Tuesday, January 11, 2005

Avoiding Punishment for Sex

I just stumbled on a very interesting post by Sharon Howard at Early Modern Notes, which discusses Virginia's proposed "fetal death" law in light of a 17th-century act of Parliament intended to prevent "the destroying and murthering of bastard children." (She also delivers a friendly but well-deserved slap on the wrist to Pharyngula over their incessant use of "medieval" as a blanket pejorative, which happens to be a pet peeve of mine, too!).

Here's a particularly thought-provoking excerpt:

[T]he statute enacted that any woman who secretly gave birth to an illegitimate child and killed it, or procured its death, or attempted to conceal its death, 'whether it were born alive or not' (my emphasis), should 'suffer death as in case of murther'. That is: the Act did not, quite, presume murder in such cases; it simply made the concealment of a death in itself a capital crime.
Read the entire post, by all means. Ms. Howard is an expert on crime and women's issues in the early modern era, and her analysis is fascinating.


oldwhitelady said...

Wow! I wonder what the law was when a woman had a miscarriage? Sometimes a miscarriage is also called a "spontaneous abortion". If someone had a miscarriage at home, and the fetus dead - would that have caused the mother to be thrown in the hoosegaw for awaiting of the federal judge to come into town.

oldwhitelady said...

oh, wait a minute, I found it:

But even if acquitted they still had to go through the trial; and given the hostile reactions of neighbours expressed in pre-trial depositions (it was those neighbours, mostly married women, whose efforts brought cases to trial in the first place), it might be wondered what happened to them after they were freed. Even if they escaped the worst penalties of the law, they had been publicly exposed and humiliated. Some historians have seen the trials as intended to warn all other unmarried women of the perils of unchastity as much as to punish those on trial. If so, it mattered little if there were few hangings and the law was in essence operating as its creators intended: to help control and discipline the sexual behaviour of unmarried women.

Thersites said...

And this issue of infanticide & its legalities is long lasting. It shows up at all sorts of historical crisis points. To ride my hobbyhorse, in the 1920s in Ireland as censorship was being debated, there was a scare about a sharp rise in murdered babies all throughout the countryside. For which there is no evidence, of course. It is one of those issues which in western culture never really goes away.

Aspasia M. said...

this is a cool post Phila. thanks!

The concept of "abortion" was rather different under English common law - the concept of quickening was very important. That's why the ads in 19th century newspapers are always quoting the use of their pills in "resoring the menses of women & removing blockages."

It wasn't considered quite a pregancy until quickening.

Actually, the was we use the word abortion is very recent.