Crime and Punishment in American History - Lawrence M. Friedman [139]
Had she resisted enough? A woman must use (said the court) the “utmost resistance,” the “greatest effort of which she is capable . . . to preserve the sanctity of her person.” Resistance must go to the point ”of being overpowered by actual force, or of inability from loss of strength longer to resist, or from the number of persons attacking resistance must be dangerous or absolutely useless, or there must be duress or fear of death.” After all, this was what one had a right to expect; what woman (said the judges) would not be so “revoltingly unwilling” to be raped that she would not “resist so hard and so long as she was able”?28av
In theory, violating any woman, even a prostitute, was rape; but, as we have said, the practice was rather different. At least one southern court flatly rejected the idea that there could be such a thing as the rape of a black slave. After slavery died, southern courts (and lynch mobs) wreaked horrible revenge on black men accused of “defiling” white women; white-on-black rape was, apparently, rarely if ever prosecuted. But white or black, if a woman was not “chaste,” not respectable, she had little hope of bringing a rapist to the bar of justice. The statutes did not, of course, make this point. Technically, it was a question of evidence, and a question of convincing a jury. But in actuality, the law protected “the unsullied virgin and the revered, loved and virtuous mother.” One could hardly expect it to defend the “lewd and loose prostitute ... whose arms are open to the embraces of every coarse brute who has money.”30
It is very hard to get accurate figures on rape. This is true today, but even more hopeless for the past. The law was tilted away from the concerns of women victims, which discouraged these victims from coming forward.aw “Respectable” women were very reluctant to report rapes, because of shame, prudery, the trauma of the legal process, and the stigma that attached itself to the victim. And women who were not “respectable” were in no position to complain. What does seem clear is that rape was always among the least-reported, least-prosecuted, and least-punished of the major crimes.
Virtue and Seduction
Rape was a violent crime, but the core of the crime was not violence; it was defilement. As a Georgia court put it, the “citadel” of a woman’s character was “virtue; when that is lost, all is gone . . . She esteems herself as put to the ban of society, and as incapable of deeper degradation.”31 Sex except with her husband “ruined” a woman, destroyed her life’s chances, made her unfit for polite society. “Virtue” meant chastity for an unmarried woman, total fidelity for a married one. Loss of virtue was an unparalleled catastrophe—the worst thing that could befall a respectable woman. Whether these women themselves thought so, of course, is another question; basically, nobody asked them.
Themes of virtue and ruin underlie the statutes on rape. So, if a man “wilfully and maliciously” has “carnal knowledge of a married woman,” by “pretending to be her husband,” the act must be punished as if it were rape (according to a Tennessee law). This statute also contained a clause, quite typical, that made it a crime to have “carnal knowledge” of a woman by “administering to her any substance, or by any other means producing such stupor, imbecility of mind, or weakness of body, as to prevent effectual resistance.”32
Men’s attitudes toward loss of virtue seem somewhat hysterical to us in retrospect. Occasional cases of sexual trickery probably reinforced these attitudes. In an interesting Michigan case, the defendant Moran “violated” a girl of sixteen, who had been delivered to him for treatment for consumption, a disease Moran claimed to be “skilled” at handling. He told her a wild story about her condition; her uterus was “inverted,” which was a most perilous situation. He could either operate,