Lucretia (and Lucia) and the Medieval Canonists: Guilt, Consent, and Chastity in the Early Canonistic Jurisprudence of Rape: Submission for Law and History Review
Keywords:
Gratian, consent, rape, LucretiaAbstract
This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.
References
1
Livy, Ab urbe condita (completed after 9 B.C.); Ovid, Fasti (c. 3-8 A.D.).
2
Ian Donaldson, The Rapes of Lucretia: A Myth and its Transformations (Oxford: Clarendon Press, 1982). On the Renaissance humanist reception of Lucretia, Stephanie Jed, Chaste Thinking: The Rape of Lucretia and the Birth of Humanism (Bloomington: University of Indiana Press, 1989). On Lucretia in medieval English literature, Corinne Saunders, Rape and Ravishment in the Literature of Medieval England (Cambridge: D.S. Brewer, 2001), 152–77.
3
Kathryn Gravdal, Ravishing Maidens: Writing Rape in Medieval French Literature and Law (Philadelphia: University of Pennsylvania Press, 1991), 8, 10–11.
4
Gravdal, Ravishing Maidens, 9.
5
Gravdal, Ravishing Maidens, 9–10.
6
Others have implied that treatment like Gravdal’s is problematic. Hiram Kümper, “Did Medieval Canon Marriage Law Invent our Modern Notion of Rape? Revisiting the Idea of Consent before and after 1200,” in Law and Marriage in Medieval and Early Modern Times, ed. Per Andersen and Ditlev Tamm (Copenhagen: DJØF Publishing, 2012), 127–38, noted the vigor of research by literary scholars on rape-narratives but the fact that “only a few of them have successfully combined questions and sources for both legal and literary history” (128). Better handling of the legal material, along with literary texts, is found in Saunders, Rape and Ravishment.
7
Pierre J. Payer, Sex and the Penitentials: The Development of a Sexual Code, 550-1150 (Toronto: University of Toronto Press, 1984); idem, Sex and the New Literature of Confession, 1150-1300 (Toronto: Pontifical Institute of Mediaeval Studies, 2009). With much greater attention to rape and abduction in penitentials, in all their ambiguity, but also the clear reference to rape in some instances, see Saunders, Rape and Ravishment, 100–109. There is more in those sources on rape proper than is suggested in Payer’s work.
8
Nancy E. Virtue, “Another Look at Medieval Rape Legislation,” Mediaevalia 22(1) (1998), 79–94, at 80; Hiram Kümper, “Learned Men and Skillful Matrons: Medical Expertise and Forensics of Rape in the Middle Ages,” in Law and Medicine in the Middle Ages, ed. Wendy Turner and Sara Butler (Leiden: Brill, 2014), 88–90; James A. Brundage, “Rape and Seduction in the Medieval Canon Law,” in Sexual Practices in the Medieval Church, ed. Vern L. Bullough and James Brundage (Buffalo, NY: Prometheus Books, 1982), 141–42 (also partly duplicated in “Rape and Marriage in Medieval Canon Law,” Revue de droit canonique 28 (1978), 62–75); Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987), 47–48; Gwen Seabourne, “Rape and Law in Medieval Western Europe,” in A Companion to Crime and Deviance in the Middle Ages, ed. Hannah Skoda (Leeds: Arc Humanities Press, 2023), 343.
9
Gravdal, Ravishing Maidens, 2–6; Kümper, “Learned Men and Skillful Matrons,” 93–94; Caroline Dunn, Stolen Women in Medieval England: Rape, Abduction, and Adultery, 1100-1500 (Cambridge University Press, 2013), 2, and chapter 1.
10
Brundage, Law, Sex, and Christian Society, 47, where the footnote does not reproduce the Latin original.
11
Dig. 48.6.3.4 (Marcianus): “Praeterea punitur huius legis poena, qui puerum vel feminam vel quemquam per vim stupraverit.”
12
Dunn, Stolen Women, 24-25; Diana C. Moses, “Livy’s Lucretia and the Validity of Coerced Consent,” in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies, ed. Angeliki E. Laiou (Washington DC: Dumbarton Oaks Research Library and Collection, 1993), 39–81, at 46.
13
Already recognized in Virtue, “Another Look,” 85.
14
See, e.g., Law, Sex, and Christian Society, 396–97.
