Symbolism and Rape
Hi, All. Yeah, I’m still theoretically on sabbatical, but I just wrote this paragraph for my dissertation and decided I’m immensely interested to see what you think. It’s about how testifying at a rape trial further divorces a woman from her body, or could do so in the antebellum south. The paragraph refers to 19th c. American law and not to the present, but I think some of the points still apply. So read away and then see my questions at the bottom. Here’s the premise: in antebellum America (actually up to the 1970s in a lot of places), force rather than absence of consent functioned as the primary definer of rape. I’ve got oodles of cases where the accused was released because he snuck into a woman’s bed while she was sleeping, or scared her into not fighting, or where she didn’t fight “hard enough” (including a case where the court aknowledged the rapist tipped her backwards over a chair and pulled her bonnet over her head–I’m guessing she was too confused to fight until it was over). Now clearly no man should go to prison for a crime he didn’t commit, and nothing proves how dangerous an overt reliance upon passion can be in a rape case than the vigilante “justice” of the postbellum period. Aaaaand, dissertation:
Defining force as an integral component of rape thus placed an extra burden of proof upon the alleged rape survivor: by having to prove that a man had penetrated her and that she fought her utmost to rebuff him, her body and its appearance necessarily became object-as-evidence. In so doing, her personhood doubled as she functioned both as individual citizen and signifier for either upheld or violated feminine form. If she could prove rape, she became the signifier for tarnished womanhood—something which incited great wrath from the southern patriarchy. If her body proved inadequate evidence for proving rape, it became instead the signifier of female perfidy or antithesis of true womanhood, which functioned to constrain “properly” gendered behavior just as did the ideal. Either way, the woman-turned-plaintiff would experience a legal and then societal bifurcation of self as her body became transformed into symbol. If she was “tarnished” and thus helped exact justice upon a rapist, her body might serve as symbol of purity—but only the “before raped” body. As symbol and individual, she would nonetheless remaine tarnished in the eyes of society regardless of fault in the matter. And, of course, if she lost the case, her individuality would be forever tainted by the assumption that licentiousness invalidated her womanhood as well.
To what degree do you think women who testify in rape trials still experience the re-appropriation of their bodies, and to what end? How might this function in cases such as systemic rape as component of warfare? Also, unlike about a zillion other Mormons who blog, I am not an attorney. No law school here. Those of you who are should feel free to point out any raging or sneaky errors. Or heck, I’m tired, point out grammatical flaws as well if you want. (Just to be clear, not all judges were idiots on this point. I’ve found a couple who said such renegade things as “consent obtained through fear is no consent at all,” God bless ‘em.)
I think about this a lot as it applies to children. So many times the media talks about sex with an underage girl–The problem is, if an individual is underage, it cannot be consensual (by law). It is rape. Still, the burden lies on the victim who is asked if he/she consented–didn’t fight at 16 while in a sexual relationship with a 40- year-old. Regardless of the legal outcome, the public (the media) continue to say, “[insert famous person or not so famous person here] was arrested for sex with an under age girl”, rather than say arrested for rape. The child victim still feels like somehow, regardless of the situation, he/she was responsible.
As a victim of repeated sexual abuse and then testifying at the tender age of 4, I felt (and continued to feel guilty for years) that I was at fault, particularly in court. There I admitted I was bribed with candy and succumbed to death threats, so therefore I must be at fault. I agreed to it for candy–and I chose not to tell for a long while, under threat of death.
Comment by mami — August 19, 2008 @ 12:22 pm
I think the political equality of women and the “sexual revolution” beginning in the 1960s has desensitized people to the issue of rape, so the ante-bellum context in which you’re analyzing rape is fascinating. I’m not sure, but I’d wager that women who testify in rape trials are more concerned about being portrayed as sluts or liars rather than society using their bodies for political purposes.
That said, throw in the Duke lacrosse team incident of a couple of years ago and the public discourse raised by the Jodi Foster movie about gang rape, and I think men in the U.S. are probably a lot more careful now with whom they initiate sex.
Comment by ECS — August 19, 2008 @ 12:27 pm
ECS, I think you’re right that it’s less political now and in part because of desensitization and due to the woman’s movement, which has in many ways divested patriarchy of power. Antebellum rape was a violation more of the womanhood *ideal* than anything, and the ideal was used to strictly constrain female behavior/rewards. The individual woman was secondary . . .just as she became secondary during the lynching insanity after the war. Ugh.
