by Peter Bardaglio
The tragic tangle of race, gender, and sex in the South after the Civil War afflicted not only adults but also children. The prosecutions of sexual assaults against white girls, in particular, illustrate the corrosive effects of this tangle. Like lynchings, the ways in which southern state courts between 1865 and 1900 handled such prosecutions can be read as a cultural text, revealing, in the words of Jacquelyn Dowd Hall, "a story [whites] told themselves about the social arrangements and psychological strivings that lay beneath the surface of everyday life."1 In this narrative, although the courts found themselves confronted with disturbing evidence that many white fathers and stepfathers sexually abused the young females under their charge, southern judges viewed the black rapist as the primary threat to the innocence and purity of white girlhood.
The "southern rape complex," then, significantly shaped the social construction of white girlhood in the late nineteenth century. The transition from child to adult became an extremely precarious stage of development that depended on the ability of white patriarchs to ward off external dangers that threatened their daughters. In this context, rape posed a direct challenge to the power of the male household head, calling into question his capacity to protect the women, children, and other dependents in his family and thus damaging his standing in the community. By violently gaining access to the sexuality of a girl, the rapist not only achieved control over her but also undercut the public authority of her father.
Emancipation and the reconstruction of households in the postwar South made rape an especially explosive issue. The end of bondage freed African Americans from their dependent status within the households of their masters and created the possibility for former slaves to become heads of their own households and actors in the political process. At the same time, white anxiety about African American male sexuality skyrocketed, culminating in the myth of the black beast rapist. As a growing body of scholarship demonstrates, white southerners viewed black political participation and black male sexuality as interrelated threats to the social order. The rape of white women by African-American men became a powerful symbol for the overthrow of an organic hierarchy that could never be restored and for the establishment of an egalitarianism that would, it was feared, result in the world turned upside down.2
The changing legislation of the postbellum years reflected the rising concerns of southern whites regarding rape. A few southern states eliminated the death penalty for rape immediately after the Civil War, but this reform was short lived.3 By the end of the nineteenth century, every state in the South allowed capital punishment and some states required it for those convicted of rape. Most legislatures gave the jury authority to impose either the death sentence or a prison term.4 In contrast to the antebellum period, rape statutes no longer explicitly stipulated different sentences based on race, but such language clearly left open the possibility of wide disparities in the treatment of white and black men by the legal system.5
The evolution of the age-of-consent doctrine reveals in a striking fashion the racial and gender dynamics that influenced the prosecution of sexual assaults on girls. Most southern statutes during the nineteenth century defined rape as "the unlawful carnal knowledge of a female, forcibly and against her will."6 Lack of consent, then, was the critical component in the legal definition of rape, and the southern appellate judiciary spent a good deal of effort on the question of what constituted force.
In general, the courts insisted on a strict definition of force and they required conclusive evidence that the female actively resisted the sexual advances of the man charged with rape. As the Florida Supreme Court noted in 1891, "If force was used and yet the carnal knowledge was not against the will of the female, the crime of rape has not been committed." Without obvious indications of an attempt at physical resistance, southern appellate courts were reluctant to uphold a rape conviction. The Florida judiciary in Hollis v. State, for example, reversed the conviction of a man indicted for the rape of a fourteen-year-old girl, claiming that "there is no evidence whatever of resistance, no attempt to prevent his throwing her down, no use of her arms, legs or body against his efforts to throw her down." Although evidence indicated that the male assailant had threatened to kill the girl if she called for help, the appellate court insisted that this was "not itself evidence that she was making any resistance of any kind to his efforts."7
One of the major exceptions to the judicial policy on force involved the age of consent, a doctrine designed to draw the line between childhood and adulthood based on an individual's level of sexual awareness.8 According to this policy, children below a certain age were incapable of sufficiently understanding the nature of sexual intercourse to consent to it. In cases involving the prosecution of men charged with carnal knowledge of youngsters under the legal age, no evidence of force had to be presented.
The Women's Christian Temperance Union inaugurated a national campaign in the 1880s to increase the age of consent. The lobbying effort, which led to higher age-of-consent laws in twenty-nine states by the turn of the century, became a key element of the social purity movement that emerged during this period. Social purity advocates sought to challenge the sexual double standard by holding men accountable for their behavior and insisting on a single sexual norm for men and women.9
Reflecting in part a persistent antistatism, most southern states maintained for the remainder of the nineteenth century the antebellum practice of fixing the age of consent at ten.10 A few states, however, raised the ceiling, including Arkansas, which set the age of consent at sixteen in 1893. Georgia did not enact a law raising the age from ten to fourteen years until 1918, although women in the state had been petitioning the legislature to do so since 1887. All of the states provided the same punishment for sexual intercourse with an underage female as for rape, except for Arkansas, which imposed a prison sentence of five to twenty-one years instead of the death penalty.11
Not only hostility to state interventionism but also the conservative racial and gender politics of the South account for the resistance to the age-of-consent movement in the region. As Mary Odem has pointed out, the middle-class women who formed the backbone of the social purity crusade in the South had little experience with reform organizations until the WCTU arrived on the scene in the 1880s. Furthermore, in Odem’s words, the drive to enact stricter age-of-consent legislation in the South meant confronting the practice of interracial sex and the sexual vulnerability of black women and girls at the hands of white men. Indeed, white women viewed the age-of-consent laws as a way to hinder white men from having sex with black women.12
Reviving the racist myth about the innate promiscuity of black women, those who opposed raising the age of consent argued that such legislation put white men at the mercy of African American females. We see at once what a terrible weapon for evil the elevating of the age of consent would be, declared Representative A. C. Tompkins of Kentucky, when placed in the hands of a lecherous, sensual negro woman, who for the sake of blackmail or revenge would not hesitate to bring criminal action even though she had been a prostitute since her eleventh year! Southern reformers, rather than attacking such images of black female depravity, insisted that age-of-consent legislation should be part of a larger campaign of moral uplift aimed at the African American community. "We have in our State a mixed population, John V. Smith observed in a paper delivered to the Alabama State Bar Association in 1896, and among the colored classes, it is a conceded fact, that the standard of morality as a rule is much lower than among the whites." The lawyer insisted, however, that "the colored girl ought to be taught that chastity in her race is highly commendable and a duty she owes to herself and to her people."
