When and where was rape first criminalised independently from adultery?

Question

The ancient legislation I know about do not have any concept of rape, but of adultery / married, and virgin / not virgin.

The monotheist religious texts condemn rape as adultery outside the wedding, and allow it inside the wedding. In this system, the victim of a rape is condemned for adultery (unless she screams really hard and lots of people hear her, see the bible). If a man rapes another man, both are condemned for adultery and homosexuality. These rules were applied for quite a while in a lot of places.

The laws of the Roman empire (before it became Christian) did forbid sex with unmarried women, but allowed adultery with married women, so a rape on a married woman was not criminalized. Homosexuality not being forbidden, a rape on a man would not be condemned either.

Hence my question : when and where was it first criminalised independently from adultery/"virginity stealing" ? There seems to be kind of a shame factor on this (which is understandable).

Side note : I am so happy to live in the 21 st century

Answer 1

I am attaching a longish quotation from the Code of Justinian, promulgated in AD 528. As you can observe, the Code makes a clear distinction between rape and adultery. It stipulates the death penalty for men guilty of rape, regardless of whether the victim is married or unmarried, or of whether she a free woman or a slave. The only difference is that if the victim is free, the rapist, besides being executed, forfeits all his property to the victim, but if she is a slave the perpetrator loses his life, but not his property (that is: his property goes to his legal heirs).

Title 13. Concerning the rape of virgins, widows, and nuns.

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1. The Emperor Justinian to Hermogenes, Master of the Offices. We decree that ravishers of virgins, who are of honorable rank or freeborn, whether they have been betrothed or not, or of widows of any description, whether they are freedwomen or the slaves of others, shall be punished with death, as being guilty of the worst of crimes; especially when they are widows or virgins consecrated to God, for not only in this case is an injury committed against humanity, but against the reverence due to Almighty God himself; since the virginity or chastity which has been destroyed cannot be restored. It is with reason that person of this kind are condemned to death as ravishers, as they are frequently also guilty of homicide. Therefore, in order that a crime of such atrocity may not go unpunished, We decree by this general constitution that those who perpetrate it, as well as those who aid them at the time, where they are caught in the act and surprised when committing it, can immediately be killed by the fathers or the blood-relatives, guardians, curators, patrons or masters of the said virgins, widows, or women of any description whatsoever, whether they are freeborn or not. We order that these provisions shall, above all, be applicable to those who have dared to ravish married women, for the reason that they are liable to punishment for a double crime, that is to say, for adultery as well as rape; and it is necessary for the crime of adultery to be punished with greater severity on account of the other offence being added to it. We class with these criminals one who has ventured to ravish the girl who was betrothed to him. If, however, after the commission of such a detestable crime, the ravisher should be able to defend himself on account of his powerful influence, or to escape by flight, the illustrious Praetorian Prefects, as well as the distinguished Prefect of the City in this Imperial Capital, as well as the eminent Praetorian Prefects in Illyria and Africa, the Generals of the Army, throughout the different portions of Our Empire, the Eminent Prefect of Egypt, the Count of the East, the Vicegerents, Proconsuls, Dukes, and Governors of Provinces, and Judges of every rank, who may be in those places, shall display the greatest zeal and exert every effort to apprehend the culprit, and shall punish with exemplary severity those who have been arrested for the commission of such a crime, and sentence them to death after evidence which is competent and recognized by law has been given, without permitting any exception to be pleaded. If the defendants should wish to appeal, We, in accordance with the provisions of the ancient law of Constantine, refuse to grant them permission to do so.

