The Scholarship on Gratian and Rape

In the wake of the sexual revolution and second-wave feminism, historians and literary scholars of the medieval period began researching to an unprecedented degree matters of sex, sexuality, and gender; the fruits of this labor began to appear in the late 1970s, with the 1980s and early 1990s producing many works that remain widely cited in scholarship today. One example is Kathryn Gravdal’s 1991 book on rape in medieval French literature. A literary scholar who laudably wanted to include medieval law in her efforts to understand literary and real responses to rape, she wrote this about canon law:

From this passage and her broader overview of Roman and French laws, an unassuming reader looking for information on the history of rape law would be led to believe that Roman law and early and high medieval French law punished rape—understood as forced coitus or sexual intercourse against the will of one of the persons—with the most serious penalty possible. Meanwhile, “the Church,” with an effort spearheaded by a man named Gratian, objected to this serious take on rape. Sexual violence was not its or his concern. Rape was not a crime, but, then again, half a page later, it might have been a crime, but the Church and Gratian certainly did not consider rape to be morally problematic or an offence God cares about (a sin).

Couched within the above quotation is a further section of Gravdal’s introduction where she observed with apparent disdain that Gratian was obedient to the law of the Church when he did not stipulate death as the penalty for raptus, thereby “making an eloquent appeal for the softening of ravishment laws, in the name of Christian love.” “Now,” she continued—that is, now in the twelfth century in distinction from earlier Roman law which was tough on rape—lay rapists receive excommunication while priestly rapists “fall from their rank,” which, Gravdal said, is a vague sentence. Then she sardonically asserted, “The softening influence of Christian love appears to soften only the fate of the raptor.”Footnote ⁴ This is because the woman might end up married to her raptor, and the Church legitimized such marriages. The Church did not care for the woman but only about preventing possible feuds among families.Footnote ⁵

Time does not permit unpacking all of the problems with Gravdal’s characterization—dare I say caricature—of medieval canon law’s treatment of rape.Footnote ⁶ But even the most misguided characterizations may include elements of truth, and it is worth being clear on what is true in Gravdal’s provocative account and also why and how certain elements of truth could have been combined and twisted into such a misleading one. (That it is misleading should, I hope, become clear in the pages that follow.) What certainly is true is that rape did not receive anywhere near the attention in medieval canon law as all manner of other sexual activity did, including sexual offences within and outside of marriage. Studies of medieval penitentials, or books listing various sins and appropriate penances for priests to assign for them, have shown that these penitentials contain a surprising dearth of attention to sexual assault or forced coitus, even if it is discernible in some places.Footnote ⁷ It is also true that Gratian should be viewed as an important figure in the history of rape law, but this is not primarily on account of his treatment of raptus, but, as I will show, for his direct discussion of forced coitus.

Gravdal, as many others, acknowledged a difference between raptus and what we mean by the modern word “rape” (or viol in French). Many scholars have provided clear accounts of the difference between the two.Footnote ⁸ While “rape” denotes forced coitus, raptus in Roman law and well into the medieval period usually denoted instead the removal of a woman from her home and, more importantly, her legal protectors, often for the purpose of marrying her. Such seizing, a form of rapina, was unlawful because it violated the rights of the woman’s parents, and especially the paterfamilias (or the woman’s guardian, if her father was dead), to engage in discussions and negotiations about marriage, and grant their consent to a marital union. In some cases, a woman was seized violently, against her will and with the man accompanied by coconspirators in the act; in others, she went willingly with her lover or desired lover, with the whole episode amounting to what today we would call “elopement.” If the woman went unwillingly, it could certainly have been the case that the man also overpowered her and raped her, but this sexual violence was not essential to the definition of raptus in Roman law.

Scholars have also traced the development of the terminology, in both Latin and in vernaculars, such that forms of the Latin raptus and rapere eventually did come to mean “rape” in our sense of the word by the end of the medieval period.Footnote ⁹ As Dunn has helpfully mapped out in Stolen Women in Medieval England, the sources in the high and later Middle Ages themselves use the term raptus and rapere ambiguously. For some of her court records, forced coitus was in view or at least a component part of the offence; in others, the abduction of women, perhaps with their complicity in the act, was in view; in others, she remains uncertain—the terseness of the record does not permit the scholar to discern the precise nature of the offence. Such terminological ambiguity in the later Middle Ages adds to confusion for modern scholars.

While most scholars who discuss rape acknowledge these distinctions and developments, the challenge seems to be maintaining a proper distinction between raptus and rape even when the sources do not have this ambiguity and when the sources’ usage of raptus does not necessarily imply physical intercourse, forced or other. They mix up concepts in their translations or rely on a bewildering array of English terms or revert to a single, problematic translation. Payer, for instance, gave up on coming up with a good English equivalent for raptus and consigned himself to using “rape,” resulting in a very confusing treatment for English-speaking readers. Without saying he was going to use “rape” for the Latin raptus, Brundage often did the same. Others have used “abduction” or fluctuated between “abduction,” “rape,” raptus, “ravishment,” “kidnapping,” and “elopement,” depending on the context.

