In 1793, 17-year-old Lanah Sawyer was pushed into a brothel and raped by a seemingly respectable man who had taken her for a walk in the streets of New York. In court, her assailant’s attorney said she had basically consented to sex when she agreed to go walking with him, and warned the jury against placing “the life of a citizen in the hands of a woman.” The man was acquitted.
Both parties in this case were white, and the strangeness of the verdict has something to do with a 1765 index to the laws of Maryland: “RAPE: See Negroes.”
What do these facts have in common? They support the notion that rape historically “reinforced the exclusivity of citizenship,” in the words of Estelle Freedman. A professor at Stanford, she’s the author of a new book, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, which examines how a culture that historically distrusted both women and blacks conspired to keep both out of lawmaking—a process that has everything to do with definitions of rape.
For much of American history, white men could own others’ bodies—not only black men and women in slavery, but also white women in marriage. Until quite recently, for instance, it was not illegal for a husband to rape his wife. In the 19th century, if a young woman was raped and impregnated, her father could even sue the assailant for the lost income from his daughter’s incapacitation. Slave owners could buy black women specifically to serve their sexual urges.
With emancipation and other reforms, the laws evolved, but the practice did not. “Legal change,” Freedman said in an interview with The Daily Beast, “does not necessarily change culture.”
Throughout the 19th century, women seldom successfully brought rape charges against their white assailants if they did not have an impeccable record of chastity. Proof of full resistance was critical. In many states, the age of consent was 10.
But it was a completely different story if the accused assailant was black. Within the law, he might be hung or castrated. Outside the law, vigilantes might lynch him.
Under Jim Crow, black men could do little to defend themselves against false accusations. Similarly, without the vote, and with no presence on juries, women could do little to avenge the crimes white men committed against them. And when they did see justice, it was with a protective, proprietary sense that women were incapable of defending themselves, and that their sexual virtue was paramount to their worth.
Economic conditions played a strong role in all this sexual inequality. “The extent of lynching in the South fluctuated over time,” writes Freedman, “correlating with economic conditions. During the deep agricultural depression of the 1890’s, the practice peaked, suggesting that hard times made poorer whites more likely to attack blacks.”
Conversely, as white women began to enter the workforce and spent more time in the public sphere, they began to “draw the connection between women’s economic independence and their freedom from unwanted sexual attentions.” They used this newfound independence to lay the groundwork for many of the laws that would protect their daughters and granddaughters.
Have we come a long way? Sure: black men can have sex with white women without being automatically accused of rape. Women can bring rape charges even if they aren’t virgins, and even if they’re married to their assailants. And anyone accused of sexual assault has access to a trial by jury of peers.
But much of the rhetoric has been slow to change. Compare two statements, a century apart, on women’s sexuality: a doctor wrote in 1913 that rape wasn’t really easy, because “the mere crossing of the knees absolutely prevents penetration … a man must struggle desperately to penetrate the vagina of a vigorous, virtue-protecting girl.” Last year, Rick Santorum supporter Foster Friess said, “Back in my day, they used Bayer aspirin for contraceptives. The gals put it between their knees and it wasn't that costly.” Then, as now, men blamed women for their own sexual misfortune based on how close they kept their knees together.
Freedman also sees a correlation in the mistrust of women who reported rape then and now. “The issue in our time,” she said, “would be the issue of acquaintance rape or date rape. The critics would say, ‘If you drank, if you went to a fraternity party, if you invited him into your room, you’re responsible—women are equal, we don’t need to protect them.’”
A sign of progress, albeit a fraught one: in the Steubenville rape case, the black defendant, Ma’lik Richmond, “was widely regarded as the more sympathetic defendant,” as The New Yorker recently reported. His story followed the parameters of an underprivileged black kid blamed for the crimes of the entitled white guys he was trying to fit in with. Putting actual guilt aside, this narrative is proof of the long journey we’ve taken as a country.
“Regardless of who did what,” Freedman said, we can learn a lot from “how people are talking about it, and who are they making assumptions about, and who aren’t they making assumptions about.” These assumptions helped keep citizenship out of black and female hands for decades—now, finally, the culture is beginning to catch up with the law.