The concept of rape, both as an abduction and in the sexual sense (not always distinguishable), appears in early religious texts.
Scholars of the Ancient Near East debate whether certain pieces of legislation regarding sexual offences from various states and cultures that have survived to the present day are about "rape" or about various other offences that the individuals involved may have consented to. (E-book edition) There are many literary problems that make interpretation of these sex laws difficult, as the meaning of words depend on the context, and the laws often do not provide information about what the people (especially the women) involved in the acts wanted or did not want, and were more concerned about which combinations of individuals were illegitimate in view of the social order. They tended to focus on what a man might do to/with a woman he was not married to, especially if this resulted in the loss of virginity, regardless of whether she consented to it or not. Consequently, one scholar may interpret a law as being about rape, while another scholar concludes it is about consensual adultery, premarital sex etc.
Mesopotamia According to Scholz (2021), the only law in the Code of Hammurabi (composed ) that scholars universally agree relates to rape is § 130:
This law is similar to §6 of the Code of Ur-Nammu from Sippar (), and §26 of the Laws of Eshnunna (). The latter has also been compared to Deuteronomy 22:25–27 by Craig S. Keener (1996), who considered both of them rape scenarios; it states the following:
Another provision, generally regarded as a marry-your-rapist law, is found in §55 of the Middle Assyrian Laws ():
Similarly, several provisions in the Hittite laws (also known as the 'Code of the Nesilim'; developed , in effect until ) are usually categorised by scholars as dealing with either incest, adultery or bestiality; § 197 is the only undisputed rape law:
Because the Hittite word for 'woman' in this case does not indicate any status, such as whether she is married or unmarried, widowed, free or enslaved, the law seems to have referred to all women in general, and thus that raping a woman was always a crime, not just when she was married or engaged.
In some rare cases, ancient laws did consider the (lack of) consent of a person (particularly a woman) involved a relevant factor in determining whether or not a sexual offence had occurred. Examples include §190 and §191 of the Hittite laws, and §12 of the Middle Assyrian Laws (this one involves a combination of lack of consent on the one hand, and force on the other).
Hittite laws §190. 'If a man and a woman come willingly, as men and women, and have intercourse, there shall be no punishment. (...)' Hittite laws §191. 'If a free man picks up now this woman, now that one, now in this country, then in that country, there shall be no punishment if they came together sexually willingly.' Middle Assyrian Laws §12. 'If, as a seignior's wife passed along the street, a(nother) seignior has seized her, saying to her, 'Let me lie with you', since she would not consent (and) kept defending herself, but he has taken her by force (and) lain with her, whether they found him on the seignior's wife or witnesses have charged him that he lay with the woman, they shall put the seignior to death, with no blame attaching to the woman'.James B.Pritchard, Ancient Near Eastern Texts Relating to the Old Testament (1969), p. 181.
Ancient Israelites
Scholz (2021) stated that the texts of Deuteronomy 22:25–29 'are widely recognized as rape legislation', while Deuteronomy 22:22–24 as well as Deuteronomy 21:10–14 'are more contested and are not usually characterized as rape laws'.
According to the Encyclopaedia Judaica rape itself is not considered to be a criminal offense in Jewish law. The rapist will only be held liable to pay the girls father 50 shekels of silver (as a bride-price), "and she shall be his wife, because he has humbled her; and he may not put her away all his days" (Deut.22:28–29). The exceptions to this are when either the rape is a case of adulterous or incestuous intercourse, or a married woman is found not to have been a virgin (though claiming to be one at the marital stage of her Erusin (kiddushin) she and her seducer are to be stoned to death if the intercourse was consensual (Deut. 22:23–24); however if the woman did not consent only the rapist is to be executed (Deut. 22:25–27).
Under talmudic law, the rapist must also compensate the woman for physical and psychological damage (Ket. 42a–43b). If the victim refuses to marry him, he is then not compelled to marry her (Ket. 39b). If a girl was raped by several men, she can choose which one to marry (TJ, Ket. 3:6, 27d), ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 18A San–Sol, | ed=Fred Skolnik, Editor in Chief, Michael Berenbaum, Executive Editor | pub=Thomson Gale in association with Keter Publishing House Ltd., Jerusalem), | p.330.
Ancient Europe
General
From the classical antiquity of Greece and Rome into the Colonial period, rape along with arson, treason and murder was a capital offense. "Those committing rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular."
Greek mythology
The rape of women or youths is a common theme in Greek mythology. Among the rapes or abductions committed by Zeus, the supreme deity of the Greek pantheon, are Europa, Ganymede, and Leda the Nymph.
The rape of Chrysippus by Laius was known as "the crime of Laius", a term which came to be applied to all male rape. It was seen as an example of hubris in the original sense of the word, i.e., violent outrage, and its punishment was so severe that it destroyed not only Laius himself, but also his son, Oedipus, his wife Jocasta, his grandchildren (including Antigone), and members of his extended family.