But the frequent pairing of the Latin raptus with the English “rape,” or the reliance on the latter to translate the former, is particularly problematic. Note above in the quotation from Gravdal her identification of a text by Gratian on raptus followed by her condemnation of the Church’s stance on or neglect of “rape.” It is in this way that readers of many modern scholarly works on this topic are misled. Seeing the word “rape,” they reasonably assume they are dealing with the modern concept of rape, but the law in question often concerned instead raptus, and did not necessarily have anything to do with forced coitus.

The conflation of terminology in the scholarly accounts is further exacerbated when the language of the original sources is not taken into account or translated carefully. Take as one example the section in Brundage’s massive Law, Sex, and Christian Society in Medieval Europe on the Roman law of raptus. The section of text bears the subheading Raptus. Brundage then proceeds to talk about how, the further one goes into the period of the Republic, one sees the Romans taking more seriously “sex by force,” and “during the early imperial period forcible ravishment became a serious offense.” He cites a portion of the Digest to assert that “the law imposed punishment upon those who ‘ravished a boy or a woman or anyone through force’.”Footnote ¹⁰ But what is the Latin term for “ravished”? And does this passage have in view raptus or rape? In fact, what is in view is what we would call rape and not what the Romans called raptus, but Brundage’s translation of “ravished” in combination with the section subheading of Raptus is not helpful. The Latin, which Brundage does not quote, refers to those who engage in illicit sexual relations by force (per vim stupraverit).Footnote ¹¹ Such an offense could also in Roman law be identified with terminology of sexual violentia or a woman having been oppressa.Footnote ¹² In short, per vim stuprum and raptus constituted two different offences within Roman law, even if the latter might sometimes or often also involve the former. Unfortunately, some texts related to per vim stuprum have been spoken of as if they refer to raptus, and laws related to raptus have been spoken of as if they refer to “rape.”

Gratian himself very much worked within the Roman law framework of raptus as a crime distinct from (although potentially overlapping with and suggestive of) per vim stuprum.Footnote ¹³ But unfortunately, as the above suggests, the main scholar of canon law whom all subsequent scholars have cited on questions of sex and rape, Brundage, never discussed directly the section of Gratian’s Decretum where Gratian actually does treat a clear case of rape unrelated to raptus, although bits of the decretist commentary on that section appear within his Law, Sex, and Christian Society (but never in a sustained way.)Footnote ¹⁴ When Brundage discussed rape in Gratian, he drew upon only two sections of the Decretum, C.36 q.1 and portions of C.27 q.2, but these deal with raptus.Footnote ¹⁵ Scholars have followed his lead, quoting and referring to the same limited passages on raptus, often not appreciating how the texts cited fit within Gratian’s arguments and legal analysis. This applies to Gravdal and to Corinne Saunders.Footnote ¹⁶ It applies to Caroline Dunn.Footnote ¹⁷ This even applies to the scholar, Hiram Kümper, who has come closest to asserting what I will argue in this essay, that Gratian’s work and his emphasis on consent are central to changes in the medieval law of rape.Footnote ¹⁸

It is true that Gratian’s case statement in C.36 set up the question with hypothetical facts of a case involving rape and then asking whether this scenario constituted raptus. For the course of events imagined in C.36, nonconsensual intercourse is part of what happens to the rapta, after she has been lured with gifts to a banquet and without her parents’ knowledge. It is also true that Gratian cites some texts, including by Isidore of Seville, that link the Latin raptus with a sexual corrupting (corruptio) as a way to trace the etymology of raptus. But this does not mean, as has been claimed, that, for Gratian, sexual intercourse or forced coitus is one of four necessary elements of raptus.Footnote ¹⁹ Gratian differentiates raptus from other sexual offences, thereby acknowledging its frequent sexual dimension, but he also recognizes that the force involved in raptus, which absolutely is necessary for an action to be counted legally as raptus, may be against the girl alone or against the parents alone or against both. Thus, Gratian acknowledges that raptus might not involve forced sexual coitus but rather could occur when a young woman sneaks away with a man with the intent to marry, perhaps engages willingly in sexual relations with him, but is not forced upon in any way, and only her parents are “forcibly” denied their parental rights in the marriage negotiation process. Meanwhile, the focus of this particular question in his Decretum is on determining when a man is a raptor and, subsequently (in C.36 q.2), whether, after penance, after the offence has been redeemed, it is conceivable for a lawful marriage between raptor and rapta to take place.

