just a dram

A dram is an old Scottish term for a pour of whiskey. My fics are a dram of something. Read irresponsibly.
Lovely Things

The girl was done fighting by the time I had her, maybe she’d decided she liked it after all, though to tell the truth, I wouldn’t have minded a little wiggling. —Chiswyck

Today’s topic is sexual violence against women, which in both the HBO series and books seems to be the accepted norm. From the arguable marital rape of Cersei and Daenerys to the gang rapes of Tysha, Lollys, and the inn keeper’s daughter in Chiswyck’s ‘humorous’ story, rape seems to be not only prevalent but something to be laughed off without consequences for all but the victim. GRRM has been criticized by some for his portrayal of rape, but is this merely a historically inspired presentation of the realities of rape culture in the Middle Ages?

The answer is complicated by the fact that there was no universal law code in Europe and although the Church provided some uniformity, the Church’s own stance on rape underwent significant changes throughout the Middle Ages. At the dawning of the Middle Ages, one expected to live under a variety of law codes both Germanic, Roman, and some mix of the two. So, let’s begin by comparing Roman and Germanic law codes in terms of the definition of and punishment for rape.

Roman law originally defined rape (raptus) as abduction, a crime that had more to do with a man absconding with a father’s property—his daughter—for the purpose of elopement than it did sex crimes. Female consent was not considered, since the real concern was the failure to recognize the father’s right to give his consent.

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The ‘rape’ of the Sabines was a mass abduction.

Abduction for the purpose of forced sex didn’t emerge as a crime in Roman law until the period of the late Republic and early Empire. Roman law under Diocletian (r. 284-305) stated that a victim of forced sex was blameless. The rape of virgins and freeborn men was amongst the worst of crimes, on par with robbing a temple. However, a rape could only be committed against a citizen in good standing; slaves, prostitutes, and entertainers could not be rape victims.

Attitudes changed with the Christianization of the Roman Empire. Emperor Constantine (r. 306-337), a convert, redefined rape. Victims were no longer blameless under the new law: consenting abducted women were punished alongside their abductors by being burnt alive. It gets worse. Women who didn’t consent were accomplices, based on the logic that they could have saved themselves by screaming. Furthermore, victims were disinherited regardless of parental wishes. Thanks, Constantine the not so Great.

Justinian (r. 527-565), emperor of the former eastern half of the Roman empire, codified Roman law, issuing the Corpus Iuris Civilis. The Code defined raptus as sexual violence against women, as well as abduction. However, only unmarried women, widows, and nuns could be raped. Rapists caught in flagrante were killed, as was anyone assisting in the rape. But, the customary punishment was payment of a fine or the arranging of a marriage between the man and woman.

Marriage? Oh, yes. Many Germanic law codes imagined this to be a suitable solution as well, since the victim’s value was debased, and a father would have a difficult time marrying off his polluted daughter. Indeed, continental Germanic law codes have a good deal of overlap with Roman law, and it’s difficult to ascertain what the original oral codes may have been like before their contact with Roman law.

In the absence of formal law courts and prisons, most codes issued monetary penalties for all crimes. Salic Law—the law of the Franks—for example, required abductors and accomplices to pay a fine of 30 solidi, but if the freeborn woman was raped the fine went up to 63 solidi. Childbearing was highly valued, so married women were compensated better than virgins with a sliding scale of value of freeborn married women valued the most and slaves valued the least. In other words, the violation of Tysha would be considered a weightier affair than the violation of the then unmarried Lollys.

Violating a woman in Germanic law extended beyond penetration: fines were attached to exposing any part of a woman without consent, such as exposing her hair—at the cost of 5 solidi—or her legs—for a much higher penalty. These pecuniary penalties might seem paltry, but a solidi is 12 pennies and a day’s wages were about a penny, so in a subsistence culture, these were steep penalties most men could not afford.

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Women kept their hair covered from the early middle ages on, and you couldn’t just tear off a woman’s wimple and expect to get away with it.

Anglo-Saxon law is a better preservation of early Germanic law, since separation from the continent reduced Roman influence. There was no blurring between rape and abduction like we find in Roman and continental codes, where the primary concern was the devaluation of property. Interestingly, Anglo-Saxon law gave compensation to the violated woman, not her male guardian, acknowledging the woman as victim and not property.

