History of rape

The concept of rape, both as an abduction and in the sexual sense (not always distinguishable), makes its appearance in early religious texts.

Ancient Near East

Scholars of the Ancient Near East debate whether certain pieces of legislation regarding sexual offences from various states and cultures that have survived to the present day are about "rape" or about various other offences that the individuals involved may have consented to. (E-book edition) There are many literary problems that make interpretation of these sex laws difficult, as the meaning of words depend on the context, and the laws often do not provide information about what the people (especially the women) involved in the acts wanted or did not want, and were more concerned about which combinations of individuals were illegitimate in view of the social order. They tended to focus on what a man might do to/with a woman he was not married to, especially if this resulted in the loss of virginity, regardless of whether she consented to it or not. Consequently, one scholar may interpret a law as being about rape, while another scholar concludes it is about consensual adultery, premarital sex etc.

Mesopotamia

According to Scholz (2021), the only law in the Code of Hammurabi (composed c. 1750 BCE) that scholars universally agree relates to rape is § 130:

This law is similar to §6 of the Code of Ur-Nammu from Sippar (c. 2100–2050 BCE), and §26 of the Laws of Eshnunna (c. 1930 BCE). The latter has also been compared to Deuteronomy 22:25–27 by Craig S. Keener (1996), who considered both of them rape scenarios; it states the following:

Another provision, generally regarded as a marry-your-rapist law, is found in §55 of the Middle Assyrian Laws (c. 1450–1250 BCE):

Similarly, several provisions in the Hittite laws (also known as the 'Code of the Nesilim'; developed c. 1650–1500 BCE, in effect until c. 1100 BCE) are usually categorised by scholars as dealing with either incest, adultery or bestiality; § 197 is the only undisputed rape law:

Because the Hittite word for 'woman' in this case does not indicate any status, such as whether she is married or unmarried, widowed, free or enslaved, the law seems to have referred to all women in general, and thus that raping a woman was always a crime, not just when she was married or engaged.

In some rare cases, ancient laws did consider the (lack of) consent of a person (particularly a woman) involved a relevant factor in determining whether or not a sexual offence had occurred. Examples include §190 and §191 of the Hittite laws, and §12 of the Middle Assyrian Laws (this one involves a combination of lack of consent on the one hand, and force on the other).

* Hittite laws §190. 'If a man and a woman come willingly, as men and women, and have intercourse, there shall be no punishment. (...)'
* Hittite laws §191. 'If a free man picks up now this woman, now that one, now in this country, then in that country, there shall be no punishment if they came together sexually willingly.'
* Middle Assyrian Laws §12. 'If, as a seignior's wife passed along the street, a(nother) seignior has seized her, saying to her, 'Let me lie with you', since she would not consent (and) kept defending herself, but he has taken her by force (and) lain with her, whether they found him on the seignior's wife or witnesses have charged him that he lay with the woman, they shall put the seignior to death, with no blame attaching to the woman'.

Ancient Israelites

Scholz (2021) stated that the texts of Deuteronomy 22:25–29 'are widely recognized as rape legislation', while Deuteronomy 22:22–24 as well as Deuteronomy 21:10–14 'are more contested and are not usually characterized as rape laws'.

According to the Encyclopaedia Judaica rape itself is not considered to be a criminal offense in Jewish law. The rapist will only be held liable to pay the girls father 50 shekels of silver (as a bride-price), “and she shall be his wife, because he has humbled her; and he may not put her away all his days” (Deut.22:28–29). The exceptions to this are when either the rape is a case of adulterous or incestuous intercourse, or a married woman is found not to be have been a virgin (though claiming to be one at the marital stage of her Erusin (kiddushin) she and her seducer are to be stoned to death if the intercourse was consensual (Deut. 22:23–24); however if the woman did not consent only the rapist is to be executed (Deut. 22:25–27).

Under talmudic law, the rapist must also compensate the woman for physical and psychological damage (Ket. 42a–43b). If the victim refuses to marry him, he is then not compelled to marry her (Ket. 39b). If a girl was raped by several men, she can choose which one to marry (TJ, Ket. 3:6, 27d)

Ancient Europe

General

From the classical antiquity of Greece and Rome into the Colonial period, rape along with arson, treason and murder was a capital offense. "Those committing rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular."

Greek mythology

The rape of women or youths is a common theme in Greek mythology. Among the rapes or abductions committed by Zeus, the supreme deity of the Greek pantheon, are Europa, Ganymede, and Leda the Nymph.

The rape of Chrysippus by Laius was known as "the crime of Laius", a term which came to be applied to all male rape. It was seen as an example of hubris in the original sense of the word, i.e., violent outrage, and its punishment was so severe that it destroyed not only Laius himself, but also his son, Oedipus, his wife Jocasta, his grandchildren (including Antigone), and members of his extended family.

