Rape and the Corrupt Judicial System of Colonial America
The definition and consequences of rape have evolved throughout the history of America to suit the mindset of the time. Records indicate that a man in the seventeenth century was convicted of attempted rape if "he used enticement and then force [toward a woman], driven by the sinful lusts that raged within him...and he allowed her...to scare or fight him off"(Dayton 238). Unfortunately, this definition was not always taken at face value. The leading men of the seventeenth century, presumably white men, altered this definition in a variety of ways to work in their favor when accused of rape. It can be concluded from research of historical data that the reason there are fewer reported rapes against white males in the seventeenth century and more against non-white males was because women gave in to a society driven by the manipulation and dominance of white males in the judicial system
. This notion is exemplified through a look into the outcome of a number of rape cases against both white men and non-white men, through an understanding of the helpless position of women, and through a look at the source of the white man's anger toward the non-white male: their view of the non-white male as the "other."
The justice system of the colonial times refrained from punishing white males but did not waver from finding fault with the actions of females, causing women to hesitate at reporting rape against white men. Two famous cases in history, those of Martha Richardson and Goodwife Fancy, exemplify this notion. Martha Richardson had gotten pregnant before her wedding with a man other than her fiancé. Upon this surprise, Martha recalled fainting at her master's house some time ago in the presence of two white males and concluded that one of them must have raped her. However, the court ruled that Martha's story could not be true, for "a woman who was raped- who had no delight in the act- could not conceive. Martha Richardson had conceived and borne a child, and thus she deserved to be 'publiquely and severely corrected' as a fornicator" (Dayton, 241). This verdict goes to show that the justice system favored protecting the reputation of white males over females, for this decision was an attempt to find the most logical reasoning as to why white males were innocent and females guilty. They did not search for the truth, but instead for ways to prove the innocence of white males. The second case was that of Goodwife Fancy, a servant who claimed to have gotten raped by a number of white men, but whose husband had advised her to not speak of it to anyone. When the case finally went to court after two years, the verdict concluded that  The Fancys- she for concealing her tribulations as he...[for] 'neglecting the timely revealing of' the attacks- were both ordered to be severely whipped" (Dayton 235). This case, again, goes to show that the courts did not look for the truth in the cases, but instead looked for technicalities by which they could get the accused white male off. The courts in the colonial times were not upholding justice; their intent was just to look out for the reputation of white males accused of rape.
Verdicts such as those of the Richardson and Fancy cases created a sense of helplessness among colonial women when dealing with the justice system and rape by white men, leading them to refrain from reporting rapes committed by white males. In both these cases, for example, the guilt of the men was adequately exemplified; however, the courts instead managed to find fault in the actions of the women. It was an accepted fact in colonial society that in the majority...of rape cases [involving white men] the woman's word was not vindicated by the legal outcome...Women had reason to believe that their experiences with sexual harassment and violence would not be treated seriously" (Dayton 260-261). It seems as though the system was looking for any excuse possible to preserve the honor of their men, even if it meant diminishing that of their women. Once colonial women came to understand this, they began to lose hope in the degree to which their justice system would protect them. Women realized that "male jurors hesitated to convict [white males] not only because a recantation was an ever-present possibility but also because they found it difficult to believe that an unmarried woman had truly withheld her consent and had not in some fashion invited the man's advance" (Dayton 261). Women seemed to be the scapegoats in colonial society when it came to the issue of rape. Their words, integrity, and honor were not only doubted, but discredited. The court was adamant that "charging [women] who had complained against acquitted defendants [would] discourage further complaints" (Hartog 320). This tactic appears to be a tool used to induce a sense of fear in women. The justice system was warning women that it was only going to be a waste of time to report rape against a white man. This "failure to indict assailants for anything less than the capital crime of rape undoubtedly discouraged women and their families from reporting assaults" (Dayton 232). It is impossible to find justice in a system that is predisposed to corruption. As a result of this, women found themselves in a helpless position in which they were subject to the dominance of the white male.
The justice system of colonial times was much more understanding and protective over women when they claimed to be raped by a non-white male, leading them to not hesitate in reporting a non-white rape. Two cases that exemplify this notion are those of Indian Robin and Sergeant John Potter's daughter, May. In the first case, Indian Robin was accused of raping two white girls, and the verdict found the two white girls completely innocent. In addition to this, the verdict stated that the two girls should not receive any punishment for having participated in such an act, for they were "persons of weak and Imperfect understanding" (Dayton 243) Also, the jury "could imagine [Indian Robin's] sexual relations with two young white women only as involving coercion on his part and lack of full consent on their part" (Dayton 243). This ruling demonstrates the discrimination that was present against Indian Robin for it seems the only reason the girls were found innocent is because the man they were accusing was an Indian. This case gives the impression that the jury allowed its personal opinions about non-whites to interfere with their decisions on court cases. The second case of this kind is that of Sergeant John Potter's daughter, May, who gave birth to a baby of dark complexion, after which she admitted to having sexual contact with a black slave named Cush. Although May had given birth to an illegitimate child, she received no punishment for her actions, validating the point that this case was viewed as one of coercion. Cush, on the other hand, received "a more severe whipping than that meted out to white fornicators" (Dayton 243). It appears as though the courts were even willing to overlook their own laws, such as punishment for the birth of an illegitimate child, in order to prevent the punishment of white females accusing non-white males of rape. This was a clear sign of injustice on the part of the colonial court system, for it looks as though the court was predisposed to convict any non-white male accused of rape.