In short, for all the debates and the literature citing C.36 for Gratian’s work on rape, it actually does not provide much to the modern scholar for understanding Gratian’s views on forced coitus. A few scholars have seen inklings even here though of something more positive and consequential in the development of rape law. By combining this treatment with Gratian’s emphasis on consent in marriage formation, Kümper theorized that Gratian and twelfth-century canon law might be responsible for the shift he has documented toward a much more overt concern with the will in legal definitions of rape beginning in the thirteenth century.Footnote ²⁰ Many years earlier, because of Gratian’s argument in C.36 asserting that women are “owners” of their own bodies with the power to determine when it gets to be “used” (Gratian was drawing on the Roman law distinction between dominium and usus), Virtue had seen in C.36 “a new notion of female sexual integrity and self-possession.”Footnote ²¹ But others have ignored Gratian altogether in the development of rape law, as Gwen Seabourne has recently done, perhaps wisely leaving C.36 aside.Footnote ²² Nonetheless, what Kümper and Virtue detected traces of in C.36 rushes forward boldly in C.32. Gratian did address rape, and he did so in a way inextricably bound to the question of the woman’s will, consent, and integrity of body and character.

Rape and Consent in Earlier Roman and Canon Law

To appreciate Gratian’s contribution to rape law with his emphasis on consent, we have to consider very briefly how earlier laws, above all Roman law and earlier canon law, addressed women in a situation akin to that of Gratian’s wife of C.32. Of relevance here is not just the question of rape as opposed to raptus. Of relevance is also to what extent earlier laws addressed the rape of married women and women with sexually promiscuous or dubious pasts, and the question of consent and coerced consent.

The story of Lucretia is central to these concerns. Diana C. Moses masterfully situated Livy’s account of her ordeal in the context of developments in Roman law and society during the period of Caesar Augustus’ moral reform of the new Empire.Footnote ²³ Moses pointed out that the Roman law jurisprudence around sexual offences or stuprum was anything but clear, especially in cases of married women. On the one hand, legislation under Augustus seemed to recognize a difference between consensual stuprum and forced or coerced stuprum. On the other hand, the same legislation permitted charges of adultery to be brought against wives who had engaged in sex with another man, but the only exception jurists explicitly named was a situation of potential adultery or stuprum in situations of war, so that the captive woman or woman confronted with an invading army was not to be charged if an enemy soldier had forced himself upon her. The context of civil war nevertheless seemed to push further thinking and legal distinctions between “women who had been forced to commit stuprum” from those who committed it consensually.Footnote ²⁴ But as for whether a married woman could be charged with adultery or dismissed merely because of the pollution resulting from the stuprum is not clear.Footnote ²⁵ In Livy’s account of Lucretia’s plight, Lucretia does give her consent to sexual relations with Sextus Tarquinius, but it is clearly coerced consent—her attacker threatened otherwise to kill her and lay her body next to that of a slave, impugning her honor while giving her no chance to defend herself against charges of adultery and stuprum. Nonetheless, “Roman law expresses no ‘unified theory’ of coerced consent,”Footnote ²⁶ and so Lucretia’s legal standing remains dubious even if Ovid considered her to be morally innocent. Thus, according to Moses, Roman law of the early centuries was beginning to grow more complex in considering matters of consent, force and fear, and other subjective factors, and yet it did not create categories that clearly would have protected a wife from charges of adultery from her husband in a situation where the bare facts of a case were that she had had sexual intercourse with another man. And, even if she was not culpable morally, some sort of legal punishment ought still to follow.

Angeliki E. Laiou touched upon some eastern Roman and canon law material that demonstrate that, in the Byzantine empire, “consent was not of capital importance in the legal approach to [adultery].”Footnote ²⁷ The question of war-time captivity and sexual intercourse between a captive woman and her captor, which Roman law had noted, recurs in Byzantine canon law. Commentary on the first canon of St. Gregory of Neocaesaraea (Gregory Thaumaturgus, 213-270 AD) emphasized the moral status of the woman prior to the captivity: to determine whether the woman was coerced into sex, the main thing to consider is whether “she was known to have led a virtuous life.” If so, she is presumed innocent, to have suffered rape under duress. If, however, she was “suspected of a propensity to fornication,” that same suspicion would apply to events in her captivity.Footnote ²⁸ Reputation and your former life could come back to haunt you.

As far as simple rape, Roman law did forbid it, with severe consequences. Rape does not make up a substantial portion of Justinian’s Corpus iuris civilis, but there are references to it. As noted above, the jurist Marcianus commented on the Lex Julia pertaining to public force, which covered many varieties of violence. He noted that the same penalty of the law applied to those who raped (per vim stupraverit) a woman or boy or anyone. In the context of the rest of the section, it is reasonable to assume that situations of public rioting or unrest in particular were in view. A law originally issued in 290 is more explicit about consent and the lack of guilt to those who were taken into illicit sex through force. Maintained in the civil law as Cod. 9.9.20, it reads, “The laws punish the detestable wickedness of those who prostitute their modesty to the lust of others, but not those who are seduced by force and whose thoughts are free from blame, and it has been justly considered that the latter’s reputation should remain spotless and no one is forbidden to marry them.”Footnote ²⁹ The concern here rests in marital eligibility, but it is a place where brute force and the matter of one’s will (voluntas) play a notable role.

