape evolved, and by the 11th and 12th centuries, it began to be viewed as a violent sexual crime against the victim rather than a property crime against the victim's husband or father. The Statutes of Westminster, enacted at the end of the 13th century, marked a significant change by allowing the crown to prosecute rapists if the victim's family chose not to, indicating that rape was considered a crime against the state.
The common law of England recognised that even a prostitute could be a victim of rape if she had not consented to the act, as noted by Sir William Blackstone in his Commentaries on the Laws of England in 1769. The focus on the victim's state of mind and actions, in addition to that of the defendant, made the crime of rape unique.
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Salic Law, 500 AD
The Salic Law, also known as the Salian Law, was the ancient Frankish civil law code compiled around 500 AD by Clovis, the first Frankish King. The Salic Law is one of the earliest known instances of Old Dutch, written in Late Latin. The law code governed the Franks throughout the early medieval period and influenced future European legal systems.
The Salic Law provided written codification of both civil law, such as the statutes governing inheritance, and criminal law, such as the punishment for murder. The best-known tenet of the old law is the exclusion of women from the inheritance of thrones, fiefs, and other property. The law also included punishments for rape, which was a fine and death.
The original edition of the code was commissioned by Clovis I (c. 466–511) and published sometime between 507 and 511. The king appointed four commissioners to research customary law, which until then had been transmitted orally and recorded only in the minds of designated elders. For the next 300 years, the code was copied by hand and amended as required to add newly enacted laws, revise existing laws, and delete repealed laws.
The Salic Law also contains the Malberg glosses, which are Germanic terms interspersed through the Latin legal document. These terms have been used to reconstruct the earliest stages of the Dutch language, specifically Old Dutch. The law code also borrowed sections from other Germanic codes, such as the Lex Alamannorum, which took laws from the Alamanni, who were subject to the Franks.
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Modern perceptions
The feminist movement's efforts to address rape law and raise awareness about sexual violence have taken various forms. Consciousness-raising groups, large public events, and poetry have all been utilised to bring attention to the issue and offer support to survivors. The establishment of rape crisis centres, such as the Bay Area Women Against Rape (BAWAR) in 1971, has been a critical aspect of this movement, providing survivors with much-needed counselling and advocacy.
The legal system has also reflected the increased visibility of survivors since the 1970s. In 1975, the United States enacted its first federal "rape shield" laws, prohibiting the use of a survivor's past sexual history and reputation as evidence in court. This marked a significant step towards creating more survivor-centric legal systems and encouraged survivors to report sexual violence without fear of loss of privacy.
The feminist movement has also influenced public discourse and societal perceptions of rape. The Speak-Out events held by the New York Radical Feminist group in 1971, for example, provided a platform for women to share their stories and raise awareness about sexual violence. Additionally, the Take Back the Night marches that began in 1976 empowered women to protest sexual assault and assert their right to safety on the streets at night.
The impact of the feminist movement on rape law reform has extended beyond the United States. In 1974, Michigan successfully redefined rape through the Criminal Sexual Conduct Law, which was later adopted by other states. This broader definition of rape outlawed spousal rape and set a precedent for similar reforms in other jurisdictions.
Despite these advancements, challenges remain in the ongoing war against rape. Laws regarding sexual assault, harassment, and abuse continue to evolve, and there is a persistent need to address issues such as revenge porn and the distribution of sexually explicit images without consent. Additionally, as noted, societal perceptions of rape vary across different times and places, and in some contexts, rape is still not recognised as a crime against a woman's bodily autonomy. Therefore, ongoing efforts are necessary to ensure that rape laws are continually improved and effectively enforced to provide justice and support for survivors.
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Frequently asked questions
The oldest written laws designating rape as a crime were promulgated in the Code of Hammurapi around the 17th century B.C. Hebrew laws, set forth in the first five books of the Bible, provided criminal penalties for rape.
Ancient societies viewed rape as morally depraved, not because it harmed the woman, but because it harmed male honour. Raped women were seen as damaged goods and no longer marriageable assets. For a long time, the rape of a woman was considered a property crime against the victim's husband or father.
Early American colonies defined rape as "carnal knowledge of a woman 10 years or older, forcibly and against her will". This definition excluded male survivors and normalized acts that would now be considered statutory rape. In the late 1800s, the legal age of consent was raised from 10 to between 14 and 18, depending on the state. In the 1970s, the first rape crisis centres opened, and the first federal "rape shield" laws were passed, preventing a survivor's past sexual history from being used as evidence in court.
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