But the economic stuff coming into play with the stereotypes is fascinating too, because while southern patriarchy ( and the while women who enjoyed its perks) were heavily invested in maintaining the image of white woman inviolate, they were just as symbolically invested in the “patriarchal ideal” of slavery as beneficial for all parties, since their economy rested upon the degree to which they could prop up such an image.
In a rape trial, you suddenly have those two symbolic cornerstones of southern life coming at odds. It’s a great example for proving that symbolism matters and has real economic and social repercussions. When I started this chapter I assumed most slave men accused of rape would be convicted and executed. Turns out that their economic value outweighed things a lot. A woman can’t be un-raped, but a rapist (or accused rapist) can still work really hard and if he’s saved by his master and the master court, he’s more likely to acquiesce to the patriarchal lie behind slavery. And of course the masters didn’t want society seeing black men as over-libidinal rape-crazed beasts out to get “their women” because “their women” had to live on the plantations, too. That came after the war, when suddenly the stereotype had practical use for the powers-that-be. Before the war language focused a lot more on black women being inherently libidinous seductresses with magical powers–I imagine so their white male rapists could absolve themselves of fault.
Rattling on. But I really do find the interplay of law, superstition, and symbolism really fascinating . . and sad in the way it affected the lives of almost everyone.
Comment by Janet — August 19, 2008 @ 12:41 pm
Not to keep bringing up the Duke case, but don’t you think that was some of the motivation for charging the privileged, white boys with the rape of the black (i.e., less powerful) woman?
Comment by ECS — August 19, 2008 @ 12:49 pm
Very insightful, Janet.
You’re right, the the force requirement in effect made a woman present not just her testimony, but also her battered body.
Is this idea in the past? I don’t know. Look at the recent blue-jeans case.
Thankfully, we’re moving away from this, albeit slowly.
The current Federal Rules of Evidence limit the ability to use the “she was a slut anyway” defense in rape prosecutions. Victim’s sexual history is almost completely off limits in criminal actions. (With a few exceptions, such as to show that semen came from a specific person who is not the defendant.)
Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence generally inadmissible.
The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must –
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
Comment by Kaimi — August 19, 2008 @ 12:54 pm
Are you serious? Posting the FRE is one way to end the conversation, I guess
Comment by ECS — August 19, 2008 @ 1:06 pm
Janet,
Well, it’s more complicated. For instance, it was viewed as virtually impossible to rape a Black woman. Black women were viewed as always interested in sex, and so rape of a slave woman was essentially impossible — she was always up for it.
In contrast, a black man raping a white woman was a very big deal. In part, because the way that the South addressed slavery and race was through the rule of matrilineal descent. A slave woman’s child was a slave, and a white woman’s child was a white.
(In contrast to Louisiana, Brazil, and other jurisdictions that gave somewhat different legal status to different degrees of mixed race children).
The matrilineal descent rule had the advantage (for the parties making the rules) of giving white men unfettered sexual access to Black women. They didn’t need to worry about bastards who would confuse racial lines. Born from a Black woman = Black, slave.
But one side effect of this policy was the need to super-safeguard white women’s sexuality.
Comment by Kaimi — August 19, 2008 @ 1:12 pm
I hate to bring this up (but not really) - the ubiquitous BRM quote about how he’d prefer his children coming home dead in a pine box to coming home shamed after losing their virginity. Lovely.
Comment by ECS — August 19, 2008 @ 1:15 pm
you know, the interesting thing about all this to me is how that is double trauma. Having to be examined, having to testify about all the glorious details of the rape, to some women (and children… I did a stint of volunteer work at the childrens’ justice center in Provo) is like a second rape. It’s just as objectifying to them, just as scary, humiliating… and it’s more public.
Take the famous case of Elizabeth Smart. After she was brought home, everyone was clamoring to find out what was “done” to her. The Smarts tried to keep it private, but of course it all came out in the news. Add to that this relatively recent “>interview experience…
The problems are so mixed up and convoluted that I have no idea at all where to start even discussing them. Maybe I should read your thesis, Janet. Or something.
