Old French literature and medieval law offer conflicting images of sexual behavior. We can meaningfully contrast constructions of sexual practices in literature to other cultural representations, such as those that describe and define criminal sexuality. This chapter will examine two nonliterary manifestations of the discursive practice of rape: the texts of medieval law, both canon and civil, which reveal the judicial norm, and the records of medieval courts of church and state, which record judiciary practice.
Medieval rape law is complex and often contradictory. More than two legal systems coexisted in the later Middle Ages: ecclesiastical, on the one hand, and the civil or criminal law of royal, feudal, regional, and municipal courts. 1 Laws regulating rape, like other crimes, sometimes conceal (or reveal) power struggles between church and state.
The Introduction has traced the ways in which church courts and jurists struggled to impose ecclesiastical law, especially in matters of marriage and sexual behavior. The laws on raptus strove to settle the question of marriage between an abductor and his victim. The watershed in canon law occurred with the work of Gratian in the 1140s, which synthesized many of the inconsistencies in previous church law. Gratian established the independence of canon from state law, emphasizing that in ecclesiastical law the appropriate remedy for raptus is excommunication.
The Church's policy on raptus was deliberately lenient compared to civil law on rape: "Although he expressed no opinion as to whether the death penalty was justified in ordinary rape cases, Gratian maintained that if the abductor and his victim took refuge in a church, the perpetrator must be granted immunity from capital punishment." 2 Even though Gratian understood that a wide gap between legal theory and practice existed, and that the Church's juridical machinery for enforcing the laws was ineffective, he left the development of an apparatus for arraignment and punishment to his successors. 3