Ancient Rome

In Roman law, ''raptus'' (or ''raptio'') meant primarily kidnapping or abduction; sexual violation was a secondary issue. The "abduction" of an unmarried girl from her father's household in some circumstances was a matter of the couple eloping without her father's permission to marry. Rape in the English sense of "forced sex" was more often expressed as ''stuprum,'' a sex crime committed through violence or coercion (''cum vi'' or ''per vim''). ''Raptus ad stuprum'', "abduction for the purpose of committing a sex crime," emerged as a legal distinction in the late Roman Republic. The ''Lex Julia de vi publica'', recorded in the early 3rd century CE but dating probably from the dictatorship of Julius Caesar, defined rape as forced sex against "boy, woman, or anyone".

Although Roman law in the historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths and legends of early Rome. The Augustan historian Livy seemed "embarrassed" by the rape motif and emphasizes the redeeming political dimension of traditional stories. The "rape" of the Sabine women was interpreted as showing that Rome was constituted as a "blended" population in which people resolved violence and coexisted by consent and treaty. The rape of the exemplary woman Lucretia by the king's son led to the overthrow of the monarchy and the establishment of the Republic. In the 50s BCE, the Epicurean poet Lucretius condemned rape as a primitive behavior outside the bounds of an advanced civilization, describing it as "a man's use of violent force and imposition of sexual impulse."

Intercourse by force or compulsion, even if it took place under circumstances that were otherwise unlawful or immoral, left the victim legally without blame. The official position under the emperor Diocletian (reigned 284–305 AD) held that:

The laws punish the foul wickedness of those who prostitute their modesty to the lusts of others, but they do not attach blame to those who are compelled to ''stuprum'' by force, since it has, moreover, been quite properly decided that their reputations are unharmed and that they are not prohibited from marriage to others.

Although the law recognized the victim's innocence, rhetoric used by the defense indicates that jurors might harbor attitudes of blame.

As a matter of law, rape could be committed only against a citizen in good standing. The rape of a slave could be prosecuted only as damage to the owner's property. People who worked as prostitutes or entertainers, even if they were technically free, suffered ''infamia'', the loss of legal and social standing. A person who made his or her body available for public use or pleasure had in effect surrendered the right to be protected from sexual abuse or physical violence. Men who had been raped "by the force of robbers or the enemy in wartime ''(vi praedonum vel hostium)''" were exempt by law from ''infamia''.

There was no statute of limitations for rape; by contrast adultery, which was criminalized under Augustus, had to be prosecuted within five years. The rape of a freeborn male ''(ingenuus)'' or a female virgin is among the worst crimes that could be committed in Rome, along with parricide and robbing a temple. Rape was a capital crime, and the rapist was subject to execution, a rare penalty in Roman law.

The victim's consent was usually not a factor in Roman rape cases, since ''raptus'' could refer to a successful seduction as well as abduction or forced sex. What had been violated was primarily the right of the head of household ''(paterfamilias)'' to give or withhold his consent. The consequences of an abduction or an elopement were considered a private matter to be determined by the couple and their families, who might choose to recognize the marriage.

Late Roman and early Byzantine era

Attitudes toward rape changed when the Roman Empire became Christianized. St. Augustine believed Lucretia's suicide was likely prompted by her shame at being violated and her fear over possible accusations of complicity. He also suggests that it might have been an attempt to expiate her guilt over involuntary signs of sexual pleasure which had encouraged Sextus in his abuse. Augustine's interpretation of the rape of Lucretia (in '' The City of God Against the Pagans'' 1.19) has generated a substantial body of criticism, starting with a satire by Machiavelli. Historian of early Christianity Peter Brown characterized this section of Augustine's work as his most vituperative attack on Roman ideals of virtue.

The first Christian emperor Constantine redefined rape as a public offense rather than as a private wrong. Since under Roman law ''raptus'' could also mean cases of abduction or elopement without the head of household's permission, Constantine ordered that if the female had consented, she should be punished along with the male "abductor" by being burnt alive. If she had not consented, she was still considered an accomplice, "on the grounds that she could have saved herself by screaming for help." As a participant to the rape, she was punished under law by being disinherited, regardless of the wishes of her family. Even if she and her family consented to a marriage as the result of an elopement, the marriage was legally void.

Under the Emperor Justinian I, new penalties were enacted for the abduction (raptus) of nuns. Even attempting the abduction of nuns for marriage or sexual purposes was to be punished by death. Constantine's law against sexual abduction was changed to shift blame to the man, on the assumption that the participation of the woman, even if voluntary, was caused by male seduction. The law for other kinds of sexual violence continued to be handled by means of the older Roman legal principles governing cases of 'stuprum.'

