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Virgins on the cutting-room floor
Excerpt from Chapter Seven: Opening Night
Like gold or cattle, land or cloth, female virginity has long been treated as a type of property. As such it has been subject to being bought and sold, traded and bartered, given, taken, and stolen away. But this practice, however long and well-established, is in many ways a paradox. Unlike other forms of property, virginity is essentially intangible. It can’t be captured in a jar or weighed on a scale, and, unlike a real estate investment or even a bottle of wine, it doesn’t appreciate with age. It is fragile and perishable and is destroyed by the very act that is supposed to claim it. Using it as an object of trade seems almost like trading in wind, fog, or oceanfront properties in Luxembourg. But for thousands of years, virginity has been considered a form of real as well as symbolic property, and treated that way without a shred of irony.
Some of the best illustrations of how virginity is treated as a form of property can be found in the history of rape law. As far back as the fifth century BCE, we have examples of rape laws that provide harsher penalties and steeper fines for those convicted of raping virgins. The nature of the crime, the actual act of rape, is considered identical in all cases: a rape is a rape is a rape. But not all victims of rape are considered to be harmed by it in the same way or to the same degree, and the penalties show the difference. The fifth-century Cretan law alluded to above provided two separate fines for the punishment of the rape of a servant or slave. If the victim was a virgin prior to the attack, the fine was two staters. If not, it was one obol. At an approximate exchange rate of six obols to the stater, this meant that the damage done to a virgin was twelve times that done to a non-virgin. If we were to bring the monetary units up to date, this would be the equivalent of having a law where the fine for raping a virgin was $12 but the fine for raping a woman known to have already had sex was a bargain-basement buck.
This sort of thing has been commonplace throughout the history of rape law. Different sexual statuses warranted different penalties because of the relative value placed on virginity. But these laws do not reflect the value of virginity as a personal attribute. They reflect the value of a woman's virginity to some third party who was, almost invariably, male. The fines collected under the terms of that ancient Greek law didn’t go to the victim but to her employer (if she were a servant) or to her master (if a slave). The woman herself was perceived as having been damaged, but the property loss affected the man who owned her.
A woman's virginity has only very recently, and only in some circles, come to be considered the sole property of the woman in whose person it exists. This is because of the unique form of insurance virginity represents within a patriarchal culture: a virgin makes it possible for there to be children whose fathers are indisputably known. It is not the woman herself who is valued, but her virginal ability to produce certified contributions to a man's posterity. The rape of a virgin, viewed through the lens of a social system which values her as a virgin in ways that it would not value her simply as a woman, is not primarily an act of violence perpetrated on a person. Rather, it is the destruction of an object of value: a property crime.
Laws dealing with rape have supported this view of virginity in several ways over the centuries. Some laws, as we have seen, stipulated more stringent punishments for the rape of a virgin than for the rape of a non-virgin. The flip side of this coin was that rape was often construed as something that only really mattered when it happened to a virgin or a woman "of previously chaste character." If a woman who was known to be sexually active was raped, particularly if she had been sexual outside of the confines of marriage, the offense was less likely to be taken seriously.
Establishing that a rape had occurred often rested neither on a woman's testimony or on empirical medical and forensic evidence such as we might expect from a modern-day rape evidence collection kit, but on character witnesses and accounts of a woman’s prior behavior. Only if a plaintiff had led a lily-white life of sterling virtue and had plenty of people willing to stand up in court and vouch for her nearly nunlike sanctity and modesty did she stand much chance of seeing her rapist convicted. If she were a woman whose prior sexual behavior violated expectations of premarital virginity and postmarital monogamy—or if people could even be induced to believe that she might have behaved immodestly or lasciviously—she would all too often find that when her day in court arrived, she would end up being portrayed as the guilty party, sinful and wanton. The difference was not in the crime or the criminal, but in the properties of the woman, who was assumed to be either virgin or vixen with very little room in between.
The issue of prior conduct, and the invocation of a woman’s unchaste conduct as a means of invalidating a rape charge, has even been part of statutory rape proceedings. This would appear, on the surface, to be contradictory: the whole point of statutory rape law and the establishment of a sexual age of consent is the idea that there is an age before which no woman can be construed to even be capable of making sexual decisions or deliberately engaging in sexual acts.
Age of consent laws, or their equivalents, can be found in laws dating back to Ancient Rome, where it was illegal for a man to take as a concubine any girl younger than 12 years old. As part of English common law, from which American and several other versions of age-of-consent legislation derive, the concept of statutory rape was codified in 1275 as part of the formulation of the Statutes of Westminster with an age of consent of 10 years.
