Sexual Assault in the Early Modern Period

While rape is a growing topic in present society, it is not a new problem. Rape has been a serious crime for centuries, though the punishment, definition, and general attitude surrounding it has changed over the years. The definition of rape changed multiple times from the 17th to the 19th centuries alone. Until 1650, rape was seen as the theft or assault on a man’s property. It was also an ambiguous term that could have meant either sexual assault or kidnapping, keeping in line with the previous definition. As society and the legal system evolved, so did the definition, with it being seen as a crime against a man’s possession(s) and instead as a crime against the woman who had been assaulted. While this was an improvement, that did not mean there were not any difficulties relating to rape accusations and trials. This paper will be discussing the topic of rape and sexual assault in the early modern period, focusing on the impact of attitudes surrounding both male and female sexuality, children and rape during this period, as well as examining trial reports from rape cases involving both children and adults.

One key concept in all cases of rape during this time was virginity. A woman’s virginity was not only hers, but her family’s most prized possession. It was important for the woman to have any kind of worthwhile future, and any damage done would result in her losing that future and hurting her family’s reputation. As stated earlier, rape was at one point considered the theft of a man’s property – one of those possessions being a woman’s virginity, as well as the bloodline and the woman herself. Women were considered the property of their fathers (or any paternal figure in her life) and then their husbands should they get married. This definition implies that only women who were owned in any sense could be raped, or perhaps only women whose virginity was considered to have value. This belief turned a woman into the object of the crime as opposed to the victim, as well as putting the desires of the men involved in the crime before the true victim.

Once the legal definition of rape became a sexual crime against a person, the issue became consent; deciding who could consent and proving lack of consent. The age of consent for marriage was twelve, but the age of consent for sexual intercourse was ten. Forced consent was quite common through violence, bribery or threats, though if it could be proven that consent was forced it was used against the defendant. There were also situations in which a woman’s consent could be overridden when her family arranged a marriage for her. Another concern surrounding the importance of a woman’s consent was the fear that if a woman could consent to sexual intercourse, they could also lie about their consent in the aftermath, increasing the growing fear of women’s sexuality during this time. This fear made it more difficult for victims to convince a jury of men that they had indeed been raped and were not merely regretting choosing to have sex with someone.

Having examined the definition of rape and consent, it would be pertinent to examine other legal details concerning this crime. Due to the difficulties of proving a lack of consent in a rape case, there were a few other forms of evidence that were almost necessary to get a conviction in a rape case. The first being physical evidence, usually blood or torn clothing as a result of the attack. Closely connected to that was the amount of time it took for a woman to report the attack. If a woman took too long (ie. did not report the attack immediately) she may not be taken seriously, as it could be used by the defendant by saying it was an accusation made in anger to get revenge on the accused for some unrelated slight. In fact, a woman’s best chance in being taken seriously in the eyes of the law and her community is to perform her report in a way that shows her audience (the respected man she reports to first, the police, and the court) how deeply upset she is, however she must not be particularly loquacious as this “may convey a disturbing lack of innocence.” Furthermore, the reporting of the attack is compared to the performance of a “staged tragedy” if one is to have any chance of being believed.

Some further issues arose in regards to the knowledge that medical professionals had, or rather did not have, at this time. There were some beliefs, though it is debated by scholars how widespread these beliefs were, that current medical practitioners would discredit. One of these beliefs was that women could only get pregnant if they were aroused during intercourse, meaning rape could not result in pregnancy. There were also those who were of the belief that “women were insatiable, since they constantly longed for male seed. Experienced women especially were thought to be sexually hungry.” This belief made it more difficult for the courts to believe women who were no longer virgins had been raped, including married women. This is possibly the reason there seem to be fewer cases of rape involving married women, this and the fact that many believed rape was such a heinous crime when it resulted in a woman having her virginity taken from her. The crime was not as damaging if the woman’s virginity was not being ‘stolen’ or ‘lost.’ Punishments also seemed to be less severe when it was proven a married woman had been raped, sometimes as little as a public apology or to beg for forgiveness and promise to never commit the crimes again.