This discrimination, led by white males and directed at non-whites, took place because colonists viewed non-whites as the savage "other." This existent prejudice against non-white males in the judicial system is demonstrated through statistical evidence. For example, "Two-thirds of the men indicted on rape-related charges from 1700 to 1790, and all six of those sentenced to hang, were blacks, Indians, foreigners, or transients" (Dayton 233). Through this fact, one can presume that there was prevalent injustice shown toward non-white males, for it is unlikely that white men in colonial times were almost always innocent of rape, while non-whites were incapable of repressing their lust. The English colonists compensated for this difference by convincing themselves that "Britania prevails, and does so over a race that may be martial and powerful but is at base savage" (Vilbert 107). This image of non-whites as a savage group cultivated from the notion that the other, being the non-white, was uncivilized, while the colonist, being the self, was sophisticated. This in turn, created a sense of superiority in white men toward non-whites.
Many of these beliefs about non-whites originated from captivity narratives of the English who, at one time or other, lived with the Indians. One such narrative is that of Mary Rowlandson, who provides a graphic image of the Indians' treatment of white captives. She reports that the Indians "knocked [them] in the head...stript [them] naked, and split open [their] Bowels" (Rowlandson 68). The Indians also "gap[ed] before [them] with their Guns, Spears and Hatchets to devour [them]" and "knocked [her sister's son] on [the] head" as they saw his leg was broken. (Rowlandson 69) The English formed their impression of the Indians based on accounts such as these and therefore grew to perceive them as the savage other. This view of non-whites, which was established in the minds of the colonists and English society, led the English to be "incapable of recognizing 'the others' they met as both different from and equal to themselves" (Axtell 259). Instead, "The 'other' remained for them an object, never a subject in his own right, and therefore the constant victim of intellectual and physical oppression" (Axtell 259). It seems as though it was this inferior view of non-whites that caused the colonists to discriminate against them. Non-whites became victims of a society that could not accept their own faults, causing this society to sublimate their own wrong doings upon the other: the non-whites. Rowlandson herself, however, makes clear in her narrative that no violence that was specifically sexual was ever directed at her by her "savage" captors: she states emphatically that she was never raped: "not one of them offered the least imaginable miscarriage to me" (Rowlandson 84).
The only wrongdoing whites males were not able to get out of was incest; however, the severe consequences of the crime of incest for the female victim were another reason why women refrained from reporting rape charges with white male family members. It cannot be denied that incest was the one crime for which white men were thoroughly prosecuted, for "[t]he only...illicit sexual exchange to which judges and jurors applied the same logic was when they were convinced that a black man or a white stranger had raped a white woman"(Dayton 282). However, the female victim in such cases also got her share of punishment for being involved in the exchange. The punishment for men and women convicted of the charge of incest was "a severe whipping, shaming on the gallows, and the wearing of an I [for incest] on their clothing"(Dayton 274). A case in which this very severe penalty was issued upon a female victim of incest is that of Sarah Perkins, who was raped by her father John Perkins, Jr. Sarah did not deny the fact that she had engaged in the act with her father, however, she added that "she always opposed him by arguments, and was never willing to comply with him, and that he ha[d] been want to kick and strike her for noncomplyance, and that he ha[d] threatened her he would have her hand cut off for being a disobedient child and to disinherit her and to have her stoned to death for not falling in with his motions"(Dayton 279). The courts response to this emotional testimony was that Sarah was to stand on the gallows, get whipped with ten stripes, and wear an I on her clothes for life. This case in itself demonstrates the irrationality of the court when it came to judging the punishments of women. It is not the fault of a girl if her father forces her to engage in sexual acts with her and threatens to take her life otherwise, but the court overlooked this point in colonial America
and instead, tried the find the greatest possible level of fault in the woman. It seems as though even if the white male was found completely guilty, as in most cases of incest, the court was still adamant on its mission to find fault in the acts of the girl. Many women in this situation grew to feel that in the big picture, it was not worth reporting cases against white males, for it seemed to hurt themselves just as much as it hurt the felons.
Women in colonial society were established as mere puppets in the hands of white men when it came to the issue of rape. All colonists knew that the determining verdict in a case of rape "had less to do with...amicable resolution...than with the maintenance of a county structure of authority" Hartog 321). White men held an honorable, respected, and powerful position in this society, so they were very careful to maintain that reputation both at the time being, and for future generations to come. However, one must consider that "materials for this era are documents written...by white men" (Vilbert 133). This fact explains why the non-white men were misrepresented, to a large part, in these records. Europeans and English colonists possessed a false image of non-white males, causing these outsiders to be heavily discriminated against in seventeenth century America, particularly in cases involving rape. Historical data proves the notion that the reason there were more documented rapes committed by white men in colonial America was because the societal pressures invoked upon women by these leading white men had forced them to surrender their pride and give in to the corrupt
judicial system under whose ultimate power their fates depended.
Axtell, James. Beyond 1492: Encounters in Colonial North America. Oxford University Press, 1992.
Dayton, Cornelia Hughes. Women Before the Bar: Gender, Law, And Society In Connecticut, 1639-1789. University of North Carolina Press, 1995.
Hartog, Hendrik. "The Public law of a County Court: Judicial Government in Eighteenth Century Massachusetts." American Journal of Legal History, XX (1976), 282-329
Rowlandson, Mary. The Sovereignty and Goodness of God. Ed. Neal Salisbury. Bedford Books, 1997.
Vilbert, Elizabeth. Traders' Tales: Narratives of Cultural Encounters in the Columbia Plateau, 1807-1846. University of Oklahoma Press, 1997.