15
Brundage, “Rape and Marriage,” 64-65; Brundage, “Rape and Seduction,” 142–44. It is important to note that C.27 q.2 c.48 and surrounding texts constitute a very small portion of the question, whose primary concern is the status of a marriage where a woman was previously betrothed to someone else. Abduction or raptus emerges in this argument as Gratian chooses to differentiate betrothal from raptus: a betrothed individual who chooses to marry someone else freely is one matter, and she should not be compelled to return to her original fiancée; a betrothed individual who is abducted, however, should be returned to her original fiancée.
16
Saunders, Rape and Ravishment, 77–87, which includes a brief treatment on Gratian’s C.36 on raptus followed by the best available discussion of canonistic commentary on raptus for the remainder of the Middle Ages.
17
Dunn, Stolen Women, 28.
18
Kümper, “Did Medieval Canon Law Invent our Modern Notion of Rape?”
19
Brundage, “Rape and Seduction,” 142–43, beginning with a discussion of raptus in C.36, identifies four components that after Gratian “gradually” became definitive for “rape,” including sexual intercourse. Virtue, “Another Look,” 85 says that Gratian himself maintained that “raptus necessarily involved [these] four elements.” She here is replicating Gravdal, Ravishing Maidens, 8–9.
20
Kümper, “Did Medieval Canon Law Invent our Modern Notion of Rape?”; also Kümper, “Learned Men and Skillful Matrons.”
21
Virtue, “Another Look,” 80. The relevant passage is C.36 q.1 d.p.c.3.
22
Seabourne, “Rape and Law in Medieval Western Europe,” focuses on the later Middle Ages and secular jurisdictions, particularly English common law, but does nothing with canon law.
23
Diana C. Moses, “Livy’s Lucretia and the Validity of Coerced Consent,” in Consent and Coercion to Sex and Marriage, 39–81.
24
Moses, “Livy’s Lucretia,” 69.
25
Besides Moses, note Saunders, Rape and Ravishment, 35: again, the only explicit exception given to clearing the woman of all guilt is in cases of warfare.
26
Moses, “Livy’s Lucretia,” 79.
27
Laiou, “Sex, Consent, and Coercion in Byzantium,” n Consent and Coercion to Sex and Marriage, 133.
28
Laiou, “Sex, Consent, and Coercion,” 188–89.
29
Cod. 9.9.20: “Foedissimam earum nequitiam, quae pudorem suum alienis libidinibus prosternunt, non etiam earum, quae per vim stupro comprehensae sunt, inreprehensam voluntatem leges ulciscuntur, quando etiam inviolatae existimationis esse nec nuptiis earum aliis interdici merito placuit.” Translation by Fred H. Blume.
30
Cod. 9.13.1. Brundage’s treatment is problematic; much clearer is Saunders, Rape and Ravishment, 34–35.
31
Cod. 9.13.1.3b: “Si enim ipsi raptores metu atrocitatis poenae ab huiusmodi facinore temptaverint se, nulli mulieri sive volenti sive nolenti peccandi locus relinquetur, quia hoc ipsum velle mulieri ab insidiis nequissimi hominis qui meditatur rapinam inducitur. Nisi etenim eam sollicitaverit, nisi odiosis artibus circumvenerit, non facit eam velle in tantum dedecus sese prodere.”
32
Brundage, “Rape and Seduction,” 144.
33
Cod. 9.13.1.1b: “Quibus connumerabimus etiam eum, qui saltem sponsam suam per vim rapere ausus fuerit.” See the translation by Blume, edited by Timothy Kearley, and hosted by the University of Wisconsin at https://www.uwyo.edu/lawlib/blume-justinian/_files/docs/Book-9PDF/Book9-13.pdf (March 4, 2025).
34
Regino of Prüm, Duo libri de synodalibus casibus et disciplinis ecclesiasticis 2.154-161, in Sendhandbuch, ed. Wilfried Hartmann, MGH Collectiones canonum 1 (Wiesbaden: Harrassowitz, 2023), 2.478–82. English translation: Regino of Prüm, Two Books on Synodal Causes and Ecclesiastical Disciplines, trans. Giulio Silano (Toronto: Pontifical Institute of Medieval Studies, 2021), 202–204. Much more sustained investigation of rape and raptus in early medieval canonical material, beyond what Payer and Saunders have done, is warranted.
35
Burchard, Decretum 9.32-39. A new online edition is in progress; meanwhile consult PL 140:819-21.
36
Burchard of Worms, Decretum 19.5 (PL 140:958D).
