Sex without Consent: Rape and Sexual Coercion in America

2. “Playing the Rogue”: Rape and Issues of Consent in Seventeenth-Century Massachusetts

2 “Playing the Rogue” Rape and Issues of Consent in Seventeenth-Century Massachusetts Else L. Hambleton THERE ARE CONSTANTS in the female experience of rape. The typical rape victim in the seventeenth century, as today, was unmarried, employed, knew her attacker, and was unlikely to report the assault. Her assailant, in the unlikely event of prosecution, offered a defense as effective in the early modern world as today: the sexual activity had been consensual; there had been no struggle; and, he would assert, her sexual reputation was such that no reasonable man could have expected to meet with a refusal. These constants, however, mask significant differences. The physical and psychological effects of rape were exacerbated by the Puritan conflation of chastity and femininity. Public knowledge of the loss of virginity reduced a rape victim’s marriageability. Shame, too, was a powerful incentive to silence. In addition, the Puritan belief in predestination meant that as women who successfully resisted rapists credited God for their salvation, those who failed felt the full weight of God’s abandonment. These women had little to gain and much to lose by reporting a sexual assault. Rape victims faced additional difficulties. First, the seventeenthcentury belief in female inferiority and the concomitant application of a sexual double standard led to conflicting notions of the seriousness of the crime of rape.1 Grand jurymen had the power to ignore a complaint, or they could lay a charge along a continuum of criminality from fornication , which penalized the victim too, through assault, or lewd and 27 lascivious behavior, to attempted rape or rape. Grand jurymen were influenced by the class, the age, the marital status, and the reputation of the female victim and the man she accused. Second, the ideological construction of women as the “lustful daughters of Eve” imbued everyday female behavior with sexual meaning.2 Asmile while mutually engaged in fieldwork could be construed as an invitation. Third, the language of sexuality, the discourse of intercourse, privileged male aggressiveness over female submission. In consensual sexual intercourse, women “submitted” or “suffered” men to “use” or “occupy” their bodies for the purpose of “begetting children upon” them.3 Fourth, rape was difficult to prove. Two witnesses and an outcry were required. Even in cases where the rules of evidence appear to have been satisfied, a guilty verdict was not certain. Fifth, the narrow legal definition of rape conveyed the belief that if a woman conceived as the result of coerced sexual intercourse she had been a willing participant. The Massachusetts Bay Court of Assistants used an English jurisprudence manual, Michael Dalton’s The Countrey Justice, when they constructed their law code. Dalton defined rape as violent nonconsensual sexual intercourse. The issue of consent was paramount to Dalton. If a woman had consented after the fact, or if she had consented to intercourse out of fear for her life, her attacker was to be charged with rape. Dalton believed, though, and Puritan judges and juries agreed with him, that: [if] a woman at the time of the supposed rape do conceive with child by the Ravisher, this is no Rape, for a woman cannot conceive with child, except she doth consent.4 This presumption of consent upon conception made a world of legal difference to young women in seventeenth-century Massachusetts. All these factors meant that a decision to lay a rape charge was never cutand -dried, and a verdict of guilty was never a foregone conclusion. Rape was a capital offense, but men were reluctant to hang other men for engaging in heterosexual sexual activity including rape. Only fourteen men were tried for rape and three men for attempted rape by the Massachusetts Court of Assistants between 1630 and 1692. One might conclude, then, that sexual violence against women was limited. However, these low numbers are evidence not that sexual violence was rare in seventeenth-century Massachusetts but that women were reluctant to report incidents, and that those responsible for administering 28 ELSE L. HAMBLETON criminal justice, from the grand jurymen of the local quarterly courts to the justices of the Massachusetts Court of Assistants, were predisposed to see the use of force as an extreme, but not necessarily illegal, expression of normal male sexual activity. Only those cases in which the victim was married, where the issue of consent could be bypassed, or cases in which the victim was ten years of age or less and...