An Early Version of Sexual Harassment Law in the Ecclesiastical Courts

From R.H. Helmholz's Roman Canon Law in Reformation England, (Cambridge Univ. Press, 1990), I learned about the process of ex officio proceedings in the English Ecclesiastical Courts in the sixteenth century. Helmholz writes that these proceedings concerned the "enforcement of the Church's rules relating to morality and personal conduct" (104) and covered a wide range of offenses.

The sixteenth century saw an expansion of ex officio proceedings and enforcement. Helmholz writes:

Conduct in and around one's parish church was more closely regulated by the ecclesiastical courts than had once been true. Interrupting the parson's sermon, throwing a snowball in the churchyard, sitting obstinately in the wrong seat, wearing one's hat during the reading of the Gospel, even being a "common sleeper" during church services; all could subject the offender to a required appearance before a spiritual tribunal. A mother's failure to appear for "churching" after the birth of a child was cause for citing her. So was marrying in a church during a prohibited time of the year. Equally punishable was speaking abusively against the churchwardens. The best that any of these offenders could hope for from the courts was dismissal with a warning not to repeat the conduct. They almost always had to pay court fees, and very often to contribute something towards relief of the poor. Elizabethan and Jacobean act books, though dominated by the prosaic sexual offences that were their medieval inheritance yet made room for new wrongs. (112-13) (footnotes omitted).

As Helmholz mentions at the end of that passage, ex officio proceedings had historically been concerned with sexual offenses. And while new prosecutions arose for different types of conduct, the sexual offense prosecutions remained.

Helmholz notes that new types of prosecutions arose in the sexual offense category as well:

Birth of the tort of "attempting the chastity" of a woman also belongs to this period. The terseness of most act book entries makes it difficult to generalize about the offence, but it is clear that it required no use or even threat of force. Little more than a serious and perhaps persistent proposition of sexual relations seems to have been all that lay behind most such prosecutions. A man from the diocese of Bath and Wells, for example, was prosecuted in 1621 for having so "very earnestly" solicited the chastity of a woman that she could allege an inability to "go quiet" on his account. A few of the ex officio causes tempt one to see in them antecedents of the modern notion of "sexual harassment." (111-12) (footnotes omitted).

From other research that I have been doing in the area of character evidence in sex offense cases (related to the issue I discuss in this post), I have learned in painful detail just how the early English courts, and early American courts, left a great deal to be desired when it came to treating women with respect. In light of this, it is interesting to learn about the existence of a tort under which men could be punished for propositioning women absent any physical force or threats of physical force. 

Knowing about the sad state of early law towards women deemed "unchaste," I expect that there were still many sexual propositions that went unpunished. But the existence of a tort that punishes sexual propositions is an interesting nuance in the history of this area of law.