Rape has been outlawed for 1,400 years, yet we’re still arguing about how to define it

Posted on: 29 January 2024

Last week the news broke that the European Union’s first directive on combating violence against women and domestic violence will not include the crime of rape. Why? A number of countries – including Ireland – could not agree on a legal definition.

Directives on combating violence against women have a long history as does wrangling over what defined rape and how this was reported.

In the year 697 an Irish church synod joined a royal assembly to enact Cáin Adomnáin (the Law of the Innocents/Lex Innocentium), a legal text that imposed sanctions on perpetrators of violence against women, children and clerics.

For the next 1,000 years the church reiterated these condemnations and by the 17th century “laws of war” specifically prohibited rape and the use of excessive violence against women and children.

Occasionally, soldiers were punished. That said, the Irish theatre of war was one of the bloodiest in early modern Europe. During the Nine Years War (1594-1603) English forces used scorched-earth tactics and starvation to secure submission and targeted civilians. The Irish conflict of the 1640s led to an estimated population loss of 20pc.

The “1641 Depositions” are the primary historical evidence we have about women and violence during the 1640s in Ireland. The high incidence of stripping, a form of sexual assault in itself, makes the virtual absence of reported rape in the Depositions all the more striking.

Some scholars argue rape was under-reported, while others suggest that the lack of reports meant rape rarely occurred. Others point to the high burden of proof needed in early modern rape cases (vaginal penetration, ejaculation and lack of consent) and suggest that female victims proved reluctant to subject themselves to this.

Without doubt, the shame and social stigma attached to rape in 1640s Ireland, the circumstances in which the deponents gave their testimony, and the fact that the male commissioners were clergymen (or later military or government officials) probably stopped more cases being reported.

In an unpublished treatise, dating from 1643, the commissioners reflected on the “rare mention of rapes”. They argued that the absence of reports should not be seen as evidence that “this barbarous outrage” did not occur and they suggested that the victims, feeling shame and fearing that the perpetrator would not be caught, preferred to keep silent.

While victims remained silent, others did record the violence they suffered and clearly felt aggrieved that often named perpetrators were rarely held to account.

Consider the account, dating from October 1645, by Christopher Cooe, a Galway merchant, of the rape of a servant called Mary.

Christopher and his wife “credibly heard” from Mary that “one Liuetenant Bourk had at her Masters howse in Tuam aforesaid forceibly ravished her, and to prevent her crying out one of his souldjers thrust a napkin in into her mowth and held her fast by the haire of her head till the wicked att [act] was performed”. The rapist, an army officer, forced himself on Mary as his men gagged her and looked on. Whether they also assaulted her is implied but not stated.

Rape, as we know from earlier Irish and other more recent conflicts is “the ultimate act of aggression and humiliation of an enemy”. Given the nature of the extreme violence reported in the “1641 Depositions” and the prevalence of rape in earlier Irish conflicts, it is hard to believe rape was not more widespread in 1640s Ireland.

Of course, the language used to describe sexual violence poses challenges since modern terminology is rarely used. Euphemisms such as “ravish”, “defile” and “abuse” were more common than “rape”.

Phrases such as “had carnall knowledge of”, “tooke to themselues”, or “to vse or rather abuse her as a whore” suggests sexual violation and demands close reading of the historical record.

Consider the pain and distress recounted by Amy Manfin in her deposition of March 2, 1642. After murdering her husband her assailants “cawsed her to stripp herself, And after they took her by the haire of her head, and dragged her throughe thornes”. Rape is not mentioned but the fact Amy was stripped and taken “by the haire” suggests sexual violation and torture, as does “dragged her throughe thornes”.

One can only begin to imagine the pain and mental torment that these women endured.

Mary, the servant raped in her master’s house in Tuam, “had layn sick vpon it for 3 or 4 dayes and was in such a condition that she thought shee should neuer bee well nor bee in her right mynd againe the fact was soe fowle & greivous vnto her”. Mary’s violated body may have healed but she feared for her future mental wellbeing.

Our challenge is to listen to the voices, and the silences, of women – such as Mary, Amy Manfin and many others like them – as they shared their own stories and struggled to come to terms with harrowing trauma and extreme violence. It is deeply disturbing that, nearly 400 years on, we are still grappling with these issues and we are even unable to agree a legal definition of rape.

​Jane Ohlmeyer is a professor of modern history at Trinity College Dublin and lead investigator on Voices, the ERC project recovering the lived experiences of women in early Ireland. This was first published in the Irish Independent on 26th January, 2024. See the original article on the Irish Independent website here. 

* Image: Peasants by the Heart by Pietr Aertsen (circa 1508–1575)

• Tags:
• Culture
• Research
• Society