The Injustices of Rape

How Activists Responded to Sexual Violence, 1950–1980

Catherine O. Jacquet

• Publisher: The University of North Carolina Press
• Year: 2019
• ISBN:
  9781469653877
• Topic: Geschichte
• Subtopic: Frauen in der Geschichte

From 1950 to 1980, activists in the black freedom and women's liberation movements mounted significant campaigns in response to the injustices of rape. These activists challenged the dominant legal and social discourses of the day and redefined the political agenda on sexual violence for over three decades. How activists framed sexual violence--as either racial injustice, gender injustice, or both--was based in their respective frameworks of oppression. The dominant discourse of the black freedom movement constructed rape primarily as the product of racism and white supremacy, whereas the dominant discourse of women's liberation constructed rape as the result of sexism and male supremacy. In The Injustices of Rape, Catherine O. Jacquet is the first to examine these two movement responses together, explaining when and why they were in conflict, when and why they converged, and how activists both upheld and challenged them. Throughout, she uses the history of antirape activism to reveal the difficulty of challenging deeply ingrained racist and sexist ideologies, the unevenness of reform, and the necessity of an intersectional analysis to combat social injustice.

CHAPTER ONE

Rape and the Law in the Mid-Twentieth-Century United States

When racial justice and feminist activists organized against rape in the mid- to late twentieth century, they targeted the law as a particularly contentious site of injustice. Activists believed that the legal system had completely failed in its responsibilities to justly and adequately prosecute the crime of rape. These legal failures, according to activists, both reflected and reinforced long-held racist and sexist beliefs about and practices toward black men, black women, and white women.

As a reflection of social norms, the law was an obvious target for activists who sought significant cultural change. In posing challenges to the law, activists were mounting campaigns not just against racist and sexist legal practices, but also against pervasive racist and sexist ideologies that privileged white men. In seeking to reform the law, therefore, activists posed a threat to the white male power structure that the law produced. For racial justice activists, challenging rape law and its application amounted to an attack on Jim Crow. Likewise, when they challenged what they claimed were centuries-old sexist legal traditions, feminists were attacking larger cultural norms that oppressed and endangered women. Many activists believed that a change in the law could result in significant social change.

Antirape activists argued that racism and sexism were embedded in rape law. From an activist perspective, white men had constructed the legal system for their own benefit, and the law codified white male privilege. This perception was largely accurate. During the mid-twentieth century, stereotypes and constructions of racialized gender alternately left black women, black men, and white women vulnerable to hostility and injustice at the hands of the courts and to suspicion and disdain in the eyes of the dominant society. Rape laws and legal practices victimized these different groups based on a complex negotiation of gender- and race-based assumptions and biases. These gendered and racialized biases informed laws, legal practices, social understandings, and responses to rape.

In practice, the application of the law significantly contradicted a legal tradition that claimed universality. In her powerful indictment of the legal system’s response to women rape victims, the legal scholar Susan Estrich argues that “all women and all rapes are not treated equally.”¹ Indeed, varying factors—including the race and class of the victim and defendant, their relationship to one another, historically specific notions of appropriate behavior, and beliefs about sexuality—precluded the possibility of a singular formula that could dictate the legal response to a rape victim or the outcome of a rape trial. However, clear patterns based on these factors did emerge. Judges and juries were often skeptical of women’s claims of rape, especially those women who knew their attacker. Most whites deemed black women unrapeable, while white women were automatically suspect for not resisting their attackers enough. Black men in the South were overrepresented amongst those legally executed following a rape conviction, while white men rarely faced conviction, let alone indictment, for raping black women. Racial and gender justice activists recognized patterns like these and, following in the footsteps of the antirape activists who preceded them, took action on behalf of victims and defendants as they identified injustices against them. While not all activist efforts focused solely on the law, an analysis of legal thought and practice reveals the larger cultural environment that activists responded to, as well as the dominant understandings of rape that they sharply contested. This also serves to explain the difficulty activists faced as they responded to the problem of rape: they challenged not only a system of laws, but also a deeply ingrained set of beliefs about men and women, black and white.

