Mara Schmueckle
Featured Image: “A lawyer speaking to an assembly” The British Library, Harley 947, f. 107.
The prosecution of gendered violence remains a difficult topic. One particular challenge faced by victims remains the existence of “rape myths” – the idea that a victim of assault would behave in a certain way, and that victims who do not behave in this manner may have invented their allegation.
The recent report by the Lord Justice Clerk’s Review Commission, which examined the management of sexual offence cases within the Scottish court system, explicitly recognised the existence of social expectations and their effect on the prosecution of sexual offence cases. Common myths include the suggestion that those subject to assault would resist or call for help (implying that assault without violence is consensual), that truthful allegations are reported immediately, and that false accusations are common. The Review Commission highlighted the ongoing, important line of judgments which forbids questioning designed to utilise these myths to undermine the credibility of the witness. Acknowledging the ongoing challenge in enforcing these rules, the review group nonetheless stressed the importance of restricting questioning to avoid re-traumatising witnesses. The Review Commission also warns that the outcome of cases can be affected by jury members who continue to apply these myths about rape. It recommends increased training and instruction for jury members to ensure that common (but usually inaccurate) understandings of sexual violence are not used to determine the truth of an allegation.
As a medieval historian, the parallel between the expectations placed on medieval women reporting sexual violence, and those still affecting the modern system, are striking.
A few months ago, while searching Scottish notarial records for details of the legal process surrounding marriages, I came across a notarial record written in Scots. Many medieval historians experience moments when the experience of the people we study, who lived centuries ago, can feel enormously relevant to our own society, and this was one of those moments for me. The record, which details the abduction and forced marriage of Janet Lausoun highlights the burden placed on women where their credibility is measured against expectations of the behaviour of “real victims.”
In February 1515 Janet Lausoun visited the home of a notary, accompanied by her (male) family members. The manuscript image featured in this post might help us to imagine this legal scene: a woman predominantly surrounded by men. She presented the notary with a pre-written statement, in which her abduction and forced marriage are described, and which details her formal renunciation of that marriage and any activities she undertook during this time. It is important to stress that while we do not know anything else about Janet Lausoun or whether there were any consequences for her abductor, her presence before the notary indicates that she must have been believed.
Janet met the burden of credibility. Her statement, however, also highlights the difficulty other women must have had in doing so.
One of the challenges about medieval statements is that we have no insight into the process by which they were created. However, Janet Lausoun’s statement so closely mirrors the legal language of the time that it seems likely she had assistance in preparing it. This, combined with her status as an heiress and the presence of male family members to defend her honour, allowed her case to be recorded. The statement explains that, a few weeks before Christmas the year before, she was walking home from Edinburgh to Leith [a journey of about 2 miles] with her mother. En route, the statement goes on to say, she was violently abducted and forced into marriage. She states that she entered into this marriage in fear of her life. There are no details of the three months she spent with her abductor, but she is careful to stress the date and difficulty of her escape, the day before she gave her statement.
In Janet’s case, reference to the violence of the abduction and to the speed with which she reported the case may have been necessary to meet relevant legal tests, and thereby allow her to renounce the marriage which had been forced on her.
But a comparison between the requirements placed on her and those placed on victims of sexual assault today suggests that long-standing legal ideas about how gendered violence looks and how a victim of gendered violence behaves did not simply disappear. They have evolved and continue to affect public understanding of gendered violence in the present.
Cases like Janet Lausoun’s remind us of the burden placed on women if we expect them to demonstrate that they are “a wholly blameless victim.”[1]
References
Final report from the Lord Justice Clerk’s Review Group, Improving the Management of Sexual Offence Cases, March 2021, available at https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6
Gordon Donaldson ed, Protocol Book of James Young, Scottish Record Society OS Volume 74, entry 2081, in manuscript B22/22/15 f. 121r-v.
Author’s Bio:
Mara Schmueckle is a PhD student in History at the University of Edinburgh. She also obtained her undergraduate and postgraduate degrees at Edinburgh, before qualifying as a solicitor. Her research focuses on women and marriage in Pre-Reformation Scotland.
[1] https://www.theguardian.com/uk-news/2021/sep/30/details-of-sarah-everard-case-heighten-womens-sense-of-despair
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