(1) When the females who have been violated are either slaves or freedwomen, their ravishers shall only be subjected to the penalty aforesaid, and shall not be deprived of any portion of their property. If, however, such an atrocious crime should be perpetrated against a woman who is freeborn, all the property movable, immovable, or capable of moving itself, which belongs to the ravishers themselves, or to their accomplices, associates, or followers who have given them assistance, shall be transferred to the ownership of the said ravished freeborn woman by a decree of court, and the efforts of her parents, husband, guardians or curators. When the woman above mentioned is not married, she can lawfully be united in matrimony with any man whomsoever, except her ravisher, and the property of the latter, or as much of it as she may desire, shall be given as the dowry of the woman aforesaid. If she should not be willing to accept a husband, but prefers to remain single, We order that the said property shall belong to her absolutely, and that no judge, or any other person whosoever, shall dare to violate this provision. No virgin, widow, or any other woman shall be permitted to accept her ravisher as her husband, but any person whom her parents may agree to (her ravishers excepted) can legally marry her, as, under no circumstances, and at no time, shall she be given permission by Us to consent to marry one who, in Our Empire, may attempt to contract marriage in a hostile manner; for, where anyone desires to take a wife, whether she be freeborn or a freedwoman, it is necessary to demand her of her parents, or in accordance with Our laws and ancient customs, of others who have charge of her, so that a lawful union may be effected with their consent.

(2) The penalties which We have previously prescribed, that is to say, those of death and the loss of property, We decree shall not only be inflicted upon the ravishers themselves, but also upon those who accompanied them, and were present when the crime took place. We subject to the punishment of death all those who were aware of and accomplices in a crime of this kind, and have been convicted; as well as those who harbored the culprits, or gave them any assistance, whether they be men or women, no matter of what position, rank, or dignity they may be; and We render them liable to this penalty, whether the offence was perpetrated with or without the consent of the said virgins or women. If, however, the ravishers themselves refrained from the commission of this crime, being deterred either by fear, or by the severity of the punishment, no reproach can be brought against the woman, whether she gave her consent or not, because this law has been enacted to protect women from the treachery of wicked men, who intend to employ violence. For unless a man solicited her, and deceived her by his detestable arts, he did not induce her to submit to such dishonor; and if her parents, upon whom, above all, devolves the duty of revenge, should tolerate the crime, and stifle their grief, they shall be punished with deportation.

(3) When anyone of a servile condition is convicted of complicity in a crime of this description, We order him or her to be put to death by fire, without distinction of sex, as this was also very properly provided for by the Law of Constantine. All the provisions of the Lex Julia, which have reference to the rape of virgins, widows, or nuns, or which are contained in the ancient books of the law, or in the Imperial Constitutions, are hereby abolished for the future, and this law alone shall take the place of all others, so far as what We have decreed concerning the rape of nuns, virgins, and widows is concerned.

Given at Constantinople, on the fifteenth of the Kalends of December, during the Second Consulate of Our Lord the Emperor Justinian, [i.e., AD 528].

Source: http://droitromain.upmf-grenoble.fr/Anglica/CJ9_Scott.gr.htm#12

Answer 2

Interesting question. The Torah (Pentateuch) actually does have a concept of rape, distinct from “adultery/married and virgin/not virgin”:

“Do nothing to the woman; she has committed no sin deserving death. This case is like that of someone who attacks and murders a neighbor, for the man found the young woman out in the country, and though the betrothed woman screamed, there was no one to rescue her.” (Deuteronomy 22:26-27, NIV)

The text above compares rape to murder to explain why only the attacker should be punished, thus defining rape as an assault and distinguishing it from the other sexual crimes you mentioned. Now, this passage specifically refers to a betrothed woman, but in context this statement clearly applies to virgins as well (see 22:28-29). It should be noted that just because passage only refers to “betrothed” or “virgins” does not mean that the author of the law code is not concerned with rape of an unmarried non-virgins – rather, in that culture a girl who had never been married would have simply been assumed to be a virgin. Likewise, it can be assumed that someone who raped a married (not merely “betrothed”) woman would also be put to death (as was the rapist of a betrothed woman); like other ancient law codes, the Torah often legislates by listing examples (like case studies), rather than crafting careful, all-encompassing statements as modern laws tend to do.