Smith assailed the Alabama statute that placed the age of consent at ten and called for the state legislature to increase it to fourteen. Under the current regime, he contended, "a certain class of men of lewd habits are protected in the gratification of their desires on young children at the expense and sacrifice of the virtue of thousands of young white girls, who at a later age would never have fallen into ruin." 13 Employing the imagery of private property, Smith underscored the high value attached to virginity: "To say that a child of eleven, twelve, or even fourteen years of age can legally consent to the giving or selling of the most precious jewel she possesses, and thus wreck her life and have her hopes of the future all blighted, becoming an outcast from society, when by our laws she is not permitted to sell even a trivial piece of personal property, it seems to me is placing rather a low estimate on virtue." Acknowledging the difficulty of legislating morality, Smith maintained that "the State should afford its protection to the young and innocent against a too early temptation to tread in the paths of sin."14
The attorney's plea to raise the age of consent apparently struck a chord with the Alabama legislature, for in the following year the lawmaking body boosted the limit to fourteen.15 Regardless of where legislators set the ceiling, appellate courts in the late nineteenth-century South made it clear that evidence of a child's acquiescence to sexual intercourse could not prevent a conviction for statutory rape. In an 1873 Mississippi case, for example, the mother of a ten-year-old girl testified that the defendant gave her daughter a nickel after having sexual relations with her. Medical evidence indicated that the young girl had contracted a venereal disease and that the defendant had been treated recently for the same disease. Upholding the rape conviction, Justice Tarbell remarked that, "fortunately for justice," the girl's consent provided "no excuse to a man so depraved as to attempt to gratify his passion upon one of such tender years."16
Even when the female claimed that she was above the age of consent, if she was shown to be younger, then the accused could be convicted.17 What about when the girl was just slightly above the legal age? The Georgia Supreme Court argued that in such cases the jury should take into account the mental and physical development of the girl. In Pounds v. State (1898), the court said that, although the girl assaulted was over ten years old, if the jury concluded that "she was a child in stature, constitution and physical and mental development, and they believed from her age and appearance that she was incapable of consenting," then the accused should be convicted of rape, "although she made no objection to the intercourse."18 The southern appellate judiciary insisted, however, that the indictment had to indicate the age of the girl and the prosecution had to present sufficient evidence of her age; otherwise, the judges would not hesitate to grant defendants a new trial.19
Southern courts not only dismissed evidence of consent when the female was underage, they also declared that doubts about the chastity of the girl would not exonerate the accused. While the reputation of females above the age of consent could be attacked in order to raise questions about the credibility of their testimony, such evidence had no bearing in cases involving younger girls. Hence the Texas Supreme Court affirmed the conviction of Dan Comer in 1892 for assault with intent to rape a girl under the age of ten. According to the high court, the girl was "vicious, immoral, and suffering from disease, and willing to submit to the embraces of the defendant." Because of her age, however, the law threw "even around such a one the mantle of childhood's innocence and guiltlessness."20
Defendants had better success when they set out to challenge the competency of the child as a witness. The young ages of children who testified in trials involving sexual assault and abuse posed a special problem for the courts. Although it was important to ensure that these youngsters grasped the necessity of telling the truth on the stand, it was also critical that whatever tests they were subjected to were not so rigid as to grant immunity to those who committed sex crimes against children.
The appellate courts thus refused to lay down a strict age under which children were too young to act as witnesses. As the Alabama Supreme Court noted, given the great variation in the developmental rates of individual boys and girls, there was "no particular age at which a witness may, in all cases, be pronounced legally competent or incompetent to testify."21 Judges had a responsibility to examine younger children who testified to make sure that they understood the obligation of an oath. When appellate jurists believed that the witness had not demonstrated sufficient maturity to comprehend this obligation, or that the examination was not thorough enough, they granted the defendant a new trial.22
Perhaps the most disturbing of sexual assaults on girls were those carried out by their fathers and stepfathers. "In nineteenth-century Anglo-American culture, the home was a sacred place," historian Ted Ownby has observed. "Outside the home, individuals were exposed to sinfulness and temptations of many kinds, but home life was, in theory, safe, morally pure, and affectionate." Southern evangelicals stressed the crucial role of parents in ensuring that their offspring had a Christian upbringing. As Georgia Methodist William F. Quillan told the members in his congregation, "You and I stand between God and our offspring, and impersonate the divine to their thought till they are lifted to the conception of the God of the skies."23 For a father or stepfather to sexually abuse the young females in his household, then, was to violate a sacred responsibility.
