precedents and citing decisions
part II: bodice deterrence
This is a re-release, with edits, of one of the first big projects I did at Restorative Romance. Content warning for the whole series: I am discussing both bodice rippers, which include rape scenes and a legal scheme that did not criminalize marital rape, quoting historical jurisprudence that is cruel and misogynistic. The updated series is coming in parts and I’ll be re-releasing them over the course of the next few weeks. Updated Part I is here.
More than anything, I was delighted during this project to realize that I’ve gotten better at my job (reference librarian) in the past two and half years—I was able to expand my research this go-around because I’ve gotten smarter. I rarely have these one-to-one comparisons in my work, so seeing myself grow by revisiting a project was exciting.
The section is a significant expansion from the original project, looking more closely as the literary precedents that include depictions of rape before the 1972 date that romance histories often given as doing something novel or unprecedented. Not only is the plot of rape deeply connected to the history of the novel, but literature since the Middle Ages depicts and considers coercive sex in marriages, even if the legal category of “rape” was not available for these situations. The harm was being problematized by writers and readers, just without the legal categorization.
introduction (part ii)
Proponents of the connection between marital rape laws and bodice ripper popularity juxtapose the depiction of female happiness post-assault in bodice rippers with imagined women readers who lived under the threat of marital rape and who had no avenue for prosecution. In these books, when a woman is raped by the person who is going to eventually be her husband, the partner may go through some sort of process to earn back her consent and love. The theory suggests that this fantasy is an escapism from the realities of marital rape, and that the interest for that fantasy for many readers possibility came out of a developing conception of marital rape as a harm in the early 1970s and dissipated when marital rape began to be able to prosecuted across the United States.
But this suggestion divorces bodice rippers from any works that came before them and makes it sound like romance was doing something sprung, totally formed, from the heads of a few authors. Instead, it seems almost any moment in the history of literature can be selected and there will be examples to be found that use rape-as-plot, particularly when we use our more contemporary expansive notions of what rape is, to include non-violent forced sex and coercion, especially within a marriage. The acknowledgment of the possibility of coercive sex within a marriage certainly did not begin in 1972 and the naming of that act as rape in those novels from the 1970s seems like the result of centuries of the expanding notion of coercive sex in marriage, rather than a nomenclature watershed moment starting in the bodice rippers.
Another suggestion is that bodice rippers is where rape victims get not to die. If you are only looking at mainstream romance novels, bodice rippers from 1972 and later might be the first place you see sexual assault between characters not end death of the victim. But assault to marriage plots existed in books before bodice rippers, and it is reductive to assume that only sources of romance novels are from the lineage of Jane Austen1 to Georgette Heyer to wallpaper romance novels of the 2010s and the only places where rape victims exist in literature is the most famous Thomas Hardy novel. Bodice rippers, the fulcrum of this theory, have other precedents in literature, both for their explicit nature and for how they depict and deal with rape. After all, the book that led to constitutional law opening up in 1966 to protect explicit sex in books was not a new publication, but Fanny Hill by John Cleland from 1749.2
There were living rape and assault victims pre-bodice ripper literature, including some who married their assailants or were married to their assailants at the time of the rape. And the rape victims who die in their respective books, who are not condemned by their stories, but are the heroes of them, albeit tragic. I think putting a firm starting line at The Flame and the Flower disconnects bodice rippers from many of their precedents, from psychological novels, social novels, and adventure genre novels. The death of a rape victim in an 18th or 19th century novel is often a societal tragedy, moralizing to the readers who might condemn a coerced fallen woman. The death is not a punishment, but an indictment (and importantly: fictional and metaphorical).
forced seduction and iffy consent
Perhaps the most famous rape victim in literature is Tess from Tess of the d’Urbervilles by Thomas Hardy (1891). She is executed for killing her rapist/seducer, though Hardy makes it clear the world that creates and punishes Tess is what he is condemning. Hardy speaks about the action euphemistically, leading to debate among readers about the level of coercion, though Alec’s persistent actions before the encounter read as coercion, though I imagine most modern readers land of the side of it being a rape (the scene is reproduced in the footnote).3 Hardy’s empathy towards Tess and insistence that Christian morality includes non-virginal woman suggest to me this euphemistic ambiguity is not a Victorian oversight because modern definitions of rape are not available to him.
