Jurisdiction, Procedures, and Evidence in Sex Cases

By the late twelfth century, Church courts had secured jurisdiction over mar­riage and related matters, both in England and on the Continent. The existence and validity of marriages were generally considered matters that secular judges lacked competence to determine; such questions were routinely referred to the ecclesiastical courts for resolution, and the decision of the ecclesiastical judge was normally accepted as conclusive.

The procedural mechanisms of the twelfth- century canonical courts were in flux. Older procedures that relied upon ordeals as instruments of proof were falling into disrepute, and several writers held that they should no longer be employed. Rather, evidence elicited from the sworn testimony of witnesses was gradually becoming the normal type of proof required in the Church’s courts.²⁹⁶

²³²Summa “Elegantius" 2.35, ed. Fransen and Kuttner 1:57-58; Rufinus, Summa to D. 33 pr., ed. Singer, p. 77, followed closely by Joannes Faventinus, in B.L. Royal g.E.VΠ, fol. 19rb; Sicard of Cremona, Summa to D. 27 in B.L. MS Add. 18,367, fol. 8rb-va: “Queritur si ualeat ordinari uel ordinatus promoueri qui cum uidua uel duabus Uirginibus uel aliis fornicatur.

²⁹³Engdahl, “English Marriage Conflicts Law,” p. 111; Joseph Biancalana, “The Ori­gin of the Writs of Dower, ” paper presented at the XIX International Congress on Medi­eval Studies, Western Michigan University, 12 May 1984.

²⁹⁴ Stephen 0fT0urnai, Summa to C. 1 pr., ed. Schulte, p. 121.

^2xPlacita Anglo-Normannica: Law Cases from William 1 to Richard I, ed. Melville Madison Bigelow (Boston: Soule and Bugbee, 1881; repr. South Hackensack, NJ: Roth­man Reprints, 1970), p. 247.

²⁹⁶Stephen of Tournai, Summa to C. 2 q. 5 c. 25 v. si duo, ed. Schulte, p. 172; Car­dinalis, gloss to C. 27 q. 2 c. 29 v. per uerum iudicium, in Weigand, “Glossen des Car­dinalis,” p. 78. See generally Jean Gaudemet, “Les Ordalies au moyen Sge: doctrine, legislation, et pratique canoniques,” in La preuυe, 2 vols., Recueil de la Societe Jean Bodin, vol. 17 (Brussels: Editions de la Librairie Encyclopedique, 1965) 2:99-135; The canonists were also inclined to hold that where the facts of a case were notorious, that is where knowledge of what had transpired was widespread and virtually universal in the community, the courts could act without requiring for­mal proof.²⁹⁷ This concept of notoriety had been unknown to Roman law and appears to have been a creation of the canonists.²⁹⁸

The canonists of this period also concerned themselves with elaborating more detailed rules than they found in Gratian concerning the right to bring accusations before the Church’s courts in sex cases.²⁹⁹ Criminal prosecution on adultery was subject to special restrictions: a husband who was guilty of adul­tery could not charge his wife with adultery; but otherwise husbands enjoyed a privileged position with respect to adultery charges, while wives were seri­ously disadvantaged in these cases.³⁰⁰ There were further restrictions on the Jean-Philippe Levy, “Le probleme de la preuve dans les droits savants du moycn-age,” in La preuve 2:137-67; Colin Morris, “Judicium Dei: The Social and Political Signifi­cance of the Ordeal in the Eleventh Century,” in Church, Society, and Politics, ed.

²⁹⁷Rolandus, Summa to C. 15 q. 7 pr., ed. Thaner, p. 36.

