Sex and Punishment: Four Thousand Years of Judging Desire (20 page)

The penitentials punished most violence and all illicit sex, but rarely put the two together. Those that did so were more concerned with preventing unarranged marriages than with protecting women. Significantly, the penitentials gave no breaks to female victims for being unchaste, regardless of whether or not they had been forced into sex. Even abused boys were punished: “A small boy misused by an elder older one, if he is ten years of age, shall fast for a week,” according to one penitential. “If he consents, for twenty days.” Later medieval church law punished
raptus
with excommunication, but also allowed rapists to escape punishment entirely if they could convince their victims to marry them.

IF CHURCH DOCTRINE was often vague on sexual violence, secular law contained no subtleties. Rape was translated into money: The higher the victim’s rank, the more the rapist paid. In Ireland, for example, local chieftains were worth seven
cumals
—and each
cumal
was worth seven female slaves or twenty-one milk-producing cows. As a wife’s honor was worth half of her husband’s, a man who raped a chieftain’s wife would have to pay 3.5
cumals
, an amount equal to the value of twenty-four and a half slaves. In England, a man could expect to pay five shillings for fondling a free woman’s breasts without permission. The fine doubled if he were to throw her on the ground, and the fine jumped to sixty shillings if he forced intercourse on her. Continental Frankish tribes followed the same pattern. If the girl was freeborn and the sex was consensual, the man paid her family forty
soldi
, but if the sex was forced and the man wanted to keep her as his wife, the price jumped tenfold. It was much cheaper to rape servants.

Rape victims always risked the accusation that they had invited the sex, or not fought off the violation hard enough. Irish law gave no legal protection to women who were slow to accuse men who had forced themselves on them. In Lombardy, girls who had voluntarily had sex with their ravishers could expect to be killed or sold off by their families. Unsurprisingly, many of them went to great lengths to avoid compromising situations. The eighth-century monk Paul the Deacon sang the praises of several Lombard princesses who had been turned over to invading Avar troops to be gang-raped. The girls were prepared:

They put the flesh of raw chickens under the band between their breasts, and this, when putrified by the heat, gave out an evil smell. And the Avars, when they wanted to touch them, could not endure the stench that they thought was natural to them, but moved far away from them with cursing, saying that all the Lombard women had a bad smell.

The sisters had had good sense. Absent extreme measures, there was no way they were going to make it through the experience in one piece, even if they had survived the rapes. As it was, they were able to keep their honor and, when matters calmed down, secure marriages to princes and kings.

Even when there was no doubt that sex had occurred by force, the suspicion still lingered that the victim must
somehow
have been at fault. In one medieval French exemplum used by preachers in composing sermons, a young woman convinced a court that a man had taken her virginity with violence. The rapist was told to pay her a sum of money immediately, which he did. After she left the courtroom, the judge instructed the man to find the girl on the road and get his money back by any means necessary. The rapist did as he was told, and attacked the woman a second time. She resisted him so tenaciously that he was unable to take the money from her, and he returned to court empty-handed. The judge then called the woman back to court and ordered her to return the awarded sum. Had she fought to preserve her virginity as forcefully as she did to keep the money, the judge said, the rape would never have taken place.

If a rape resulted in pregnancy, the woman who carried the child had almost no chance of winning in court. The “two-seed” theory of conception, which was prevalent at the time, held that both men and women needed to “ejaculate” to conceive a child. As ejaculation was always accompanied by pleasure, the pregnancy would be considered proof that the woman had enjoyed herself. (Anyone tempted to laugh at this as premodern foolishness should review the 1995 comments of North Carolina legislator Henry Aldridge: Arguing against a bill to aid pregnant rape victims, he claimed, “The facts show that people who are raped, who are truly raped, the juices don’t flow, the body functions don’t work, and they don’t get pregnant.”)
⁶

The picture was more nuanced when it came to forcible sex within marriage. First, the simple part: It was legally impossible for a husband to rape his wife. Once the two consummated their union, the husband then owned his wife’s body. Under law, she had consented to a lifetime of sexual submission. Of course, we have no way of knowing how frequently men used force on their wives, but if husbands were patient and willing to spend some money on litigation, there was another route to compel their wives to submit: the church court.