Comment by sare — August 19, 2008 @ 1:16 pm
sorry. “>here it is.
Comment by sare — August 19, 2008 @ 1:16 pm
for some reason it ain’t working!
OKay, just figured it out.
Comment by sare — August 19, 2008 @ 1:17 pm
This post made me sick to my stomach, but this particular quote takes the cake. I think I am going to throw up now.
Comment by Stephanie — August 19, 2008 @ 1:19 pm
Kaimi–yeah, all that other stuff is in the rest of the chapter. You would not believe some of the crap that Cobb wrote about black women. Shudder. And he was seen as a great fair minded guy by the north (he was, it seems, brilliant, but as blinded by his own time and bias as anyone).
Comment by Janet — August 19, 2008 @ 1:43 pm
Oh, and raping a white woman was only a big deal if the white woman happened to have social position. If she was poor or her reputation tarnished, not so much.
This is probably the only area where I have any info you might not regarding the law, because I’ve read every stupid case where rape charges were brought against a black man for raping a white woman in the antebellum south. That was a depressing project, though not as depressing as you might guess. In the absence of evidence and for all the reasons we’ve already mentioned, the accused usually were released.
Although they weren’t released immediately. They were usually sentenced to death (probably to appease the masses) and then let go on appeal. Sometimes that happened in presence of outstanding proof they were guilty as well . . . because they had economic value and the masses were all appeased and stuff. It’s not what I expected to find when I started this research and it runs contrary to what a of published stuff says, but the published stuff doesn’t chase the cases all the way through appeal. So far as I know, I’m the first. Which is why I hope this dumb thing pleases my director eventually. It’s been a LOT of work.
Comment by Janet — August 19, 2008 @ 1:45 pm
One more thing: I’d quibble that “safeguarding” white women’s sexuality was a side effect. The south built itself upon to major things: slavery and white gender duality in which good white women were pure (though interesting they didn’t have to be as industrious or necessarily as pious as Northern women). It wasn’t on the side–it was central.
Comment by Janet — August 19, 2008 @ 1:47 pm
ECS, I have that qoute in my footnotes. I’ll probably remove it after I get done with the rough draft, but it came immediately to my mind as well. Ugh
Comment by Janet — August 19, 2008 @ 1:48 pm
Stephanie — I have, indeed, dry-retched over the toilet while reading some of the judicial “wisdom” regarding the sexuality of black women in slave times. And that stuff pales in comparison to the things you could find in other sources less bound to be “dispassionate.” I feel really strongly about this chapter of my dissertation but a lot of the research sickens me utterly.
For the record, the chapter is about how female-authored slave narratives talked about rape without ever once talking about rape. It’s alluded to for others, but the women never discuss it happening to them. And yet, if you’re savvy, they completely do. It’s extremely clever. And necessary, since for a woman to speak of sex was itself a sort of promiscuity which would in the minds of society “prove” the assumptions they had about those women’s complicit guilt in whatever happened to them. I love seeing how smart they were in managing to talk about it anyhow.
Comment by Janet — August 19, 2008 @ 1:52 pm
Caveat to #14: they weren’t released immediately. They were usually sentenced to death (probably to appease the masses) and then let go on appeal. Sometimes that happened in presence of outstanding proof they were guilty as well . . . because they had economic value and the masses were all appeased and stuff. It’s not what I expected to find when I started this research and it runs contrary to what a of published stuff says, but the published stuff doesn’t chase the cases all the way through appeal. So far as I know, I’m the first. Which is why I hope this dumb thing pleases my director eventually. It’s been a LOT of work.
Comment by Janet — August 19, 2008 @ 1:56 pm
Janet- I’ve read previously that a lot of the reasoning (still) for often harsher sentences for the rape of males is that girls and women are going to do that eventually anyway–while male victims won’t (presumably) participate in those acts, therefore the rapist was only performing the inevitable act which would take place anyway (on girls/women)–so it wouldn’t be so traumatic. In males the logic is that this is not inevitable, therefore more traumatic and deserves a harsher sentence. This same kind of logic is often applied when gay men are raped, and their perpetrators recieve lighter sentences.
