My longtime friend and colleague, Mary Block of Valdosta State University, is an expert on nineteenth-century American rape law. Whatever her immediate reactions may have been to Representative Todd Akin's declaration on August 19th that pregnancy was prima facie evidence of consensual sex, surprise was not among them. To media commentators who wondered where Akin's outre (and deeply ignorant) remarks came from, Mary sent the following explanation, which she has kindly permitted me to repost here:
Anderson Cooper stated on his show AC 360 that we did not know where Todd Akin got the idea that a raped woman could not conceive and most other print and TV commentators act like Akin simply pulled the notion out of his own backside. The idea that a woman can't get pregnant as a result of rape, however, has a long and storied history. It began when the Greek philosopher Aristotle asserted that even though only a man emitted seed during sexual intercourse, pregnancy depended on and resulted only from female orgasm. Several Greek and Roman physicians picked up on that theory of conception and altered parts of it, for example the Roman physician Galen posited that both males and females emitted seed during intercourse, but they carried forward the idea that no woman could beget a child unless she had an orgasm during coitus.
The theory made its way into Roman law in the sixth century during the reign of the Emperor Justinian (r. 527-565). Justinian's chief physician was a man named Aetios of Amida. Aetios was not just any physician, he was also one of the best trained and the foremost expert on the womb. The doctor told Justinian that in order for a woman to conceive, she had to experience 'violent passion,' by which he meant an orgasm, during sex, and that the more violent the passion she exhibited, the more likely was to become pregnant. Conversely, a woman who did not achieve violent passion was highly unlikely to conceive. Women who claimed to have been raped, according to Aetios, could never conceive because such an event was so traumatic the female could never experience orgasm and thus no woman could ever conceive as the result of a rape. Aetios is asserting, or perhaps inventing, the idea that conception is possible only if the sex is consensual. Rape is possible only in the absence of consent, ergo, any woman who cried rape yet subsequently conceived had lied. Pregnancy served as proof of consent and proof of consent negates a claim of rape.
During his reign Justinian compiled a Civil Code of all extant Roman law. His compilers actually broadened the law of raptus to include the forcible rape of virgins, nuns, and widows and added the ancient medical fiction that a raped woman could not conceive. Roman law thus made it official that any woman who claimed to have been raped, but who then got pregnant had lied. English canon lawyers beginning in the twelfth century, good Catholics that they were, emphasized the Roman law over Anglo-Saxon law, and in so doing, introduced Byzantine science into English canon and civil law. The idea quickly made its way into common law through the treatise writings of Gratian (late twelft century) and Bracton (early thirteenth century) and remained there until the early nineteenth century.
American law is based in English law. One point of note is that American courts rejected this medical and legal fiction in 1793 when the Pennsylvania Supreme Court declared that rape was a crime against the honor and person of a woman and had nothing to do with the begetting of a child. Alas, unlike Todd Akin, the Pennsylvania judges were products of the American Enlightenment and men who respected eighteenth-century science. To be sure, there were men of medicine, and a few of law, who continued to peddle the idea that a raped woman could not conceive well into the nineteenth century, but most people considered them to be quacks.
I guess no one should really be surprised that those trying to force us to live according to the dictates of the ancient Near East would also try to force us to accept the science of the ancient Greeks and Romans. Akin was invoking the medical science of the ancient Greeks and Romans when he asserted that a woman who was raped could never get pregnant. What he meant when he used the phrase "legitimate rape" was that any woman who was in fact 'forcibly' raped, another term fundamentalists like Akin and Paul Ryan like to use, cannot ever conceive. Conception means consent and if she consented, then she could not have been raped. Therefore, in their twisted little minds, no rape exception need be written into any abortion laws because pregnancy serves as affirmative proof that a woman is lying about rape. She just wants an abortion. If enough of these guys get elected in 2012, expect to see reality TV showing us the witches being burned at the stake. Sadly, on some level, their invoking the science of the Dark Ages means they've advanced several millennia from their usual biblical frame of reference and that means, I suppose, that they can call themselves progressives!
Associate Professor of History
Valdosta State University
Many thanks, Mary!