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Akin's View on Rape was Once the Law of England

The ancient law of England held that a woman could conceive only by consent.

So, do rape victims rarely become pregnant?  Seems like an interesting question, and one that caused a huge brouhaha when Todd Akin, Missouri candidate for the U.S. Senate, said on August 19 that "First of all, from what I understand from doctors, that’s really rare."

As a matter of fact Akin's comments were more nuanced and thoughtful than the news coverage suggests, and can be found at http://en.wikipedia.org/wiki/2012_Todd_Akin_rape_and_pregnancy_controversy for those interested in reality instead of media blather.  The same page cites real, legitimate research showing that 5% of rape victims become pregnant and that rape is twice as likely to result in pregnancy as consensual sex.  Note, however, that this research does not directly contradict Akin's statement, since Akin was specifically referring to a subset of rapes he terms "legitimate", which apparently means forcible knife-to-the-throat cases, and the research does not distinguish such circumstances. 

But that's not the point of this post anyway.  Point of this post is that Akin's view, dubious and demented as it may seem, was once the law of England.  Many years ago when I was wasting time at the University of Michigan I came upon a 13th century summary of English law known as Britton.  In which, Chapter VI, you can find this curious statement:

 "With regard to an appeal of rape, our pleasure is, that every woman, whether virgin or not, shall have a right to sue vengeance for the felony by appeal in the county court within forty days, but after that time she shall lose her suit; in which case, if the defendant confesses the fact, but says that the woman at the same time conceived by him, and can prove it, then our will is that it be adjudged no felony, because no woman can conceive if she does not consent." 

So there you have it.  If you want to read the original, you can do so online as Google has scanned almost all of the UM libraries.  

(Notes: (1) You want the translation of Britton, as the original is in the archaic French, aka Law French, used in English courts at that time, and even if you are a native French speaker it will be Greek to you.  (2) The "appeal" of which Britton speaks has nothing to do with applying for relief from a lower to higher court, as in current U.S. usage.  "Appeal of felony was a formal charge or accusation in older times in England. It was an accusation by a private subject against another, for some heinous crime, demanding punishment on account of the particular injury suffered rather than for the offense against the public. The proceeding was abolished by act of Parliament in England in 1819." (3) I called Britton to the attention of the NYT anent this case so don't be surprised if you see some garbled discussion of it on a NYT blog.)

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Chuck Anesi August 23, 2012 at 10:04 PM
Glenn, since physical effects are what we are talking about, degrees of physical force are extremely relevant. We aren't talking about post hoc psychological harm here. If we were serious about testing the hypothesis "Is the probability of conception after forcible rape truly lower than the probability of conception in other cases, ceteris paribus?" we would measure degree of force used and include that as an explanatory variable. Nothing disingenuous about this. If you actually look at the legal definition of rape in most jurisdictions, it includes intercourse with victims who are drugged, drunk, unconscious, sleeping, mentally incompetent (thus incapable of consent) and so forth, not to mention under age. Saying that hopeless bias does not result from including such cases in a sample when the question is the effect of force is, well, ludicrous.
Glenn August 23, 2012 at 11:35 PM
Ahhh, now I see the disconnect Chuck. Based on what you had previously written about knife-at-the-throat forced raped I thought you were using the term force with regards to the fact that the woman was being compelled to submit to sexual intercourse against her will. I had mistakenly assumed that you were trying to say that the emotional trauma and corresponding physiological changes resulting from a stranger-with-a-weapon situation could somehow result in a lower chance of conception. Now I see that you were referring to changes in conception rates as a function of the amount of thrust or "force" being applied by the rapist during the sexual act. In that case, the experiment you want to design becomes much easier since you don't even need to look at actual rape victims. All you have to do is strap a dynamometer to a series of willing couples genitals and, ceteris paribus, plot the resulting rate of pregnancy vs force used during intercourse. That is a much more straight forward experiment and any significant findings could be applied clinically to couples having trouble conceiving by informing the father-to-be to try pushing softer, or harder depending on the experimental outcomes. Also, it would be interesting to examine whether or not a person's likelihood of the using the phrase "ceteris paribus", when they could just as easily say "all things being equal,",is positively or negatively correlated to their degree of pretentiousness.
Jennifer August 24, 2012 at 01:10 AM
@Karen, pretty flimsy rebuttals. I was basing my comments on the ongoing thread that we are not considering statutory rape, or as you call it "rape based on age." Nothing I have written about has to do with statutory rape. And I think you have shown your hand: this is not an important "women's issue" because you are anti-abortion. I to am anti-abortion, but that has nothing to do with this discussion.
Karen Blaisdell August 24, 2012 at 03:25 AM
@Jennifer, I'll just wrap this up and say we will have to agree to disagree. You can see how if the entire context of a conversation is not included, someone could misunderstand the meaning based on your comment regarding this thread. I was fully aware of the title "statutory rape", but chose to describe it, however thank you for coming to my unintellectual aid by informing me of its meaning. On a final note, I wasn't aware I was playing a hand and stand firm on my stance for abortion whether the "hand" is showing or not. I will readily admit my error in thinking that you were appalled by the "No Tax Payer Funding for Abortion Act" for its lack of abortion funding rather than its rape description. At least we agree on pro-life. Thank you for the passionate debate.
Chuck Anesi August 24, 2012 at 04:22 AM
Karen, you were correct to avoid the term "statutory rape". It is a generic term that laymen think has a clear legal meaning, but it does not, and I have never read a statute that used it. Further, in the many jurisdictions that have abolished common law crimes, all forms of rape are, by definition, statutory, and the term is meaningless.

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