As Sare mentioned and used ES as an example–people want to know exactly what was done, so they can decide if that was bad enough to warrant outrage (or how much sympathy to give). It appears to matter less to the public wether or not it was against the person’s will-or more what specific sexual acts took place during the course of the assault-where certain things are seem as worse than others, according to changing public mores and social norms.
Comment by mami — August 19, 2008 @ 1:58 pm
Sare — thanks for the link and good point about ES. I remember being seriously irritated at all the people trying to get the dirt about her experience, and irritated at myself for wondering how come she, who clearly went through hell, seemed to bounce back from the experience of sexual abuse so much more rapidly than did I. Sadly, sometimes our obsession with the dirt also serves to make others feel guilty by comparison. Sigh.
Mami — Yes. I testified once, but not in court. Closed room. One police officer. Boyfriend outside door being supportive. It had been a couple of months, even. Nonetheless, I ran to the bathroom, put my head between my knees, and shook uncontrollably for about 15 minutes. Then I threw up. Then boyfriend (now my husband) put me in his flannel jammies (the one time BYU probably wouldn’t have cared about a guy seeing his girl in her gs before marriage or her going into his bedroom–he wasn’t gonna try anything! And he didn’t want to freak my roomies but did want to be there if I woke up scared out of my mind), tucked me in, and I slept for 10 hours. Then–HA!–I spoke at a Take Back the Night rally that night. The cop was great. He kept telling me to stop blaming myself, which was what my bishop said when I “confessed” the day after it happened. But I was so sure it was my fault I wouldn’t even tell him the guy’s name because I figured that was narking. I didn’t tell anyone else until another woman I knew mentioned that something had happened to her and then she said the same man’s name. So then I blamed myself for that. I couldn’t have hoped for a better cop to listen, but it still felt like I was reliving it and like he was seeing me not just emotionally but physically naked. And here’s a fun one: a lot of people didn’t initially believe my story because I was the president of BYU’s feminist club at the time. And, you know, feminists can’t be raped ‘cuz they’re all strong and stuff. Had I not happened to know a few very influential and very high-ranking men at the university very well, I’d have been toast. It pays to be obnoxiously sincere and overtly honest, because when the academic VP of the school found out (and told Merrill Bateman) the fact that we disagreed on a zillion things didn’t matter anymore. They knew I wasn’t a liar, and they called the Honor Code Office and the cops. Plus a very smart religion/ancient studies professor had backed me from the get-go, as did my dean when he found out. It was unbelievably lucky for me, but it makes me worry about all the other women who didn’t have connections. Especially in light of the other women who came out of the woodwork after I spoke up. The guy lives in the same town as me. I really hope I never run into him on the street, ‘cuz I don’t want to be reduced to a mass of jellied sobbing and nor do I want to see my husband shoot someone. And that’s all the confession for today. Maybe I should delete that. Maybe “he” will find it and hunt me down. Maybe I was at fault. I’ve never told any specific details in public, ever, and here I am on a blog. UGH. See, isn’t it nice how all the fun stuff lingers? Ugh. And is it bad that I’m writing about rape in my dissertation? Self doubt never really goes away.
Your analysis in 19 is fascinating. I haven’t heard it before from anyone, but now that you explicate the logic I can imagine a lot of people I know thinking it makes perfect sense, so long as it’s combined with the homophobia which also probably informs such sentences.
And now I’ll go take a nap. It’s dangerous to post from one’s dissertation because then following up can (ahem) feel like legitimate scholastic time. Frankly, I think this discussion is already helping me clarify some thoughts (and Kaimi’s first post is going in a footnote–Kaimi, did you know that there’s a case from the 1850s with nearly the same provisions? God bless that judge and the very, very few who used it as precedent later).
Comment by Janet — August 19, 2008 @ 2:05 pm
Janet, I am glad you are exposing stuff like this. As hard as it is to stomach, it is important.
Comment by Stephanie — August 19, 2008 @ 2:24 pm
Janet,
I admire your courage in sharing this story. I’m so sorry that you had to go through that.
Hugs to you, girl.
Comment by Kaimi — August 19, 2008 @ 2:58 pm
Janet,
don’t delete #20. Your openness about what you went through can help other survivors find their voice. Like me.
