Medieval Sex and Scandal: Consistory Courts and Morality in Medieval England
In the 21st century, most people would consider their intimate and sexual relationships to be a private matter. In the Middle Ages however, the division between private and public areas in the lives of both men and women was blurrier. Members of the community actively participated in shaping and controlling each other’s behavior, including medieval sex, through public gossip and making reports to the authorities when undesirable behaviors were observed.
The law governed sex and marriage in the medieval era just as it does now, but it was far more involved in some of the intimate aspects of people’s personal lives. One of the public arenas in which the law claimed jurisdiction over the “private” lives of citizens was the consistory court, and case records which survive from the late medieval period in England contain a wealth of stories that illuminate medieval attitudes towards sex, scandal and the law.
Chester Cathedral consistory court. (Joopercoopers / CC BY-SA 3.0)
What Were the Consistory Courts?
The justice system in medieval England was similar to the modern one in that there were different types of courts for different types of cases. On the one hand, there were the royal or secular courts. On the other there were the consistory courts which were presided over by an ecclesiastical judge from the local diocese. The jurisdiction of the church courts broadly incorporated cases to do with sinfulness (including medieval sexual acts like fornication or adultery), or with the sacraments (including marriage) and cases involving members of the clergy.
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There were two main types of cases the consistory courts dealt with, the first being “criminal” offence cases, in which someone confessed to or was accused of an offence against morality or church canon law. The second type was similar to civil suits, in which plaintiffs could bring a suit for reasons such as to enforce marriage contracts, seek restitution for defamation or compensation for violation of a contract. Sexual misconduct could be brought to the courts as either an offence or a civil suit, or it could also be dealt with in the secular courts depending on the nature of the individual case.
In the medieval era, the law governed the intimate aspects of people’s personal lives far more than it does today. (Jean-Auguste-Dominique Ingres / CC BY 2.0)
The Ins and Outs of Sex in the Eyes of the Law
Under modern law, there are few “illegalities” when it comes to sex, and these are limited to violations such as rape or incest. Under medieval law there were many more categories of illicit sex, particularly under church canon laws. Medieval sex was only considered to be legal when it occurred within marriage, with the intention of conceiving a child. While sex between unmarried people was considered sinful, it was still the least offensive form of illicit sex one could undertake.
While was socially unacceptable for an unmarried woman to have sex, as her honor and value were defined by her sexual repute, men were expected to undertake a certain amount of pre-marital sex. Sexual conquest improved a man’s status and reputation rather than damaging it. However, pre-marital sex was still not the worst crime against morality one could commit - adultery, incest and sex with a nun were considered more sinful, particularly incest between blood relatives or relatives through marriage.
Sex between clerics or men of the church and their parishioners was also considered a grave offence, as men of the church were defined by canon laws as “fathers” of their spiritual flock and therefore shared “spiritual kinship” with members of their spiritual community. In these cases, the definition of incest also included spiritual kin.
The age of consent was also different in the Middle Ages. While sex with a minor under the age of 16 is illegal in most modern Western societies, children as young as 7 were legally able to give preliminary consent in the medieval period. The age of full consent was 14, but girls of 12 years or older could legally give their consent in the case of a marriage contract. It was uncommon for most girls to marry that young though, unless they belonged to the aristocracy or ruling classes.
As with most peasant, agricultural societies, people in medieval England tended to marry in their late teens or early 20s and to begin having multiple children after marriage. Mortality rates among both adults and children were much higher than they are today, so one could not afford to wait to long to get married or to start a family, especially since childbirth grew increasingly dangerous as a woman got older.
Under the concept of “marriage debt”, married people were obliged in medieval times to have sex with their spouse whenever he or she requested it. (Real Crusades History / Youtube)
Sex Within Marriage: The Marriage Debt
Married people in the Middle Ages were obligated to have sex with their spouse whenever he or she requested it, and this concept was known as the “marriage debt” because of the idea that spouses “owed” each other sexual intercourse. The church taught that sex should be considered purely a means to the end of conceiving children, but allowed a certain amount of liberty in the ways people could have sex that were still considered to be acceptable within the moral code of Christianity.
Theologians and church philosophers of the medieval era generally agreed that sexual pleasure was necessary for both men and women in order to conceive a child, as it was thought that women ejaculated during sex in a similar manner to men. There was therefore an expectation that both partners would seek to satisfy the other during a medieval sexual encounter. There were limits, however, to how this pleasure could be achieved. Certain acts were considered sinful even when performed between a married couple, and so were deemed to be “fornication”.
If a man was incapable of having sex with his wife and thus unable to procreate with her, it was legally acceptable for the woman to file for a divorce, such as in the case of Alice Barbour vs William Barbour in London, 1490. Alice, the plaintiff, claimed that her husband William was impotent and sought to have the marriage annulled. William, nevertheless, refuted the claim, saying he was capable of the act but simply did not desire his wife even though she “diligently demanded it”.
To settle the case, a similar process to that of other secular medieval courts was used whereby a “jury of matrons” (usually married women in their 40s and 50s) was tasked with inspecting the man’s penis to determine whether or not he was impotent. In poor William’s case, it seems Alice’s claims of impotence were decidedly true. One witness, a certain Alice Nores, testified the following:
“William is unable to know Alice carnally or procreate a child with her or with any other woman, because as she says his penis is black, that is, swart and blue, and she believes that his penis was burned and that he lost the back part of his penis. And she says that at the time of the inspection of the penis, it was scarcely the length of a penis of a two-year-old boy.”
