The Section 266 of the 1892 Criminal Code defines rape as “the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent representation as to the nature and quality of the act.” There are two main forms of sexual abuse: rape and defilement. These corporal malpractices have puzzled most judicial courts since time immemorial. Everyone will agree that in most sexual assaults, men are the perpetrators of rape. Unlike other crimes such as murder or looting, cases of sexual assault go unreported more often than not. It is thus difficult to ascertain whether the complainant is making false accusations or the incident actually happened without mutual agreement. This paper will seek to highlight how the society tackles the grievous crime of rape. Of particular focus will be the early communities, such as the Hebrews and old England, and the ways they dealt with cases of rape.
To begin with, the Hebrew laws justified the need to stone a victim together with an abuser at a gathering that was presided over by the elders. The penalty was given to the perpetrator alone only if the complainant screamed for help and somebody nearby heard the alarm. For cases where there was no witness, there was nothing to talk about but to stone the victims. On some lighter notes, the participants of the incident were forced to marry each other if the case did not unfold early enough for investigations to be done. In compensation, the perpetrator was forced to pay an agreed quantity of silver to the father of the disgraced girl.
False accusations about rape have existed in ancient Hebrew narrations. For instance, the story of Joseph and Potiphar’s wife depicts how false accusations can be made on to a righteous person with no chance for the accused to escape. Joseph ultimately ends up in prison just because he turned down Potiphar’s wife’s request for sex. This case made many nations take accusations concerning sexual assault with a pinch of salt and thus induced further investigations on the conduct of the accused.
In the thirteenth century England, King Edward I of the Statutes of Westminster tossed the death penalty out of the repercussions of sexual assault. According to King Edward I, the society had taken too much interest in protecting the rights of women without putting into consideration the welfare of men in this sort of cases. It should be noted that King Edward was in support of neither rape nor sexual assault. However, he shed light on how women can tend to be oppressive and malicious, thus created a new perception on the whole issue altogether. It was during this time when the penalty for sexual assault was imprisonment for a period of two years.
Just before the reign of King Edward I, the penalty for sexual assault had been capital punishment and all members of the family of the accused person had to be excommunicated. Moreover, the man had to lose all his property such as horses and cattle. 300 years later after the reign of King Edward I, the death penalty was resurfaced and remained the only way to curb sexual assault until this kind of punishment was placed for all criminal cases in 1841.
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The judiciary, in conjunction with the legislature, had to seek further ways of investigating rape cases. To begin with, several aspects of rape were laid down. First, an element of force must have been used in one way or the other. It would thus not make sense to rape a woman who is not against such action. However, this element raised many questions. The complainant might have subjected herself to self-harm, and thus the injuries might not necessarily have been secondary to sexual assault.
Pregnancy was also assessed. Pregnant women were perceived to be liars, and thus the rape cases concerning pregnant women were overlooked. In fact, it had almost become a scientific fact that a woman could not conceive if she was assaulted since she could not achieve orgasm. However, this myth was outshone by the increased number of women who conceived after their first sexual encounter albeit at sexual assault.
Marital rape was the most difficult situation to deal with. It sounded ridiculous that the means to achieve sexual contact was a crime yet the actual sexual intercourse was not. According to Hale, married women were not supposed to give excuses for not being in the mood of having sexual intercourse with their husbands. This rule was however tossed out since it proved how men despised women in the society.
The proof of semen secretion was another meridian that was considered in rape cases. Today, the obstetrics and gynecology departments have various ways of detecting semen in the female vagina. Such tests include the indigo carmine test, the fern test, and the pooling tests. Thus, proof of semen emission together with vaginal lacerations and tears becomes enough evidence for sexual assault.
For legal context, women who had unfaithful relations with their husbands were not considered to be honest in cases pertaining sexual assault. It is assumed that they would give consent to the man more eagerly than a woman who is either a virgin or is faithful to her spouse. The same would apply to a prostitute. Sexual assault of prostitutes was perceived not so serious as opposed to other women. The penalty given to perpetrators on prostitutes was less heavy than that of other women.
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