The BRM quote and the similar gems from an otherwise fairly (mostly) respectable Miracle of Forgiveness never cease to haunt some of us. As a junior at BYU, I walked into my bishop’s office to “confess” what had happened to me, a well worn copy of MofF in hand. If you let my copy fall open at will, it fell open to the quotes about how it’s better to lose one’s life than one’s virtue. Luckily I had a bishop who was wise and in tune, and told me to put that book away and not open it again.
As for your thesis, brilliant analysis. Yes, women absolutely end up subjugated in having to prove rape by themselves, with themselves. A task made all the more difficult with the Duke and Kobe trials so recent.
Comment by S.L. — August 19, 2008 @ 5:39 pm
P.S how much longer will you be on sabbatical?
Comment by S.L. — August 19, 2008 @ 5:39 pm
Thanks for sharing this, Janet. I have nothing of substance to contribute, but I really appreciate the post.
Comment by Ray — August 19, 2008 @ 8:02 pm
Thanks, everyone. I’d thought about deleted at least portions of comment 20, but for now I’ll let it stand. I was having a bad moment there, but hey, we all have those. I think it’s valuable to recognize that even when somebody has recovered from trauma, little moments of panic still creep in. So now we’ve got one of mine on record.
Comment by Janet — August 19, 2008 @ 9:57 pm
Janet, I don’t want to add unwelcome focus to your experience if you’re already feeling self-conscious about having posted it, but wow. I just have to say I’m so, so sorry. That sounds just awful.
I’m glad that in spite of the moments of panic you mention you’ve been able to find some recovery. I think if I were in your shoes I might find your dissertation topic unbearable. (Actually, I think I’d find it pretty rough going under any circumstances.) I hope it’s therapeutic more often than it’s traumatic.
Comment by ZD Eve — August 19, 2008 @ 10:15 pm
I think rape as a war-crime is an interesting side-note to your thesis. Many individuals can not identify their attackers by name, as they have had no contact with them before or after the attack. It is truly an anonymous crime, and one of the reasons why it is almost never prosecuted.
Because of this, testifying is a true paradox. Testifying is almost always symbolic, with no specific attackers identified. It is most often seen in the context of condemning the leader who ordered the attacks or as part of a national reconcilliation/healing process. But in so doing the individual then identifies themselves and opens up the possibility of retribution.
Taking this step seems to be an act of reclaiming personhood. Rape is a method of subjucation, much like slavery, where the will of one is asserted over the will another. This is what makes it an effective, although abhorrent, tool in war. Through testifying survivors take on both the individuals who committed the crimes and society which allowed it to happen.
Sadly the bodies of many gang-rape survivors speak volumes about the attrocities they have survived, and therefore do not tie in well to your thesis as the signs of trauma are easily observed with modern medical technology.
Just a few thoughts to help you better flush out your thesis. Good luck on this difficult but important topic. It affects us all, whether we are aware of it or not.
Comment by J. Lynn — August 20, 2008 @ 12:04 am
Maybe “pre-raped body” would be better than “before raped.” It’s very good writing and an interesting subject.
Comment by Michelle Glauser — August 20, 2008 @ 1:43 am
Janet,
Your dissertation topic is both historically interesting and terribly sad. My husband and I had a discussion about it last night. He is currently working with victims of sexual trauma. Our discussion kept coming back to victims truly understanding they are not guilty and at fault for anything. Thanks for sharing the topic and your story.
Comment by miles — August 20, 2008 @ 7:50 am
Janet,
I am a prosecutor who handles sex crimes. I would be very interested in any research you find that shows the effects currently on women who testify in rape trials. Please contact me at my email address if you have any such info. I am often faced with cases where I am convinced that the woman was raped but with lousy evidence that I suspect will lead to an acquittal. While I am more than willing to take the case to trial and let the chips fall where they may, I hesitate when I feel like an acquittal will pile damage on an already traumatized victim/survivor. I suspect, but do not know, that testifying in a trial where the defendant is convicted can be empowering for the victim/survivor. I cannot imagine that it is empowering to the victim to testify in a case where the defendant is acquitted.