²⁹⁸Rosalio Castillo Lara, “Los primeros desarrollos doctrinales del â€?notorium’ en la canonistica clasica,” Salesianum 22 (i960) 412. The canonists also held—and this helped to mitigate some abuses that potentially inhered in the notoriety doctrine—that convic­tion of an offense or judicial determination of the issues, whether on the basis of notori­ety, sworn testimony, or confession by the accused, was an essential precondition to a verdict of guilty and the imposition of punishment; thus Questiones Stuttgardienses, in U.L.C., MS Add. 3321(2), fol. 26vb-27ra: “Quidam archipresbiter crimine adulterii no­tatus, priusquam sit confessus aut conuictus ab ecclesia repellitur; restitutionem petit, ducitur in causam, petit inducias. Hic formatur iii. questiones: prima: si quis crimine notatus priusquam sit conuictus aut confessus sit repellendus? Secunda, si est restituen­dus aut postea sit dandum inducie? iii. si duo bigami uel iii. uel nimis corpore debilitatus ad eius accusationem admittantur? Prima soluitur secundum diuisionem illam que fit iii. que. ii. cause [C. 2 q. 3].” See generally Richard M. Fraher, “â€?Ut nullus describatur reus prius quam convincatur’: Presumption of Innocence in Medieval Canon Law?” in Berke­ley Proceedings, pp. 493-506.

²⁹⁹Certain classes of persons were barred from bringing such actions: thus, a husband who was infamis, for example, could not accuse his wife of adultery; SP to C.

³⁰⁰Rufinus, Summa to C. 32 q. 1 d.a.c. 11 v. publice iudicio, ed. Singer, pp. 477-78; Summa “Elegantius” 4.7, ed. Franscn and Kuttner 2:4; Sicard of Cremona, Summa to right to charge clerics with adultery; only those who were themselves ordained or at least qualified to enter the priesthood could charge a cleric with adultery, while persons guilty of homicide, bigamy, or adultery were specifically barred from doing so.^{[1247] [1248]} Adultery charges had to be made in writing, and both Rufinus and the Summa “Elegantius” provided samples of the appropriate forms.^[1249] Adultery accusations must also be timely; the courts were not supposed to en­tertain actions on such charges where the alleged misdeeds had taken place more than five years previous to the accusation.^[1250] Men retained the important option of accusing their wives of adultery on suspicion alone, even when defini­tive proof was lacking. The suspicion, however, must have some factual basis; it was not sufficient, Rufinus declared, for a husband to find his wife in the com­pany of a comely young man and to see them wink and nod at one another. Rut if he were to discover his wife in bed at night with the other man, the husband had reasonable cause to suspect that they were engaged in an adulterous rela­tionship, even if he did not witness actual sexual relations between them.^[1251] If a husband charged his wife with adultery and was unable to prove his case, she had the right to leave him, although she was not required to do so.^[1252] The courts were also prepared in adultery cases to give weight to the testimony of persons who might otherwise not be acceptable witnesses, notably serfs and women.^[1253]

If one person accused another of a sex offense and the accused entered a counterclaim that the accuser was guilty of another offense, the decretists sug­gested procedural rules to determine the order in which the complaints should be heard.

Cases that involved allegations of sexual impotence posed other problems of evidence. If both parties agreed on the facts, the court might grant divorce; otherwise, at least according to the Stowe glosses, physical examination of the parties might be required in order to establish whether or not they were capable of sexual intercourse (see Pl. 14).^[1255] Certain kinds of sex offenses pre­sented nearly insoluble problems of evidence. Rolandus noted that anal inter­course was virtually impossible to prove without a confession; this was also true of oral sex.^[1256]

Sentencing and punishment, in the opinion of Stephen of Tournai, ought to take into account the circumstances and the past record of persons convicted of sex offenses. Those guilty of repeated offenses should suffer the maximum penalties allowed. Those who were guilty of just a few offenses or of only one, however, should receive reduced punishment.^[1257] Defendants convicted of the most serious sex offenses, especially rape and adultery, were denied any right to appeal the first-instance decision.^[1258]

We are poorly informed about many practical details of the working of twelfth-century ecclesiastical courts. For one thing, we know little about litiga­tion costs. One detailed record of expenses survives for a complex and intricate marriage case in England, Anstey c. Francheville, in which the proceedings ran

Conclusions

for more than six years and costs were correspondingly large.^[1259] Anstey was by no means representative of ordinary litigation, however, and it would be mis­leading to generalize from the expenditures in that case. We are likewise poorly informed about how much time was likely to elapse from the commencement of an action to its termination, and the evidence of complex and notorious cases, such as Anstey, does not reflect ordinary experience.