A Fine and Terrible Mystery – Episode 15: Constructing Necessity

This is the 15^th  episode in my investigation of the discordant life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

By the end of the 13^th century only the rape of virgins was punished by death; for others it was blinding and castration, carried out, at least in one instance according to Christina Hardyment, by the victim herself.  Sir Thomas Malory was accused of two incidents of rape suddenly, and for the first time, in August 1451.  The incidents supposedly occurred twelve months and fifteen months before, involving the same woman, Joan Smyth, wife of Hugh Smyth.  This post addresses the legal context for those accusations.

The word “rape” originally referred to two kinds of seizure:  one preceding sexual violation and the other preceding abduction.  The words “ravish” and “ravishment” were also used for any abduction.  Thus a child might be ravished by her or his parents without sexual connotation.  A common kind of abduction was of a married woman and such charges often included the theft of a husband’s goods.

Traditionally, in the case of sexual assault, a hue and cry was raised as soon as the incident was revealed or discovered, the wronged woman would show evidence:  torn clothing or injuries.  The perpetrator was arrested and the victim would personally “appeal” him in the county court or before the King’s Justices, who might be presiding over a traveling court, or in Westminster.  Married women, lawful concubines, prostitutes, widows, i.e. anyone presumed to have sexual experience, were precluded from personal appeal.  Such a case had to be indicted by a “jury of presentment,” 12 local men who agreed to the truth of the charge.  Perhaps this was intended  to prevent casual or malicious accusations.

Not unexpectedly, since punishment was severe, both appeals and indictments were highly detailed, both in the physical description of the event and the consequent damage or injuries.

In 1275 a new statute, now generally referred to as “Westminster I” was passed, possibly reflecting the influence of the unified canon law “Decretum Gratiani,” (which, for the first time, differentiated between abduction and forced sexual intercourse.)  “Ravishment” was defined as the abduction of a woman by force.   After 40 days, the crime could no longer be appealed by the victim, it had to be indicted by the crown.  Also, it now became a “trespass” punishable by two years’ imprisonment and a fine.

In 1285 a second statute, “Westminster II” amended the law further.  If a woman was abducted with property, but without her consent, the crime was a felony, even if she consented afterwards.  The penalty, (only on prosecution of an indictment, not an appeal) was death or castration.

According to Henry Ansgar Kelly, the renowned scholar of medieval law who surveyed the cases to place Malory’s case in context (“Statutes of Rapes and Alleged Ravishers of Wives:  a Context for the Charges against Thomas Malory, Knight,” Viator, volume 28, 1997, pages 361-419), the law was used for many applications beyond straightforward sexual assault.  For example, it was used by families to force unwilling parties into marriage, by girls attempting to force parents to accept an undesirable marriage through a fait accompli, and by discarded mistresses to force compensation.

In 1382, during the reign of Richard II, a third law was passed.  It’s primary sponsor, Sir Thomas West, was legislating in order to create legal redress for himself:  his own daughter was abducted and married by her preferred suitor instead of the man he’d selected to advance the family’s social position.  Under this new law,

-          - “ravishers and ravished” were “disabled from dower, jointure, inheritance” after the death of their barons or ancestors.”

-          - “barons of such women, if they are married, or their fathers or next of blood if they have no barons living, shall have suit to prosecute.”

-          - No defendant shall be admitted for wager of battle; truth must be tried at inquest.

The most novel aspects, both of which were pertinent to Malory’s case in particular, were that the family of the victim could now personally appeal the crime, not just the victim herself, and the defendant was precluded from trial by wager of battle.  The Commons almost immediately recognized the dangers, describing the law as “too rough and redde” and petitioned for repeal one year later.  It was denied, but the law was almost never applied:  there is only one recorded occurrence, in 1409, before Malory’s case.

Two perverse themes emerge in the three cases I’ve looked at most carefully, including the 1409 case, Nanteglo versus  Vide, Hotoft versus  Alexander et al in 1278, and Witchingham versus Langstrother in 1451.  Women with wealth or good expectations were abducted and held in order to extort money or force them into marriage.  Further,  abductors in such cases would prosecute rescuers or an original betrothed for rape ironically using the law to accomplish what it was originally intended to discourage and punish.

What about Malory’s case?

The details in the indictment and Hugh Smyth’s appeal make it clear that this was not a case of a member of the gentry abusing someone of lesser rank.  Both the amount of the alleged theft and subsequent research shows the Smyths to have had substantial means.

Kelly strongly suspects legal chicanery was used to entrap Malory, “it is possible, even probable, that carnal knowledge was specified in the indictment because Smith and his lawyers (and Buckingham and the other colluding justices) believed that sexual violation was necessary for the offense to be classified as a felony.”  This is consistent with the strategies John  Paston discusses in the context of the Witchingham/Langstrother case.

The lack of mention of physical evidence in the indictment is most telling as is the absence of any testimony from the victim.  Further, the indictment explicitly did not say, as indictments for sexual assault often did, that Malory violated Joan bodily (corporaliter violavit) or forced her against her will (afforciavit contra voluntatem).   Indeed, Hardyment argues that the language of the indictment implies that the “rape” was actually a rescue, though I am less sure.  Nevertheless, Kelly clearly establishes that “the statutory language used by the alleged husband amounted to an admission that his wife had consented to the abduction.”

Indeed, as Shannon McSheffrey and Julia Pope discuss (“Ravishment, Legal Narratives and Chivalric Culture in Fifteenth Century England,” Journal of British Studies 48, October 2009, pages 818-836) legal narratives were often shaped according to statutory definition.  Incidents were embellished or even created for that need;  “truth (was) crafted as much as discovered,” quoting Malcolm Gaskill.  The absence of many of those elements in the Malory indictment is what is most revealing.  Interestingly, McSheffrey and Pope go further, positing  that the legal narratives were highly informed by chivalric literature and romance.

To my mind, one of the saddest aspects of the legal history surrounding rape in the late 14^th and early 15^th centuries is how so much of the legislation is intended to control women’s behavior and bodies through property rights, and as de facto property, which is perhaps partly a consequence of the socially dynamic, politically uncertain and dangerous times.

It’s particularly interesting how the laws were leveraged to construct necessity, the force of which enabled women and men to escape social, economic or familial strictures to be with their preferred mate. 

As is apparent, I am particularly indebted to Christina Hardyment’s illuminating and comprehensive examination of all the issues surrounding the accusations of rape against Malory:  legal, cultural and literary, as well as the work of Henry Ansgar Kelly to which she refers.

Episode 16 can be found here.