Bumping this thread as I missed it at the time (graduating from university and all!).
I find this topic to be of interest as a person who has studied legal history, with reference to how understanding of the nature and gravity of rape as a crime has developed over time.
St.Frank has done a good job of describing the contemporary moral doctrine pertaining to the crime of rape in Catholic theology, so I thought I would provide some historical backdrop as to how the Church actually came to this understanding.
The first ecclesiastical document in which 'rape' is defined as a gravely evil act is the so-called
Didache or "Teaching of the Twelve Apostles", the earliest orthodox Christian catechism summarising morals, beliefs, rituals and practices for new converts to the Faith. The Catholic Church has included the
Didache in a volume of early works named
The Apostolic Fathers Collection, these Fathers being the oldest and therefore most authoritative witnesses to the Sacred Tradition derived from the preaching of the Apostles.
In this important text, which the modern Catechism references liberally in its footnotes, we find certain gravely immoral deeds described as the hallmarks of the "Way of Death" that leads to perdition, set against the "Way of Life" that leads to salvation in Christ. Rape is one of the acts comprising the "way of death":
"...And the way of death is this: First of all it is evil and accursed: murders, adultery, lust, fornication, thefts, idolatries, magic arts, witchcrafts, rape, false witness...pursuing revenge, not pitying a poor man, not laboring for the afflicted, not knowing Him Who made them, murderers of children, destroyers of the handiwork of God, turning away from him who is in want, afflicting him who is distressed, advocates of the rich, lawless judges of the poor, utter sinners. Be delivered, children, from all these..."
- The Didache (The Lord's Teaching Through the Twelve Apostles to the Nations), AD 40-100
Under Roman Law of the time 'rape' was viewed not as sexual abuse of a person so much as a property offence against the spouse or father of the female victim. Following the complete Christianization of the Roman Empire in the 6th century, Emperor Justinian I changed the legal definition of "
raptus" [rape] to one which extended beyond mere property 'abduction' to signify a sexual assault against women as legal persons: although he limited this definition to unmarried women, virgins and widows. This Christian Emperor therefore re-defined 'rape' as a sexual offence meriting the death penalty in his
Code rather than a property offence.
In the medieval period, with the revival of the Justinian law code, the Decretists (canon lawyers) led by Gratian (1150) in his
Decretum, further elucidated and refined this definition of rape to make it the standard one in the ecclesiastical courts, replacing older ideas of it as a property crime.
From a historian:
Defining Rape: Emerging Obligations for States Under International Law? - Maria Eriksson - Google Books
"...In the 12th century the ecclesiastic legislators were the first to recognise the victim as an independent legal person, without reference to her social rank or guardian. The principle of personal responsibility was embraced by the church. Secular and ecclesiastic legislators began to concurrently transform legal conceptions of sexual violence. Rape was defined as a crime against the person rather than against property. This was notable in the revision of the ancient laws of Rome by Gratian, who in his collection of canon law Decretum separated crimes of property from offences against the person. Rape was defined as "unlawful coitus, related to sexual corruption". Four elements of rape gradually evolved: abduction, coitus, violence and a lack of free consent on the part of the woman. A burgeoning view of the woman's autonomy therefore became evident, together with the concept of the individual possession of rights regardless of social status. According to Brundage, medieval canon law played a central role in shaping laws on sexuality in Western countries..."
From another historian:
Law, Person, and Community: Philosophical, Theological, and Comparative ... - John J. Coughlin - Google Books
"...The twelfth-century canonists without exception insisted that in order for consent to marriage to be valid, the consent could not be coerced or forced...[Gratian] held that consummation of a marriage that was forced rendered a marriage invalid. This led to the teaching that...the consummation must be freely willed by each of the spouses. For Gratian rape (raptus) was the abduction of a woman or intercourse with her against her will. A woman who engaged in sexual contact with a man through force was not guilty of either fornication or adultery since she had not willingly participated, but was a victim of molestation...The principle that the marriage contract requires the free consent of the parties became a fundamental element of the church's understanding of marriage in contrast to then prevalent societal views. The focus on consent reflected Huguccio's insight that located the origin of natural law in the human person..."
While this seems quite 'modern' to our eyes and certainly was vastly in advance of anything in other legal systems of the period and before, there are two important caveats: marital 'rape' and 'prostitutes' did not fall under the canon law definition of
raptus in this early phase. It was not thought that a woman who had freely consented to marriage could be raped by her own husband, which is of course nonsense to the modern mind but was not back then. So while canon law was progressive (for the time) in this regard it is also grievously defective from the vantage point of people a thousand years later looking back at the 1150 decretals pertaining to rape.
As the secular understanding gradually (and I mean until recently) grew to encompass marital rape, the canon law understanding developed with it to eventually encompass this as well.
The important thing, however and irrespective of the obvious defects of medieval canon law, is that the Catholic Church recognised rape as a sexual offence against the integrity and sacredness of the body of a non-consenting woman as opposed to a property offence, making the canon law definition superior and closer to modernity than any other I know of from that period (Ie Roman, Islamic, Jewish etc.).
The dramatic impact of this legal transformation in the definition of 'raptus' can be seen from the case of medieval Scandinavia:
The church changed the perception of rape | ScienceNordic
Helle Møller Sigh, a researcher at the Department of Culture and Society at Aarhus University, has studied the Danish versions of the Norse Laws, which were written down between the 1170s and the 1240s.
“We’re seeing a change in the legislation, in which rape goes from being a violation against the household – the woman’s husband or her father – to being listed as a separate crime which violates the woman,” she says.
“This is in no small way due to the influence of the Catholic Church, which wanted to create a peaceful and civilised society and help the weak, including women.”
The underlying impetus for this legal change is explained by the legal historian Tierney as stemming from the emerging concept of individual rights in medieval corporation law. He argues that between the twelfth and thirteenth centuries, canonists and decretalists “worked out a series of definitions of
ius naturale (natural law) as subjective right”. A characteristic example is the
Quodlibeta of Henry of Ghent (1217-1283), a Master of Paris University, in which he concerned himself with the moral dilemma of a criminal sentenced to death, asking whether he should be allowed the right to preserve his own life by escaping from it. After weighing both options, Henry opines that while the judge does have the power to
use the body of the criminal to deliver the sentence, the criminal has a superior natural law right of ownership over his own body and is consequently morally obliged to evade judgement if it be within his power:
“Only the soul under God has power as regards property in the substance of the body” [1]
Many legal historians argue that this doctrinal belief, that only the human person himself or herself has ultimate ownership over their own body and has innate 'natural rights' as an individual, is the origin of later concepts relating to 'human rights' that would emerge fully only in the 20th century.
These concepts were applied to the rape of women and transformed understandings of its legal definition. It led to the pre-eminent importance of "consent" in Catholic moral theology and this eventually translated into the importance of this concept in Western culture as a whole.
[1] Henry of Ghent, Quodlibet IX, q. 3, 309 quoted in Makinen, V., Korkmann, P.
Transformations in Medieval and Early-Modern Rights Discourse (Dordrecht, 2006) p. 182
