RAPE, in Law, the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law, was punished with death, in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel’s father, and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law.

The Roman law punishes with death and confiscation of goods the crime of ravishment, under which it includes both the offence of forcible abduction, or taking away a woman from her friends, and also the present one of forcibly dishonouring her; either of which, without the other, is in that law sufficient to constitute a capital crime. The stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor’s edict, whether she consent or be forced; and this in order to take away every opportunity of offending in this way from women, whom the Roman law supposes never to go astray without the seduction and arts of the other sex; and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only; and therefore it is a necessary ingredient in the crime of rape, that it must be against the woman’s will.

Rape was punished by the Saxon laws, particularly those of Athelstane, with death; which was also agreeable to the old Gothic or Scandinavian constitution. But this was afterwards thought too hard; and in its stead another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of eyes, which continued till after Bracton wrote, in the reign of Henry III. But in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape), that the woman should, immediately afterwards, go to the next town, and there make discovery to some credible persons, of the injury she had suffered, and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff, with the outrage. This seems to correspond in some degree with the laws of Scotland and Aragon, which require that complaint must be made within twenty-four hours; though afterwards, by statute Westra. 1, c. 13, the time of limitation in England was extended to forty days. At present there is no time of limitation fixed; for, as it is usually now punished by indictment at the suit of the king, the maxim of law takes place, that nullum tern- pus occurrit régi; but the jury will rarely give credit to a stale complaint. During the former period also it was held for law, that the woman, by consent of the judge and her parents, might redeem the offender from the execution of his sentence, by accepting him for her husband; if he also was willing to agree to the exchange, but not otherwise In the 3d Edward I. by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself, of ravishing a damsel within age, that is, twelve years old, either with or without her consent, or of any other woman against her will, being reduced to trespass, if not prosecuted by appeal within forty days, and subjecting the offender only to two years’ imprisonment, and a fine at the king’s will. But this lenity being productive of the worst consequences, it was, in ten years afterwards, 13 Edward I., found necessary to make the offence of forcible rape felony by statute Westm. 2, c. 34. And by statute 18 Elizabeth, c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing or abusing any woman-child under the age of ten years, in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion that Buch profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony, as well since as before the statute of Queen Elizabeth. But that law has in general been held only to extend to infants under ten; though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. 1, the law with respect to their seduction not having been altered by either of the subsequent statutes.

A male infant, under the age of fourteen years, is presumed by law to be incapable of committing a rape, and therefore, it seems, cannot be found guilty of it. For though in other felonies malitia supplet octatem; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind; not allowing any punishment for violating the chastity of her who has indeed no chastity at all, or at least has no regard to it. But the law of England does not judge so hardly of offenders, as to cut off all opportunity of retreat even from common strumpets, and to treat them as incapable of amendment. It therefore holds it to be felony to force even a concubine or harlot, because the woman may have forsaken that unlawful course of life; for, as Bracton well observes, licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitia ejus Conserdire noluit.