Southern appellate courts were keenly aware of the dangers that incestuous sexual relations posed to society. The aim of the legal ban on such behavior, according to the North Carolina Supreme Court in 1886, was "to preserve the purity of the domestic circle, and prevent alike the physical and moral consequences of the abhorrent and unnatural act inhibited."24 In contrast to this rhetoric, however, the actual decisions of the postbellum southern judiciary demonstrated a reluctance to prosecute incest. The state supreme courts hesitated to impose criminal punishment when evidence of force and physical resistance was not clearly provided, they displayed a fundamental mistrust in the victim's testimony, and they placed a heavy burden of proof upon the plaintiff.25
Usually the man only was indicted in prosecutions for incest. Southern jurists emphasized that incest was not a joint offense and mutual consent of the parties was not necessary for an incest conviction.26 In such cases charges of either rape or incest could be brought against the defendant. Thus the Texas Supreme Court held in an 1885 opinion that the father could be found guilty of incestuous intercourse with his daughter regardless of whether she "consented to his carnal knowledge of her. She might be entirely innocent of any crime, and yet he might be guilty of rape or incest, or both, by having carnal knowledge of her."27
Nearly two dozen appeals from men convicted for rape or attempted rape of their daughters or stepdaughters, rather than for incest, reached southern state supreme courts during the late nineteenth century. Of the twenty-three such appeals that came before the high courts between 1870 and 1900, eleven succeeded in getting convictions overturned. The chief factors determining whether the state brought incest or rape charges against a father or stepfather were the degree of force used by the man and the extent of the girl's resistance. Of course, if the defendant had sexual intercourse with a daughter or stepdaughter below the age of consent, no evidence of force or resistance was necessary to gain a conviction.
In Arkansas, the prosecution of cases involving girls under the age of consent had a distinctive dynamic because state law treated sexual intercourse with such females as a less serious crime than rape. A conviction for the former offense led to a prison sentence, as mentioned earlier, while a conviction for rape brought the death sentence.28 Therefore, when the Sebastian Circuit Court found a father guilty of raping his ten-year-old daughter, the condemned man petitioned the high court to consider reducing the charge to the lesser offense. The abundant evidence regarding the father's resort to violence, however, persuaded Chief Justice Cockrill to uphold the finding of the lower court. Witnesses who came to the girl's rescue and "interrupted the prisoner in the act" testified that "they overheard him threatening to whip her if she did not hush and that she was weeping continually." Under these circumstances, the Arkansas judge saw no reason to spare the man's life; pronouncing the defendant an "unnatural father," Cockrill declared that the "submission of a child in the hands of a strong man, who exercises the authority of a parent to subdue her, cannot be taken to be such consent as will justify him against a charge of rape."29
This attack on the father's abuse of his authority as "unnatural" was a central theme in appellate opinions upholding lower court convictions. In an 1889 case, for example, the North Carolina Supreme Court reviewed a series of assaults carried out over a two-year period by J. C. Parish on his daughter, who was about eleven years old at the time of the trial. According to the court, nothing in "this story of unnatural and almost incredible brutality" suggested that the jury's finding of guilty should be reversed.30 Likewise, the Texas Court of Criminal Appeals in an 1895 decision denounced the defendant for engaging in sexual relations with his stepdaughter, who was under twelve years old and thus did not need to demonstrate the use of force or threats. "The fact that she may have consented is neither a justification nor a mitigation of his acts," the court insisted. As her stepfather, the Texas jurists observed, he should have "been her natural protector"; instead, he "used his parental authority to debauch" the girl.31
In a similar fashion, southern appellate jurists who upheld convictions for incest focused their criticisms on individual men who they believed had misused their "natural" power to rule. The judges did not mean to imply by their reproach of the fathers and stepfathers in these cases that patriarchal authority ought to be abolished or reformed. On the contrary, the appellate judiciary continued to assume that inequality and hierarchical control constituted the very basis of the family. By restricting convictions for the crime to those clearcut instances of assault that exposed the coercion inherent in the exercise of patriarchal authority and therefore called into question its legitimacy, southern judges actually bolstered the overall status of male dominance in southern households. Isolating those patriarchs who used physical violence against female members of their family to gain sexual satisfaction and labeling these men as "deviants" relocated the source of the problem away from the structure of power and authority in southern society and laid it at the feet of individuals deemed to have failed in their paternalistic responsibilities.32
While appellate courts in the postbellum South viewed abusive fathers and stepfathers as "unnatural," and a departure from the normally benevolent rule of patriarchs, the judiciary took a very different stance toward the perceived threat that black rapists posed to white girls. Implicit in many appellate opinions was the notion that African American males had an innate tendency to seek out white females for their sexual satisfaction. The judicial descriptions of the sex crimes allegedly committed by blacks against white girls reinforced this notion through the use of inflammatory images, some of which verged on the pornographic. In describing the assault of "a negro boy" on a seventeen-year-old white girl, for example, an 1888 opinion detailed how the defendant "threw the witness down, pulled up her clothes, got on top of her, and by main strength and force, despite her protests, screams and struggles, had carnal knowledge of her person, penetrating her sexual organ with his male member, first having inserted his finger." According to the statement of the case in Johnson v. State, a doctor who examined the two parties after the attack testified that the girl's "female organ was unusually small for a female of her age," while "the defendant's sexual organ" was "of extraordinary large size."33