Punishments tended to be more severe when the victim was a child, usually life in prison or execution. This is likely due to a child’s virginity, which has already been established as critical in how seriously a rape case was taken, and how virginity and innocence were often synonymous, particularly when children were involved. It should be reiterated that, in this context, a girl was able to consent to sexual intercourse at the age of ten and marriage as young as twelve. While this was the average age, it was often a situational arrangement with parents keeping their daughter separate from her husband until both parties were considered sexually mature – a girl was usually considered sexually mature when she began menstruating, though this could still be quite young. This meant that, while sexual crimes against children were not acceptable, men being attracted to young girls was not abnormal.

Despite a separation between church and state in the legal system, there was still ecclesiastical influence, particularly in regards to sexual crimes. This is relevant because it meant that in the eyes of the law and most of society sex was for the purpose of reproduction. Therefore, sex with a prepubescent child was “morally repugnant” and seen as “ruining the child.” Due to the fact that attraction to young girls was not uncommon, there was no term to describe what we would now describe pedophilia, so it was generally the character and behaviour of these men that was used to categorize them. They were generally seen as immoral or as having uncontrolled lust, any deviation from what was seen as a moral upbringing was highlighted in a cautionary way when the news was published.

In a study done using records from The Old Bailey, the criminal court that covered England and Wales, it was found that approximately 50% of all rape trials involved children who were fourteen or younger. Less than half of the child rape trials resulted in a conviction, often due to lack of evidence or because the victim was not found competent to testify. However, if a man was not convicted of the rape of the child, they were often retried with a lesser charge of assault with the intent to rape; the courts took the sexual assault of a child very seriously. For example, in a case where a man was being retried for the lesser charge, the family of the victim was given a financial allowance that made it possible to pursue the second charge.

While most of this essay has been general, it has been said that sometimes the rules changed situationally, which illustrates the importance of studying individual trials to get a well-rounded knowledge of rape in the early modern period. It should also be noted that biases are prevalent in these trial records, as they are in most primary sources. One bias I found interesting and indicative of the time they were written was the lack of detail written about the victims. This was not the case in every record, but there were a few reports that focused almost entirely on the accused, likely to garner more interest when the details were published or to better caution society from following the same path.

The first record I will discuss is that of Daniel Wilson. The title of the record indicates Wilson was executed after being arrested for committing rape, however this was not the crime he was seemingly executed for. He seems to have been executed after committing a multitude of crimes, primarily robbery, with a rape charge only briefly mentioned once: “The greater parts of the money and goods were taken from me by the authority in Smithfield when I was apprehended for committing a rape.” There is no further detail into the rape, the victim, or to which definition of rape he is referring. Perhaps the article mentions the rape in the title to interest readers, or to show that a rapist is likely to have committed other crimes that are not sexual in nature.

The second record is similar in that the accused’s previous crimes are described in much greater detail than the rape that he was executed for. Joseph Mountain was a career criminal, a highway robber for many years. The document is sixteen pages long, with the first 14 pages being a detailed history of his highway robbery crimes, while the last two pages briefly describe the rape he was arrested for, the sentencing, and his thoughts about his treatment in court. However, there are more details about the rape in the recount than there were in Daniel Wilson’s report. Mountain said he came across two sisters while he was walking, and initially attempted to persuade one of them to have sex with them and when he was unsuccessful he “abused her in a most brutal and savage manner.” He explains that she screamed and reiterates how cruel and barbaric his attack was. The attack stopped when passersby heard the attack and came to help the victim, whose name is never given. Mountain, despite explaining that “no exertion was wanting to ruin her,” maintains that he should not be charged with rape, but perhaps assault with intent to rape.

Perhaps the charge would be life in prison, as opposed to the execution he faced, however the trial resulted in a conviction and he was executed for his attack. The report concludes with Mountain expresses gratitude for “those gentlemen who have exhibited such a tender concern for my immortal interest,” which likely means clergymen speaking to him about religion and forgiveness. He also describes his experience with the courts and his trial, stating he was granted every indulgence and “his trial was more favourable than he expected.”

