The ongoing “revelations” (which were common knowledge but hushed up and/or tolerated and/or accepted and encouraged and celebrated) about sexism, harassment, assault, and rape in the U.S. today came to mind as we were searching in the Body of Liberties published in 1647 Laws and Liberties of the Massachusetts Bay Colony and found this item in the section on capital crimes:
15. If any man shall RAVISH any maid or single woman, committing carnal copulation with her by force, against her own will; that is above the age of ten years he shall be punished either with death, or with some other grievous punishment according to circumstances as the Judges or General court shall determine.
The Laws and Liberties were an update of the 1641 Body of Liberties, the first legal code written by English settlers in North America. It’s interesting that the Puritans added a law against rape in 1647; while we have to despair at age 10 being made the age of consent, it is heartening to see that women had the right to resist sex—they could not be forced into sex against their will. And only the man is punished, which is an improvement from our own situation in the 21st century, where women are usually punished for coming forward to attest to sexual harassment, assault, or rape, whether by losing their jobs and/or their credibility, or being blamed for “asking for it,” or by seeing the male perpetrator walk off with a slap on the wrist at best.
The caveat that it is only a single or unmarried woman who cannot be raped is explained by the Puritan laws against adultery. A married woman was in a different legal category, which is addressed in #9 below from the 1647 Laws:
7. If any man or woman shall LIE WITH ANY BEAST, or bruit creature, by carnall copulation; they shall surely be put to death: and the beast shall be slain, & buried, and not eaten. Lev. 20. 15. 16.
8. If any man LIETH WITH A MAN-KIND as he lieth with a woman, both of them have committed abomination, they both shall surely be put to death: unless the one partie was forced (or be under fourteen years of age in which case he shall be severely punished) Levit. 20. 13.
9. If any person commit ADULTERY with a married or espoused wife; the Adulterer & Adulteresse shall surely be put to death. Lev. 20. 19. & 18. 20 Deu. 22. 23. 27.
These are the original three laws regarding sexual activity from the 1641 Body of Liberties. #7 is unchanged, but #8 has an update: originally, it ended with both men being put to death. The clause on being forced against one’s will into a homosexual act, or being underage, was added in 1647. Why is the age of consent for homosexuality so much higher (14) than heterosexuality (10)? It’s not clear, but it might be that heterosexuality, being considered “normal,” was perceived to be natural and even attractive to people at a younger age than “abnormal” homosexuality, so a child of 10 might “consent” to a heterosexual sex act. Again, disturbing as this 10 year-old age of consent is (or even a 14 year-old threshold), it is a step forward to see an early American society codifying the idea that a) consent is necessary for sex, and b) homosexuality is not immediately punishable by death for both parties. (And in fact, Roger Thompson’s Sex in Middlesex: Popular Mores in a Massachusetts County, 1649-1699 shows on pp 72-75 that, despite known homosexual incidents and even relationships, no man was ever executed for homosexuality in Puritan Massachusetts.)
#9 addresses adultery, circling back to the “ravishment” law and its application only to single women. This is unchanged from 1641. “Adultery” had a specific meaning to the Puritans—it was a synonym for “consensual.” “Ravishment” meant non-consensual, which meant only one party, the ravisher, was guilty and should be punished. But “adultery” meant two guilty parties—two equally guilty parties who must face equally harsh punishment. Notice that the man’s marital status does not matter; it is the woman’s marital status that matters, because she is the one who can get pregnant. A married woman who commits adultery and becomes pregnant with a child outside of marriage creates legal mayhem when it comes to her husband’s will. Even if the husband never knew the child was not his, it was the principle of the thing: a man should not leave his estate to a child that is not biologically his (unless of course he has acknowledged step-children, or adopted children, or legal heirs “not of his body,” like nephews or cousins, all of which were common). The point was that a married man should leave his estate to the child of his choosing, not to his wife’s bastard. And so a married woman consenting to sex with a man was adultery and was punishable by death.
What about a married woman being forced into sex, i.e., raped? This is not addressed in the 1647 Laws. Again, the idea was that a married woman was a sexually experienced adult who should be well able to a) stay out of dangerous sexual situations, and b) fight off the preliminary advances of a man, and then c) alert her husband and the authorities so the offender could be punished before he did anything more than preliminary. It was very unlikely, the thinking went, that a man would rape a woman immediately. It was far more likely that he had many flirtatious and then sexual contacts with the woman (kissing, etc.) that she did not turn down, and one thing naturally led to another. A married woman had to be complicit in sex outside marriage, according to this thinking, and therefore she was as guilty as the man. And those cases of adultery that went to court proved this to be true, insofar as women would recount many sexually charged conversations or physical encounters over time that led to sex.
Our own evolving view that a woman may encourage as much sexually charged interaction as she likes but draw the line at actual sex and have that decision honored by the man was non-existent in the 17th century, and is still regularly challenged in court today. When we look back at Puritan sexual laws, we see the beginnings of a more just system. We are still working to provide real justice in the realm of sexual crime today.
The Historic Present 