ECCLESIASTICAL COURTS HANDLED the majority of cases involving marriage throughout the Middle Ages, including disputes where one spouse refused to have sex with the other. A husband whose wife was no longer interested in him could obtain a court order forcing her back into bed. As far as the judge was concerned, the wife owed her husband a sexual debt that she was obliged to pay. It was no different than ordering payment for a wagonload of animal feed. This “marital” or “conjugal” debt was enforceable even when conditions changed during the marriage. No less an authority than Pope Alexander III (1159–81) ruled that a wife still owed the marital debt even when her husband contracted leprosy.

Yet the marital debt doctrine ran both ways: Wives also had the right to ask ecclesiastical judges to order their husbands to service them properly, even if they became less attractive over the years. Thus a leprous wife was able to demand that her husband go with her to a leper colony and continue to have sex with her, and a woman who lived apart from her husband could get a church court to force him to pay her sexual visits. The ruling declared: “We hold the [husband] bound to pay the conjugal debt to the [wife] in her father’s house one night each week and to keep up this obligation faithfully, until we shall order otherwise.”

The idea of the church forcing people to have sex with each other is one of the many paradoxes of Christian sex law. If sex was sinful in marriage, what was the church doing requiring spouses to have it? The answer comes from bedrock Christian belief reaching back to Saint Augustine—that the sex urge was uncontrollable. No matter what one did, the original sin of Adam and Eve ensured that the genitalia would continue to demand satisfaction. The goal of the church was to corral the sex urge into marriage to prevent it from seeking other outlets. Without their spouses, men and women risked doing things that put their souls at even greater risk.

The marital debt was so fundamental that it trumped almost anything else. One authority ruled that a wife who demanded sex during her menstrual period (when it was otherwise forbidden) should not be refused if it appeared that she would go outside the marriage for satisfaction. The same was true when a serf’s wife demanded sex while he was supposed to be working in the fields. If it looked like the wife could not wait and would commit adultery, the serf was allowed to take time off work and take care of her needs. Men were even forced to ask their wives’ permission to go to the Holy Land on the Crusades, as the women could be tempted to seek the company of others during their absence.

The consequences for not meeting a spouse’s sexual demands were severe. If refusal caused the other to masturbate or commit adultery, then the refusing spouse shared the guilt for the transgression. The spouse who denied sex could also face substantial physical dangers, as discovered by a Serbian priest, his wife, and a cow on the night before Easter:

On Holy Saturday evening [when sex was forbidden], a priest was tormented by a demon of lust. Remembering the requirement of abstinence, his wife refused to satisfy his urges. As a result, the priest went out to a barn and sought release with a cow. The next day, during the Easter mass, flocks of birds attacked the church. The priest ordered that the doors and windows be barred against the onslaught, and tearfully confessed his sin before the congregation. The priest and the congregants then opened the door and were allowed to leave unharmed. When the priest’s wife went out, however, the birds descended on her and tore her to pieces.

The message was clear: The priest would not have sinned had his wife gratified his lust. She was the responsible party, and paid the price.
⁷

ANOTHER TYPE OF sex on demand was a noble landowner’s prerogative to take his female serfs, generally on their wedding night—although the existence of
droit de seigneur
(“lord’s right”) or
jus primae noctis
(“right of the first night”) is disputed among scholars.

Most likely, no formal law was ever written allowing nobles to deflower female serfs before their husbands did, but at the same time many lords did take advantage of females under their power without the slightest fear of punishment. The higher one was on the social scale, the broader was the privilege to take liberties with one’s inferiors. That was a fact of feudal life, regardless of what any statute said. Only divine authority could intervene.