The last trial that will be examined is that of Richard Croucher for the rape of thirteen year old Margaret Miller. This record has a significant amount of detail on both the victim and the accused and is solely focused on the rape; while the previous two records were overviews of the crimes committed by the accused, this record is a trial transcript.

Margaret Miller was a thirteen year old girl who had been living with Mrs. Stackhaver for a few years, considering her a mother figure; Croucher was a man that was around the house daily, likely courting Mrs. Stackhaver as they were married sometime later. The rape occurred one night after Croucher requested Margaret clean his house the next day and suggested it would be more convenient if she slept at his house in the same room as another servant girl. When Margaret arrived at Croucher’s house he locked her in his room and proceeded to rape her several times throughout the night. She left the next morning as soon as it was light, though she was in pain “so much that I could hardly get home the next morning.” Margaret did not tell her mother due to Croucher threatening her should she make noise during the attack or tell anyone afterwards. This threat was compounded by his presence at her home every day and his eventual marriage to her caregiver.

The crime was later reported to the authorities by Stackhaver months later after Croucher confessed to having “lain with [Margaret] with [her] consent.” The reason he confessed to this was because he was trying to convince his wife to remove Margaret from the house. Croucher was abusive to both his wife and Margaret, though he never raped Margaret after the initial attack, and this is likely the reason Stackhaver reported the rape. During the trial both Margaret and Croucher testify, with Margret giving the account above, while Croucher insists the sex was consensual and his way of proving she was a “whore.” In the end, the trial became a “he said/she said” case, with both the defence and the prosecution asking the jury who they believe to be telling the truth.

Once all testimonies were completed, the jury returned with a guilty verdict after four minutes of deliberation. Once this conviction is announced, Croucher attempts to go back on his confession, stating he “deserved severe punishment for his conduct” yet “he had never had any connection with the girl who had sworn against him.” The court dismissed him after telling him that his repeated confessions during the trial nullify his denial of sexual contact.

While the three records resulted in convictions of some kind, they are not necessarily indicative of the time, as was stated earlier. Rape was severely underreported, any form of female sexuality was feared and shamed, and women’s rights were minimal. Despite this, rape was eventually understood to be a serious and brutal crime against the women and children who were attacked.

Sources:

Cohen, Elizabeth S. “The Trials of Artemisia Gentileschi: A Rape as History.” The Sixteenth Century Journal 31, no. 1 (2000): 47-75.

Croucher, Richard D. “Report of the Trial of Richard D. Croucher, on an Indictment for a Rape on Margaret Miller; on Tuesday, the 8th Day of July, 1800.” America’s Historical Imprints (1800): 1-28.

Higginbotham, Jennifer. “Girls and Sexuality in Seventeenth-Century Love Lyrics.” Studies in English Literature 59, no. 1 (2019): 153-175.

Mountain, Joseph, and David Daggett.” Sketches of the Life of Joseph Mountain, a Negro, Who Was Executed for a Rape.” America’s Historical Imprints (1790): 1-16.

Pallotti, Donatella. “Maps of Woe: Narratives of Rape in Early Modern England.” Journal of Early Modern Studies 2, no. 2 (2013): 211-239.

Toulalan, Sarah. “‘Is He A Licentious Lewd Sort of a Person?’: Constructing the Child Rapist in Early Modern England.” Journal of the History of Sexuality 23, no. 1 (2014): 21-52.

Van der Heijden, Manon. “Women as Victims of Sexual and Domestic Violence in Seventeenth-Century Holland: Criminal Cases of Rape, Incest, and Maltreatment in Rotterdam and Delft.” Journal of social history 33, no. 3 (2000): 623–644.

Wilson, Daniel. “The Life and Confession of Daniel Wilson, Who Was Executed at Providence (Rhode Island) on Friday the 29th of April, 1774, for Committing a Rape.” America’s Historical Imprints (1774).