The reasoning behind the creation of a special category of statutory rape was that the younger the woman, the less likely she was felt to be of being capable of giving knowledgeable consent to a sexual act. The less likely it was that she was capable of giving informed consent, the more likely it was that she might be sexually exploited. And since the chastity of young women was considered “particularly precious,” as the late U.S. Supreme Court Justice William J. Brennan put it in his dissenting opinion on the case Michael M. v. Superior Court of Sonoma County in 1981, “those young women were felt to be uniquely in need of the State's protection.” And so laws were created that stated that until a woman passed a certain chronological age, she was legally incapable of giving consent, technically making it a crime for anyone to engage in any kind of sexual act with her whatsoever, even if she appeared to consent to it.
It would seem inconceivable that the law could argue that the conduct of a woman younger than the age of consent would constitute a legally significant precedent, but the “previously chaste conduct” exemption was sometimes even applied in these cases, showing yet again that a woman’s virginity—and even merely whether she behaved in ways that were publicly seen as being indicative of virginity—were of more moment than whether she had in fact been raped. If a defendant could prove (or at least convince the jury) that the alleged victim hadn’t been completely pristine in her behavior, then she had already compromised herself and whatever he had done was not quite rape, and thus not quite a problem.
In the USA, “previously chaste conduct” exemptions to rape laws and the use of character witnesses against rape plaintiffs were common practice until the 1970s. Even then, however, the laws were slow to change. The last US state to drop the “previously chaste conduct” exemption from use in statutory rape cases was Mississippi, which revoked it in 1998. In Britain, a section of the Youth Justice and Criminal Evidence Act 1999 disallowed the presentation of evidence regarding a rape plaintiff’s previous sexual experience, but there are already rumblings of dissatisfaction with this state of affairs coming from the judges’ bench. A report presented in July 2004 by the Criminal Bar Association and the University of Wales, Aberystwyth, suggested that numerous judges feel that this limitation on evidence makes it difficult to introduce relevant information in rape trials.
In Britain, the US, and elsewhere, it has become clear that even when there are laws on the books barring the use of a rape plaintiff's previous sexual experience as evidence, lawyers and judges will sometimes tweak their interpretations of these laws in order to admit such evidence in specific cases where they consider it relevant. It would be fair to say that use of the “previously chaste conduct” exemption has been curbed, but not eliminated, from rape proceedings. Its legacy, in terms of its being a form of evidence that tends to lead juries to convict or acquit accused rapists depending on whether they perceive a plaintiff's to be a “good girl” or a “slut,” lives on both formally and informally in courtrooms throughout the world.
These perceptions are notoriously variable and culturally, even generationally specific. It has never been particularly necessary that a woman be provably a non-virgin in order for her to be considered unchaste by a judge or jury. Among the things that might result in a woman's being portrayed or perceived as a loose woman or "wanton" in court could include whether or not she had ever been known to flirt, whether she willingly spent time with any man or men without a chaperone, if she used unladylike language, if she had ever permitted a man to kiss or touch her—or in some cases even speak to her. In many places and times, all it took to label a woman a whore was suspicion. In Victorian London, for example, even walking in public without a hat and gloves on might be considered “evidence” that a woman was a prostitute, and a contribution by Bracebridge Hemyng in Henry Mayhew’s landmark London Labour and the London Poor (1865) defined as a “prostitute” any woman who was neither a chaste virgin nor able to produce evidence that she was in a fully legal marriage. With the bar placed that high, it has historically been difficult for many women, particularly working-class women without the luxury of lives that kept them safely out of the streets and other public spaces frequented by men, to successfully argue for their own violated chastity. Unmarried plaintiffs with a documentable history of prior sexual experience, such as having borne a child or having been arrested for prostitution, were rarely given any quarter.
All this only makes sense if rape is not conceptualized as a crime of bodily violence but rather as a property crime that only really existed when a particular form of property --virginity (or possibly marital monogamy)-- also existed. But lest we put the cart before the horse and assume that the laws created the problem, it bears remembering that laws are inherently reactionary. Laws do not exist in their own universe of right and wrong. Rather, they tell us what problems existed on the ground when the laws were written and what the societies that made the laws believed should be done about those problems. They reflect what, and whom, their makers and users perceive as right and wrong, valuable and worthless. If rape laws cast virginity as a type of property rather than as a sexual status inherent to a human being, they only do so insofar as they illustrate a wider ideology of women as property in which the virgin is the most valuable form of female chattel.
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