Life

Compensating Rape Victims Isn’t a “Con.” It Dates Back to at Least Medieval Courts.

A medieval scene.
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In Kent, England, in 1313, a woman named Alice accused John of rape. John denied the charge, but an all-male jury found John guilty. Had John been single, the jury would have forced him to marry Alice, since her public status as a rape survivor would have made it difficult for her to marry otherwise. But John was already married, so the jury decreed that Alice should tear out his eyes and cut off his testicles. Instead, Alice withdrew her charge after reaching an out-of-court financial settlement with her rapist.

It may be difficult to understand why an accuser would withdraw a rape charge—especially one with so much overwhelming proof that it convinced a medieval jury. And today, a financial settlement between accuser and accused is sometimes seen as evidence that no assault occurred, or that the motives of the accuser aren’t genuine desires for justice but personal enrichment. But rape survivors today pursue monetary restitution through civil litigation for a variety of reasons, including the desire to avoid victim-blaming in the courtroom, to have more control over the process, and greater odds of success due to a lower burden of proof.

In Bill Cosby’s April criminal trial for drugging and sexually assaulting Andrea Constand, Cosby’s lawyers repeatedly brought up the fact that Constand had accepted a financial settlement from Cosby. Twelve years earlier, the Montgomery County, Pennsylvania, district attorney had declined to prosecute the case in criminal court, citing a lack of evidence, so Constand sued Cosby, and Cosby settled. At the criminal trial, the defense called Constand a “con artist” who had falsely accused Cosby because she wanted “money, money, and lots more money.” They characterized her settlement as “a big score,” “one of the biggest highway robberies of all times.” They fought to reveal the settlement’s precise amount—$3.38 million—hoping that its sheer size would convince the jury that Constand had lied for a fat paycheck: The larger the settlement, their logic went, the more likely that the whole thing was a shakedown.

But studies show that there are real financial losses associated with experiencing rape, including emergency room fees, rape kit costs, and medications for preventing HIV or treating STIs. This doesn’t even begin to capture the losses that come later, such as therapy, job changes, moving, failing classes, or other major setbacks due to trauma’s aftermath. In order to avoid having continued contact with Cosby shortly after the assault, Constand left her job at Temple University and moved back home with her parents. Traumatized, she suffered constant nightmares about Cosby assaulting other women in front of her. Her mother testified in court that she often heard her daughter screaming in her sleep. So why are we so resistant to the thought of survivors “gaining” something after undergoing such irreparable and life-altering loss?

In medieval England, financial settlements for rape were often considered to be the best option for everyone involved. Marriage between rapist and victim, which seems like a horrifying outcome to us today, was another form of monetary settlement, since a woman who had filed a rape charge was publicly marked as damaged goods and would have difficulty affording a dowry or finding long-term financial support through marriage. Conviction rates were also extremely low: In one 1363 case, three different women accused John de Warter of breaking into their homes at night and raping them, only for a jury to find him not guilty on all counts. The law often mandated harsh penalties involving mutilation or death, but the prescribed punishments were rarely carried out even upon conviction. Instead, numerous cases show the jury finding the assailant guilty of rape, then failing to sentence him because he reached a settlement involving money or marriage with his victim.

This emphasis on restitution rather than punishment is reflected in numerous legal records: When William raped Juliana in Wiltshire in 1249, the jury found in her favor, and he was forced to pay her a hefty settlement of 40 shillings—which could have bought two horses with change to spare—in addition to marrying her. Juliana is characterized as “poor” in the court records, making this double settlement of money plus marriage especially important since her already-slim chances of being able to afford a dowry would have been nonexistent after her rape. After Sibba was raped and beaten near York, England, in 1208 by William, he agreed to pay her 20 shillings. The sheriff volunteered to deliver the money personally to Sibba, indicating that the legal system supported her and was committed to helping her. And in 1202 when Simon attacked Leviva in Lincolnshire, England, and kept her bound in his house for eight days, he agreed to pay her a half-mark, or the equivalent of one cow. In all three cases, witness testimony backed up the women’s accounts, demonstrating that they were supported by their communities. For both Sibba and Leviva, the settlements were reached before a jury returned a verdict. A medieval jury would have assumed that Cosby’s financial settlement with Constand was evidence of his guilt, not innocence.

On Tuesday, Cosby was sentenced to three to 10 years in prison, more than a decade after he paid his victim millions in an out-of-court civil settlement. Our justice system is arguably more fair than the one women like Alice and Sibba faced several hundred years ago, but both courts recognized that punishment can come in both monetary and physical forms. With a groundswell of women now feeling empowered to report sexual assault at the hands of powerful men, more courts are likely to face cases where the victim was paid well before opening arguments in the criminal case began. Just like Juliana and Leviva, and just like Andrea Constand, these crimes affected these women’s livelihoods. If one of the purposes of our modern justice system is to fight on behalf of the victim, then we shouldn’t discredit victims when they decide that justice also entails having their assailants pay up.