Rape, a term which seems to be shortened from the word violence (in Latin stuprum [disgrace]), and which is the crime committed by those who use force and violence against the person of a girl, woman, or widow in order to have sexual relations, despite the strong a persevering resistance with which she defends herself.

Rape is characterized by the violence that is used against the person of a woman itself, and not just intermediary obstacles, such as a door that is broken to reach her.

It is also necessary that she resist until the very end, because if there were only resistance at the beginning, this would not merit a case of rape , or the penalty attached to that crime. This penalty is more or less rigorous according to the circumstances.

When the crime is committed against a virgin, it is punishable by death, and even breaking on the wheel, if the virgin was a minor. Chorier sur Guyape reports a judgment handed down by the Grenoble Parliament, which condemned a man who had raped a four-year-old girl to this punishment.

When rape is also a case of incest, for example the rape a relative or of a professed nun, it is punishable by burning at the stake.

If a rape is committed against a married woman, it is punishable by death, even when the woman is of questionable virtue. However, some authors require that for this, three circumstances must occur. First, that the crime was committed in the husband’s home, and not a house of ill repute; second, that the husband had no part in the prostitution of his wife; and third, that the perpetrator of the crime was unaware she was married.

When rape is also a violation of trust, like that of a tutor towards his pupil, by one who the law gives authority over the person raped, it is punishable by death if it is proven the crime has been consummated. If it is not proven so, and there were only efforts to do so, it is punishable by the galleys or banishment for life.

One would not listen to a young prostitute who complained of having been raped if it took place in a house of ill repute. If it had happened somewhere else, some defamatory sentence could be pronounced. If the girl had totally reformed her ways before the rape , it would be punishable by a natural or civil death, such as banishment or the galleys for life.

Boerius and other authors claimed that a woman who complains of having been raped is not sufficient proof. She must be supported by more evidence, like if she had cried loudly to her neighbors for help, or if any traces of assault, like contusions or wounds from a weapon, are still visible on her body. However, if she stayed quiet until then, or if she waited too long to submit her complaint, her testimony is no longer admissible.

Bruneau reports a singular trait, which proves how much evidence is equivocal in this manner. A judge had ordered a young man accused of rape to grant the woman a sum of money as damages. At the same time, he allowed this young man to reclaim the money he had given her. When he was unable to do so, because of the woman’s vigorous resistance, the judge consequently ordered the restitution of his money by the woman on the basis that it was easier for her to defend her honor, if she wanted, than for the accused his money.

See ff. the title ad. leg. Jul. de vi publ. and the code de raptu virginium, instit. de publ. judic. Julius Clarus, Boerius, Bruneau, Papon, and the tr. des crimes by M. de Vouglans, tit. 3 ch. VII.