Daniel Klerman


Women played a surprisingly large role in the prosecution of crime in medieval England. Although law, custom, and even Magna Carta tried to restrict women's ability to prosecute, original archival research reveals that more than a third of all thirteenth-century private prosecutors were women. Women brought nearly two-thirds of the homicide private prosecutions and all of the rape prosecutions. This Article provides the first sustained analysis of female prosecution in pre-modern times. Using an extensive data set from contemporaneous records, it attempts to explain why women were so prominent in the private prosecution of crime, compares their success to that of men, and investigates the social significance of women's prosecutions.

Private prosecutions were criminal cases initiated and controlled by ordinary persons, usually the crime victim, or, in homicide cases, a relative. Prosecution involved pleading the case publicly before multiple courts over a period of several years. Legal representation in criminal cases was uncommon, so ordinarily this pleading was performed by the prosecutor herself. Nevertheless, because of the nature of thirteenth-century trials, prosecution did not involve examination or cross-examination of witnesses.

That women brought so many private prosecutions is surprising given their low status in the thirteenth century and middle ages more generally. The most prominent thirteenth-century philosophers taught that women were mentally inferior and thus naturally subordinate to men. Governments excluded women from nearly all positions of power. Inheritance customs bestowed the lion's share of wealth on sons. And family law gave husbands the right to use physical force to chastise their wives as well as nearly absolute control over property that either spouse brought into the marriage or acquired during it.