1. Susan Estrich focuses on the issue of consent and nonconsent in the third chapter of her powerful book on rape and the legal treatment of it; Real Rape (Cambridge, Mass., 1987), esp. 29-41.

2. Ibid., 8-26; Susan Brownmiller, Against Our Will: Men, Women, and Rape (New York, 1975), 1-22; Camille E. Le Grande, "Rape and Rape Laws: Sexism in Society and Law," in Forcible Rape: The Crime, the Victim, and the Offender , ed. Duncan Chappell, Robley Geis, and Gilbert Geis (New York, 1977), 67-83. [BACK]

1. Susan Estrich focuses on the issue of consent and nonconsent in the third chapter of her powerful book on rape and the legal treatment of it; Real Rape (Cambridge, Mass., 1987), esp. 29-41.

2. Ibid., 8-26; Susan Brownmiller, Against Our Will: Men, Women, and Rape (New York, 1975), 1-22; Camille E. Le Grande, "Rape and Rape Laws: Sexism in Society and Law," in Forcible Rape: The Crime, the Victim, and the Offender , ed. Duncan Chappell, Robley Geis, and Gilbert Geis (New York, 1977), 67-83. [BACK]

3. Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown , ed. Sollom Emlyn (1736); rev. ed. George Wilson (Dublin, 1778), 635. [BACK]

4. Brownmiller, Against Our Will , 413-14. [BACK]

5. Estrich, Real Rape , 28-29. See also Frederick J. Ludwig, Rape and the Law: The Crime and Its Proof (New York, 1977), 37-38. Characterizing Hale as "an unusually literate English jurist," Ludwig points to Hale's classification of the criminal law and proceeds to cast some doubt on his reliability in the following description:

Sir Matthew was the inventor three centuries ago of nomenclature employed today in the criminal law: felony and misdemeanor and the single-word symbol for the composite elements of behavior constituting a crime, such as burglary and rape. But Sir Matthew also presided at trials of females resulting in their conviction for witchcraft. Protection of innocent males, of course, depends upon the state of mind of the victim at the time of the alleged act of the male, and it is desirable to consider revenge, blackmail, and hallucination of the female victim. Sir Matthew perpetuated the syndrome of "a woman's revenge" in rape.

6. Ludwig, Rape and the Law , 1-2. [BACK]

7. Hale, History of the Pleas of the Crown , 636. [BACK]

8. Cesare Marchese de Beccaria, An Essay on Crimes and Punishments (1764; Albany, N.Y., 1872), 50-51. break [BACK]

9. R. v. Billingsley, The English and Empire Digest 15, part 17 (1947), 1210, no. 7751. [BACK]

11. Chambers provides a remarkably lucid and compact narrative history of the legal treatment of rape generally; ibid., 1:405-7. His account of the circumstantial nature of evidence appears on 1:406. See also Charles Viner, A General Abridgment of Law and Equity (Dublin, 1793), 153-55, esp. 154, for a discussion of the circumstantial evidence of rape. [BACK]

12. Brownmiller, Against Our Will , 11.

13. Ibid., 4. [BACK]

12. Brownmiller, Against Our Will , 11.

13. Ibid., 4. [BACK]

14. Andrea Dworkin, Intercourse (New York, 1987), 133. [BACK]

15. Ludwig provides a brief history of the historical development of the notion of an age of consent; Rape and the Law , 7-10. As he notes, "The age of consent for rape, which is usually identical with that of consent for marriage, has advanced in most states by statutes which have fixed the age usually at either eighteen or at sixteen" (8). [BACK]

16. See also Chambers, Lectures on English Law , 1:406. [BACK]

17. Estrich, Real Rape , 100-104. [BACK]

18. Brownmiller, Against Our Will , 12-13. [BACK]

19. Beccaria, Essay on Crimes and Punishments , 47-48. [BACK]

20. Margaret Doody, A Natural Passion: A Study of the Novels of Samuel Richardson (Oxford, 1974), 128 and passim. [BACK]

21. Michael McKeon, The Origins of the English Novel, 1600-1740 (Baltimore, 1987), esp. 21-22. [BACK]

22. Ian Watt, The Rise of the Novel (Berkeley, 1967), 194. [BACK]

23. Terry Castle, Clarissa's Ciphers: Meaning and Disruption in Richardson's "Clarissa" (Ithaca, N. Y., 1982), 16 and 57-80. [BACK]

24. Terry Eagleton, The Rape of Clarissa: Writing, Sexuality, and Class Struggle in Samuel Richardson (Minneapolis, 1982), 62. [BACK]

25. Thus, the law of rape is less equivocal in siding with Clarissa than many literary critics have been. See the passage cited above from Watt and particularly Judith Wilt, "He Could Go No Farther: A Modest Proposal About Lovelace and Clarissa," PMLA 92, no. 1 (1977): 19-32, which argues that the rape may well not have occurred. [BACK]

26. William Beatty Warner, Reading "Clarissa": The Struggles of Interpretation (New Haven, 1979), 50-52. [BACK]

27. Samuel Richardson, Clarissa; or, The History of a Young Lady , ed. Angus Ross (Harmondsworth, Eng., 1985), 883. I follow the text of the Penguin edition, which offers the complete text of the first edition. Although the obvious disadvantage of this text is that it omits the material that Richardson added in the second and third editions, its advantage is its ready availability. Further references to this edition of Clarissa will appear in parentheses in the text. [BACK]

28. Hale, History of the Pleas of the Crown , 631. [BACK]

29. I have found no full legal articulation of the view that conception could only occur if a woman achieved orgasm and that orgasm itself had to be consensual, but, as Carol Clover pointed out to me, one would imagine that this particular line of argument was connected with eighteenth-century medical accounts of a link between female orgasm and conception. For a discussion of such views and their decline, see Thomas Laqueur, "Orgasm, Generation, and the Politics of Reproductive Biology," Representations 14 (Spring 1986): 1-41. [BACK]

30. Castle, Clarissa's Ciphers , 43. break [BACK]

31. Ronald Paulson, Emblem and Expression: Meaning in English Art in the Eighteenth Century (Cambridge, Mass., 1975), 51. [BACK]

32. Warner, Reading "Clarissa ," 90. [BACK]

33. Castle, Clarissa's Ciphers , 16. [BACK]

34. Eagleton, The Rape of Clarissa , 88. [BACK]

35. Jean-Jacques Rousseau, Essay on the Origin of Languages , trans. John H. Moran, in On the Origin of Language (New York, 1966), 9. [BACK]

36. Patricia Joplin's suggestive "The Voice of the Shuttle Is Ours," which I am grateful to have had the opportunity to read in typescript, argues that the rape narrative provides an occasion for a specifically female claim to articulation. [BACK]

37. Carol Clover has suggested to me the possibility of tracing this representational history of rape through a film like Birth of a Nation , which, arguably, uses the question of rape in the service of a statement of its own establishment of a new representational mode. break

This paper is gratefully dedicated to the students in my course on French women's writing from the seventeenth century to the present at Brown University, Fall 1984, and University of California, Berkeley, Spring 1986. Special thanks to Carolyn Duffey for bringing to my attention the text quoted in the epigraph. Lombarda was a woman troubadour of the thirteenth century. The text is drawn from part 2 of her tenson with Barnat Arnaut d'Armagnac. [BACK]