The jury of matrons all agreed that William couldn’t perform his marital obligations. Alice Bawdwyn testified that “he is impotent in her judgment because it is not of a length of two inches and that part of it was [ text missing] and it appeared to her that he had lost part of his penis by fire.” Two other witnesses, whose testimony is incomplete on the records, agreed with the Alice’s statement. Although the outcome of this particular case is not recorded, by law Alice Barbour would have been entitled to the divorce she sought and it very likely that it was granted by the court.
In some circumstances of course, the spouse of an impotent man may not have been able to seek divorce. Bringing a case before the consistory courts required a great deal of resources. The process was an expensive venture and also required extensive knowledge of the law and legal processes. For a woman who did not possess the means to file for divorce, more illicit solutions needed to be found.
Medieval sex was a far more “public” affair, with the community and the church claiming jurisdiction over intimate aspects of relationships and marriage. (Public domain)
Adultery and Fornication in Medieval England
For most of the medieval period, adultery was defined in the same terms as it had been during the Roman period: that is, any sexual act involving a married woman. A married man having extramarital sex would be deemed as fornication rather than adultery, although in the later Middle Ages the definition of adultery expanded to include married men. While it was not strictly legal for married men to have sex with other women, it was socially acceptable to a certain degree as it was seen to be a natural tendency for men to be inclined towards sexual sin.
Extramarital sex for women however, was universally condemned. A woman committing adultery was not usually seen as morally deficient, but rather her husband would be looked upon poorly as his failure to prevent his wife’s disloyalty was seen to indicate his inadequacy as a husband and the negligence of his role as the moral guide of his household. Different standards of behavior existed for different social classes of course, and extramarital sex was more acceptable in the lower classes where matters such as inheritance laws, succession and bloodlines were less important than for the elite classes.
Interestingly, if a woman fell pregnant while her husband was away from home it was not considered to indicate adultery. Medieval people believed pregnancies could go on for much longer than the nine months that modern medical science tells us to expect. In the Middle Ages, pregnancies supposedly last as long as several years! The law also dictated that any child born to a married woman belonged to her husband, so the assumption would always be that he had been responsible for the pregnancy.
An unmarried woman having sex was a different matter. In this case, it would reflect poorly upon the woman’s own moral standing, and as a result make her less suitable for marriage. Young women were particularly vulnerable in this way, and many had their future marriage prospects destroyed by unscrupulous men who duped them into bed with false promises. The case of Alice Parker vs Richard Tenwinter from London, 1488, is a good example of how such an exchange might transpire.
Alice sued Richard to enforce a contract of marriage made in Alice’s bedchamber after Richard begged her to let him stay the night. At first Alice refused his request, for fear of being discovered. But after he pressed her she relented and agreed that “If ye will make me as good a woman as ye be [a] man, ye shall lie with me.” Richard replied “I will” and thus, with the marriage contracted, Alice felt it was safe to allow Richard to “know her carnally”, on that night and many more afterwards.
Contracts, Consent, and Conception
In the case of Alice and Richard, it seems Richard attempted to withdraw his consent to the marriage despite having verbally entered into a contract with Alice. A verbal contract was considered legally binding, especially if the union had been consummated, so it is likely that Alice would have won her suit and forced Richard to keep his word, thereby avoiding having her reputation destroyed.
It was unfortunately far too easy for a woman’s reputation to be destroyed and her marriage prospects reduced to virtually none if she was discovered to have engaged in pre-marital sex, even if it was against her will. Laws regarding rape were incredibly complex in the Middle Ages, and women were not offered the same level of legal protection in non-consensual sexual encounters as modern women would expect.
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For example, the category of intra-marital rape did not exist in the medieval period due to the concept of the marriage debt, whereby a woman was obligated to have sex with her husband even if she did not want to. For young, unmarried women who were presumably virgins, non-consensual sex was not classified as rape but as “stuprum” (meaning “sex with a virgin”), and if the attacker was found guilty then he must either marry the girl or pay reparations for his crime. Reparations would be paid to the family of the victim, not to the victim herself, in the form of a dowry which would improve her marriage prospects.
A man could prove his innocence however, if he could give evidence that the woman had consented. In the case of a rape victim who became pregnant, it would be difficult for the woman to argue that she had not consented because in the medieval belief system, physical pleasure was required for a woman to conceive and so it would be assumed a woman who enjoyed sex had in fact consented to the act and had not been raped. There was some argument between theologians over whether physical pleasure and spiritual pleasure were the same thing, and whether both equated to consent or not, but the widely held belief was that if a woman got pregnant, she could not possibly have been a victim of rape.
Although many of the laws that governed sex and marriage in the medieval period were not so different from modern laws, there were a few stark differences, particularly in the consistory courts which were run by the church and deferred to both secular and canon laws. It was a result of the church law’s jurisdiction over morality that the law was more overtly involved in the intimate lives and relationships of medieval people. The governance of things that would nowadays be considered private matters, such as sex and marriage, were public affairs involving not just the law, but the entire community. The availability of public records such as these case records are invaluable to understand the curious ins and outs of morality within medieval society.
Top image: Medieval sex and marriage was a far less private affair in the Middle Ages. Source: diter / Adobe Stock
By Meagan Dickerson
McCluskey, Colleen. 2007. “An Unequal Relationship between Equals: Thomas Aquinas on Marriage” in History of Philosophy Quarterly 24, no. 1.
McSheffrey, Shannon . Consistory Database. Consistory: Testimony in the Late Medieval London Consistory Court. Available at: http://www.consistory.cohds.ca/index.php
McSheffrey, Shannon. 2006. Marriage, Sex, and Civic Culture in Late Medieval London. University of Pennsylvania Press.