Many scholars have referred to Justinian’s revisions to raptus legislation. Justinian had raptus or abduction for the sake of marriage, without parental consent, in view here.Footnote ³⁰ He named free-born virgins and widows; of additional concern were women affiliated with the church, namely “virgins or widows dedicated to God” (identified as sanctimonialia). While some portions of the text imply sexual intercourse, perhaps forcibly obtained, as a component of the act, the consent or lack thereof of the women to the whole enterprise is irrelevant to the punishment that ensues (death and loss of property). In fact, the severe punishment is meant not only to deter men from this crime but thereby to prevent any “opportunity for sinning” to the woman, “willing or unwilling, since her very wish to sin is induced by the wiles of the wicked man who contemplates ravishment.”Footnote ³¹ Consent emerges here, but not considered in direct relation to the question of nonconsensual sexual intercourse but more so to differentiate what we would call “abduction” from “running away together.” Brundage has cited this law to assert that Roman law prohibited rape by husbands of their wives, but that makes little sense for a law entirely devoted to the raptus of the as-yet unmarried.Footnote ³² The translation of the Codex by Fred H. Blume sensibly translates the relevant section in terms of a man ravishing his betrothed by force.Footnote ³³ This could refer merely to a man forcibly taking his betrothed from her father’s home, not in a way according to planned arrangements; sexual force is not necessarily in view and is legally irrelevant for determining the crime of raptus. Once again, then, we are left with a small number of laws that address rape or forced coitus directly, and the material on raptus focuses on other concerns, without much attention to the female will or the role of coercion. Hints are present, but nothing substantial or sustained.

Prior to Gratian, major Latin canon law collections were inconsistent with how much they addressed rape, and sometimes they only concerned themselves with raptus. Such is the case with Regino of Prüm in the early tenth century. Regino included several texts from early Christian councils and popes denouncing raptus but did not directly address rape.Footnote ³⁴ A century later, Burchard of Worms repeated many of these canons.Footnote ³⁵ Farther on in his collection, his penitential questionnaire instructs the priest to ask about committing fornication with a woman religious or corrupting a virgin, but the question of the woman’s consent does not arise. It next inquires about raptus, regardless of whether it occurred “without the will of the woman or the parents.” The man receives the severest, seven-year term of penance, without permission to marry (the same judgment murderers receive). If the woman did not consent to the enterprise, she is cleared to marry.Footnote ³⁶

With the collections associated with Ivo of Chartres (c.1040-1115), historians can see a distinctive difference. This is because those collections devote entire sections to religious and include passages addressing sexual violence against women religious, not just raptus canons. These sections served as one of the sources for Gratian in C.32 q.5, including for the various canons that are most relevant for the issue of chastity in relationship to consent and rape.Footnote ³⁷ The texts ultimately stem from patristic sources, primarily from Ambrose, Jerome, and Augustine, that speak of consecrated Christian virgins or other women religious.Footnote ³⁸ Collectio tripartita 3.14 is entitled De uirginibus and deals with what constitutes one’s status as a virgin. Based on the patristic texts selected, virginal status is more a question of a state of mind than whether the flesh had ever been corrupted. The entire section actually focuses on the question of whether coerced sex corrupts someone so that they are no longer considered a virgin. The Ivonian Decretum includes most of the same canons that Gratian also later copied from the Tripartita. In that collection, they appear in book 7 in a large section on monks, nuns, and the penance for those who transgress their vow of continence. A total of nine canons on the sexual assault of virgins in the Tripartita then appear in Gratian’s treatment of the sexual assault of a married former prostitute in recension R2 of C.32 of his Decretum.Footnote ³⁹ Among those canons are three from Augustine’s City of God 1.19, where Lucretia is discussed, which make up two canons in the vulgate Decretum Gratiani. In short, the context for these texts in the Ivonian collections comprises a set of canons and patristic texts elicited to speak about continence and whether women religious, either perpetual virgins or those practicing a kind of second virginity through chastity and celibacy, lose their status as virgins or as “chaste” when they are sexually assaulted. While Gratian utilized this source material from Ivo, he radically altered their context and application by composing a case statement about a prostitute who later suffers rape by a man hired by her husband to provide grounds for divorce.

The Case Statement in Gratian’s Decretum C.32

Gratian’s Decretum is famous for being constructed in its second main section around hypothetical cases, cases that are realistic yet sometimes so outrageous that one has a hard time imagining that any of them could stem from actual events.Footnote ⁴⁰ They have just enough of the plausible to make the legal questions arising from them worthy of attention and just enough of the outlandish to make for attention-grabbing classroom exercises. Reviewing the hypothetical case in Gratian’s mind when Lucretia is named illuminates much of what is new and distinctive in his usage of her story. As a result, we must begin with the background case that Gratian formulates for this section of the Decretum, namely Causa 32.

