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In early June 1848, three Virginia slaves went on trial in Gloucester County for the rape of a white woman, Caty Smith. Piecing together information put forth by various prosecution witnesses, including Caty Smith herself, we learn that on a Saturday night in March, two slaves owned by Edward Hale, Tom and Kit, along with a third slave, Edmund, property of Peter W. B. Hughes, passed some time socializing at Hayes's Store with at least one other slave. No doubt the three slaves were exercising what little freedom their bonded status allowed them at the end of a long week of toil for their masters. Others present at the store claimed to have overheard Kit bragging about plans of the three for a night of carousing that included looking "for girls." Advised that there were no black girls "down there," an undaunted, impish Kit replied that "there was Caty Smith and old Aunt Edy and they were going to give old Caty Smith something that night."
According to testimony, the three slaves broke down the door to Smith's home about nine o'clock, when Smith was already in bed for the night. Although Smith's husband was not home at the time, "Old Aunt Edy," "an old negro woman," was there with her. The intruders appear to have tried to disguise their identities by claiming to have been from New York. But Smith recognized her intruders, whom she claimed to have known since they were "knee high." According to Smith, Edmund made known his purpose, and though she protested that "there was nothing for them," he took her in his arms, threw her on her bed and instructed Tom to pull her bedclothes over her head and to restrain her arms. In Smith's words, Edmund then ravished her. After he had finished, Tom got into bed with Smith while Kit positioned himself to hold Smith's arms. Although her own nightclothes, which had been pulled over her head, greatly muffled her screams, Smith managed to cry out loudly enough to alert two male passers-by, Joseph Tilledge and William Teagh, who responded to her cry for help. When the two men opened the door, the intruders escaped, despite the best efforts of the would-be rescuers.
Edmund proved the only one of the three slaves whom either of the two men could identify with certainty. In fact, much of the defense's questioning at trial focused on the difficulty that the eyewitnesses had in identifying the defendants. Old Aunt Edy, with only one good eye, was convinced of Edmund's identity, but unsure about the other two. Unsure, that is, until she later heard what the three had purportedly said at Hayes's Store, after which she became certain of their identities.
Perhaps because of this doubt, after hearing the evidence and deliberating the jury exonerated Kit. Edmund and Tom were not so fortunate. The jury found them guilty and sentenced them to hang. But their story does not end there: 182 empathetic residents of Gloucester County petitioned the governor of Virginia for clemency on behalf of Edmund, citing mitigating circumstances. First was the "notoriously bad character" of Caty Smith. It was, they wrote, "rather from the temptations offered by ... Caty Smith than from wickedness of purpose that the unfortunate boy formed a connection with Caty Smith which has resulted so tragically for him."
Second, the petitioners contended that a death sentence in this case would not necessarily deter future acts of slave rape. Edmund's hanging, his supporters predicted, would not "have the effect intended by the terrible exercise of that power." Finally, the petitioners lauded Edmund's character, and conduct that heretofore had been good. Edmund's youth (his age is never stated in the records) and his "ignorance of the awful consequences of the act for which he now awaits his final doom" also were presented as mitigating factors. Importantly, the petitioners never pronounced the slave, in their words the "unfortunate boy," innocent of the alleged offense. Nor is there even a hint of remorse conveyed by the convicted slave felon. Rather, the petition advises that the offense for which Edmund was convicted was "not so heinous as at first might be supposed." Instead of death, the white Virginians pleaded with their governor to commute Edmund's sentence to transportation out of the state.
In the end, not one of the three black men, all slaves, who stood accused of either sexually assaulting a white woman or aiding another in the act, died at the hands of an executioner, or a mob for that matter. That white Virginians seized a pen instead of rope and fagot to deal with accused slave rapists seems irreconcilable with our image, largely the product of the postbellum period, of lawless, unrestrained lynch mobs bent on vigilante "justice" and retribution. Not only did the three men receive a trial, presumably attendant with certain procedural rights, but at least one became the object of many white citizens' sympathies and concern.