Instead, Hardy is exploring the more fruitful and narratively interesting realm of morality instead of legality. In an article that I highly recommend if you enjoy legal history in literature, William Davis argues that under Victorian law, Tess would have been almost an ideal complainant in a rape case and Hardy’s research for the novel, which we know from primary sources produced by the author, including research notes, was focused on legal precedent. Davis also argues that “seduction has mainly moral implications, while rape has mainly legal ones. Hardy…wanted Tess’s sexuality and the matter of her purity to be considered in the minds of his readers rather than argued (with perhaps predictable results) in the fictional court of law.”4
By being unambiguous in the exact nature of Tess and Alec’s relationship, Hardy would have abandoned at least one project of the novel, where the reader is pushed to past notions of binary categories for good or bad women. Davis argues that Victorian readers would have understood, under their current legal schema, that both a criminal rape happened between Alec and Tess at the end of Phase the First5 and that it turns into what would be termed a seduction (morally bad behavior on Alec’s part, but not a legal cause of action, especially by working class Tess) in the weeks that follow, where Tess repeatedly returns to Alec, despite reticence.
Tess is executed at the end of the novel for killing Alec, to whom she is driven back after her husband, Angel Clare, cannot forgive her for her past with Alec and abandons her. Both economic and emotional circumstances have Tess turn back to a relationship with Alec. But when Angel returns chagrined, Tess is furious at Alec for telling her that she was stupid for thinking that Angel would ever return. He mocks her pain and Tess stabs him to death.
The last section of the book shows Tess regretting the circumstances that mean that she and Alec will be separated again, but not regretting the murder. The book ends with a weary narrator condemning of a world and fate that indifferently uses people like Tess for tragic consequences, evoking the theory of “justice” in the criminal system ironically:
“Justice” was done, and the President of the Immortals, in Æschylean phrase, had ended his sport with Tess. And the d’Urberville knights and dames slept on in their tombs unknowing.
Another eponymous heroine who is raped and dies is Clarissa from Clarissa by Samuel Richardson, 1748, who wastes away from the stress of protecting her virtue, which Richardson maintains she has despite being raped multiple times, precisely because she refuses to be also seduced by her assailant.
Clarissa also refuses to prosecute her rapist, and this can be seen as Richardson opting for a morality based system opposed to a faulty legal system. But Ann Wagner argues the law in Clarissa is actually simultaneously “necessary and insufficient.”6 Richardson plays with legal language, using legal terms in their idiomatic every day usage, next to how they are used in legal parlance (Wagner points out the way the phrase “to do her justice” is used in the novel in reference to Clarissa: first in representing someone accurately, then in marrying her after a seduction, and then finally in reference to possibly taking her rapist to court).
When considering taking her rapist to court, Clarissa expressing anxiety about how rape victims are treated during trial. The form of the novel, letters primarily written by Lovelace and Clarissa, effectively make the reader the jury of Clarissa’s case, hearing both sides of testimony. And Clarissa is such a paragon of virtue, that despite initial attraction to Lovelace and being complicit in her flight from her parents’ house that eventually leads to her assault, that a reader cannot blame Clarissa, even if a jury, without access to Clarissa’s blameless thoughts and Lovelace’s blameworthy thoughts, might.
Wagner argues that this is not a rejection of legal justice, but a fantastic alternative, particularly since Clarissa uses a legal document, her will, to ensure public knowledge of the rape, both in terms of her innocence and Lovelace’s guilt, which leads to his death in a duel.
