Taken from my essay, ‘”Minerva’s favourite Sholar”: Penelope Aubin Reconsidered’ – full text available here.
Bizarrely, the terms ‘rape’ and ‘seduction’ are often used pretty much interchangeably in eighteenth-century writings. Women were often accused of passive consent in rape cases, particularly if they became pregnant, since it was believed that pregnancy implied consent. Richardson’s Lovelace reflects popular belief when he argues ‘It is cruel to ask a modest woman for her consent. It is creating difficulties to both’. His idiosyncratic interpretation of the word ‘rape’ reflects popular belief: ‘there may be consent in struggle; there may be yielding in resistance'(p.557), telling Belford, ‘thou dost not imagine that I expect a direct consent – My main hope is but in a yielding reluctance'(p.719).
This belief goes some way to explaining social convention, which often regarded marriage as suitable redress for rape. Blackstone explains that early English law decreed that a rape victim ‘(by consent of the judge and her parents) might redeem the offender from the execution of his sentence’ that is, death, ‘by accepting him for her husband'(IV,p.212).
Women were regarded as ‘belonging’ to their husbands in some ill-defined way. Sheridan’s eighteenth-century dictionary defines ‘property’ not simply as an object but as a ‘right of possession’. His definition of ‘to possess’ is particularly useful: ‘To have as an owner, to be master of; to enjoy; to have power over’. Only widows and unmarried women over twenty one had an individual legal identity. The legal identity of women under twenty one was vested in the father, that of a wife in her husband. Blackstone explains, ‘By marriage, the husband and wife are one person in law.’ Thus ‘the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband'(I,p.442). Since wives had no separate legal identity, injuries to the wife could be considered as injuries to the husband and legal action would be brought in both names. If the injury to the wife was severe and deprived the husband of her ‘company and assistance’, he could bring a separate legal action to obtain ‘satisfaction in damages'(III,p.140). There are clear parallels with the offence of beating a man’s servant so that he cannot ‘perform his work’, an injury based on ‘the property which the master has by his contract acquired in the labour of the servant'(pp.141-3); the implications for the marriage contract are significant.
Eighteenth-century law regarded rape primarily as a violation of masculine property rights, with prosecutions being brought by fathers or husbands. A father could only bring an action against a seducer or rapist if he could prove that his daughter was, as a result of the rape, ‘less able to assist him as a servant, or that’ the rapist ‘in the pursuit of his daughter was a trespasser upon his premises’. Blackstone defines trespass rather broadly as: ‘any transgression or offence against the law of nature, of society…whether it relates to a man’s person, or his property'(III,p.208).
The action for loss of services, established by 1700, only protected girls whose parents could afford to keep them at home, where they could be regarded as being in their fathers’ service. Blackstone explains that ‘notice is only taken of the wrong done to the superior of the parties’, that is the father or husband and admits ‘the loss of the inferior by such injuries is totally unregarded’. He explains that ‘the inferior hath no kind of property'(III,p.142) in the superior and so ‘can suffer no loss or injury'(p.143). Aubin’s male characters seem obsessed with the notion of women as property but their comments are not simply expressions of individual misogyny but what is effectively the misogyny of an entire system; in encouraging the reader to reject such attitudes in the text, Aubin invites us to challenge them in reality.