Elizabeth Papp Kamali, Consent in Medieval English Marriage and Misconduct, in 70 The Learned and Lived Law: Essays in Honor of Charles Donahue 161 (Elizabeth Papp Kamali, Saskia Lettmaier, & Nikitas E. Hatzimihail eds., 2024).
Abstract: Consent lay at the core of medieval English marriage law due to its centrality in the rules adopted by Pope Alexander III, recognizing an exchange of present consent or an exchange of future consent followed by intercourse as creating a binding marriage. Consent was also an important concept in the realm of sin and crime, where it connoted an interior disposition toward committing a wrongful act. To be convicted of felony in medieval England, a person must have consented to involvement in an alleged crime. When a husband and wife were implicated in crime together, their marital status gave rise to presumptions, most notably that a wife might have had no alternative but to obey her husband, thereby calling into doubt her consent to the alleged crime. In both the marital and criminal contexts, an emphasis on consent led to evidentiary challenges and a reliance on presumptions to aid adjudication. The resulting adjudicatory processes ensured that the marital bond, forged in consent, did not inevitably give rise to liability for a spouse’s criminal behavior.