Clarissa is an interesting precedent because it was published in multiple volumes, and while waiting for the final set, readers expressed interest in the rake in the novel reforming and marrying Clarissa, asking Richardson to change the ending, which would then follow the traditional plot of the (not technically yet invented) bodice ripper. Richardson refused. Clarissa was published eight years after Pamela, also by Richardson, where the heroine does marry her seducer.
The question of seduction and rape, moral and legal crimes, that by their definition have a conflict between the body and mental state, are arguably major vectors for the development of the English novel. Michael McKeon, in The Origins of the English Novel, argues that Richardson’s expansion of the “psychological” in the English novel is inextricably linked to stories of rape because it is a crime where an element is the mental state of the victim. Outward oriented art cannot consider this interiority, either when it comes to changes of heart, like where Pamela reframes rape as seduction, retrospectively, to understand her change of heart after her rapist/seducer’s efforts, or examples where a character remains firm, despite public pressure to acquiescence, like Clarissa’s interior conviction of her lack of consent remains stalwart, albeit to her tragic end.
Tess and Clarissa do die at the end of their eponymous novels, but neither of their author condemns the women for being “unvirtuous,” but instead attempt to condemn something larger and more systemic—perhaps readers who align themselves with thinking that the rape sullies these heroines, but also existing legal systems that do not afford justice. Neither of these rapes are ever prosecuted, though both could have been. By having both books involve “trials,” either literally in the case of Tess or structurally in the case of Clarissa, the authors are connecting theories of extrajudicial justice to the act of rape, though with a legal framework.
A bodice ripper, to me, is not a total rejection of this precedent but a continuation of it. If we’re going to get to a happily ever after, some justice must be found or made, but similarly, it is going to be outside the extant legal system.7
But literary rape does not always end in death and this did not start with the bodice ripper. Forced seduction leading to more consensual encounters (including marriages) existed in erotica and literature, without death at the end from ancient stories to the 20th century. Beyond Richardson’s Pamela, there’s the story of the Rape, or Abduction of the Sabine Women, is instrumental in the history of Rome and the marriage post-abduction leads to the Sabine women uniting the Sabines and the Romans as one culture. The early 18th century play An Accomplish’d Rake by Mary Davys (1727) has a plot that could be traditional bodice ripper, with the rake raping an unknowing woman, reforming, and then claiming her son as his own and marrying her (and giving her a substantial portion of his estate as restoration).
In the direct genealogy of romance novels, The Sheik8 by EM Hull, 1919, ends with a woman declaring her love for her assailant (the rape takes place off page) and he reciprocating only after she threatens to kill herself with his gun. The Sheik is characterized as a “desert romance” and is an example in the line of adventure novels that partly inspired Woodiwiss to write The Flame and the Flower.9 There are also multiple examples of women experiencing coercive sex within a marriage and a husband being mocked, judged or condemned for exercising marital rights in this way.
precedents of marital rape
Following the theory that bodice rippers were doing something transformative and novel in the 1970s by depicting marital rape as rape, since “marital rape” was not a “thing” legally, there shouldn’t be precedents for marital rape in literature because the people did not conceive of it as a harm yet. Hopefully Part I of this project disavowed any reader of the idea that people, particularly wives, in the 19th century had no concept that marital rape was a harm.
But this concern in popular literature goes back even further. In her article “The Unwilling Wife: Marital Rape in The Canterbury Tales” Chelsea Skalak looks at English law that predates even Sir Matthew Hale’s jurisprudence that gives way to the modern marital rape exemption. She cites medieval jurisprudence that discusses the potential marriage between victim and assailant, which would seem to imply that the judges are only considering victims who are not yet married (read: virgins). The developing law around “raptus,” which included elopement or any “taking” of a female away from her family of birth without her consent or the consent of her male family members, really centered on the protection of a family’s property from outsiders who might see unmarried women as avenues to parts of a fortune. This framing gets to one of the underlying reasons why marital rape is not acknowledged, before Sir Matthew Hale even invents the state of irretracible consent: any of the rape laws are not about bodily autonomy or consent, but about property and a married woman’s property is already her husband’s.