“The Sexual Nature of the Crime Is Conducive to False Accusation”

When feminists in the 1970s confronted the legal response to rape, one major point of contention was the law as it was written. At midcentury, the traditional common-law definition of rape followed the long-held formula of a man engaging in carnal knowledge “with a woman not his wife; by force or threat of force; against her will and without her consent.”² What distinguished rape as a crime, therefore, was both a lack of consent and a show of force. Additionally, according to this definition, the crime of rape was applicable only to nonmarried people and was the act of a man against a woman. This legal definition had its origins in eighteenth-century British common law. At that time, the British theorist William Blackstone defined rape as “carnal knowledge of a woman forcibly and against her will.”³ Lawmakers carried this definition almost verbatim into American criminal codes, and it remained intact over the next two centuries.⁴ This would come under heavy critique by feminists in the 1970s, who would argue that these archaic laws did not serve as deterrents to rape, made prosecution difficult, and kept conviction rates astronomically low.

Feminists further argued that both the laws of rape and the adjudication of rape cases reflected centuries-old suspicions of women complainants. According to feminist legal scholars, the laws of rape in the United States had historically been based on “the deep distrust of the female accuser.”⁵ Feminists had good reason to believe this. Like Blackstone’s definition of rape, the words of the seventeenth-century Chief Justice Matthew Hale also carried over from Britain to the United States, and their interpretation held enormous influence. In his posthumously published History of the Pleas of the Crown (1736), Hale famously wrote that a rape accusation was “easily to be made and hard to be proved, and harder to be defended by the party accused, tho’ never so innocent.”⁶ U.S. legal authorities in the revolutionary era interpreted Hale’s statement to suggest that women frequently lied about rape and that, by extension, most accused men were innocent. This interpretation quickly gained prominence. Late eighteenth-century legal manuals, for example, repeated Hale’s words of caution alongside stories of innocent men who had been convicted of rape.⁷ Over a century later, fears of false allegations continued unabated. In his research on child rape and campaigns to raise the age of consent in early twentieth century New York City, Stephen Robertson found there was a general “suspicion of and hostility to females that ran through all the facets of the legal response to a woman’s charge of rape.”⁸ Indeed Hale’s statement stands out in the history of rape for its incredible staying power. As the historian Sharon Block has argued, Hale’s was “the most significant legal statement on the adjudication of rape cases,” and the widespread belief in the duplicitous woman who falsely alleged rape remained strong well into the twentieth century.⁹ By the 1950s, the lying woman was a well-established and familiar trope, providing a foundation for the majority of legal discussions on rape in the United States. At this time—an impressive two centuries after Hale wrote—law journals and judicial opinions nationwide consistently invoked his statement to reinforce dominant beliefs that rape accusations were difficult to defend against and that false accusations by women (a term unqualified by race or class) were an all too frequent occurrence. These fears of false accusations and easy convictions dictated American approaches to rape law into the late twentieth century.

Yet there is more to Hale than his famous quote would suggest. Recently, the British historian Garthine Walker cast a new eye on Hale’s work, finding that the chief justice was largely concerned with evidentiary standards in cases of rape and that he did not, in fact, believe all accused men to be innocent. As Walker explains, in History of the Pleas of the Crown, Hale also “pointed out that ‘many times persons [prosecuted for rape] are really guilty, yet … evidence as is satisfactory to prove it can hardly be found.’ ” It would appear that Hale, later cast by feminists and others as a “misogynistic defender of rapists,” was largely concerned with the rules of evidence for a crime that, during his time, was punishable by death. Thus, from Hale’s perspective, it was better to be cautious in such cases, which—along with cases of witchcraft—created “the greatest difficulty” from the standpoint of evidence. As Hale saw it, “better that ‘five guilty persons should escape unpunished, than one innocent person die.’ ”¹⁰ Despite Hale’s concerns with the rules of evidence, this was not the takeaway that history would grant him. Rather, mid-twentieth-century legal scholars cited Hale’s statement to prove that most rape allegations were false. And they did so with conviction, as if a man’s life were at stake, when in fact capital punishment was very rarely meted out for most rape convictions by that time. In fact, during the mid-twentieth century, the death penalty for rape was largely reserved for black male defendants—a group that did not concern most white legal scholars.

