Lord Hale, Witches, and Rape
![handle is hein.journals/jlsocty5 and id is 32 raw text is: LORD HALE, WITCHES, AND RAPE1
This article seeks to demonstrate the intimate linkage between the
ancient criminal offence of witchcraft and the contemporary crime of rape.
Both offences, it is suggested, bear inequitably upon women. The misogyn-
istic bias that has pervaded law and practice concerning witchcraft and rape
can be seen in the fact that one set of standards was employed in regard to
key issues in witchcraft prosecutions and an almost diametrically opposite
set has been used for similar issues in rape cases - always to the detriment
of women.
Sir Matthew Hale (1609-1676) serves as a catalyst for the article's theme,
since he played a preeminently significant role in the history of both
witchcraft and rape. Hale presided at one of the most notorious of the
seventeenth century English witchcraft trials[21 where he sentenced two
accused women to death. This was at a time when, as Holdsworth notes:
the rationalizing and sceptical spirit of the day was beginning to cause the
more enlightened to doubt the existence of witchcraft. [3] And in the legal
and anecdotal material in Historia Placitorum Coronae, published first in
1736, fifty years following his death, Hale set forth principles that to an
extraordinary degree determine the contemporary law of rape in Anglo-
Saxon jurisdictions. [4]
Note, for instance, Hale's famous stricture regarding rape, that it must
be remembered ... that it is an accusation easily to be made and hard to be
proved, and harder to be defended by the party accused, tho never so
innocent. [5] The observation is singularly inaccurate. Rape is not, and
never has been, an easy charge to make and a difficult one to rebut. It
certainly was not so before or in Hale's time. J.M. Kaye notes that, though
[11 I want to thank the National Center for the Prevention and Control of Rape, National
Institute of Mental Health, for a grant which made possible the research upon which this
paper is based, and the Institute of Criminology, Cambridge University, for providing
working facilities. Thanks are due also to Richard Moran of Mount Holyoke College for
helpful comments on the manuscript.
[2] A Tryal of Witches at the Assizes Held at Bury St. Edmunds (1682 William Shrewsbury,
London).
[3] Holdsworth, Sir Matthew Hale (1923) 39 Law Q. Rev. 407. Hale's judgment at the
trial acted as a powerful influence on the continuing prosecution of witches in England
and similar prosecutions in the American colonies. W. Notestein, A History of Witch-
craft in England from 1558 to 1718 (1911 Am. Historical Ass'n., Washington, D.C.) 304.
[41 M. Hale, Historia Placitorum Coronae (1734 Nutt and Gosling, London). In 1975, 239
years later, a British law inquiry group would note the traditional common law defini-
tion [of rape], derived from a 17th Century writer, and still in use .... Report of the
Advisory Group on the Law of Rape (1975; Cmnd. 6352.H.M.S.O., London) 3. The
writer referred to is, of course, Hale. Cf. Matthew Hale ... is still the most quoted
authority on the law of rape. B. Toner, The Facts of Rape (1977 Hutchinson, London)
95.
[5] Hale, op.cit., I, p. 635.
26](ViewImageLocal?handle=hein.journals/jlsocty5&div=7&collection=&method=preview&ext=.png&size=3)
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Lord Hale, Witches, and Rape
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