But while marital rape was a medieval legal impossibility, medieval writers did write about the perils of coercive sex, even if they did not conceive of that phenomenon as the word “rape.”10 Skalak cites examples of characters from The Canterbury Tales acknowledging the potential for coercion in the marital bed, including the wife in the Merchant’s Tale, who on her marriage night “obeyeth, be hire lief or looth” (“obeyed, whether she liked it or not”). She later cuckolds her husband—where she was once silent on the terms of her actual consent, she enthusiastically participates in the affair.
Other wives, including the notorious Wife of Bath, set the terms of their marital relationships. According to Skalak, “The Wife of Bath's Prologue demonstrates that despite legal and canonical precepts that wives could not, or at least should not, refuse to have sex with their husbands, it was certainly not beyond the bounds of imagination that they might do so…Taken together, these tales suggest that while marital rape was not a prosecutable crime, it was also not an unmarked act, undertaken by husbands without a qualm. Forcing sex upon an unwilling wife may have been legal, but it was not an unquestioned norm.” Skalak’s conclusion relates to the conclusions of the early sex studies referenced in Part I, where women discussed the realities of their married sex lives, painting a picture not totally defined by the common law conceptions of harm.
Later examples exist of showing marital sex as coercive,11 even in literature after the development of the theory of “irretractible consent.” In Daniel Deronda (1876) by George Eliot, Gwendolen Harleath is coerced to marry by economic circumstances and by her husband, Grandcourt, through deception about his true nature. Eliot repeatedly describes their encounters in terms of violence, while bringing up Gwendolen’s legal consent to her husband, putting into focus the oxymoronic nature of the marital rape exemption. Much of the control shown in the novel by cruel Grandcourt comes in the metaphorical form of a set of diamonds: him giving them to her, despite once gifting them to another woman with whom he has had children and forcing her to wear them, a metaphor for his larger control of her body.
But Grandcourt also thinks about his marriage like a consented-to contract: “Grandcourt might have pleaded that he was perfectly justified in taking care that his wife should fulfill the obligations she had accepted. Her marriage was a contract where all the ostensible advantages were on her side, and it was only of those advantages that her husband should use his power to hinder her from any injurious self committal or unsuitable behavior. He knew quite well that she had not married him—had not overcome her repugnance to certain facts—out of love to him personally; he had won her by the rank and luxuries he had to give her, and these she had got: he had fulfilled his side of the contract.”12 Grandcourt might think himself noble because he sees Gwendolen’s “irretractible consent” not coming at the marriage vows, but at his fulfillment of his auxiliary promises, though he must still “plead” his case.
Gwendolen thinks of her lack of consent when she worries about the prospect of having a child with her husband, lest that event belay an active consent on her part, with some desire being satisfied by their marital relations: “Some unhappy wives are soothed by the possibility that they may become mothers; but Gwendolen felt that to desire a child for herself would have been a consenting to the completion of the injury she had been guilty of. She was reduced to dread lest she should become a mother.”13 Both perspectives here show characters who understand that the sex in the relationship is coerced and that is causing a rot in their marriage.
In the next century, John Galsworthy depicts marital rape in The Man of Property (1906, the first novel in The Forsyte Saga), partially inspired by the first marriage of his wife, Ada Galsworthy, that ended in divorce.14 Though still not named as a rape, the lack of consent is clear in the marital relations. Galsworthy invokes the misogynistic law when the rapist, Somnes, considers his guilt over raping his wife, Irene, the next morning: “the incident was really not of great moment; women made a fuss about it in books; but in the cool judgment of right-thinking men, of men of the world, of such as he recollected often received praise in the Divorce Court, he had but done his best to sustain the sanctity of marriage, to prevent her from abandoning her duty.”