Causa 32 is not short on drama. The relevant portions of the distressing case Gratian set before his students read as follows:

Here is a man who takes a prostitute as his wife only because he cannot remain chaste and, in accord with what he understands of Christian teaching, finds a legitimate outlet for his libido by marrying the prostitute and not just hiring her for sex. But he thinks he should be having children and so begins an affair with his slave.Footnote ⁴² His guilt leads him to try to find a way to produce grounds for divorce so that his other union might become legitimate. The fifth question will be our focus, and, in terms of its relationship to the case scenario, its answer would determine whether the dismissal the husband attempts is to any degree legitimate. The husband wants his wife to be charged with adultery, and he thinks that would validate his divorce of her so that he would be free to marry another (on this point of canon law, he will be shown to be in error).

For our considerations, what is most important for setting up q.5 is Gratian’s insistence in the treatment of the first two questions that the marriage between the man and prostitute is legitimate, in spite of her status as a prostitute and in spite of the fact that the man wants her only to fulfill his sexual desires. For the first question, whether someone can marry a prostitute, Gratian treated the biblical example of the prophet Hosea, whom God instructed to take a prostitute as his wife; for the second question, on the legitimacy of a union existing for sexual gratification, even though ideally marriage should also be for procreation, sexual intimacy is another valid component of marriage, something “licit on account of the good of marriage (bonum coniugii).”Footnote ⁴³ The main point is not to be missed: this pitiable woman is, according to canon law, a full-fledged wife and thus possesses all the rights and protections that attend to that status. As such, for Gratian, her former status as a prostitute means nothing in terms of the canonical consideration of her plight as a wife against whom her husband commits adultery and, most relevant for the questions of consent and rape, as a wife who becomes a rape victim in her husband’s twisted machinations to rid himself of an infertile spouse.

Gratian’s Juxtaposition of Lucretia and Lucia in C.32 q.5

In Gratian’s case, full of tawdry details and shady figures, in q.5, “Is a woman who is sexually assaulted proven to have lost her modesty (pudicitia)?”, Gratian cuts through the mire with a laser focus on a single point. At the end of the day, the question is not about the woman’s former or current status and reputation and/or about whether she is at home or in captivity, whether a war is going on or not, or whether she is the public’s concern or not since she already belongs to a man. The question is simply and purely the following: did the woman consent in her heart and mind to the act? If so, she is guilty of adultery; if not, she is innocent.

In boiling down the matter to that question, Gratian worked within the framework of the patristic sources he cited, including Augustine’s treatment of Lucretia in The City of God 1.19, which appears at C.32 q.5 c.4.Footnote ⁴⁴ Whereas Lucretia had been a married woman, Augustine famously compared her to the Christian virgins and matrons who had been raped by the Goths and other barbarians and who decided not to kill themselves in the wake of the violence suffered.Footnote ⁴⁵ For Augustine, this was because they had confidence that, since they had not consented to the act, they were innocent before God. As so often in the City of God, Augustine was not interested in attacking a single individual (here, Lucretia) but rather in exposing the inconsistencies and moral failures he saw in Roman society. Here was a woman praised by the Romans, whom they asserted had not committed adultery; she was not tried, not convicted of anything, so how could it be just or right that she die? If it was not just that she die, why did the Romans praise her for inflicting punishment on herself in the form of death? For Augustine, the Christian women were more praiseworthy because of their faith in their standing before God, and, since they were innocent (as Lucretia also was), they should not suffer punishment. Augustine was arguing that Christianity is therefore more consistent than pagan Roman culture in administering justice, determining innocence, and practicing virtue.

Central to Augustine’s position lay a rather profound assertion of the nature of chastity. It was profound because it countered prevailing ideals that maintained that a virtuous woman who lost her virginity by force and no longer possessed that most prized quality of Roman women, viz. pudicitia, are commendable if they commit suicide, or that those facing rape who commit suicide to avoid that fate are virtuous.Footnote ⁴⁶ Christian writers of Augustine’s own day held to this view, which suggested that the woman’s honor and chastity indeed could be removed by physical force, thus rendering her life not worth living in her shame. This is why many of them upheld Lucretia as a paragon of virtue. But this would also mean that castitas and pudicitia first and foremost reside in the body. Augustine rejected this view. Locating virtue and chastity ultimately in the will and not in the body, Augustine affirmed that what is committed against a person’s body without his or her consent does nothing to blemish their soul. They remain pure. Although Augustine’s argument in part served his argumentation against suicide, it rested more fundamentally on an ethical framework emphasizing will and consent and one that opposed the shame-and-honor code of Roman society. For him, this Christian philosophy brought freedom, and, as a bishop and a pastor, he encouraged the women who had suffered physical violence in the Germanic invasions not to be ashamed of what had been perpetrated against them.