The ninth-century count (and future saint) Gerald of Aurillac saw an attractive serf girl and, as was his birthright, resolved to take her as his own. According to one version of the encounter, God stepped in at the last moment, not to save the girl but to safeguard Gerald’s holiness:

[Gerald] was tortured, therefore, allured, and consumed by blind fire. Overcome at length, he sent word to the mother of the girl that he would come by night. [Although still praying to be delivered from temptation] . . . Gerald came to the agreed place, and the girl entered the room; because he was cold he stood at the hearth facing her; divine grace looked on him just then, and this girl appeared to him so deformed that he could not believe it was she whom he saw, until her father asserted that it was so.

Gerald turned tail and rode away, thankful that the girl’s miraculous ugliness had allowed him to remained celibate. The truth of the matter must have been more prosaic. The girl’s parents had probably disfigured their daughter in a last-ditch effort to save her from rape. Again, we cannot know how often ruses like this were used or how many noble rapists were as gullible as Gerald. Like the weak everywhere, girls of the lower orders in medieval Europe were taken in countless unrecorded sexual assaults.
⁸

By the thirteenth century, English law had severe penalties for rape on the books, but the process was still weighted heavily in favor of the accused men. If the alleged rapist was a member of the clergy (as most English rape defendants were), he stood a good chance of getting the case heard in a church court, where milder punishments were the rule. If the accused was an aristocrat, he could demand that the case be heard in a court of his own peers, where he was likely to be treated well. However, if the defendant could be roped into a general civil court, and if the victim was persistent and savvy enough to muscle the case all the way through, there was, at least, a chance that the death penalty could be imposed.

The legal process in such cases was grueling and hazardous for females. Immediately after the assault, the victim (who was often a child) was required to raise a “hue and cry” and display her bloody garments to the nearest group of respectable people. Then she was to have run to various public authorities to report the crime, making sure to describe it precisely the same way each time. Within forty days, she was to file a lawsuit. Other papers were also required. Any variance in the papers or other procedural missteps destroyed the lawsuit and exposed the woman to imprisonment for filing false charges. This was no mere threat. About half the number of women who dared to accuse a man of rape ended up in jail themselves.

On a March evening in 1320, Joan Seler, the eleven-year-old daughter of a London saddler, stood outside her house on a crowded London street. Suddenly a French merchant named Reymond Limoges grabbed her arm and dragged her across town to his room. According to court records, Limoges threw her onto the floor:

[Limoges] Raised the clothes of the same Joan . . . to her navel, she being clothed in a blue coat and a shift of light cloth and feloniously . . . with both his hands separated the legs and thighs of this same Joan, and with his right hand took his male organ of such and such a length and size and put it into the secret parts of the same Joan, and bruised her watershed and laid her open so that she was bleeding, and ravished her maidenhead, against the peace of our lord the King.

Limoges fled as soon as he was done. Joan went immediately to local officials and to her father to report the assault, after which Limoges was apprehended. Eight months of legal skirmishing later, the case was thrown out because one of Joan’s filings said the attack had taken place on a Sunday while another said it had happened on a Tuesday. Joan had also filed the rape suit after the forty-day time limit. Flush with his win, Limoges sued Joan for filing a false case. He also went after her father and others for “conspiracy” in helping Joan pursue the suit. The record ends with Joan’s father being arrested.

Limoges walked free not because he was innocent, but because of the Selers’ technical errors in moving the case through the system. In 1287, a girl even younger than Joan and even more cruelly molested lost her case because she was found to be too young to have been legally raped. A man named Hugo had attacked seven-year-old Agnes, “causing blood to come from her mid-section and her nostrils” as he struggled to have intercourse with her. Agnes’s small size prevented Hugo from completing the act of coitus and rendered his assault, in the words of the court, a “worthless act.” To constitute rape, at least in this court, the sex had to be pursued to its grim completion. Hugo was acquitted.