To drive the point home even further, Galsworthy has the rapist read a newspaper report about rapes as he is considering his actions—where the law is silent, the narrative condemnation is loud and clear. Notably here too, and afoul of the idea that rape victims always died in novels before romance novels in 1970s, neither Gwendolen nor Irene dies. Gwendolen’s husband drowns and in a different plot thread, she emphatically declares “I shall live.” And like Ada Galsworthy, Irene marries a doting husband15 in a later Forsyte novel.
next steps
Depictions of rape as victims as highly sympathetic or marital rape as a practical, if not legal, reality and harm neither starts with bodice rippers nor ends with them. I think putting them next to these older books is actually more exciting—having romance be a part of a larger conversation about cultural conceptions of harm and justice is more meaningful than “romance is the first and only place ever to this.”
Yet, the first bodice ripper, The Flame and the Flower from 1972, is the book that is brought up next to the marital rape theory, without any context of this pattern of narrative happening before the heyday of this subgenre. The Flame and the Flower is not a romance novel that I am clamoring to defend—I don’t think it is all that good, but this Book Riot article reflects the way the book is mostly discussed: “Yes, there were consent issues in romances written in the 1970s and ’80s, but that’s likely because of the societal understanding of consent was different than it is today. Writers were writing for the moment they were living in…In 1972 when The Flame and the Flower was published, marital rape was still legal. Nebraska was the first state to outlaw marital rape in 1975, although the term “rape” wasn’t used.16 It wasn’t until 1993 that marital rape was outlawed in all 50 states; North Carolina was the final state to change its laws….The idea of consent wasn’t at the forefront of society, much less publishing,” when discussing The Flame and the Flower. This claim is weirdly framed to me and that misses what is actually happening in this book, that is deeply concerned with consent.
The next part of this project will a look at the marital rape law changes in the United States starting in the 1970s through the 1990s, and close readings of The Flame and the Flower (1972) and Cold-Hearted Rake by Lisa Kleypas (2015), a romance novel published outside the window of supposed “bad consent” that still demonstrates a relationship to bodice ripper precedents, even after the marital rape exemption is removed from statutes.
Though secondary characters are not without seductions of sorts in Austen. Eliza in Sense and Sensibility and Maria in Mansfield Park both are deceived by male characters who are revealed as rakes and underlying coercive promises are not kept. And most famously, Wickham and Lydia abscond and are forced to marry. Wickham is 10 years older than Lydia, who is 15 at the time. Lydia never seems anything other than willing in the book, but the threat of sexual coercion is not totally lacking in Jane Austen, even if it is not coupled with physical violence.
Memoirs v. Massachusetts, 383 U.S. 413 (1966). Memoirs did not really change the test of obscenity, but SCOTUS did rule that while Fanny Hill appealed to prurient interest and was patently offensive, they could not determine that it did have any redeeming social value, thus had First Amendment protection. This paved the way for the even more impactful case, Redrup v. New York, 386 U.S. 767 (1968), which included the famous “I know it when I see it” dictum and basically ended any censorship on written materials in the United States—incredibly important in the history of romance novels.
“Tess!” said d’Urberville.
There was no answer. The obscurity was now so great that he could see absolutely nothing but a pale nebulousness at his feet, which represented the white muslin figure he had left upon the dead leaves. Everything else was blackness alike. D’Urberville stooped; and heard a gentle regular breathing. He knelt and bent lower, till her breath warmed his face, and in a moment his cheek was in contact with hers. She was sleeping soundly, and upon her eyelashes there lingered tears.
Darkness and silence ruled everywhere around. Above them rose the primaeval yews and oaks of The Chase, in which there poised gentle roosting birds in their last nap; and about them stole the hopping rabbits and hares. But, might some say, where was Tess’s guardian angel? where was the providence of her simple faith? Perhaps, like that other god of whom the ironical Tishbite spoke, he was talking, or he was pursuing, or he was in a journey, or he was sleeping and not to be awaked.