Gratian was not operating in the same historical context as Augustine, but he was operating through a similar theological lens, and that theological lens utilized a person’s standing before God as the ultimate gauge of a person’s proper standing among humans, including in the courts of the Christian church. As Gratian progressed through his discussion of q.5, the theological question of whether the woman in his case had lost her modesty or purity (pudicitia) through rape was foundational for the consideration of the legal question of whether she could be charged with adultery. Such a focus is clear in the earlier recension of the work.Footnote ⁴⁷ If her pudicitia had been lost through force, then her husband would have had grounds for diuortium a thoro et mensa (something like our permanent separation).Footnote ⁴⁸ In contrast to most other places in the Decretum, Gratian did not even bother arguing both sides of the question. He simply cited numerous authorities to argue that a woman who is raped and in no way consents to the sexual violation of her is innocent. He opened with this claim: “That pudicitia cannot be violently snatched away is proven by the authorities of many.”Footnote ⁴⁹ He pointed to the example of St Lucia, an early Christian virgin who was threatened with forced prostitution and gang-rape, to make the claim even stronger. Gratian was familiar with a version of Lucia’s passio narrative that was similar to what Jacobus Voragine, more than a century later, included in his blockbuster Legenda Aurea, a collection of saints’ lives and martyrdom accounts.Footnote ⁵⁰ In that narrative, Lucia engages her interrogator, Paschasius, with firmness, theological and logical acumen, and faith not only in her God but in her own innocence, even if she were hauled off to a brothel against her will or subjugated to rape in the town square. It is this hagiographical heroine, whom Gratian expected all of his students to know about, whom Gratian cited as his first authority in defense of his argument. He wrote,

Lucia affirms that, regardless of what might happen to her body, her purity resides in her will, and no one can violate her chastity if she has not consented to its loss. With that, Gratian proceeds to quote numerous textual authorities that support these claims.

The reference to Lucia serves to bolster Gratian’s argument about the woman of C.32, a married, barren, former prostitute, for one reason: it excuses any woman who suffers sexual assault against her will from being considered complicit in any way in the sin. As a result, the married woman cannot be adjudged an adulteress and dismissed. Later in the causa, he stated: “Therefore, since this woman who suffered violence cannot be proven to have lost her pudicitia, in no way is she convicted of having incurred the crime of fornication or adultery.”Footnote ⁵² And, in his final dictum of the question, he specified, “Because she was joined to another man, not because of the impulse of her own lust, and not with her consent to the other, and not in a situation where her husband was sick or absent or desiring to live continently, but rather suffered force by being violently oppressed by the lust of another (uiolenter aliena libidine oppressa uim pertulit), it is apparent that she can be called neither a fornicator nor an adulterer. Hence she cannot under any circumstance be dismissed.”Footnote ⁵³ In other words, the church would sanction no divorce in such a case.Footnote ⁵⁴

The Commentary of the Decretists

The early decretists and the Glossa ordinaria approached the questions of rape and consent in C.32, as was typical, in a way that confirmed Gratian’s basic points but elaborated on them with definitions, taxonomic schema, and examples and potential objections and counter-examples. In short, they added nuance, sometimes in ways that are comfortable to modern ears and sometimes not. Always, their reflections played within a larger intellectual and religious tradition that integrated interpretation of biblical and patristic sources, Roman law categories, and the church’s canons.

As regards C.32 q.5, first, they reflected on virginity and pudicitia and did so in a way that explicitly associated the virtue with women of any status: unmarried virgins, wives, and widows. Virtue is, after all, a virtus mentis, habitus mentis, or qualitas mentis, as one of the earliest commentators on the Decretum, Rolandus, noted, as did the Summa Parisiensis.Footnote ⁵⁵ The loss of integrity of the flesh through the bare act of coitus does not mean the loss of that quality of the mind. This latter author cited Magister P. as noting three species of virginity, “namely virginity in virgins, continence in widows, and chastity in the married, which is one and the same virginity (unam eamdem virginitatem).”Footnote ⁵⁶ Although the editor of the text took “Magister P.” to be Peter Lombard, the more likely referent in this case is Peter the Chanter (d. 1197), whose Distinctiones Abel contained a very similar distinction, which seems to have been derived from Ambrose’s thought.Footnote ⁵⁷ The Summa Parisiensis concluded: “If therefore the pudicitia of the mind is preserved inviolate (illaesa), even if a woman is corrupted [physically], she will not be held guilty before God (rea apud Deum).”Footnote ⁵⁸ Others, such of Simon of Bisignano, repeated the emphasis, already noted in Gratian’s Decretum, on virginity as a quality of the mind,Footnote ⁵⁹ while the Summa ‘Omnis qui iuste iudicat’ observed that there are two kinds of pudicitia, one a chastity of the mind and one an integrity of the body, but the former cannot be removed without the will since it is a virtue of the mind that cannot be snatched away through physical force (per uiolentiam).Footnote ⁶⁰ The famous and influential Huguccio repeated the distinction noting that three kinds of women—virgins, wives, and widows—can all possess the virtue of virginity.Footnote ⁶¹ Laurentius Hispanus’s so-called Glossa palatina and, borrowing much from that work, the Glossa ordinaria on the Decretum made the interpretation permanent in canonistic discourse.Footnote ⁶² What this discourse ultimately did against the background of Gratian’s causa featuring a prostitute-turned-wife to whom Gratian applied patristic texts about virgins was to affirm that these texts could pertain to any woman of any status because virginity or chastity or pudicitia is a virtue rooted in one’s disposition and mind, not the body, and, as the canonists pointed out, one does not always have power or control over what happens to one’s body.Footnote ⁶³

