By Sara Butler
Journal of Women’s History, Vol. 17 No. 4 (2005)
Abstract: According to medieval common law, assault against a pregnant woman causing miscarriage after the first trimester was homicide. Some scholars have argued, however, that in practice English jurors refused to acknowledge assaults of this nature as homicide. The underlying argument is that because abortion by assault is a crime against women, male jurors were loath to impose the death penalty. A reexamination of the material notes that while conviction rates for assault on pregnant women were low, the English believed such assaults were felonies.
Moreover, the role played by husbands as plaintiffs makes it clear that this was not merely a women’s issue. Abortion by assault was never an easy judgment for jurors to deliver. In particular, the medical expertise required to pass judgment on such a case presented jurors with difficulties that may have prevented conviction of abortion by assault in many cases.
Excerpt: The goal of this article is to offer a more nuanced assessment of the medieval prosecution of abortion by assault, by examining forty-four such cases from primarily royal, but also ecclesiastical, court documents. The records themselves suggest that the beliefs of medieval jurors regarding abortion by assault may have been more complex than has been imagined previously. This article will endeavor to highlight a number of pertinent features. To begin, in light of Means’s bold assertion, it is important to emphasize that there is little reason to believe that medieval men and women did not see this as a serious crime and, in fact, treat it as a felony. The role played by husbands as plaintiffs, in particular, makes it clear that this was not just a women’s issue. Even so, the exceptionally low rate of convictions must be acknowledged and explained. Plaintiffs who alleged abortion by assault presented jurors with a difﬁcult matter. Not only did jurors have to negotiate communal values, parental loss, and (often) a thorny situation of her word against his; they were also required to pass judgment on a range of medical and legal issues that were not obvious to most medieval men. Particularly in the realm of obstetrics, a branch of medicine described by some as “women’s business,” male jurors may have felt that such a crucial decision, in which the life of the defendant lay in their hands, was simply beyond their knowledge or experience. An analysis of verdicts in this respect, then, tells us less about whether jurors believed it to be a felony than about levels of conﬁdence and education concerning women’s bodies.