The collective white fear and anxiety about black sexual assault that loomed large in postbellum southern society is conspicuously absent in the rape case of Edmund, Kit, and Tom. In fact, the vast majority of antebellum cases in which white females officially charged slaves with rape or attempted rape proceeded rather calmly through proper legal channels. Only rarely did vigilantes attempt to supplant the authority of local courts and officials. Furthermore, although convicted black rapists faced execution for their crimes, many took advantage of procedural rights accorded them and appealed their convictions. Once judicial avenues of appeal were exhausted, slaves facing the death penalty-or, probably more accurately, whites acting on their behalf-could marshal white community support to solicit the governor for executive pardon or commutation of the sentence to transportation out of the state, which state executives regularly granted. That slaves, convicted of raping or attempting to rape white women or girls, stood a reasonable chance of escaping capital punishment belies claims that the rape myth exercised considerable sway in antebellum southern society. Simply put, the image of the menacing black rapist did not become the obsession of the southern white mind until sometime after emancipation.
Although rape laws unequivocally spelled out harsh penalties for black men who sexually assaulted white females, some white female accusers had an easier time than others in convincing juries of the truthfulness of their claims and seeing their alleged rapists punished to the fullest extent of the law. Poorer females were more likely than wealthier females to face a hostile courtroom and dubious white community. Females without male protectors appear to have been treated more shabbily than those with fathers, husbands, or other male kin acting on their behalf. And women who deviated from accepted sexual codes of behavior could find themselves as much on trial as their alleged attackers.
White witnesses often broke ranks (if ever any existed) with a dubious white accuser and testified for the alleged rapist or questioned the integrity of the white female accuser, especially if her past actions smacked of libidinous indiscretion. In the case of Edmund, Kit, and Tom, their white intercessors alluded to Caty Smith's "notoriously bad character," suggesting that the sexual infractions committed by at least one of the accused had been encouraged by "temptations offered by ... Caty Smith" herself. Sarah Sands of Henry County, Virginia, like Smith, found that her whiteness failed to shield her from probing and embarrassing questions about her most intimate conduct. Sands claimed she had been raped by a slave named Jerry, owned by Edward Osborne. Jerry was tried in the local court in 1807, found guilty, and sentenced to be hanged. A petition to the governor by Jerry's legal counsel, Peachy R. Gilmer, purported to reflect the sentiments of others who attended the trial, and argued for a reduction in sentence from execution to transportation. Gilmer based his request on Sands's "very infamous character," a reputation she no doubt earned living as another man's concubine. And if questionable character were not enough to erode Sands's credibility, the petition also noted her size. Gilmer portrayed Sands as "large and strong enough to have made considerable resistance if she had been so disposed, yet there was by her own confession no mark of violence upon any part of her." Nineteenth-century legal standards required unequivocal proof of physical resistance by women accusing men of rape. Without such evidence, jurists would likely doubt claims of rape, even in cases where the accuser was white and the accused black.
Undoubtedly Jerry's counsel presented this same evidence at trial but the jury, for whatever reasons, rendered a guilty verdict. In this case, testimony about the deviant sexual behavior of the accuser appears not to have convinced the jury that Jerry should get off scot-free. Guilty verdict notwithstanding, some white members of the community did not feel the taking of a rapist's life, even a slave's, commensurate with the offense, given what they clearly believed to be extenuating circumstances. Consequently, a number of them took action and successfully presented their case to the governor, who granted Jerry a reprieve. Jerry, like Edmund, had stood accused and been convicted of raping a white woman in the antebellum South. And though the law prescribed the noose, both escaped it.
White women who flouted prevailing sexual mores, especially those who crossed racial boundaries willingly to have sex with black men, often faced derision by the white community and courts. White southerners could turn viciously on white female accusers who were believed to have broached racial sexual boundaries. A group of Virginians, for instance, made an appeal in 1803 on behalf of Carter, a slave found guilty of raping a poor white woman, Catherine Brinal, who, like Sarah Sands, had a reputation for cavorting with African American men. Illicit sex with white men was cause enough for social ostracism, but when a white woman crossed the color line, the transgression was much more egregious.
The petitioners, including some jury members, conceded that Carter had committed the rape upon Brinal, a fact that had compelled the jury to find him guilty. Yet facts in evidence warranted a reduced sentence. For one, it appeared that Catherine Brinal was "a woman of the worst fame, that her character was that of the most abandoned in as much as she (being a white woman) has three mulatto children," all, by her own admission, fathered by different negro men.