Ancient Rome
In Roman law, raptus (or raptio) meant primarily kidnapping or abduction;Diana C. Moses, "Livy's Lucretia and the Validity of Coerced Consent in Roman Law," in Consent and Coercion to Sex and Marriage in Ancient and Medieval Societies (Dunbarton Oaks, 1993), p. 50; Gillian Clark, Women in Late Antiquity: Pagan and Christian Lifestyles (Oxford University Press, 1993), p. 36. sexual violation was a secondary issue. The "abduction" of an unmarried girl from her father's household in some circumstances was a matter of the couple eloping without her father's permission to marry. Rape in the English sense of "forced sex" was more often expressed as stuprum, a sex crime committed through violence or coercion (cum vi or per vim). Raptus ad stuprum, "abduction for the purpose of committing a sex crime," emerged as a legal distinction in the late Roman Republic.Moses, "Livy's Lucretia," pp. 50–51. The Lex Julia de vi publica,Digest 48.6.3.4 and 48.6.5.2. recorded in the early 3rd century CE but dating probably from the dictatorship of Julius Caesar, defined rape as forced sex against "boy, woman, or anyone".Amy Richlin, "Not before Homosexuality: The Materiality of the cinaedus and the Roman Law against Love between Men," Journal of the History of Sexuality 3.4 (1993), pp. 562–563. See also Digest 48.5.35 on legal definitions of rape that included boys.
Although Roman law in the historical period recognized rape as a crime, the rape of women is a pervasive theme in the myths and legends of early Rome. The Augustan historian Livy seemed "embarrassed" by the rape motif and emphasizes the redeeming political dimension of traditional stories. The "rape" of the Sabine women was interpreted as showing that Rome was constituted as a "blended" population in which people resolved violence and coexisted by consent and treaty. The rape of the exemplary woman Lucretia by the king's son led to the overthrow of the monarchy and the establishment of the Republic.Mary Beard, J.A. North, and S.R.F. Price, Religions of Rome: A History (Cambridge University Press, 1998), vol. 1, pp. 1–10, as cited and elaborated also by Phyllis Culham, "Women in the Roman Republic," in The Cambridge Companion to the Roman Republic (Cambridge University Press, 2004), p. 158. In the 50s BCE, the Epicurean poet Lucretius condemned rape as a primitive behavior outside the bounds of an advanced civilization,Pamela Gordon, "Some Unseen Monster: Rereading Lucretius on Sex," in The Roman Gaze: Vision, Power, and the Body (Johns Hopkins University Press, 2002), p. 105. describing it as "a man's use of violent force and imposition of sexual impulse."Lucretius, De rerum natura 5.964: Violenta viri vis atque impensa libido.
Intercourse by force or compulsion, even if it took place under circumstances that were otherwise unlawful or immoral,See further discussion at Marriage in ancient Rome#Adultery and Sexuality in ancient Rome#Fidelity and adultery). left the victim legally without blame.Ariadne Staples, From Good Goddess to Vestal Virgins: Sex and Category in Roman Religion (Routledge, 1998), pp. 81–82; Jane F. Gardner, Women in Roman Law and Society (Indiana University Press, 1991), p.118ff. The official position under the emperor Diocletian (reigned 284–305 AD) held that:Gardner, Women in Roman Law and Society, p. 120.
The laws punish the foul wickedness of those who prostitute their modesty to the lusts of others, but they do not attach blame to those who are compelled to stuprum by force, since it has, moreover, been quite properly decided that their reputations are unharmed and that they are not prohibited from marriage to others.Codex Justiniani 9.9.20.
Although the law recognized the victim's innocence, rhetoric used by the defense indicates that jurors might harbor attitudes of blame.Richlin, "Not before Homosexuality," p. 564.
As a matter of law, rape could be committed only against a citizen in good standing. The rape of a slave could be prosecuted only as damage to the owner's property.Under the Lex Aquilia: Thomas A.J. McGinn, Prostitution, Sexuality and the Law in Ancient Rome (Oxford University Press, 1998), p. 314; Gardner, Women in Roman Law and Society, p. 119. People who worked as prostitutes or entertainers, even if they were technically free, suffered infamia, the loss of legal and social standing. A person who made his or her body available for public use or pleasure had in effect surrendered the right to be protected from sexual abuse or physical violence.Gardner, Women in Roman Law and Society, p. 119; McGinn, Prostitution, Sexuality, and the Law, p. 326. Men who had been raped "by the force of robbers or the enemy in wartime (vi praedonum vel hostium)" were exempt by law from infamia.Richlin, "Not before Homosexuality," pp. 558–559, citing the jurist Pomponius, "whatever man has been raped by the force of robbers or the enemy in wartime (vi praedonum vel hostium)" ought to bear no stigma (Digest 3.1.1.6).
There was no statute of limitations for rape; by contrast adultery, which was criminalized under Augustus, had to be prosecuted within five years.Gardner, Women in Roman Law and Society, p. 118. The rape of a freeborn male (ingenuus) or a female virgin is among the worst crimes that could be committed in Rome, along with parricide and robbing a temple.Quintilian, Institutio oratoria 4.2.69–71; Richlin, "Not before Homosexuality," p. 565. Rape was a capital crime, and the rapist was subject to execution, a rare penalty in Roman law.Gardner, Women in Roman Law and Society, p. 118; Richlin, "Not before Homosexuality," pp. 562–563.