Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Friday, 25 November 2011

On the abduction of women

Although it is sometimes argued that the content of the criminal law is in some way universal, it seems that often a particular combination of circumstances - legal, social, cultural - can lead to criminal practices developing in a particular way. This seems to be the case with the abduction of women in Ireland in the eighteenth and nineteenth centuries.

Here the practice seems to have developed of men more or less systematically abducting women and raping them in order to force them into marriage and obtain the land or money that came with the dowry. What is perhaps even more surprising is that such conduct seems to have been in certain ways tolerated by the religious and legal authorities: forced marriages conducted with the abductee were recognised as having legal standing; magistrates were advised to encourage the parties to marry, notwithstanding the occurrence of rape and violence; prosecutions were abandoned by the families involved; and in all but a few cases (where larger estates or greater sums of money were involved), the penalties on conviction were relatively light. And perhaps most surprising of all, this was a practice that survived at least into the early years of the twentieth century.

Why should this practice have developed in this way in Ireland? This was the question discussed at a seminar I attended yesterday by Maria Luddy of the University of Warwick, at which she presented her research on this topic (which I summarise above). The circumstances are surely complex, but it was suggested that it was a peculiar combination of rigid law on the ownership and transmission of property, the economic motivation of gain, and the fact that chastity was valued so highly that the women abducted frequently had little alternative but to marry. All of which was further supported by inadequate law enforcement and the collusion of the authorities. But given these circumstances it is perhaps also remarkable that the practice does not seem to have developed on such a widespread basis in Scotland - or at least as far as we know - where at least until the end of the eighteenth century legal authority was also comparatively weak in remote areas of the country. Hume cites a case from 1681 (where a royal pardon was granted) and two others from the 1750s. Burnett (writing in 1811) cites a number of additional cases: from 1616 (involving the abduction of a boy), 1673, 1744 and 1750. This suggests that the practice was not unknown in this period, even if it did not become as widespread as in Ireland. It may be that the legal authorities were stronger (at least after the reform of Heritable Jurisdictions in 1747), and laws more strictly enforced, and is almost certainly the case that there were further incidents of abduction which did not come before the courts. However, it is certainly surprising that this practice (which was the subject of legislation in England as late as 1828) did not register more strongly.

This also made me wonder about the legal basis of the crime in Scotland. While in English law the crime seems to have its basis in statute, in Scotland it is a common law crime. Hume is typical in treating forcible abduction and marriage at the end of his chapter on rape. He points out that, while in Roman law it appears that abduction (rather than rape) was the central crime, the Scottish practice seems to have required that the abduction should normally have been accompanied by rape - though he comments that abduction alone would still be criminal. This was based on the discussion in the case of Gray in 1751 where it was held that abduction was still a crime in the absence of force or violence, but not capital. Burnett follows a similar path, placing his discussion of the crime between that of rape and that of other types of abduction or unlawful imprisonment - understood as a usurpation of the authority of the state. (The stealing of achild was even recognised as the separate offence of plagium). And the later authorities follow suit.

The crime, however, has never been abolished, though there is no suggestion of any prosecutions after 1750. Abduction continues to be discussed as a crime in the books, though in the context of election offences and the abduction of children or other forms of unlawful imprisonment. My guess is that otherwise the focus came to be on the rape, as a sexual offence with a weaker link between chastity and property, with abduction being seen as an aggravating circumstance. There are perhaps now parallel offences emerging in the contemporary law relating to people trafficking and forced marriages and it might be interesting to think about these in the context of these older offences and criminal practices.

[Added 28th November: By a strange coincidence, after posting this last week I found out that the Forced Marriage (Protection and Jurisdiction) (S) Act 2011 comes into force today. The legislation criminalises those who breach protection orders andm akes it easier to nullify forced marraiges. It is instructive to look at the justifications for the legislation, for while this ostensibly criminalises the same sort of conduct (forced marriages) as the old common law offence, it is justified (as might be expected) in terms of allowing individuals to express their own individual wishes and consent, rather than seeing women as a form of property who might be carried away.]

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