These sorts of graphic details were notably absent in the judicial descriptions of cases involving sexual assaults by white fathers on their daughters. In an 1886 case, for example, the Virginia Supreme Court assailed a father who raped his fourteen-year-old stepdaughter, asserting that the "atrocious character of the charge made, and the revolting circumstances attending it, cannot but excite the indignation, and receive the condemnation, of every person." Although the court's criticism of the father's behavior was severe, the actual description of the assault was quite circumspect: "It is proved in this case that the prisoner, getting into bed with the object of his desires, held her hands, brought his private parts in contact with her private parts, and forced her."34
Black defendants convicted of rape vehemently protested the use of racially charged language in the courtroom. Genie Brown, found guilty of "assault with intent to ravish" a ten-year-old white girl, took exception to the prosecutor's characterization of him in the closing arguments. Urging the jury to convict the defendant, the prosecutor had declared that a guilty verdict would "protect innocent little girls from such black fiends and demons." The Alabama Supreme Court, in an 1898 opinion, found little merit in Brown's appeal, maintaining that the evidence supported the prosecutor's portrayal of his behavior. What distinguished such depictions from the accounts of white men found guilty of raping their daughters or stepdaughters was the effort to generalize about an entire race, to identify "the other," on the basis of an individual incident. The insistence on making these sorts of racially-based generalizations revealed the underlying anxieties and fears that energized many of the prosecutions, emotions that had more to do with the insecurity of white patriarchs than a genuine concern for the welfare of children.35
Although feelings could run high, state supreme courts in the South did not automatically sustain the convictions of blacks charged with raping white girls. Improper instructions to the jury regarding the law of rape led to new trials for at least two African Americans indicted for sexual assaults on white girls.36 Other seeming technicalities also led to decisions in favor of the appellant. In
Gordon v. State (1893), an African American boy who was a few months short of fourteen years old was released after being convicted for assault with intent to rape a ten-year-old white girl. As the Georgia Supreme Court pointed out, according to English common law, "a boy under fourteen years of age cannot be convicted of rape" because he was presumed to be physically incapable of sexual intercourse.37
Not only procedural flaws and legal technicalities but also insufficient evidence led appellate jurists to grant new trials to black men charged with sexual attacks on white girls. A key issue in appeals involving convictions for attempted rape was evidence of intent. When the courts believed that the testimony was insufficient to show that a black defendant intended to rape the female, they stepped in and reversed the verdict.38
Special rules that applied only to blacks on trial for attempted rape or rape of white women and girls, however, made it relatively easy to demonstrate intent. Southern courts, for example, allowed juries to consider the race of the defendant and victim in determining the defendant's intent in prosecutions for attempted rape. If the accused was black and the victim white, according to this judicial rule, the jury had a reasonable basis for inferring that he intended to rape her. No other evidence was necessary to establish intent. As one judge counseled a jury in a trial involving an African American indicted for attempted rape of a white girl, "You have the right to consider who the parties were; consider whether one was a black person and the other a white person. You have a perfect right to take in consideration the difference in races, so as to see what the intention of the parties was."39
Appellate courts unhesitatingly backed the rule that "social customs founded on race differences" might be taken into account in assessing the question of intent. Indeed, the Georgia Supreme Court in 1899 argued that the race of the parties could be used "to rebut any presumption that might otherwise arise in favor of the accused that his intention was to obtain the consent of the female, upon failure of which he would abandon his purpose to have sexual intercourse with her." Because no African American could reasonably assume that a white female "would consent to his lustful embraces," according to the court, he could not claim that he intended to discontinue his effort to have sexual intercourse if he met with resistance.40 Thus a crucial procedural protection enjoyed by white defendants could not be employed by blacks accused of attempting to rape a white female.
For most southern judges, in short, it was simply a matter of common sense that a black male, in encountering a white girl, would try to rape her, and that a proper white girl would never assent to sexual intercourse with an African American. The emphasis on the uncontrollable character of black male sexuality also meant that, apparently, southern jurists did not see anything "unnatural" about African American fathers who raped their daughters.41 In contrast, the narratives that southern authorities constructed about white fathers who sexually assaulted their children assumed that such incidents were isolated affairs and not reflective of a larger pattern of abuse of power on the part of white patriarchs.
White men convinced themselves in this way that the chief danger to the innocence and purity of their girls came not from within their own domestic spheres, but rather from the outside. Such self-delusion proved to be a powerful psychological force, fueling the intensification of what Lillian Smith has called the "race-sex-sin" spiral in the postbellum South. Losing themselves in an orgy of lynching at the turn of the century, southern white men found an extraordinary way to ease their doubts and anxieties about the legitimacy and effectiveness of their patriarchal rule. The myth of the "black beast rapist" allowed white males to portray themselves as defending "their" women and children at a time when falling crop prices and unemployment made it difficult for many of these men to meet their financial responsibilities to the household and when traditional gender roles seemed to be weakening.42
We have only begun to discern the impact that such a brutal strategy for maintaining power and status had on southern children of both races. African American boys like Richard Wright were instructed to avoid any situation where they might be wrongly accused, while white girls like Lillian Smith were brought up to fear black men. Caught in a swirl of racial and sexual violence, surrounded by deceit and hatred, these youngsters struggled to make their way through this treacherous landscape. The legacy of this nightmarish world still casts its long shadows across America. More than a hundred years later, gathered here in Washington, D.C., to reflect on the history of childhood and its impact on the lives of girls and boys today, we can only hope that our own children will have the opportunity to step into the light of a new day, putting an end to the "race-sex-sin spiral" that has infected American society for far too long.
