Crime and Punishment in American History - Lawrence M. Friedman [138]
Nowhere was this as clear as in the law of rape. The flat, legalistic words of the law books covered over male biases and assumptions. For one thing, the law really protected only “respectable” white women (and their menfolk). Women who were not “respectable,” or who were black, or Native American, were effectively outside the circle of protection. Of course, the words of the statutes never said as much, but that was the practical result; it was rare for poor or black women to seek or get justice after rape.20 In general, too, men and women had, on the whole, different ideas about what constituted force, violence, unfair coercion; and women’s ideas were not the ones translated into law, or taken into account there.
Rape was a classic crime, with a long history behind it. Every state had its own statute, from early on. Rape was violent, nonconsensual intercourse: it was a crime to “ravish,” as a New York law of 1787 put it, “a married woman, or maid, or any other woman.” Other acts, too, were labeled rape. The New York statute made it rape to “know and abuse any woman child, under the age of ten years . . . unlawfully and carnally.” This was so-called statutory rape: sex with a child was taboo, and “consent” was no defense at all. A special provision applied to rich women, women with “substance,” either in “goods moveable” or “in lands and tenements” or who were “heirs apparent unto their ancestors.” If some villain wanted their “lucre,” took them against their will, and either married them or “defiled” them, this, too, was a felony, and, like rape, was punishable by death.21 The language of the rape laws became less archaic over time, but the formal law did not change very much before 1900.22 The southern states retained the death penalty for rape. In Alabama, for example, the jury had discretion to decide between death or life imprisonment.23
We have already seen the role of rape on the southern racial code. To convict of rape, North or South, the law required proof of “penetration.” Nothing short of this would do.au (Southern lynch mobs were less fussy.) And penetration had to be violent. Consent was a defense to rape, since the law required the “carnal knowledge” to occur “forcibly and against her will.”25 But the yardstick, in practice, was what the average male considered consent; and there is no reason to think that this was the same as what the average woman might think. “Just say no” was not official doctrine. The law required the woman to put up a real fight; anything less was considered a kind of grudging consent. Popular culture glorified the woman who defended her honor—even to the death. Thus, in 1894 Clara Casper, a seventeen-year-old of Fort Lee, New Jersey, “fought for her release until her strength gave way, finally fainting”; and Minnie Rauhauser, also seventeen, of New York City, fought off the advances of William Miller, a toolmaker. He cut her throat “from ear to ear,” and thus she died, according to the New York Times, “bravely in defense of her honor.”26 A woman who yielded, even under pressure, had really no right to complain. A woman was supposed to resist with every ounce of her strength.
The reported rape cases underscore this point. Charles Dohring, of New York, was convicted of raping Frederica Brussow, a servant, fourteen years old, in 1874. He trapped her (she said) in the barn, fastened the door, and threw her down on the ground; she started to cry, and he promised to “buy her a new dress” if she let him