Crime and Punishment in American History - Lawrence M. Friedman [363]
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There were, of course, exceptions, such as Mabel Keating, the “pickpocket queen,” the “most adept and dangerous of all the women in her class.” This striking woman with hazel eyes was twenty-six years old when scooped up by the police in San Francisco in 1896.5
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Mrs. Bumble had admitted stealing a locket and a ring. Mr. Bumble said “It was all Mrs. Bumble. She would do it”; only to be told that “the law supposes that your wife acts under your direction.” This was the statement that evoked Bumble’s famous reply. He continued by saying, “If that’s the eye of the law, the law’s a bachelor; and the worst I wish the law is, that his eye may be opened by experience.”11
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In a Massachusetts case of 1873, the defendant, Jason Reynolds, was charged with “illegal sale of intoxicating liquor.” The evidence was this: two men twice went to Reynolds’s house and bought whiskey from his wife in the kitchen. The defendant was not “present” but came in “while the witnesses were there,” and said nothing to them at all about the liquor. Was Reynolds guilty of a crime? The judge instructed the jury that he was, if his wife was acting as “his agent or servant.” It was legally significant that they were together in the house, “in the usual relations of marriage.” The jury convicted, and a higher court affirmed. The case, obviously, rested on an idea like coverture: the subordination of wives to their husbands.17
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Of course, the societies that burnt women at the stake and nailed men to the pillory considered themselves Christian civilizations, too—indeed, very Christian and very civilized. But legal memories are short.
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On penetration, see, for example, Davis v. State.24 The victim’s mother found the victim, a white child, on the ground with defendant, a black adult male, “in the act of copulation.” The victim had red, swollen “private parts,” but no blood or lacerations. A doctor, testifying for defendant, claimed that a “man of his dimensions” could not have penetrated without lacerations. The appeals court reversed because there was insufficient evidence of penetration.
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Despite this language, the court affirmed Dohring’s conviction, saying that, while the victim “may or may not have done all that she could do,” it was for the jury to judge.
A few courts seemed to allow women to be a bit less heroic in their resistance and still claim rape; one such was State v. Shields.29 This case was also unusual in that the victim, who suffered a gang rape, was not exactly a pillar of the community; in fact, there was testimony she had once lived in a “house of ill-fame.” Presumably, as a married woman, she had mended her ways.
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Male fear that women might blackmail them or accuse them falsely of rape was an important factor in shaping the working law of rape. No doubt there were some instances of blackmail. And certainly the accusations were false in some of the southern cases where white women accused blacks of rape or attempted rape.
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Of course, the court admitted, a woman could repent and reform, and presumably become (more or less) chaste again; but there was such a short interval here between “illicit” acts that this theory did not hold water.
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This ordinance so outraged a certain L’Hote, of New Orleans, that he fought it all the way to the U.S. Supreme Court. L’Hote’s problem was that his home was perilously close to the edge of the district. His neighborhood (he said) was made up of “moral, virtuous, sober, law abiding and peaceable” citizens. The ordinance, he felt, would attract “lewd and abandoned women,” and people coming to the area “to gratify their depraved appetites.” The ordinance thus amounted to a “taking” of his property, for which he demanded compensation. But the Supreme Court brushed his objections aside.74
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Thus, to take one