1. Jacquelyn Dowd Hall, "'The Mind That Burns in Each Body': Women, Rape, and Racial Violence in The Powers of Desire: The Politics of Sexuality, eds. Ann Snitow, Christine Stansell, and Sharon Thompson (New York: Monthly Review Press, 1983), pp. 328-49," p. 335. For an insightful study that analyzes narratives about the meaning of rape in a colonial context, see Pamela Scully, "Rape, Race, and Colonial Culture: The Sexual Politics of Identity in the Nineteenth-Century Cape Colony, South Africa," American Historical Review, 100 (April 1995): 335-59.
2. Recent work includes Peter W. Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 1995); Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896-1920 (Chapel Hill: University of North Carolina Press, 1996); Laura F. Edwards, Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana: University of Illinois Press, 1997); Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997); Nell Irvin Painter, Social Equality, Miscegenation, Labor, and Power in The Evolution of Southern Culture, ed. Numan V. Bartley (Athens: University of Georgia Press, 1988), pp. 47-67; Catherine Clinton, Bloody Terrain: Freedwomen, Sexuality, and Violence during Reconstruction, Georgia Historical Quarterly, 76 (Summer 1992): 313-32; and Karin L. Ziff, The WHITES shall rule the land or die : Gender, Race, and Class in North Carolina Reconstruction Politics, Journal of Southern History, 65 (August 1999): 499-534.
3. For punishments in states where rape was not a capital crime, see S.C., Statutes at Large (1873), vol. 14, p. 175 (Act of 1869) (ten years to life); Tenn., Compilation of the Statute Laws (Thompson and Steger, 1873), vol. 2, sec. 4611, p. 48 (ten to twenty-one years); and Tex., Digest of the Laws (Paschal, 1866), art. 2190, p. 447 (five to fifteen years). See also Wharton v. State, 45 Tenn. 1 (1867).
4. Ala., Code(Keyes, Wood, and Roquemore, 1877), sec. 4304, p. 912; Fla., Digest of the Statute Law (Bush, 1872), ch. 43, sec. 41, p. 217; Ga., Code (Clark, Cobb, and Irwin, 1867), sec. 4284, p. 841; Miss., Revised Code (Campbell, 1880), sec. 2942, p. 768; S.C., Revised Statutes (Breazeale, 1894), vol. 2, sec. 114, p. 302; Tenn., Code (Milliken and Vertrees, 1884), sec. 5362, p. 1030; Tex. Revised Statutes (1887), art. 534, p. 73; and Va., Code (Burks, Staples, and Riely, 1887) sec. 3680, p. 881. In Arkansas, Louisiana, and North Carolina, all those convicted of rape faced execution. See Ark., Digest of the Statutes (Mansfield, 1884), sec. 1570, p. 433; La., Revised Statute Laws (1870), sec. 787, p. 160; and N.C., Code (Dortch, Manning, and Henderson, 1883), vol. 1, sec. 1101, p. 444.
5. Although the majority of southern states permitted the death penalty for rape, assault with intent to rape was no longer a capital crime; prison terms ran from no more than two years in Louisiana to as much as life in Florida. See La., Revised Statute Laws (1870), sec. 792, p. 161; Fla., Digest (1872), ch. 43, sec. 42, p. 217. For penalties imposed in cases of assault with intent to rape in other southern states, see Ala., Code (1877), sec. 4314, p. 914 (two to twenty years); Ark., Digest (1884), sec. 1572, p. 433 (three to twenty-one years); Ga., Code (1867), sec. 4285 (one to twenty years); Miss., Revised Code (1880), sec. 2711, p. 728 (not more than ten years); N.C., Code (1883), vol. 1, sec. 1102, p. 444 (five to fifteen years); Tenn., Code (1884), sec. 5367, p. 1030 (ten to twenty-one years); Tex., Revised Statutes (1887), art. 503, p. 70 (two to seven years); and Va., Code (1887), sec. 3888, p. 916 (three to eighteen years).
On statutory laws punishing rape and attempted rape before the Civil War, see Peter W. Bardaglio, "Rape and the Law in the Old South: 'Calculated to Excite Indignation in Every Heart," Journal of Southern History, 60 (November 1994): 752-53, 755-57.
6. Ark., Digest of the Statutes (Gantt, 1874), sec. 1300, p. 333. See also Fla., Digest (1872), ch. 43, sec. 41, p. 217; Ga., Code (Clark, Cobb, and Irwin, 1882), sec. 4349, p. 1145; Tenn., Compilation (1873), vol. 2, sec. 4610, p. 48; and Tex., Revised Statutes (1887), art. 528, p. 73.