Second, the decretists entered into extended considerations of a more theological and liturgical bent regarding the reward for virgins in heaven. The considerations enabled a simultaneous acknowledgment of chastity across all the faithful and a special distinction for consecrated virgins. St. Lucia had specifically referred to her chastity and to a corona; she is also identified as a virgin (although not a consecrated virgin, since she was betrothed) in addition to being a martyr, and virgins often appear in crowns in artistic representations.Footnote ⁶⁴ A fairly technical discussion emerged in canonistic commentary about a corona as opposed to a coronula or corona aureola (little golden crown), language used in Bede and taken up in the Glossa ordinaria on the Bible.Footnote ⁶⁵ The references to crowns in relationship to virgins appear in numerous liturgical texts in the Christian tradition, such as the Roman Missal, the Ambrosian breviary’s prayers during Lucia’s feast, and its texts for the birth and martyrdom of any virgin.Footnote ⁶⁶ Within this liturgical context, what applies especially to virgins becomes exemplary for what is true of all the faithful: God will crown his own, identifying them as heirs of his kingdom for all eternity.Footnote ⁶⁷ As Laurentius Hispanus noted, “The mind given over to the good will be crowned by God the Judge.”Footnote ⁶⁸ While it would be easy to dismiss these conversations as tangential to the main question at hand, I would argue that it is important for revealing the general, integrated mentality of the decretists to questions of canon law, which urges canon law, when it can, to imitate God’s law and court.

The question of virgins receiving a crown, and the connection of virginity to the faithful as a whole, point to the eschatological question of how God will assess humans on Judgment Day. The Glossa ordinaria on 2 Corinthians 11:2 (“since I betrothed you to one husband, to present you as a true virgin to Christ”) reads as follows:

The decretists thought along the same lines, and it is noteworthy that at least one decretist, Rufinus, explicitly referenced 2 Corinthians 11:2 within his commentary on C.32 q.5, identifying all Gentiles joined to Christ through faith and love as both virgin and spouse on the basis of that Pauline text.Footnote ⁷⁰ Simultaneously, this line of thinking bolstered the viewpoint that a woman, no matter whether a consecrated virgin or not, is to be judged more on the basis of an interior disposition than on whether the flesh in and of itself has been corrupted. Within this panoply of thoughts interlinking consecrated virgins, virgins defiled against their will, and the identity of all the faithful as spiritual virgins through an incorrupt faith, the decretists, just like the biblical commentators, looked to the eschaton to guide the present. They thought about God’s court, and the question of whether a raped virgin (or wife or widow) can still be considered innocent before God’s court should shape whether the court of the church should judge a rape victim to be in some sense tainted and guilty or not.Footnote ⁷¹ The interlinking of these levels is evident in the succinct gloss of Laurentius Hispanus on the short c.2 (“Indeed, the flesh cannot be corrupted unless the mind will have been corrupted first”): “that is, the corruption of her [cannot] be imputed to her for guilt, or unto eternal damnation [God’s court], nor can she be rendered guilty of corruption [human court].”Footnote ⁷²

Third, the decretists narrowed in on consent as the factor that determined guilt or innocence, with a correlated emphasis on the mind, will, and intention in determining culpability in an act. They even identified additional patristic texts that could make this point in relationship to female victims of sexual assault; the Apparatus Antwerpiensis includes in the margin what later became the palea following C.32 q.5 c.6, the closing line of which reads, “Not force but the will taints the body of women.”Footnote ⁷³ As Stephan Kuttner explained many decades ago in his study of canonistic thinking about guilt, the canonists, beginning with Rufinus in his commentary on a different causa and question, distinguished degrees of force or coactio.Footnote ⁷⁴ Coactio could be either modest (modica) or extreme (violenta). The former would not compel a “constant man” (vir constans) and did not excuse from guilt, although it lessened the guilt. The latter was subdivided into coactio absoluta and coactio conditionalis. The former could also be termed passiva, because the one compelled was a completely passive recipient and did not consent in any way to the act compelled. This absolute coercion excused the person so compelled from any guilt. The latter could also be termed activa. In a certain sense, under circumstances of conditional coercion, their will did consent; a person so compelled is given an unattractive option: do X or be killed (or face loss of property). Under this condition, the person’s will assents, albeit reluctantly, to the act compelled to avoid what is threatened. Canonists soon developed the rather harsh maxim, “Coacta voluntas voluntas est” (compelled will is [still] a will), but they did teach that coactio conditionalis minimized guilt.Footnote ⁷⁵