Further mitigating Carter's actions, according to the petition, was that Brinal had "no visible means of support." In short, she was a poor, single, unmarried mother. The petitioners further suggested that Brinal had permitted Carter to have "peaceable intercourse with her, before the time of his forcing her." If true, and of course there is no way to know for sure, it is entirely possible that Brinal had been bartering or selling sex with a slave to support her family, an act that would have surely earned her the scorn of the community. And in the eyes of the community, once Brinal consented to "peaceable" sexual relations with Carter, she effectively forfeited her right to deny him sex at any future time. Brinal, and white women like her, who transgressed prevailing sexual conventions about race and sex paid a heavy price-their right to reject prospective sexual advances, even those of a slave. Carter, having cheated the executioner, was transported out of the state.
The pattern in many of the black-on-white rape cases is that a jury found the accused slave guilty of rape but followed up with a recommendation for leniency. It should not be surprising that all-white juries in antebellum slave rape trials felt obliged to render guilty verdicts in most cases of slave rape brought before them. Harsh rape statutes for slaves left little to no room for juries to exercise leniency. Convinced of mitigating circumstances, such as a dubious sexual history on the part of the accuser, many juries nonetheless sought to circumvent the letter of the law by advising governors to issue pardons. This was the case in the trial of Winky and Dennis, two slaves in Virginia convicted in 1800 of raping Ann Bacchus, a widow of "infamous" character. Jurymen, as well as other community members, showered the governor of Virginia with requests for pardons. According to several of the petitions, Ann Bacchus had been "for more than thirty years a woman of abandoned character and infamous practices." The defense had presented similar evidence at trial, specifically that Bacchus had been in the habit of "intimate intercourse with Negroes." The jury manifested its conflicted deliberations by in effect handing down a guilty verdict with extenuating circumstances. The jurymen apparently believed that the two slaves had had sex with Ann Bacchus, but they held her partially culpable. In other words, the slaves' sexual affront, if there had been any, was entirely understandable in light of Bacchus's shady past. The jury's compromise was to issue a guilty decision while requesting pardons for the two, which were granted.
Similar issues occupied court officials, including magistrates and the prosecuting attorney, in Hanover County, Virginia, in 1808 after the conviction of Peter, a slave, for the attempted rape of Patsey Hooker. Although the court sentenced Peter to be castrated, fifty-seven petitioners presented the governor with a formal request to waive the prescribed punishment. One letter accused Hooker of being a "common strumpet." Another described her as a "common prostitute" who had given birth to several "bastard children." Hooker, unable to deny having had sex outside marriage, did nonetheless deny having been intimate with black men.
A slave in Halifax County was convicted of a violent sexual attack in 1860 on a white woman named Mary Jane Vaughn but was pardoned by the governor and eventually transported out of Virginia. The mitigation of the death sentence was due at least in part to the defense attorney's attack of Vaughn, the accuser. Under cross-examination Elisha Barksdale, George's legal counsel, demanded to know how many times she had been to the home of Mary Dewes, George's owner, who lived about two miles from Vaughn. Defense counsel also sarcastically wondered out loud how Vaughn could have been so sure of details, such as the design of her attacker's pants, at nighttime, without the aid of light: "Please explain how it is that you had the leisure to examine very small stripes in his britches." Though Barksdale adeptly avoided any direct question that touched on inappropriate sexual behavior by Vaughn, he seemed to be trying to capitalize on her family's illicit past. Sally Vaughn, the accuser's sister, had an eleven-year-old daughter and no husband.
Excerpted from Rape and Race in the Nineteenth-Century South by Diane Miller Sommerville Copyright © 2004 by The University of North Carolina Press. Excerpted by permission.
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|1||Not so heinous as at first might be supposed : slave rape, gender, and class in old South communities||19|
|2||A manifest distinction between a woman and a female child : rape law, children, and the antebellum South||42|
|3||He shall suffer death : black-on-white rape law in the early South||72|
|4||The very helplessness of the accused appeals to our sympathy : rape, race, and southern appellate law||86|
|5||Against all odds? : free blacks on trial for rape in the antebellum South||102|
|6||Rarely known to violate a white woman : slave rape in Civil War-era Virginia||120|
|7||Our judiciary system is a farce : remapping the legal landscape of rape in the post-emancipation South||147|
|8||Foul daughter of reconstruction? : black rape in the reconstruction South||176|
|9||The old thread-bare lie : the rape myth and alternatives to lynching||200|
|App||Rape, race, and rhetoric : the rape myth in historiographical perspective||223|