Though Hale’s statement is remarkable for its staying power, the lying woman was never a static concept, applicable to all women across time and space. As the historian Estelle Freedman has aptly demonstrated, the political, cultural, and legal understandings and definitions of rape have consistently been in flux throughout American history. Consequently, who was deemed a believable or unbelievable rape victim also changed over time and was based on varying factors, including the class and race of the victim and defendant, as well as their relationship to one another.¹¹ Claiming a false allegation was never an available defense for all men charged with rape. Furthermore, for those men who did rely on the false claim to defend themselves, it did not always guarantee their acquittal. The history of U.S. rape laws and adjudication is nothing if not inconsistent. Nevertheless, the duplicitous woman loomed large in the American legal imagination, and scholars and lawyers in the mid-twentieth century carried on a tradition of general skepticism and suspicion when considering women’s allegations of rape.

Fears of false allegations gripped legal authorities in the United States at midcentury. In a 1957 University of Illinois Law Forum article the Chicago-based lawyer Luther C. McKinney wrote, “some women are capable of falsifying their version of a sexual experience to the extreme of bringing erroneous criminal charges.” This was particularly dangerous for innocent men because “if the prosecutrix is capable of fabricating a story she may be equally capable of convincing the jury that it is true.”¹² That same year Indiana Judge James A. Emmert asserted in a dissenting opinion: “From the time of Blackstone, the dangers of a female’s false accusations of rape causing an innocent victim to lose his life or liberty have been clearly recognized by all well considered authorities.”¹³ Similar to his colleagues, Emmert did not take into account his own historical context, where a convicted (white) rapist almost never lost his life. He also failed to cite any cases where it was found that a false allegation had resulted in a conviction.

Emmert and his contemporaries were by no means the first to suggest that false rape allegations resulted in the execution of innocent men. This belief first emerged in the United States in the 1830s, when doctors and lawyers began making “hyperbolic statements” and circulating “unsubstantiated claims that women’s unreliable testimony had sent men to the gallows.”¹⁴ Despite the fact that very few states allowed execution as a punishment for rape in the early nineteenth century, the fear of innocent men being put to death took hold.

Over a hundred years later, fears of false rape allegations continued to hold strong. In the 1950s, comments, notes, and articles in leading law journals repeatedly cited the belief that “the sexual nature of the crime is conducive to false accusation”¹⁵ and that more than any other crime, false claims were “perhaps greatest with sexual offenses.”¹⁶ Until the 1970s jury instructions for rape cases in California clearly reflected these anxieties, quoting Hale almost verbatim. The instructions read: “A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent. Therefore, the law requires that you examine the testimony of the female person named in the information with caution.”¹⁷ Overblown fears of false accusations and wrongful convictions of innocent defendants consumed legal scholars, informing beliefs and practices in rape law.

While legal scholars remained fixated on the protection of innocent men, there is no indication that this reflected the same concern that many civil rights lawyers and activists had for black men whom they believed to be unjustly convicted and punished on false charges of raping white women. Since the 1930s, communists and civil rights activists had called national attention to notorious black-on-white rape allegations in the South, where capital punishment for rape was legal.¹⁸ In many of these cases, a white woman (or white women) claimed rape with very little evidence under extremely suspicious circumstances. Black defendants were charged, convicted, and sometimes sentenced to death by the racist Southern legal system. The infamous Scottsboro case of 1931 served as a vivid example. In this case, two young white women accused nine black youths of rape on a train heading from Chattanooga to Memphis, Tennessee. Stopped in Paint Rock, Ala...