After the Civil War evidence of penetration was sufficient to uphold a rape charge and proof of emission was not necessary. See Ala., Code (Brickell, Hamilton, and Tillman, 1887), vol. 2, sec. 3737, p. 13; Ark., Digest(1874), sec. 1301, p. 333; Fla., Revised Statutes (Blount, Cooper, and Massey, 1892), sec. 2396, p. 777; N.C., Public Statutes (Battle, 1873), ch. 32, sec. 3, p. 294; Tenn., Compilation, vol. 2, sec. 4610, p. 48; and Tex., Digest (1866), art. 2188, p. 447.
For judicial discussions of this issue, consult Barker v. State, 40 Fla. 178 (1898); Morris v. State, 54 Ga. 440 (1875); State v. Turner, 25 La. Ann. 573 (1873); State v. Hodges, 61 N.C. 231 (1867); State v. Storkey, 63 N.C. 7 (1868); State v. Hargrave, 65 N.C. 466 (1871); Burk v. State, 8 Tex. App. 336 (1880); and Lujano v. State, 32 Tex. Cr. R. 414 (1893).
7. Hollis v. State, 27 Fla. 386 (1891), pp. 391, 395-96. For other discussions of what constituted force in a case of rape, see McQuirk v. State, 84 Ala. 435 (1882); Davis v. State, 63 Ark. 470 (1897); Simmons v. State, 99 Ga. 699 (1896); Rhea v. State, 30 Tex. App. 483 (1891); and Brown v. Commonwealth, 82 Va. 653 (1886).
In order to convict a defendant on the charge of attempted rape, proof of both force and intent was necessary. As the North Carolina Supreme Court stated, "the evidence should show not only an assault, but that the defendant intended to gratify his passion on the person of the woman, and that he intended to do so, at all events, notwithstanding any resistance on her part." State v. Massey, 86 N.C. 658 (1882). But see Dibrell v. State, 3 Tex. App. 456 (1878), where the only violence used by the defendant involved pulling at the bedclothes of the woman. Although the assailant ran off when the woman awoke, the court held that this was sufficient evidence to sustain a conviction for attempted rape.
8. The other important exception to the judicial policy on force involved the use of fraud to persuade a woman to engage in sexual intercourse. According to Texas law, fraud in this context included administering to a woman, "without her knowledge or consent, some substance producing unnatural sexual desire, or such stupor as prevents or weakens resistance." Fraud also included any "stratagem by which the woman is induced to believe that the offender is her husband." Tex., Revised Statutes (1887), art. 531, p. 73. For similar laws in other states, see Ala., Code (1877), secs. 4305, 4307, p. 913; Ark., Digest (1884), sec. 1573, p. 433; La., Revised Laws, 2nd ed. (Voorhies, 1884), sec. 787, p. 132; Miss., Revised Code (1880), sec. 2943, p. 768; N.C., Code (1883), vol. 1, secs. 1103-1104, p. 445; and Tenn., Code (1884), secs. 5363-5464, p. 1030. The Arkansas, Louisiana, and Mississippi statutes did not cover the punishment of men who pretended to be the woman's husband.
9. John d'Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper and Row, 1988), pp. 150-53; and Mary E. Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (Chapel Hill: University of North Carolina Press, 1995), pp. 9-11.
10. For statutory rape laws in the late nineteenth century, see Ala., Code (1887), vol. 2, sec. 3739, p. 13 (under ten years); Fla., Revised Statutes (1892), sec. 2396, p. 777 (under ten years); Miss., Revised Code (1880), sec. 2942, p. 768 (under ten years); N.C., Code (1883), vol. 1, sec. 1101, p. 444 (under ten years); S.C., Revised Statutes (1894), vol. 2, sec. 115, p. 302 (under ten years); Tenn., Annotated Code (Shannon, 1896), sec. 6456, p. 1593 (under twelve years); Tex., Revised Penal Code, 2nd ed. (1889), art. 528, p. 178 (under ten years); and Va., Supplement to the Code (Pollard, 1898), sec. 3680, p. 369 (under fourteen years). On antebellum laws regarding the age of consent, see Bardaglio, "Rape and the Law in the Old South," p. 771, n. 69.
11. Ark., Digest (1874), secs. 1302-1303, p. 333; Ark., Digest of the Statutes (Sandels and Hill, 1894), sec. 1865, p. 572; State v. Pierson, 44 Ark. 265 (1884); and Warner v. State, 54 Ark. 660 (1891). In nineteenth-century Georgia, the age of consent in cases of rape was not set by statute, and the courts adhered to the common law tradition that it was unnecessary to show evidence of force when the child was under ten years of age. See Ga., Code (Hopkins, Anderson, and Lamar, 1896), vol. 3, sec. 4349, p. 35; McMath v. State, 55 Ga. 303 (1875); and Leslie K. Dunlap, The Reform of Rape Law and the Problem of White Men: Age-of-Consent Campaigns in the South, 1995-1910, in Sex, Love, Race: Crossing Boundaries in North American History, ed. Martha Hodes (New York: New York University Press, 1999), p. 357. Louisiana also did not establish the age of consent by statute. The state supreme court, however, held in 1878 that the age of consent in the state was twelve, based on its interpretation of the marriage laws in the civil code. See State v. Tilman, 30 La. Ann. 1249 (1878).
