Criminal law was never meant to protect women — here’s why
Criminal law, from the outset, was a man’s game.
It was a mechanism by which our rulers could exert their bellicose authority, and those rulers were rarely female.
The English word “law” was brought to England by the Danes — the Vikings — during 7th-8th century. The actual word for law was “doom” which meant judgment and the old, wise, men of the folk, knew and passed down these dooms to everyone else. This was not an eye for an eye territory, instead, if an eye was knocked out, 50 shillings was the price paid in compensation.
UK and US law can be traced back to the very first law-code we have in existence which is King AEthelberht of Kent’s. We are not sure exactly when this law-code was written, but we know that he was already on the thrown in 597 and died in 616, so it would have been some time around then.
From this earliest law code, we can see that women were only recognised as property and/or troublemakers.
In AEthelberht’s code, if you committed a crime, principally in relation to a man’s property, the penalty was monetary. A woman, be she a wife, maiden, or slave, was considered property. AEthelberht’s code set the compensation at 50 shillings if you slept with one of his own maidens; 25 shillings if she was a grinding slave, and 12 shillings if she was ‘of the third class.’ This was a highly stratified society and the King set the price a lot higher for his female ‘property’ than he did for other men. If you ‘lay’ with a woman belonging to a guy further down the social scale, you didn’t have to pay so much. If a man laid with a ‘commoner’s serving maid’ he had to pay 6 shillings. If he laid with a slave of ‘the second class,’ it was 50 sceattas (old pennies), and for one ‘of the third class’, 30 sceattas.
When we are talking about a man ‘laying’, this is a mixed up bag that could range from rape to consensual sex.
But her consent is not the issue at stake.
The concern of the law-code is to protect the King and the ordinary man’s ego, not the woman’s body. Tarnishing what another man thought of as his, was worrisome and so his consent was the only thing they legislated for. Take Rule 82: “If a man forcibly carries off a maiden, [he shall pay] 50 shillings to her owner, and afterwards buy from the owner his consent.” There is no consideration of protection of the female, no money goes to the maiden or slave in question, the money goes to the ‘owner’ of the woman to make up for the embarrassment of him not having this women under his control.
These are our first rape laws, and, from the earliest times, it was about the violation of woman as goods not the violation of a woman’s body in her own right.
The principal motive for the criminal law in relation to women was not protection but control.
When we look at the history of the law we learn, not necessarily what happened, but what, or who, the rulers were trying to control. Laws that come down particularly punitively on something, give us clues into what was most troubling the law makers. The majority of the earliest law codes (not just in England, but in ancient Mesopotamia, Rome and Greece) used the law to attempt to control the behaviour of women.
The only article in AEthelberht’s law that addresses the behaviour of women specifically and directly is: “if a freeborn woman, with long hair, misconducts herself, she shall pay 30 shillings as compensation.” Clearly freeborn women with long hair were causing trouble of some sort, we can only guess if long hair was a euphuism for something, or if all women were subject to this particular doom. But its motivation was control.
Six centuries later, during the reign of Edward III of England we find the oldest law that still survives in the UK and US law books today: the Treason Act 1351. Treason is considered the highest of all crimes. The original act distinguished between two forms of treason, — high and petite. High treason was always about disloyalty to the king (and eventually the US Republic) but petit treason was the punishment that codified the patriarchal social hierarchy. It was to betray one’s lawful superior: this covered wives killing their husbands, children killing their fathers, and servants, or slaves in America, who killed their masters, or slept with their master’s wives or daughters (property).
Highlighting how the law was used as a tool by those who designed it, a chattel had virtually no rights, whist a master had many. Petit treason legislated for the principle that the master be king of his own personal castle.
Most masters could get away with killing their servants or slaves, and although it was also illegal to murder your wife, it was not given this aggravated charge of treason. In fact, there was some leeway on murdering your wife if you were provoked. So a man outraged at the infidelity of his wife, could have murder downgraded to manslaughter. Yet from 1351–1790, a woman accused of killing her husband was liable to be indicted not just for murder but for this aggravated offence of petit treason and to suffer the fate of female traitors: to be burned at the stake. The added dimension of racial control played out differently for Black women. Black female slaves in the American colonies were more likely to be convicted of petit treason for the murder of masters or mistresses than for the murder of their husbands.
The punishment of burning at the stake was not downgraded in England until 1790, and ostensibly not because of a particular care for the women burned, but the nuisance of the burning to the neighbourhoods near the sites. By 1828, the special category of petit treason, along with the old categories of feudal relationships, were abolished in the Offenses Against the Person Act.
Yet the patriarchy persisted and the wife was still basically a man’s property in the eyes of the law. When she married, a woman ceased to be a legal person and her legal identity was subsumed into her husbands. This was described by the phrase feme covert which reflected the fundamental principle that “by virtue of the marriage a husband and wife became one person in law.” That one person, was the husband, because he was “the fittest and ablest to provide for and govern the family.” The husband “by law hath power and dominion over his wife: and may beat her”, oh, but just, “not in a violent or cruel manner.”
Rape within marriage was deemed lawful. The legal authority Sir Matthew Hale (1609–1676), argued that this was because, “by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” This pronouncement came to assume the force of law partly by sheer repetition through the centuries. In 20th century, the criminal law scholar, Glanville Williams (1911–1997) was still arguing that this should be the case in 1990s. He claimed that rape by a husband was something less severe than a stranger rape. Because, of course, he must fully understand the implications of both (eye roll).
So, while other men had been prohibited from the earliest times, to ‘lay’ with a woman, her husband was still allowed to, without her consent, by law, for centuries. It took the influence of the first openly feminist law commissioner, then Professor Brenda Hogett QC, now Lady Benda Hale, (of spider brooch fame) to make the change in the UK. In 1991 the English Court of Appeal and, then the House of Lords, decided to recognise wife rape as the crime of rape, which spread to Scotland. In the US most states had outlawed martial rape by 21st century but there are still states where marital and non-marital rape are treated differently today.
The criminal law was only ever made to protect those who designed it. This was the king in the earliest times, and the male legislators and lawyers more recently. Now women have infiltrated the echelons of law-making, whilst it is important for us to reform laws that have given men immunity for harming us and seeking to control us, to believe that the law can be gender neutral is foolhardy. From AEthelberht’s code in 7th century, to the 21st century, nothing very substantial has changed with regards to protecting women within the law.
The current trajectory of feminist thought seeks to create more laws against male abuses in order to protect us. Yet it isn’t really going to work because it does nothing to confront the causes of misogyny. The current criminal system is entirely retributive and retrospective: it means we wait until the harm has been committed, and then punish it. Punishment is not able to stop it happening in the first place, nor is it effective in preventing it from happening again in the future.
The criminal law was always a tool of control, merely usurping it for our own ends does nothing to really change this damaging pillar of patriarchy.
Instead of relying on outdated mechanisms of control like the criminal law to protect us, we need to challenge its very legitimacy, and create something wholly different.
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Marianne is a strategy consultant and political-philosopher with a specialism in criminal justice. She works and writes extensively on justice, providing ideas and mechanisms to improve the structures and values of the criminal justice system. Marianne is currently writing a book about how to transform the criminal justice system entitled: the Justice Revolution.