Why it was that upon this beautiful feminine tissue, sensitive as gossamer, and practically blank as snow as yet, there should have been traced such a coarse pattern as it was doomed to receive; why so often the coarse appropriates the finer thus, the wrong man the woman, the wrong woman the man, many thousand years of analytical philosophy have failed to explain to our sense of order. One may, indeed, admit the possibility of a retribution lurking in the present catastrophe. Doubtless some of Tess d’Urberville’s mailed ancestors rollicking home from a fray had dealt the same measure even more ruthlessly towards peasant girls of their time. But though to visit the sins of the fathers upon the children may be a morality good enough for divinities, it is scorned by average human nature; and it therefore does not mend the matter.
As Tess’s own people down in those retreats are never tired of saying among each other in their fatalistic way: “It was to be.” There lay the pity of it. An immeasurable social chasm was to divide our heroine’s personality thereafter from that previous self of hers who stepped from her mother’s door to try her fortune at Trantridge poultry-farm.
William A. Davis “The Rape of Tess: Hardy, English Law, and the Case for Sexual Assault.” Nineteenth-Century Literature 52, no. 2 (1997): 221–31, 228. https://doi.org/10.2307/2933908.
The novel is broken up in parts called Phases. I am not just being flowery!
Ann K. Wagner, “Sexual Assault in the Shadow of the Law: Character and Proof in Samuel Richardson’s Clarissa.” Law and Literature 25, no. 2 (2013): 311–26. https://doi.org/10.1525/lal.2013.25.2.311.
In reading about the legal history in Clarissa, I was struck by the similarities in parts of the plot of the film Promising Young Woman, though Promising Young Woman does rely on extant legal systems to dole out posthumous justice for the heroine, that would likely fail outside of the fictional world.
The Sheik exists in a long tradition of Orientalist romances and relies on really racist and reductive stereotypes of Northern Africa. Not a recommendation!
The forced seduction trope continues in other media, Luke and Laura on General Hospital are possibly the most famous example of a forced seduction leading to marriage (the rape happened 1979 and they marry in 1981) though the show revisited the plot in the 1998 and landed on a more clear condemnation of the act. Even Blair and Chuck, an end-game couple on my preferred millennial soap, Gossip Girl, plays with the trope, by starting Blair and Chuck’s relationship with an out of character ask of consent, but after he has attempted to rape two of the other characters.
I do think there is power in naming things as they are, but I think it is also important to understand that a legal category does not determine someone’s reaction to a harm. I think that this is still true now! An act may fall short of the legal category, but a perpetrator still need consequences and a victim still need restoration. This is a major component of abolition!
A few other Victorian novels that have at least passing references to coercive marital sex: The Tenant of Wildfell Hall by Anne Bronte (Helen Graham fleeing her husband with his child, does not die, gets a romantic partner), Wuthering Heights by Emily Bronte (Isabella Linton, does die, but after escaping Heathcliff), and The Way We Live Now by Anthony Trollope (Lady Carbury and Mrs Hurtle, neither of whom die, and Lady Carbury gets a romantic partner)
George Eliot, Daniel Deronda, Chapter LIV
George Eliot, Daniel Deronda, Chapter LIV
Notable: her middle name was Nemesis.
Full disclosure: John Galsworthy does have an affair with 19 year old later in their marriage, but Ada seems to have been basically okay with it because he ended it after a year.
I take deep issue with the framing here. The implication is that because the word “rape” is not used in the sexual assault statute in Nebraska that marital rape is some how diminished by the legislature. This does happen in some states as the marital rape exemptions are being removed from the books, but what is going on in Nebraska is quite different and doesn’t serve the narrative that these things are happening in a linear progression.
In fact, the law was changed in Nebraska at the same time as the overturning of the marital rape exemption to say "sexual assault" with the express purpose to “broaden the terms relating to criminal sexual acts and to make testimony less personal to the victim" (L.B. 23, Introducer’s Statement of Purpose, January 15, 1975) and encouraging more victims feeling like they could report the harms done to them. The term "rape" was seen as a gendered term (the definition is still gendered in some states that criminalized rape as distinct from sexual assault), with a male assailant and a female victim and often assumed to mean penetrative sex. The term "sexual assault" is aiming to expand, not diminish harm, so that more people can get seek criminal prosecution.