12. Odem, Delinquent Daughters, p. 35; and Dunlap, Reform of Rape Law, p. 362.
13. A. C. Tompkins quoted in Odem, Delinquent Daughters, p. 33; and John V. Smith, "The Age of Consent in Alabama," Proceedings of the Alabama State Bar Association, 19 (1896): xlix. On white perceptions of black female sexuality, see Deborah Gray White, Ar'n't I a Woman? Female Slaves in the Plantation South (New York: W. W. Norton and Co., 1985), pp. 29-46; Catherine Clinton, The Plantation Mistress: Woman's World in the Old South (New York: Pantheon Books, 1982), p. 222; Angela Davis, Women, Race and Class (London: Women's Press, 1982), pp. 174-82; Elizabeth Fox-Genovese, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: University of North Carolina Press, 1988), p. 292; and Adele Logan Alexander, Ambiguous Lives: Free Women of Color in Rural Georgia, 1789-1879 (Fayetteville: University of Arkansas Press, 1991), pp. 64, 144.
14. Smith, Age of Consent, pp. xlvii, xlix
15. Ala., Code (Martin, 1897), vol. 2, sec. 5447, p. 460. The South Carolina Constitution of 1895 increased the age of consent from ten to twelve years, while an 1895 Texas statute raised it to fifteen years. See State v. Haddon, 49 S.C. 308 (1897); and Rice v. State, 37 Tex. Cr. R. 36 (1897).
16.
Williams v. State, 47 Miss. 609 (1873), pp. 610, 612-13. See also Mayo v. State, 7 Tex. App. 342 (1879); and Glover v. Commonwealth, 86 Va. 382 (1889).
17.
Edens v. State, 43 S.W. 89 (Tex. 1897); and Lawrence v. Commonweath, 71 Va. 845 (1878).
18.
Pounds v. State. 95 Ga. 475 (1894), p. 475. See also Joiner v. State, 62 Ga. 560 (1879); and Jones v. State, 106 Ga. 365 (1898).
19.
State v. Johnson, 100 N.C. 494 (1888); Lawrence v. State, 32 S.W. 539 (Tex. 1895); and Parnell v. State, 42 S.W. 563 (Tex. 1897).
20.
Comer v. State, 20 S.W. 547 (Tex. 1892), p. 547. The victim in this case was an African American girl, underscoring the extent to which the southern judiciary upheld the position that reputation could not be considered in cases where the female was under the age of consent. On the treatment of the sexual reputation of women in rape prosecutions that reached the southern appellate courts during the nineteenth century, see Bardaglio, Reconstructing the Household, pp. 72-73, 194-95, 198-99.
21.
McGuff v. State, 88 Ala. 147 (1889), p. 150.
22.
Holst v. State, 23 Tex. App. 1 (1887). This procedure applied not only to girls who claimed that they had been sexually assaulted, but also to other youngsters who testified in rape trials. The Georgia Supreme Court, in Gaines v. State (1896), criticized the examination of a boy carried out by the lower court, pointing out that the trial judge had only determined that the boy "was ignorant as to his own age, but did know his father's name and the number and names of the days of the week, and could count as high as thirty-two." According to the members of the Georgia high court, the inquiry did not "show that the child, either from a moral or a legal standpoint, understood the nature or obligation of an oath, or had the slightest degree of knowledge with reference to the legal consequences of committing perjury." Consequently, the appellate court reversed the conviction of the defendant, who was indicted for raping a girl, and awarded him a new trial. Gaines v. State, 99 Ga. 703 (1896), p. 704. Even when the judge determined that the child was a competent witness, he could instruct the jury to assess for itself the child's credibility. See Smith v. Commonwealth, 85 Va. 924 (1889).
23. Ted Ownby, Subduing Satan: Religion, Recreation, and Manhood in the Rural South, 1865-1920 (Chapel Hill: University of North Carolina Press, 1990), pp. 4-5 (Quillan quotation on p. 5). See also Jean E. Friedman, The Enclosed Garden: Women and Community in the Evangelical South, 1830-1900 (Chapel Hill: University of North Carolina Press, 1985), pp. 36-37.
24.
State v. Laurence, 95 N.C. 659 (1886), p. 660. See also Beggs v. State, 55 Ala. 108 (1876) at 112, in which the Alabama Supreme Court in 1876, asserted that incest not only "contravenes the voice of nature" and "offends decency and morals," it "degrades the family."
25. The results of such attitudes are not hard to predict: Between 1865 and 1900, state courts in the South considered the appeals of thirt-seven individuals convicted of incest and granted new trials to seventeen of these defendants. There were actually thirty-six cases dealing with appeals from incest convictions, but one of them Newman v. State, 69 Miss. 393 (1891) involved an appeal on the part of both parties. For a detailed discussion of legal attitudes towards incest in the nineteenth-century South, see Peter Bardaglio, "'An Outrage upon Nature': Incest and the Law in the Nineteenth-Century South," in In Joy and in Sorrow: Women, Family, and Marriage in the Victorian South, 1830-1900, ed. Carol Bleser (New York: Oxford University Press, 1991), pp. 32-51.
