The decision of Sheffield United football club to allow convicted rapist Ched Evans to resume training has prompted national interest – not to mention national outrage. Should convicted rapists be allowed to return to their former job? Our legal system suggests that, in view of the accepted principle of social rehabilitation, they can. Exceptions are made for jobs like teaching and healthcare that involve contact with young people or vulnerable adults and might facilitate re-offending or inflicting ‘harm on the public’. Professional football, however, is not on that list.

Evans may, of course, be a local and national role model for young people and it has been argued that Sheffield United would be sending the ‘wrong message’ about rape if they re-employed him. That, however, is a different argument than the one based on the need to stop him re-offending.

For this observer, the most interesting aspect of the debate has been the argument that Evans’ social re-integration is hindered by the fact that he does not show contrition, apologise or even acknowledge that he has done anything wrong. While we might think this social demand on criminals to ‘say sorry’ before they are accepted back into the community is a sign of our modern, civilised society, it has a very long history indeed. As I show in my forthcoming book it can be connected to the integration of the rituals of Christian penance into the public legal system during the fifth and sixth centuries AD, a period historians call ‘late antiquity’.

Roman law, the legal system observed across most of Europe in this period, did not factor in ‘saying sorry’ as a basis for pronouncing more lenient sentences, or early remittance of a penalty. It also did not have a comprehensive mechanism of social reintegration for convicts. Those convicted of serious crime (where they were lucky not to be put to death, but sent into exile or to forced labour) were to carry a permanent social stigma, called infamy. They were excluded from public offices, marriage and passing on property. They might be recalled by imperial pardon, but this did not automatically include the lifting of infamy. In any case, the general theoretical consensus was that only the ‘deserving’ (i.e., the innocent, or those of lesser liability, e.g. the young or insane) were to be pardoned.

Early Christian authorities saw this differently: General sinfulness and equality of all before God in this sense meant that even the guilty could be forgiven if they showed a certain level of contrition. This was exemplified by penitential activities (e.g., fasting, praying, almsgiving). Wrongdoing was not just a social problem, but more importantly affected a person’s afterlife. Demonstrating compunction, accepting guilt would equip an individual for facing God at the moment of the final judgment.

In theory, ex-penitents were also meant to carry a social stigma (again, for example, exclusion from public or clerical office), but in practice a general social anxiety about the uncertainties of the afterlife in face of human universal sinfulness meant that the performance of penance came to carry much recognition. Penance was not just for convicted criminals. Many lay, clerical or ascetic members of the late Roman elite also did it voluntarily, to ‘say sorry’ for man’s sinfulness, to store up credit for the final judgement, and as a consequence they became celebrated ‘role models’. (1)

This also facilitated the social reintegration of convicted criminals. For example, Contumeliosus, the bishop of Riez in what is now southern France (whose name, amazingly, means ‘rude’ in English) was convicted by a church council for sexual misdemeanour in 533 AD. He took himself off to a monastery for the performance of penance – the most conspicuous place to perform penance – and after a few years resumed his office. There was a hot debate among his fellow bishops about whether this was lawful or morally acceptable, but remarkably a majority of bishops seem to have thought that it was fine precisely because he had shown contrition – even though Contumeliosus would certainly have had much opportunity to continue inflicting ‘harm on the public’!

The idea that the performance of penance facilitated social reintegration was slowly incorporated into Roman criminal law, particularly under the emperor Justinian (527-565) whose law collection still underpins the legal system in many European countries. This was not just because of the general spiritual concerns of the age. The inflexibility of classical Roman law and earlier Christian concepts of penance with regard to convicts’ continuing social stigma was in fact at times perceived as a problem, too. The bishops who supported the return of Contumeliosus to his office mentioned above may indeed also have done so because he was an experienced bishop whose potential loss to the ecclesiastical profession was seen as detrimental to the Church.

We can see similar social concerns among the laity, in particular in the case of sexual crimes. Some families, keen to avoid shame, were in fact looking for potential marriage between women and their sexual violators. (2) Hence they turned to bishops, rather than public courts, as the imposition of public penalties would have precluded such ‘restorative’ justice. The performance of penance was here also a social tool – to mend relationships between men, not just with God. Its integration into Roman law in the sixth century is also testimony to the competition between ecclesiastical and secular authorities over the very worldly power to dispense justice.

‘To say sorry’ therefore had social and spiritual benefits for late antique offenders, including those who had committed sexual crimes. As the Ched Evans case shows, although it may have lost its spiritual dimension, ‘to say sorry’ and to admit guilt still holds a lot of power today. What has changed, however, is who it is addressed to: in late antiquity, it was addressed towards God, society at large, or men. The attention was less on individual female victims of sexual crime, who in fact might have ended up having to marry their very own violators or being preached to by them. Today, the focus is rightly on the female victims of sexual crime, although as a society we still seem to feel that we deserve an apology too.

1. An excellent discussion of this process is presented in Kevin Uhalde, Expectations of Justice in the Age of Augustine (Philadelphia: University of Pennsylvania Press, 2007).

2. Roman law did not know a crime similar to our modern understanding of ‘rape’. The closest we come across is the crime of stuprum, unlawful sex with a woman of marriageable status. Whether the woman consented or not was not an issue, however; the aim was to protect a woman’s family.

Julia Hillner is Executive Director of the Medieval and Ancient Research Centre at the University of Sheffield (MARCUS).

Image: Bramall Lane End by Lewisskinner at en.wikipedia. Licensed under Creative Commons Attribution-Share Alike 2.5 via Wikimedia Commons.

We welcome comments on the historical issues addressed in this post. Please note that this is not the forum to debate the merits of the Ched Evans case.

Tags : ched evanspenancerehabilitationsheffield united
Julia Hillner

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