In BLACK is from the Encyclopedia
In RED is my personal response
English Common Law
During the 12th and 13th centuries, an elaborate system of law based on judicial decisions, known as the common law, developed in England. The common law made rape a crime and provided for punishment of the rapist (but not of the victim). Rape was defined as sexual penetration of a woman forcibly and against her will. However, because the common law treated wives as the property of their husbands, a woman’s husband could not be found guilty of raping her, regardless of whether he used force against her to obtain sex. As a result of the wedding contract, wives could not legally refuse to have sex. Therefore, the law considered marital rape an impossibility.
(wives were not LEGALLY allowed to refuse sex? I sure am glad things have changed, but hear this...though in this day and age if a man rapes his wife there are consequences 17% of all men that do rape their wives are still getting away with it for lack of sufficiant evidence or because most wives STILL believe in a system that condones a wife as a husband's legal property. I kind of believe that perhaps every wedding contract should come attached with a brocheure educateing women about their rights as a spouse. Maybe then, more women will feel empowered and less women will feel trapped and ashamed.)
In addition to creating complete immunity for husbands, English law also contained a number of legal and procedural requirements that made the prosecution of rape difficult. Under the utmost resistance doctrine, a man could be found guilty of rape only if his victim could demonstrate that she had physically attempted to fight off the rape but had been overpowered. A woman who was not physically bruised had little hope of proving a case of rape. If a woman did not promptly complain of a rape, under the fresh complaint rule her case could not be heard. The fresh complaint rule was based on the theory that a delayed report of rape was more likely to be fabricated.
(I believe they still hold the FRESH complaint rule, it's called dis-belief or belief of fabrication. Why is it that any criminal is innocent until proven guilty in a court of law but if a woman reports her rape one year later than it happened she is deemed guilty until proven innocent? The rapist preys on a woman's shame and inability to come forward. He's satisfied in the comfort of knowing there will now be a substancial lack of evidence against him. Why don't we counsel the raped? God forbid she feel violated from this crime. After all, this rapist didn't take her panties, he took her body. Yet rape is treated like a common robbery; the rapist sneaks up, breaks in, steals from her home and gets away with it. Taking from the body is a violation, not a robbery. We still have a system that believes if a rape report is delayed it was more likely fabricated than true.)
Both the utmost resistance doctrine and the fresh complaint rule were based on assumptions that reflected the status of women in society. These doctrines were explicitly designed to protect men from false accusations of rape, indicating that English society placed more value on preventing false accusations than on protecting women from actual rapes. Legal decisions applying these doctrines assumed that women were likely to fabricate rape accusations, either because they were ashamed at having consented to sexual intercourse, because they had been rejected by their lover and wanted revenge, or because they had fantasized the rape.
(They created doctrines to protect men from false accusations first, without considering a doctrine to protect the raped or the rights of those who do the accusing. Though I believe in justice for all (yes we should all be protected equally), I still find myself wondering why the smaller percentage always wins over the larger? Why the violator is protected before the violated. Fabricated rape stories or false accusations, rejected lover revenge, or fantasized rape is what 2%? Even in our past it was hard to imagine a woman who wasn't violated in some way (beat, raped, molested)...God forbid the victim come first.) "society placed more value on preventing false accusations than on protecting women from actual rapes." - that says it all
Under English common law, certain rules of evidence also helped men defend themselves against charges of rape. Evidentiary rules governed what information was available to the jury during a trial, as well as the weight the jury should assign to the information. Special rules made it difficult to achieve convictions and made the trial an ordeal for the victim. Under these rules, a woman who reported a rape could expect to be questioned in great detail about her sex life. For example, the victim could be extensively cross-examined by the accused rapist’s attorney to show that (1) she had consented to sexual intercourse with the defendant (accused rapist) on that or another occasion, (2) she had consented to sexual intercourse with another man or men, or (3) she did not have a good reputation for chastity.
(A woman's sex life is still questionable after her accusation, her trial is still an ordeal causing mental anguish, pain and suffering, rape is still the only law where too often the victim becomes the accused. A lot has changed, but a lot has stayed the same in today's society.)
Although it was difficult to obtain a conviction under the common law, the punishment for rape was severe when prosecution was successful. During most eras, English law treated rape as a capital offense—that is, a crime punishable by death.
(Someone once told me that rape is murder for the soul. Perhaps rape is not necessarily a crime punishable by death, but some would say otherwise I'm sure. Though now days a pedophile can get away with raping a 5 year old and only serve 2 years in prison depending on how "severe" the courts say the case is. If he is her father he can expect to get off early with probation. If a grown man sticks his penis into a 5 year old girl, that IS VERY SEVERE! Pedophiles deserve life and sexually assaulted men and women deserve the right justice. In my personal opinion, castration doesn't sound like such a bad trade for one's murdered soul. It's hard work bringing the dead back to life. I should know, it took me 15 years of work, therapy and medication to resuscitate myself.)