Legal hurdles for today's sexual assault victims took shape in Medieval England
'Victim blaming' among the consistencies noted by researcher who studied 28 rape trials in the 1200s and 1300s
*Originally published on December 7, 2021.
Sexual assault victims in Medieval England faced similar challenges as they would today, says a researcher who studied 28 rape trials from 800 years ago.
"We are living in the past, so to speak, when it comes to our laws of sexual assault, and particularly, how we treat sexual assault survivors," said Mariah Cooper, a PhD candidate in history at Memorial University in St. John's.
"A lot of people say, 'Well, the legal machinery of medieval England just didn't work then. There was anarchy,' and that's just not true," said Cooper. "They were highly efficient courts, and they had great judicial machinery. It's just uniquely the crime of rape that has extremely frivolous reasons for trials to be dismissed."
Cooper examined the original court documents of 28 rape trials dating from 1201 to 1382 and found a conviction rate of about 10 per cent. That's not far off from recent Statistics Canada findings. Those show that between 2009 and 2014, about 12 per cent of sexual assault complaints reported to police result in convictions.
Victims could bring accused attackers before a travelling court
During the time period of the trials Cooper studied, victims of sexual assaults could bring their accused assailants before a travelling court known as the Court of the Eyre that would move from county to county to hear cases.
"There were mechanisms for women to seek justice, and the women could file rape charges in criminal court on their own behalf," said Carissa Harris, author of Obscene Pedagogies: Transgressive Talk and Sexual Education in Late Medieval Britain.
"They didn't need a man. They didn't need a father, a brother or a husband to do so for them, which often surprises people who think of medieval women as being virtually voiceless."
Harris said she started researching the sexual assault trials and "rape culture" of Medieval England to better understand the obstacles facing today's sexual assault survivors.
"I think it's useful to understand where our current ideas about sexual violence come from in order that we might eradicate the ones that are that are false or that are not useful to us," Harris said.
Hurdles for sexual assault victims
As Cooper went through the 800-year-old court documents, she noticed a few consistencies between those cases and contemporary ones.
"There is a lot of victim blaming," Cooper said. "'Did she fight hard enough? How can we believe her?' We have women who are accused of trying to bring down good men.
"These tropes are not just confined to the Middle Ages. We still see them today. And I think that once we start to understand how these were constructed, we can then be better educated on how to face them."
If a victim in Medieval England were to pursue an assault in court, she would have to immediately raise what was called a "hue and cry," in other words, to alert others immediately to the attack and show her physical injury to the local sheriff. If the sheriff was convinced, then the victim would have to describe the assault to men considered "good and honest," who would write down the account, said Cooper.
"Then if it's deemed worthy to go to court, you have to go and tell your story again, word for word," Cooper said. "So there are many cases [when] if the woman misremembers the date, or if she says that the attacker entered the back door and then says he entered the front door, all of those would result in a dismissal of the case."
Medieval judges applied written laws that were a combination of new standardized royal laws and old common laws. Often the judge had to rely on common sense to interpret them. Both the laws and the judges' interpretations could be problems for a survivor of sexual assault.
Popular Medieval romance and 'rape culture'
The legal standards and proceedings have to be understood within the culture, and popular fiction of the time reinforced ideas of women being lustful, deceitful and untrustworthy, said Harris, who is also an associate professor of English at Temple University in Philadelphia.
"You [had] a bleeding-through of these popular narratives from both religious culture and also secular culture, shaping how jurors encountered and believed or didn't believe women's claims when they brought their rape a rapist to court," said Harris.
"So you [had] this kind of echo chamber of the same kinds of narratives about false allegations, about women lying about rape."
One example of a popular fictional story of the era Harris points to is called The Cleric With Fair Eyes. In it, a woman falls in love with a religious man, and she demands he has sex with her. He refuses, and so she threatens to accuse him of rape. She pulls her hair, rips her clothes and he ends up in prison and is burned at the stake because of her false allegations.
The underlying message from such popular tales is that women are dangerous.
"[Women] will lie about you trying to rape them. They'll fabricate evidence so that everyone will believe them," said Harris. "And these poor, innocent men typically suffer really severe repercussions for the women's lives."
The assumption that victims will lie about an assault still holds today. While Canadian statistics are hard to come by, the National Community Attitudes Survey in Australia published in 2018 revealed that 42 per cent of Australians think sexual assault accusations are a way of getting back at men, and 23 per cent of Australians believe women exaggerate the problem of male violence. And one in 10 of think women are "probably lying" about rape if they don't report it instantly.
Contemporary Canadian context
Dalhousie law professor Elaine Craig pointed out that while there's been significant legal reform in Canada when it comes to sexual assault over the past few decades, there is still what she and other academics refer to as a "justice gap."
"I think that Canadian law inherited almost all of these problematic attitudes from our British precursors," said Craig, author of Putting Trials on Trial, Sexual Assault and the Failure of the Legal Profession. "There remains a gap between what our laws say on the books and how those laws are interpreted and applied.
"And so despite very progressive reforms in this area of criminal law, conviction rates remain the same, women continue to experience sexual assault trial processes as brutal and traumatizing, and we continue to have cases in which judicial reasoning is infected by the very same types of stereotypes."
For example, Craig points to the Medieval "hue and cry" rule of evidence and notes that until a few decades ago, it was assumed that if a victim of assault didn't report the attack immediately, the victim's credibility would be questioned.
According to a 2014 report by Canada's Department of Justice, 83 per cent of sexual assaults went unreported. The Canadian Centre for Justice Statistics, which assessed 93,501 sexual assaults reported by police from 2009-2014, revealed that only 20 per cent of alleged sex assaults actually made it to court, and 12 per cent led to a conviction.
Craig argues that the broader culture needs to change and the laws simply reflect the culture.
"We are all a function of our social context," said Craig. "Until we can eliminate problematic ways of thinking about sexualized violence and about women at a cultural or social level, they will continue to infiltrate our legal processes."
Guests in this episode (in order of appearance):
Mariah Cooper is a PhD student of history at Memorial University in Newfoundland.
Carissa Harris is an associate professor of English at Temple University and the author of Obscene Pedagogies: Transgressive Talk and Sexual Education in Late Medieval Britain. She's also the co-editor of a forthcoming book, Rape Culture and Female Resistance in Late Medieval Literature.
Elaine Craig is a professor of law at Dalhousie University and the author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.