More to your point, I can tell you that as a cold-hearted prosecutor, a woman’s body after a rape IS evidence, just like bloody shorts or scratches on the rapist’s body. In order to seek a conviction, we have to look at it that way. However, I can also tell you that convictions depend less on the state of the body than on the perceived integrity and absolute innocence (purity?) of the witness/survivor. The dichotomy is that we cannot seek justice without being dispassionate in our view of the evidence (including the survivor’s credibility) and we cannot obtain justice for the survivor without being compassionate to her/him. It is a fine and difficult line to walk.
Comment by Michelle — August 20, 2008 @ 7:51 am
Michelle G: Much better! Thanks. I’m chronically exhausted and it messes with my prose. I wrote the rough draft paragraph yesterday and immediately wondered if y’all would have some insight, but I also knew that particular phrase was really poor. In my tired state, I couldn’t think of the (now obvious) prefix. Bless you!
miles: Yep. A culture which suggests that “provocative” clothing can indeed provoke rape, or which suggests in myriad ways that rape is about getting laid all help perpetuate the notion that women hold some responsibility for what happens. Male rape victims have a whole ‘nother awful bunch of stuff to contend with. We’ve come a long way since Antebellum times, but we’ve added some complications as well and we have a long ways yet to go.
Michelle (31): Yep, I understand that the woman’s body has to be evidence, because when it becomes a he said/she said crime only, in dearth of other proof, it’s pretty hard to convict beyond a reasonable doubt. And convicting the wrong guy hardly helps anyone, since the real rapist would then recidivate like mad. What troubles me especially about the antebellum cases I read is that the woman’s body remains a sort of cultural cipher–it is entered into permanent cultural evidence and the trial becomes almost suspended in time. I’m not sure how much this remains true today, though certainly I’d assert it does to some degree. I’m not sure if the perception to the woman is greater than the reality to society at large, though–except in cases like Elisabeth Smart, where the survivor becomes the “face” of surviving and is tagged with all sorts of baggage and expectation. What are your impressions, since you work professionally with the issue?
Only once chapter of my dissertation concerns rape, and it’s almost exclusively about cases between 1800 and 1861. I have done some research on trauma theory now and then, so I’ve seen a lot of writing making arguments regarding the effects of public testimony. Unfortunately I don’t have immediate knowledge of a highly numerical study on the question you ask, but I’ll poke around my files and see what I can find.
Comment by Janet — August 20, 2008 @ 10:05 am
S.L. — Thank you, and very much. I’m so incredibly glad you had a sensitive and wise bishop. I had an earlier event at the Y (nothing close to the one alluded to above, but it does make me wonder why I attract guys who don’t know the meaning of “no.”) and the poor bishop had no idea what to tell me. Yours was a wise, wise man and I’m happy you had somebody who would listen supportively in the aftermath of your experience. I took sabbatical for health and academic reasons, so I occasionally still post and read what others have to say. I probably won’t be back full steam for 6 months or so, but I’m happy to chat with you via e-mail if you’d like.
J. Lynn — very interesting thoughts about rape as a war crime, especially as testimony and symbolism intersect. Since, as you say, there’s no real hope for conviction in such cases, testifying has a less clearly defined teleology and some attendant risk. I wonder if those who testify in such cases have significantly different emotional responses to testifying than do women who can identify their abusers.
Comment by Janet — August 20, 2008 @ 10:14 am
Michelle,
As a prosecutor have you noticed that emotional evidence, or the state of the victim psychologically since the attack is as crucial as the physical evidence? Maybe I am way off on this, but it seems to me sometimes that has a huge bearing in the west where pop-psychology is such a big part of our culture.
Comment by mami — August 20, 2008 @ 10:33 am
I second mami’s question. I’m very, very interested in any response you may have.
Comment by Janet — August 20, 2008 @ 10:36 am
Delurking.
Janet — If you are writing about “self” and race in 19th Century law, you may want to chat with Susannah Blumenthal at University of Minnesota and/or Catherine Fisk at UC Irvine. They are both legal historians specializing in 19th Century law; I think they will both be interested in your work and may have some insights for you. You can tell them I suggested the contact.
DLB
Comment by D. Burk — August 20, 2008 @ 10:54 am
Janet and Mami,
I have not had a trial where we would have been allowed to enter into evidence the psychological effect of the rape on the victim. Who the jury PERCEIVES the victim to be has a large influence on the jury. Is she a slut? drunk? good girl? victim? naif? I am sorry to say that I believe that racial and gender prejudices run rampant in juries in ways that we cannot effectively counter in trial evidence although we may be able to in subtle ways in argument.
