Commonplace
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www.common-place.org · vol. 3 · no. 3 · April 2003
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rape

Sharon Block, assistant professor of history at University of California, Irvine, is the author of He Said I Must: Sexual Coercion in Early America, forthcoming from the OIEAHC imprint of the University of North Carolina Press.

 

 

"While bringing an incident of rape to legal officials was undoubtedly challenging for all victims, ironically, the cases that might be most successfully prosecuted were often the most difficult for victims to bring to court."

Bringing Rapes to Court
Sharon Block

Part I | II | III

In 1786, fifteen-year-old Barbara Witmer suffered a horrific assault. A group of men kidnapped her from her Pennsylvania home at gunpoint, and one of these men repeatedly raped Barbara before her family and friends managed to rescue her. Her rescuers quickly brought Barbara to a local justice of the peace to press charges against the attackers, but she had difficulty telling the magistrates about her ordeal. One justice of the peace asked her "8 or 10 times to begin" her testimony. When she said nothing, the justice decided that Barbara was "confused" about what had happened, so he gave up and went to bed. Another magistrate, however, seemed to understand that Barbara might be too traumatized to tell her story. Rather than immediately categorizing Barbara as a confused and therefore unreliable witness, he saw her as "very bashful" about what had happened to her. This justice "spoke very mildly & told her no one could hurt her for telling the Truth." After waiting through ten or fifteen more minutes of Barbara's silence, the magistrate called in her mother and uncle to provide support, and Barbara hesitatingly told her story. Eventually, six men were convicted in the attack. The man who had raped Barbara received a death sentence.

Because the rape of Barbara Witmer was an obvious and brutal assault, it made a relatively easy case for legal prosecution. More than a dozen witnesses testified that Barbara had screamed for help as the men carried her away at gunpoint, that she had seemed terrified, and that she had immediately run to her rescuers when they found her being held captive in a nearby house. Together, these witnesses removed one of the biggest barriers to the successful prosecution of rape cases in early America: the question of whether the woman had consented to the man accused of raping her. Given that the penalty for rape was a death sentence in colonial America and up to twenty-one years in prison in the early republic, courts required a woman to be exceptionally convincing in her accusation of forced sexual assault. Researchers in women's and legal history over the past few decades have discovered a fair amount about the courtroom prosecution of rape and other sexual crimes in early America. Especially by the eighteenth century, courts seemed loathe to prosecute many rape cases, and women often had great difficulty proving to an all-male jury that they had been raped. But how did such an intimate crime—with its horrifying blend of sex and violence—ultimately become part of a public courtroom proceeding?

Barbara Witmer's experience reminds us that obstacles to successfully prosecuting rape lay as much out of the courtroom as in it. The case against Barbara's attackers was clear cut, she had supportive family members who encouraged prosecution, but Barbara still had great difficulty telling her story to legal officials. Stories like Barbara's invite us to investigate exactly how assaulted women made their way to the criminal justice system. My examination of more than nine hundred incidents of sexual coercion across British America between 1700 and 1820 shows several consistent patterns in the ways that women, families, and communities transformed private sexual assaults into public prosecutions. Layers of unwritten cultural practices shaped women's roads to legal recourse. While bringing an incident of rape to legal officials was undoubtedly challenging for all victims, ironically, the cases that might be most successfully prosecuted were often the most difficult for victims to bring to court.

After a sexual attack, a woman would rarely pick herself up and run to the nearest justice of the peace to file a legal complaint: bringing an official complaint was less often a victim's immediate reflex than the end point of a series of decisions to share her misfortune with family and community. Unlike the assailants in Barbara Witmer's case, most men committed sexual attacks without witnesses, so a victim had to independently make the difficult decision to tell someone what had happened to her. And a woman who had been sexually assaulted might have a variety of reasons to keep the attack secret. An early American double standard that held women responsible for engaging in any sexual behavior outside marriage probably encouraged women to blame themselves for not avoiding attack. Or, like Barbara, they may have been afraid of retribution from their attackers, or embarrassed at the thought of telling intimate sexual details to male court officials or jury members.

The reactions of the first people a woman told about an attack greatly influenced whether she would bring her claim to legal officials. If they did not believe her story they might encourage her to keep her secret. Even when neighbors and kin believed a woman's account, they might still think it best to avoid public legal recourse, fearing public reaction, the effect on the victim's reputation, or the legal system itself. When family members or friends did pursue judicial redress, a husband, father, master, or other male household head would generally accompany the woman to court. Because women depended on this kind of male support, daughters raped by their fathers, or servants raped by their masters, might find legal recourse especially difficult to attain. Thus, multiple factors—a woman's relation to her attacker, the reaction of those around her, and her own ability to tell others about intimate details of a sexual assault—influenced whether rapes ever came to the attention of early American courts. This extended pre-legal process not only meant that many sexual assaults might never come to the attention of a criminal justice system, it meant that the very cases most likely to result in conviction (such as fathers' abuse of their daughters) were often the least likely to wind up before a jury. Exploring how rapes came to court helps us to examine the surprisingly circuitous relationship between acts of sexual coercion and the prosecution of rape in early America.

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