Ravishing Maidens: Writing Rape in Medieval French Literature and Law

5. The Complicity of Law and Literature

5. The Complicity of Law and Literature Old French literature and medieval law offer conflicting images of sexual behavior. We can meaningfully contrast constructions of sexual practices in literature to other cultural representations, such as those that describe and define criminal sexuality. This chapter will examine two nonliterary manifestations of the discursive practiceof rape: the texts of medieval law, both canon and civil, which reveal the judicial norm, and the records of medieval courts of church and state, which record judiciary practice. Medieval rape law is complex and often contradictory. More than two legal systems coexisted in the later Middle Ages: ecclesiastical, on the one hand, and the civil or criminal law of royal, feudal, regional, and municipal courts.1 Laws regulating rape, like other crimes, sometimes conceal (or re­ veal) power struggles between church and state. The Introduction has traced the ways in which church courts and jurists struggled to impose ecclesiasticallaw, especiallyin matters of marriage and sexual behavior. The laws on mptus strove to settle the question of mar­ riage between an abductor and his victim. The watershed in canon law occurred with the work of Gratian in the 11405, which synthesized many of the inconsistencies in previous church law. Gratian established the inde­ pendence of canon from state law, emphasizing that in ecclesiastical law the appropriate remedy for mptus is excommunication. The Church's policy on mptus was deliberatelylenient compared to civil law on rape: "Although he expressed no opinion as to whether the death penalty was justified in ordinary rape cases, Gratian maintained that if the abductor and his victim took refuge in a church, the perpetrator must be granted immunity from capital punishment."2 Even though Gratian under­ stood that a wide gap between legal theory and practice existed, and that the Church's juridical machinery for enforcing the laws was ineffective, he left the development of an apparatus for arraignment and punishment to his successors.' The Complicity of Law and Literature 123 Secular law on rape was fairly consistent throughout medieval Europe, although each country maintained its own procedures. The civil records of England in the later Middle Ages have received greater attention than those of most European states. John M. Carter's study of the widely vary­ ing punishments in thirteenth­century England shows that English society struggled to find an equitable solution for rape.4 In the age of Glanvill (c. 1170­1230), rape was theoretically a felony, punishable by death; but convictions were extremely rare. In the age of Bracton (c. 1230­75), the rape of virgins was considered a felony, punishable by death or blinding. The Statute of Westminster I in 1275 downgraded rape to a trespass, punishable by imprisonment. The great turning point in English rape law came in 1285 when, in the Statute of Westminster II, Edward I tried to stop the growing rate of rape by declaring that all convicted rapists be punished by death or dismemberment.5 As Barbara Hanawalt has shown, this significant legal change took at least sixty­five more years to be implemented.6 In recent work on sexcrimes in thirteenth­ and fourteenth­century Italy, Guido Ruggiero has found that rape was there treated as an extension of the customary victimization of women, that is, as a fact of life that was accepted and not considered particularly troubling in fourteenth­century Venice. Penalties were minimal. Although cases involving minors, the el­ derly, or incest were taken seriously, cases involving girls of marriageable age, married women, widows, or lower­class women received only token punishment.7 In Germany, secular law from the thirteenth through the fifteenth cen­ turies provided the death penalty for rape.8 The forms capital punishment took were burial alive or decapitation; but records reveal that sentences were often lessened to blinding, inprisonment, or marriage to the victim.9 In addition, rape victims were held strictly responsible for fulfilling certain legal requirements in order to bring an accusation—first, screams and re­ sistance, then producing witnesses or else character witnesses.10 Throughout the Middle Ages, northern France continued in the legal tradition of imperial Rome: rape, referred to asfame esforcier, by which was understood forcible coitus, was punishable by death. Philippe de Beau­ manoir, a major thirteenth­century expert on customary law in northern France, states in the Coutumes deBeauvaisis that the punishment for rape is the same as that reserved for the most serious crimes, such as murder and treason, namely, to be dragged through the streets and hanged." One...