I had a victim/witness who attempted suicide just days before the trial and still had bandages on her wrists when she testified. We were not allowed to mention anything about the incident, although I know some jurors noticed the bandages and drew conclusions. The defendant was acquitted, largely because the victim initially lied to her mother about where she had been (drinking at a much older man’s house), and thus lost her credibility with the jury. This in spite of testimony that her mother noticed something wrong as soon as she came in the door; i.e., lengthy showers, crying, depressed. In that case, the defendant would not talk to the police and then on the stand claimed it was consensual.
In another case, the jury convicted, but was disgusted that the teenage victim, from a poor family, had come into court wearing jeans with a small hole at the thigh (that I did not even notice). The judge in that case sentenced the defendant ONLY after he researched the victim’s juvenile file to see “what kind of girl she was.”
Another jury also convicted a man of lewd conduct w/ a minor ( he admitted on the stand), but wanted to send a note out to the 14 year old victim with a stern lecture. Admittedly, she was quite a piece of work, but juries look very closely at the behavior and lifestyle of the victim.
I have to say that most of the victim/witnesses that I deal with are such psychological messes before the rape that it would be difficult to tease out the actual effect of the rape separate from the previous trauma in their lives. The case load I have now involves many women who have previously been sexually abused, if not chronically sexually abused.
Comment by Michelle — August 20, 2008 @ 11:13 am
One discussion I tried to have with my women’s studies classes when we discussed violence against women (especially in terms of rape) was that it’s difficult to negotiate “consent” in a society where women are socialized to be accomodating, and where they are often lower than men on the social hierarchy. For example, what happens in situations where women give in even if they don’t want to because that’s what they’ve been socialized to do? Have they really given their “consent”? As Michelle also pointed out, while the symbolism doesn’t seem as strong as in your 19th century cases, notions of femininity and womanhood still impact rape cases today.
Anyway, I’m guessing that really doesn’t add much to your dissertation ideas, since it doesn’t really have to do with 19th century cases, but it’s what came to mind when I read your post.
And I’m so sorry for what you had to go through. As Eve said, I’m not sure how you write on this topic.
Comment by Seraphine — August 20, 2008 @ 1:05 pm
Janet– I haven’t read all of the comments, but I remember reading a book in grad school which might be useful for your research. It’s called Manliness and Civilization and it’s by Gail Bederman.
Comment by Shelah — August 20, 2008 @ 8:36 pm
Shelah — thanks for the book suggestion! That’s one I don’t have (and you know that writing graduate work is all about the endless chasing of books! Woohoo! This one looks intriguing).
Seraphine — Yup, and then you face the difficult fact that a woman’s “consent” may not have been at all internalized but that from a legal standpoint it must nonetheless count if there was no way the man involved could know otherwise. Thus, we have to change the entire culture of female acquiescence for the sake of both women and men. I think the argument to which you point largely informs both Dworkin and Brownmiller’s arguments regarding heterosexual sex always being rape. I don’t agree with their hyperbole, but the cultural context of the argument does makes significant sense to me.
Michelle — I would like to yell at the judge you mention. VERY loudly. With a hand gesture, perhaps. Sigh. There’s a bunch of related questions I want to ask, but they’ll have to wait a bit.
D. Burk — EXCELLENT. Thank you, thank you, emphatic thank you.
Comment by Janet — August 21, 2008 @ 10:20 am
Janet,
It doesn’t surprise me at all that this is the topic of your dissertation. Recovery from sexual violence is an evolving process and there is healing that needs to take place in every area that is meaningful in our lives- physical, emotional, intellectual and spiritual. This will hurt you and outrage you but you will find a huge measure of healing as well. This takes a lot of courage and I completely support your efforts.
This is good research. It’s going to help a lot of people and by that, I don’t only mean victims. It will assist in educating all the support people who are trying to help the victim- starting with the first responder to the rape kit in the E.R.- (the exam and the tests the victim endures after being raped) and the trial.