Gratian did not utilize these distinctions—they post-date him—and did not himself give an extended analysis of Lucretia’s plight; his commentators, after working with these distinctions in C.22 q.5, then applied them to their analysis of Lucretia in C.32 q.5. As Wolfgang Müller has pointed out, most still viewed coerced consent as consent and thus sinful, and so they judged Livy’s Lucretia to be not entirely innocent, believing she should have accepted death rather than consent (conditionally) to Tarquinius’s proposition.Footnote ⁷⁶ Yet this extreme view did not entail a corresponding insistence on canonical prosecution of women in such a situation. The Summa Parisiensis argued, “If the mind of the victim does not consent to or grant permission to the lust of the perpetrator, guilt belongs to the perpetrator alone [here repeating a phrase in the text quoted from Augustine in the Decretum], and violent corruption will not be reputed to her as a sin any more than if she had sustained a wound in her body.”Footnote ⁷⁷ Simon of Bisignano observed that sin instigated by someone else becomes yours if you consent to it, but the natural corollary is that, as Augustine argued in De ciuitate dei, if you do not give consent, there is no way that someone else’s guilt and pollution gets ascribed to you. And so, “when a virgin does not consent to her corruptor, she does not lose the reward for her virginity.”Footnote ⁷⁸

Huguccio wrote much on the topic and interrogated Lucretia’s state. He emphasized that one cannot be polluted by the sin of another person, “unless one consents to it.” Of course, at that point, one is not properly being polluted by the sin of another but one’s own sin in consenting to evil.Footnote ⁷⁹ Huguccio specified that such is the case in situations of absolute coercion.Footnote ⁸⁰ As Müller noted, Huguccio judged Lucretia harshly because, in the account he had, she clearly had a choice not to engage in sex with Sextus Tarquinius but chose to do so rather than be killed. She faced “conditional coercion,” not “absolute coercion.” Huguccio thought Lucretia had in fact committed adultery, then, and a mortal sin, although not so grievous a sin as if she had consented freely to the act.Footnote ⁸¹ Laurentius Hispanus agreed, although his evaluation seems somewhat less harsh. On the debated question of whether Augustine rightly or beneficially brought up the case of Lucretia to defend the innocence of victims of rape, Laurentius Hispanus explained how the Lucretia reference contributes to Augustineʼs argument:

In short, in terms of dialectical argumentation, Augustine employed the common argument a minori, which shows all the more that a woman compelled utterly against her will, such as the woman of C.32, is not guilty of adultery. Lucretia may have borne some guilt, but he did not dwell on the point. The Glossa ordinaria might have intended to soften Huguccio’s evaluation even more, for it gave a reading that set conditional coercion against absolute coercion but then gave an alternative reading of the term uis: “or say [simply] that force cannot be inflicted on the mind; this is true for the one who does not give consent.”Footnote ⁸³ In other words, one could make a distinction between absolute and conditional force, or one can leave that distinction behind in these situations and simply note that physical force by a person does nothing to taint the mind of the one on whom the force is inflicted. Finally, consent is very clearly connected to the will.Footnote ⁸⁴ Where there is no will or desire to commit an act, as the texts about St. Lucia would support, there is no sin, there is no consent, and thus there is no culpability.

Fourth, and concomitantly, the canonists agreed, to a person, that women who had been raped, defined as having suffered sexual assault without consent on their part, could in no way be charged with adultery. Often they make the point utilizing the terminology of imputation and reatus or rea: guilt or the guilty act/crime of adultery cannot or is not imputed to such a person; they cannot be rendered guilty in a judicial sense. Such terminology appears as early as Rolandus.Footnote ⁸⁵ The Summa ‘Omnis qui iuste iudicat’ simply asserted, in connection with the statement that “a virgin cannot be adulterated,” “that is, cannot be rendered guilty when she is unwilling.”Footnote ⁸⁶ The Summa Parisiensis’s commentary, referring to a line stating that one cannot commit adultery without first having committed adultery in the heart, made clear that this applies to people being accused of the crime of adultery and having guilty standing as adulterers before God.Footnote ⁸⁷ Huguccio reflected on how there are in fact two acts within what we talk about as one act, such that one person has committed a sin (the perpetrator of rape) while the other person has not committed a sin (the woman in Gratian’s C.32).Footnote ⁸⁸ Huguccio elsewhere explicitly noted, then, that the woman cannot be convicted of adultery, unless, again, she consents or wants to engage in the act.Footnote ⁸⁹ The Glossa ordinaria noted that a woman could be prostituted out by force (just as had been threatened to St. Lucia) and not have committed adultery, that is, could not be held guilty of adultery, unless she consented.Footnote ⁹⁰ In short, without consent to the sexual intercourse, one is not guilty before God and cannot be charged with adultery before the Church; as result, the husband of a rape victim has no grounds to dismiss his wife.Footnote ⁹¹