Sex Without Consent: Rape and Sexual Coercion in America

Journal of Social History, Spring, 2004 by Lisa Z. Sigel

Sex Without Consent: Rape and Sexual Coercion in America. Edited by Merril D. Smith (New York: New York University Press, 2001. ix plus 308 pp.).

Merril Smith's edited volume on the history of rape in Canada and America provides numerous articles that will be of great worth to the historical and feminist communities. This collection demonstrates variations in regional ideas about the permissibility of sexual aggression, notions of consent, tensions around race, and expectations about pre-marital sex and sexual purity. In doing so, the articles historicize rape as a behavior and a crime and show that communities, victims, rapists, and courts viewed it as a multi-faceted phenomenon, rather than an ahistorical act of male aggression.

The range of articles in this volume goes beyond the usual "hotspots" while still allowing for important comparisons. The volume includes articles on the native American treatment of white captives, the New Amsterdam, Massachusetts, and Virginia colonies, the nineteenth century in Upper Canada, Pennsylvania, Vermont, and the slave South, the politics of marital rape among progressive radicals, the Massie rape case in Hawaii, and black-on-white rape in context of the Civil Rights movement. Finally, two articles deal with rape in the contemporary context. As this list demonstrates, the volume covers a lot of ground and provides numerous perspectives about the functioning of sexual aggression across the American experience.

The best articles place rape within the context of evolving legal and social codes. For example, in a very fine piece by Hal Goldman, notions of consent are explored in the context of nineteenth-century Vermont rape laws. There, legal codes that seemed to work against victims, like the necessity for corroboration, allowed the state to admit evidence that would not normally be allowed in criminal trials including witnesses' accounts of woman's emotional state after the event. Trials hinged on consent--a state internal to women and based on the female perspective--and made the notion of consent flexible rather than binding--allowing women to change their minds during sexual acts. By adopting new types of evidence and allowing for a flexible notion of consent, judges could make it easier for women to get justice rather than harder on women seeking it. Likewise, Patrick J. Connor situates rape in the context of Upper Canada. Women, the broader community, and the courts saw rape as an act of violence and prosecuted rapists, particularly outsiders to the community, quite harshly. While women's characters were emphasized in the courtroom, mitigating the surety of justice in many cases, the community recognized that women as well as men frequented taverns and that pre-marital sexual intercourse might be due to sparse settlement patterns and flexible notions of propriety. Character assessments of women, therefore, had less relevance than the position of the rapist in the community. In comparison, in the slave South, according to Diane Miller Sommerville, even in cases of the rape of children, the race of the rapist and the social class and the character of the victim complicated the pursuit of justice. Surprisingly, rather than relying on vigilante justice, most rape victims and their families relied on the courts for prosecution of rapists. While most slave rapists faced execution, questions about children's culpability complicate the clear picture of racialism or paternalistic justice; in the Southern case paternalism towards slaves came into direct conflict with the paternalism towards children and often a distrust of children became the dominant issue. As a comparison of these three articles demonstrates, despite similarities in the brutality of rape and the problems of sexual vulnerability in rural societies, rape became a very different criminal act based upon local priorities.

Other articles in the volume demonstrate the ways that rape intersected with broader directions in American politics. Jessie F. Battan's article on marital rape shows the ways that Free Lovers, in exposing marital rape, broke the silence on marital sanctity and questioned the basis of the family. In doing so, they predated feminist criticisms of marriage by almost a century and provided a historical record about a brutal physicality in marriage that has been ignored in the sentimental portrayals of the age. Bonnie Cermak's piece on the Massie case in Hawaii shows another side to the political import of rape. In that article, Cermak demonstrates the ways that a single rape intersected with the larger issues of race, citizenship, and statehood. Thalia Massie, a white woman, accused five nonwhite men of raping her. After a mistrial of Massie's alleged rapists, one of the defendants was murdered, apparently by Massie's husband, mother, and two enlisted men. The murder resulted in a ten year sentence which the governor reduced to one hour and exile. The convolutions of justice occurred at a critical moment when Hawaii faced statehood and therefore the incorporation of workers of Chinese and Japanese descent into citizenship. The mixed race juries at the two trials prompted serious questions about the appropriateness of statehood and contributed to the delay in incorporation. This close study of a single case demonstrates the importance of the accusation of rape in Hawaii's's multi-racial society.