Yes, I do think there is still an element of women being deemed the sexual gatekeeper, so to speak. We not only have to say no, we have to say it in a way the potential assailant comprehends and we have to say it in such a way that all of the members of a jury understand to have been clear enough. All this on top of having to earn the right to be called a victim by establishing a so-called prior “purity”-and only then can it be claimed we were violated rather than being taken up on an implicit offer. Yes, there is still an element of the pure woman who was defiled versus the sex kitten who got what she deserved.
Comment by Kimberly — August 21, 2008 @ 11:18 am
Janet,
I agree. It isn’t easy being red hot mad and tamping it down enough to win your point and not be held in contempt. Please let us all know when your dissertation is done. I am very interested in the dynamics of rape, especially if it helps me get in the heads of juries, i.e. the public.
Also, I wish that I could say that notions of womanhood after rape had changed in my neck of the woods compared to antebellum south. I don’t think they really have. That is why I am always so conflicted about victims testifying in rape trials. It seems like a no-win situation for her.
Comment by Michelle — August 22, 2008 @ 11:49 am
14. “the accused usually were released”
…in order to be lynched?
Comment by Beijing — August 23, 2008 @ 8:50 pm
Beijing — no, that didn’t happen all that often until after the Civil War ended. Slaves held a great deal of economic value and lynching one for rape wasn’t in the best economic interests of the white patriarchy. It happened occasionally, but nothing compared to during reconstruction. Slaves were “disciplined” to death by masters, although we don’t have good records of how often that happened. Surprisingly, slave owners could be and were occasionally charged with cruelty to their slaves . . . but they were not ever charged with raping a female slave. It was a legal impossibility, even more henious than the legal impossibility or raping one’s wife.
Comment by fmhjanet — August 23, 2008 @ 10:19 pm
Janet,
I am curious as to why you decided one was more ‘heinous’ than the other.
Comment by mami — August 23, 2008 @ 11:57 pm
mami — good question, and the answer is complex. Wives had some recourse, because they could flee their marriages. That’s the short answer. The long answer has to do with very intricate social codes regarding sexual behavior in the 19th c.: women were supposed to put the kabosh on hubby’s sexual excess because people actually thought too much ejaculation would shorten a man’s life span (snortysnortsnort) and so wives had at least a bit od cultural heft behind resistence. Plus, southern society especially did not smile upon men who forced their wives . . . even though the society had no legal ban on same. By odd contrast, there were anti-miscegenation laws on the books in every state but if/when a master raped a slave the slave could not appeal to the law, for she was his property AND the legal minds of the day would’ve held her legally responsible for the miscegenation breach. There’s actually stuff in the law books talking about how the black women were sirens who led men to their doom (see shortened life from sex, above). Add to all that the nasty fact that any offspring a master-rapist sired would then become his further slave property, and yuck. At lest “legit” offspring had a chance of escaping the guy’s thumb, as did wives, albeit small. There are some intriguing cases of women leaving their husbands because they were disgusted by both their sexual appetites and, in specific, their disregard for slave’s will in miscegenated dalliances.
So far as both wives and slaves being seen as a type of sexual property is concerned, both obviously are horrid. And marital rape remained legal long after slavery was eradicated. Memory might be wrong here, but I think marital rape was only illegalized in Utah in 1989 and in a couple southern states after that. Ugh.
Comment by fmhjanet — August 24, 2008 @ 11:39 pm
Interesting. Thanks. You are right about the Utah law–and the case that triggered it was when a woman had walked into the courthouse to file divorce papers. When she left the building her husband and cronies grabbed her, threw her in a car a drove away where her husband raped her. The case then became, Was she divorced or not? She had filed papers, but it wasn’t official–and that case was the catalyst that FINALLY made it illegal to rape your wife in Utah.
Comment by mami — August 25, 2008 @ 8:35 am
mami– Wow. I didn’t know the background on that, so thanks for sharing. I still want to send you a lengthy email but things are crazy right now. It’s just so pathetic that it took such a hyperbolically weird case to illegalize marital rape. I wonder about the mechanism in other states. Maybe I’ll research it once the @#^ dissertation is done!
Speaking of which, guess I’d better go look at it some more…
Comment by Janet — August 25, 2008 @ 11:12 am
I just saw your post, and I wonder if you have any information on white women falsely accusing black men of rape after the Civil War.
Comment by Suzie — September 3, 2008 @ 7:50 pm