26. A wide difference of opinion existed among state supreme courts in the nineteenth century over whether mutual consent was necessary for incest. See D. R. N. Blackburn, "Incest," Criminal Law Magazine and Reporter, 17 (July 1895): 389-99; and Irving Browne, "Concurrence of Rape and Adultery or Incest," Albany Law Journal, 25 (June 24, 1882): 484-85. I would like to thank Mary Block for bringing these articles to my attention.
27.
Mercer v. State, 17 Tex. App. 452 (1885), p. 464. For similar cases, see Powers v. State, 44 Ga. 209 (1871); Raiford v. State, 68 Ga. 672 (1882); Schoenfeldt v. State, 30 Tex. App. 695 (1892); and Stewart v. State, 35 Tex. Cr. R. 174 (1895). The Texas high court also made this point in Alonzo v. State, 15 Tex. App. 378 (1884), an adultery case: "While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete."
28. See note 11 and the accompanying text. Although the statutory language did not establish an exact age of consent, referring instead to "the age of puberty," the Arkansas Supreme Court in 1884 interpreted it to mean that any girl younger than twelve was underage. See State v. Pierson, 44 Ark. 265 (1884).
29.
Coates v. State, 50 Ark. 330 (1887), pp. 334-35.
30.
State v. Parish, 104 N.C. 679 (1889), p. 694.
31.
Gonzales v. State, 31 S.W. 371 (Tex. 1895), p. 372. For other appellate opinions regarding the prosecution of sexual assaults on younger daughters and stepdaughters, see Myers v. State, 84 Ala. 11 (1887); Hooper v. State, 106 Ala. 41 (1894); Sharp v. State, 15 Tex. App. 171 (1883); Cooper v. State, 22 Tex. App. 419 (1886); Nicholas v. State, 23 Tex. App. 317 (1887); Callison v. State, 37 Tex. Cr. R. 211 (1897); Owens v. State, 39 Tex. Cr. R. 391 (1898); Cox v. State, 44 S.W. 157 (Tex. 1898); Fry v. Commonwealth, 82 Va. 334 (1886); and Bailey v. Commonwealth, 82 Va. 107 (1886).
32. Bardaglio, "'Outrage upon Nature,'" pp. 50-51.
33.
Johnson v. State, 26 Tex. App. 399 (1888), 399, 402. See also the description of a sexual assault of a white woman by a seventeen-year-old black male in Wilcox v. State, 32 Tex. Cr. R. 284 (1893). Although the black defendant was granted a new trial in this case, based on doubts about his age, the Texas Supreme Court upheld his subsequent conviction and death sentence in Wilcox v. State, 33 Tex. Cr. R. 392 (1894).
34.
Bailey v. Commonwealth, 82 Va. 107 (1886), pp. 110, 113.
35.
Brown v. State, 121 Ala. 9 (1899), pp. 11, 12.
36.
Dawkins v. State, 58 Ala. 376 (1877); and Porter v. State, 33 Tex. Cr. R. 385 (1894). See also Irving v. State, 9 Tex. App. 66 (1880), in which the Texas high court granted a new trial to an African American indicted for assault with intent to rape a Mexican girl who was twelve or thirteen years old. According to the appellate opinion, the charge to the jury did not distinguish between assault with intent to rape and intent to have sexual intercourse.
37. Gordon v. State, 93 Ga. 531 (1893), p. 533. See also Williams v. State, 20 Fla. 777 (1884). For examples of adherence to this common law rule where the race of the parties is not identified, see McKinney v. State, 29 Fla. 565 (1892); and Foster v. Commonwealth, 96 Va. 306 (1898).
The Louisiana Supreme Court in 1887, however, observed that "the period of puberty is affected by circumstances of race, climate, habits and conditions of life," and "a large majority of youths" in the state reached puberty before they turned fourteen. The court thus held that "there is no foundation for any presumption of incapacity." State v. Jones 39 La. Ann. 935 (1887). For other cases in which the capacity of a defendant under fourteen to commit rape was left to the jury, see
State v. McNair, 93 N.C. 628 (1885); State v. Coleman, 54 S.C. 162 (1899); and Wagoner v. State, 73 Tenn. 352 (1880).
38. See, e.g., Johnson v. State 17 Tex. App. 565 (1885), in which the Texas Court of Appeals overturned the conviction of an African American indicted for assault with intent to rape a fourteen-year-old white female on the grounds of insufficient evidence. A similar case can be found in Gaskin v. State, 31 S.E. 740 (Ga. 1898).
39.
Jackson v. State, 91 Ga. 322 (1892), p. 325. See the discussion of this rule in Jennifer Wriggins, "Rape, Racism, and the Law," Harvard Women's Law Journal, 6 (Fall 1983): 111-12.
40.
Jackson v. State, 91 Ga. 322 (1892), p. 330; Dorsey v. State, 108 Ga. 477 (1899), p. 480. See also Darden v. State, 97 Ga. (1896).
41. See, e.g., Sharpe v. State, 48 Ga. 16 (1873); and Smith v. State, Ala. 540 (1872).
42. Lillian Smith, Killers of the Dream, rev. ed. (New York: W. W. Norton and Co., 1961), pp. 121; Gilmore, Gender and Jim Crow, pp. 82-88; and Joel Williamson, The Crucible of Race: Black-White Relations in the American South Since Emancipation (New York: Oxford University Press, 1984), p. 115.
Paper Presented at History of Childhood in America Conference Washington, D.C. August 5 and 6, 2000 |
