|From the manuscript of Bracton's |
On the Laws and Customs of England
“Punishment of this kind does not follow in the case of every woman, though she has been forcibly ravished, but some other punishment does follow, according as she is married or a widow living a respectable life, a nun or a matron, a recognised concubine or a prostitute plying her trade without discrimination of person”
|Sir Matthew Hale|
“for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”In many jurisdictions the crime of rape is now conceived of as an offence against sexual autonomy – the choice of the (ungendered) individual to decide when and with whom to have sexual intercourse. This has the consequence of making consent (or its absence) the central element in the definition of the crime and broadening the definition of the actus reus (to include oral and anal penetration). Rape is no longer conceived of as a crime exclusively against women as it is the wrong against sexual autonomy which is central, rather than the gender or status of the victim.
In each case then we can see that while rape is regarded as a serious wrong, the nature of the underlying wrong is conceived of differently. This surely illustrates the central point that the wrong cannot be understood as an intrinsic quality of the conduct, but is linked to the aims of the criminal law which in turn shapes the scope of the legal protection.