Medieval Europe

In the 12th century, kinsmen of the victim were given the option of executing the punishment themselves. "In England in the early fourteenth century, a victim of rape might be expected to gouge out the eyes and/or sever the offender's testicles herself.""The Medieval Blood Sanction and the Divine Beneficene of Pain: 1100–1450", Trisha Olson, ''Journal of Law and Religion'', 22 JLREL 63 (2006) Despite the harshness of these laws, actual punishments were usually far less severe: in late Medieval Europe, cases concerning rapes of marriageable women, wives, widows, or members of the lower class were rarely brought forward, and usually ended with only a small monetary fine or a marriage between the victim and the rapist.

Medieval theologian Thomas Aquinas argued that rape, though sinful, was less sinful than masturbation or coitus interruptus, because it fulfilled the procreative function of sex, while the other acts violated the purpose of sex.Thomas Aquinas, ''Summa Theologica'', question 154. "...it follows that in this matter he sin of unnatural viceis gravest of all. After it comes incest... With regard to the other species of lust, they imply a transgression merely of that which is determined by right reason, on the presupposition, however, of natural principles." Here, ''unnatural vice'' includes, in decreasing order of sinfulness, bestiality, homosexual intercourse, any unconventional form of heterosexual intercourse, and 'uncleanness' (masturbation). 'Other species of lust' include intercourse with a consecrated virgin or a nun, rape, adultery, the seduction of a virgin, and 'simple fornication' (consensual intercourse between unmarried people.) A lawsuit against the famous late medieval English writer, Geoffrey Chaucer (1340-1400), demonstrates that the legal term "raptus" could not only be applied to actual cases of rape or sexual assault, but also to the unlicensed transfer of a female servant from one household to another. There was no law against rape during the 16th century in the Dutch Republic.

Type of crime

In some cultures, rape was seen less as a crime against a particular girl or woman than as a crime against the head of the household or against chastity. As a consequence, the rape of a virgin was often a more serious crime than of a non-virgin, even a wife or widow, and the rape of a prostitute or other unchaste woman was, in some laws, not a crime because her chastity could not be harmed. Furthermore, the woman's consent was under many legal systems not a defense. In seventeenth-century France, even marriage without parental consent was classified as ''rape''.

The penalty for rape was often a fine, payable to the father or the husband, as they were in charge of household economy.

In some laws, the woman might marry the rapist instead of his receiving the legal penalty. This was especially prevalent in laws where the crime of rape did not include, as a necessary part, that it be against the woman's will, thus dividing the crime in the current meaning of rape, and a means for a couple to force their families to permit marriage.

Modern doctrines today have different views on the type of crime that rape is; it may be seen as:
*rape as violence (principal wrong is the application of physical violence to the body, it is a physical harm—focuses on the body, on physical pain, injury)
*rape as violation of autonomy (infringes on the right to decide with whom/when to have sexual relations, focuses on the mind; rape of men is seen as serious as rape of women; adopts broad definitions including rape by deception)
*rape as invasion of integrity (a combination of the above views—focuses moderately on both body and mind)
*rape as moral injury (an attack on the dignity of the woman victim, and by extension on the dignity of women as a class, a gendered crime)
*radical feminist explanations of rape (sexual intercourse must be understood in the context of patriarchal society where women face systematic coercion and subordination; under these conditions genuine consent is difficult to be given; Robin Morgan argues: "Rape exists any time sexual intercourse occurs when it has not been initiated by the woman, out of her own genuine affection and desire"). Michelle Madden Dempsey and Jonathan Herring argue in ''Why Sexual Penetration Requires Justification'', that sexual penetration of a woman by a man is a '' prima facie wrong'', meaning that it requires justification in order to validate it, because of "the use of physical force required to achieve sexual penetration, the occurrence and risk of harm posed by sexual penetration, and the negative social meaning of sexual penetration in patriarchal societies."

Islamic conception

According to a Sunni ''hadith'', the punishment for committing rape against a fellow Muslim is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. Most scholars treat rape as ''hirabah'' (disorder in the land).

Rape is defined as ''zina bil jabr'', fornication/adultery with the use of coercion or compulsion. Note that it has to be extra-marital, i.e. fornication/adultery; the rape charge cannot be brought against the husband by the wife, i.e. it cannot be within marriage. The Islamic law approach to rape provides a range of possible charges, and thus penalties, which the qadi may posit, hirabah being but one, yet the most severe of them. Thus the charge of zina may bring about a penalty of 100 lashes upon the perpetrator and the element of the use of force and or compulsion may be quantified, and thus punished serially or consecutively, that is a year's banishment, a prison sentence, a corporal sentence etc. It is to be noted that Hirabah is a Hadd penalty (i.e. one predicating a fixed choice, which in the case of Hirabah has three options at the discretion of the qadi). If the offence is deemed to not be a Hirabah offence, then the penalties available to the qadi would be those of ta'zeer

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