Again, violation wasn’t limited to intercourse. There were punishments for crimes that today are considered sexual harassment, such as touching a woman’s breast or throwing her to the ground. Sexual violation was a more serious crime, and the higher the woman’s class, the heftier the fine. Noble married women were to be compensated by their rapists with 50 solidi. Second class women, 20, third class, 12, fourth, 6. Furthermore, unlike in Roman law, slaves could be victims of rape.

These codes demonstrate that rape wasn’t ignored or accepted by Germanic culture. Abduction featured frequently in Germanic law codes out of a fear of abduction and rape during the commonplace inter-tribal warfare. But the European landscape changed in the High Middle Ages, becoming less wildling and more Seven Kingdoms in character and organization, and rape laws changed as well.

In Anglo-Norman England, rapists were castrated, and those who sexually harassed women were made to pay a fine to the woman’s lord—not the woman or her male guardian—demonstrating how feudal relations found their way into legal codes. That is not to say that Anglo-Norman law focused solely on devaluation; for example, a late 12th century legal tract by Glanville used language that recognized the woman as victim. Later on punishment became even steeper. By the 13th century the most commonplace punishment was death, although on the whim of the judge that punishment could be changed to castration, chopping off of hands or feet, or blinding. For example, the 13th century treatise by Bracton stated,

“Man-made as well as divine law forbid the rape of women… if he touches her indecorously he breaks the king’s ordinance and shall give compensation…if he throws her upon the ground against her will, he forfeits the king’s grace; if he shamelessly disrobes her and places himself upon her, he incurs the loss of all his possessions; and if he lies with her, he incurs the loss of his life and members.”

Steep punishment compared to earlier Roman and Germanic laws. The treatise goes on to say that even a prostitute can be raped if she does not give consent, which is a much more enlightened view of consent than anything we find in Westeros. Likewise, in Christianized Norway, rapists and attempted rapists were condemned to die, although a man could save his life by offering to marry the woman and compensating her monetarily.

This alternative solution may have been inspired by canon law, which influenced by Roman law was also changing in the high medieval period. In 1200, Pope Innocent III permitted marriage after rape if the woman consented. The immensely influential Decretum, however, hinted at a more modern conception of rape and victimization. Gratian’s definition of raptus focused on non-censual intercourse. The rapist violated both the victim and her family. Gratian distinguished between rapes where violence was used and rape where seduction was used to lure a girl into sexually illicit acts. Victims were to be considered blameless and returned to their husbands or families. Women who were the victims of sexual harassment were also blameless. On the punishment side of things, he recognized that secular codes prescribed execution and stated that excommunication was the spiritual remedy. Bad news for someone facing the death penalty!

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This illumination from the Decretum shows a man being reunited with his wife by a priest with the guilty party skulking off to the left in red.

We may not like the early implied reason for punishing rape—the devaluation of property—but rape was a serious offense even during the early medieval era, not an accepted norm. Men got away with it, particularly during times of war, but those that were caught, were made to pay for their crimes. Later law codes and canon law emphasized victimization, hinting towards a more modern definition of rape and demonstrating that rape was not tolerated by lords or kings, the Church, or fathers and husbands. It is not a fully modern definition: marital rape, for example, had no legal remedy, so that Cersei and Daenerys would have been no better off in medieval Europe than they are in their own lands.

Did rape happen? Most certainly. Otherwise there would be no discussion of it in the law codes or canon law. The severity of the penalties shows that it was no laughing matter, however. In the rape culture of Westeros, there is widespread acceptance of it. Even women have internalized rape culture, as evidenced by Cersei’s darker fantasies concerning other women. It is sometimes stated in later medieval law codes that a peaceful, well ordered kingdom was distinguished by the respect for a woman’s person. By that measure, there are no orderly kingdoms in the world of ASOIAF, but I think we have surmised that much already.

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  15. ayalaatreides reblogged this from theladymonsters and added:
    Also, it doesn’t matter one bit if GRRM/HBO’s depiction of rape is “historically accurate” or not because GAME OF...
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  17. theladymonsters reblogged this from littlevisibledelight and added:
    the truth is that that grimdark ‘reality’ is just another male fantasy
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