In this law code, the rape victim was also not guilty-until-proven-innocent. You said that in monotheistic religious texts “the victim of a rape is condemned for adultery (unless she screams really hard and lots of people hear her, see the bible).” But this is actually not correct. In fact, she was only punished if lots of people heard her NOT scream – in other words, if she was in a town or populated area and obviously did not attempt to call for help (Deuteronomy 22:24). The author takes pains to clarify that if she screamed and no one was around to hear her, she was not to be punished at all (verse 27).

I will say that it does seem very odd (as a modern reader) that if the victim is a young virgin, then according to the Torah the rape victim is not executed and instead must merely pay a fine to the father and then be forced to marry the victim: “He must marry the young woman, for he has violated her. He can never divorce her as long as he lives.” (Deuteronomy 22:29)

This law is of course utterly perplexing to a modern reader living in a very different world, but it should be noted that the emphasis here is on the responsibility of the rapist to the victim (“for he has violated her”). Life for an unmarried non-virgin in those days could be pretty harsh (for a variety of reasons). The rapist thus (in addition to paying the fine) had to take responsibility for her and provide for her; and he lost the right of divorce. The Torah does not say if the father and daughter had a right to refuse this arrangement (the father’s right could be inferred from Exodus 22:17), but it might be assumed. Later Jewish law clarified that both the father and the daughter did in fact have this right. (If they refused, the rapist presumably would still have had to pay the fine - see Exodus 22:17). Yet (perhaps shockingly), it appears that in Jewish culture marrying your rapist was (by some woman, at least) considered to be the less degrading option even if you weren’t in any danger of falling into poverty – see 2 Samuel 13:16. Most modern people (myself included) would have trouble getting their head around this mindset, but that is no reason to say that the Torah does not criminalize rape.

All this being said, as you pointed out, the Biblical texts do not expressly condemn marital rape (although I don’t believe it expressly permits it, either). The horror of rape was largely in its defilement. (Rape in a culture with such a sacred view of sex would have therefore been worse than rape in our culture.) Since sex within marriage obviously did not defile the victim in the same way, it would might not have been thought of as “rape” – or at least, not as bad. After all, a married couple was considered to already be “one flesh”. I don’t know, but it is also possible that it was assumed that the marriage contract gave the partner conjugal rights, so any sex that took place afterwards by definition could not be rape. But that doesn’t mean that the Tora doesn’t distinguish rape/sexual assault from fornication/adultery – at most it merely has a different way of defining it (though not too different – cultural and legal distinctions between marital and non-marital rape have existed all over the U.S. until very recent times, and to an extent exist even today.)

The Torah was written by 400 BC; I don’t know if there is anything before this that that made so clear a distinction.

Sorry for the long answer; I hope this is helpful.

Answer 3

I could be mistaken but I believe that the Statutes of Westminster would be the first time rape was considered a moral wrong, rather than just an issue of property or adultery.

"...They redefined rape as a public wrong, not just a private property battle. The legislation also cut out the virgin distinction and made consent irrelevant for girls under 12, laying the basis for the modern principle of statutory rape."

This article gives a very thorough examination of the exact question you are asking.

article: Historical Development of the Offence of Rape

link to Historical Development of the Offence of Rape pdf

Answer 4

The 6th-7th century Visigothic laws certainly prosecuted rape: link to an English translation.

But I'm not totally sure if this is a good answer, since this prosecution is apparently partial. Still, sentences as

"Everything that pollutes the honor and dignity of human life must be restrained by law"

appears to put this kind of crimes in the sphere of the public prosecution, and not just in the private retaliation. Also:

"Any one who is known to have assisted, or to have been present, at the carrying off of any woman by force, if he is a freeman, shall pay a fine of six ounces of gold, and shall publicly receive fifty lashes with the scourge. If he is a slave, and acted without the consent of his master, he shall receive a hundred lashes."

Edit: As for masculine rape, the forced person or the minors (younger than 14) where no guilty of sodomy under the Seven Partidas of Alfonso X (13th century) of Castile and Leon. But this reads rather as if they where excused of punishment, instead of them being considered victims.