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Justice, at What Cost?

As today, accusations of rape in 19th-century America inevitably, and repeatedly, met with harsh backlashes against the victims.

Elizabeth Barnes | Published 27 November 2018

Change at last: engraving celebrating the emancipation of slaves, by Thomas Nast, c.1863.Changes to laws concerning sexual violence have always occurred at a glacial pace in the United States. It was not until 1993, for example, that a person could be criminalised in all 50 states for raping their spouse. Most changes have been incremental, generally at the state level, and often simply bring legislation into line with social attitudes. Large-scale changes, although rare, have always been met with swift and extreme backlash.

Colonial Americans relied primarily on the English Common Law definition of rape: the violation of a woman ‘forcibly, and against her will’. Much of the process of a rape trial, however, occurred beyond legal definitions. Women were suspect because of their race, class (particularly if lower than that of the man they accused), marital status and reputation; the ways they reported the crime and spoke about it publicly were scrutinised for any contradictions or indications of unreliability. The only major legal change to be enacted in the colonies and later early republic was the explicit exclusion of enslaved women from the protection of the law, rendering only free women, or exclusively white women, capable of victimhood.

The first major reform to rape law in the US, then, was not a result of protracted campaigns by women, but a consequence of emancipation. Alongside freeing enslaved people and granting them the right to vote, the Reconstruction amendments to the US Constitution between 1865 and 1870 offered all African Americans equal protection under the law, which included granting black women the right to bring rape charges against white men.

The backlash, to emancipation generally, and rape reforms specifically, was immediate. White supremacist groups rampaged across the South, using sexual violence as their primary weapon against formerly enslaved women. Law enforcers, employers and former Confederate troops refused to accept black women’s new legal status and continued to use sexual violence, as they had before the Civil War, to assert themselves. When asked during a Congressional investigation if any black women had been raped during Klan attacks, one former Klansman remarked: ‘The conquest of such people is generally so easy that it does not require any resort to violence, for there is very little virtue in them.’ This was a common attitude among white Southerners, to the dismay of federal authorities trying to find jurors suitable to try cases of white-on-black rape.

African-American women remained vulnerable, particularly in the South, as white supremacists retrenched and ushered in the era of Jim Crow. As the historian Danielle McGuire has recently shown, battles over racialised sexual violence continued into the Civil Rights era; anti-rape measures proved formative in the lives of various activists, including Rosa Parks. The need for black women to continue to push for basic justice well into the 20th century highlights their exclusion from the most successful anti-rape campaign of the late 19th century: the age of consent movement.

By the 1880s, American women (particularly from the middle and upper classes) had become increasingly vocal about the need to advance women’s rights. A series of feminist campaigns, all linked to the demand for suffrage, emerged publicly and included anti-vice campaigns, temperance movements and widespread pushes for the age of consent to be increased. Before the campaign, most states still followed English Common Law standards, setting the age of consent at 10 years old (and referring exclusively to girls – men and boys, in this period, could not legally be raped). The campaign was wildly successful. By 1920, all states but one had increased the age of consent to at least 16.

The backlash against anti-rape measures came quickly, with physicians, judges and defendants all quick to point to long-established narratives of female duplicity, deception and deceit. One Supreme Court justice in 1892 was keen to reiterate basic legal understandings of rape: that allegations were ‘easily simulated’ and that women’s and girls’ testimonies must be regarded with ‘suspicion’. More than 150 years had passed since the English jurist Sir Matthew Hale’s erroneous statement on the legal problem of rape cases – ‘an accusation easy to be made and hard to be proved’ – yet attitudes among the judiciary remained archaic.   

The headlines from a 1919 edition of the Journal of Urology and Sexology were all too similar to those we see plastered across modern tabloids: ‘Giving Bit of Sugar to Young Girl Leads to Accusation of Innocent Man’; ‘Lying Child Found Out by Trick’; and, simply, ‘Characteristic Example of Female Revenge’. Published together as ‘Miscellaneous Cases of Rape’, these articles confirmed men’s worst fears about anti-rape measures. All of the stories involved girls and women making false allegations, deceiving authorities and using accusations of rape to exert power over men; not a single case was a confirmed incident of sexual assault.

Those who opposed the reforms soon shifted their attention from concerns about men to concerns about boys. Hal Godman observed that mothers of sons became (perhaps unwitting) figureheads of this anti-feminist backlash: girls ‘can get boys or men in trouble this way [and] then they laugh about it’, remarked one mother in the 1930s, whose son had been jailed for statutory rape. The results of these narratives were not entirely negative: further legal changes were implemented to account for ‘Romeo and Juliet’ situations and eventually to protect boys from predatory adults. Issues of consent among underage peers remain legally and socially difficult, with efforts to educate high schoolers about the nature and importance of consent ongoing.

The social backlashes against the legal changes of the Reconstruction period and late 19th century were ultimately unsuccessful – US law still dictates that children under 16 cannot consent and that there can be no racial exclusions from the status of victimhood. The nature of these backlashes, and the harmful stereotypes they often perpetuate, still have dire consequences for women who survive sexual violence. Attitudes about rape allegations remain mostly unchanged from the 18th century. It is easy, many argue, for women to make unfounded accusations, either from a desire to punish a man for some perceived slight, or simply to damage his reputation and career. Women are still subject to invasive questioning, suspicion from law enforcers and social isolation when they bring allegations to light. While the law is much more inclusive now than it was in 1860, or even in 1990, the media, legal professionals and even the current US president talk about accusers in ways that would be familiar to those living in the colonies three centuries ago.

Elizabeth Barnes is researching for a PhD on sexual violence in the United States at the University of Reading.

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