In the past few years, it has become impossible to read the news without encountering a spate of rape stories. Coverage of individual and gang rapes are by no means limited to reports from India, Brazil, or Egypt. In the United States, revelations of systematic assaults and underreporting of rape recur in such different settings as the military, prisons, elite private schools, and Indian reservations. At the heart of much of the recent attention is the redefinition of behaviors that were once tolerated but are now considered both unacceptable and criminal.
Efforts to redefine rape represent, in part, the culmination of the late-20th-century antiviolence movement, in which Western feminists identified marital and acquaintance rape, organized Take Back the Night marches, and called for stronger prosecution of assailants and the reform of criminal procedures. But there is also another, much longer history that reveals how integral the response to rape has been to the meaning of citizenship in the United States.
Beginning in the mid-19th century, those who sought political rights for white women and African-American men and women recognized the centrality of rethinking rape to their goals: The construction of rape was one element in the denial of their full citizenship. On a practical level, the exclusion of African-American men, and all women, from voting, lawmaking, and serving in courtrooms (as jurors, lawyers, and sometimes even as observers) contributed to the immunities enjoyed by those white men who seduced, harassed, or assaulted women of any race. On a rhetorical level, stereotypes—of black women as consenting, white women as seductive and duplicitous, and black men as constant sexual threats—justified the restrictions on citizenship that reinforced white men’s privileges in the 19th and early 20th centuries. Limitations on political rights in turn buttressed economic inequalities.
Advocates for women’s rights and racial justice confronted the narrow construction of rape as a brutal attack on a chaste, unmarried, white woman by a stranger, typically an African-American man. White female reformers petitioned legislatures to expand the definition of rape beyond that and make it easier to convict white men who seduced women they knew outside of marriage, whether through coercion, persuasion, or pressure. Women’s-rights advocates insisted further that, in the words of the suffragist Lucy Stone, “The only way to have these crimes against women punished as they deserve, is to have women share the law-making power.”
After Emancipation, African-American activists challenged justifications for segregation and disenfranchisement by insisting that black women could be victims of rape—and that white men should be held accountable. The antilynching movement, which began in the 1890s and escalated during the Northern migration, firmly rejected the Southern myth of the black rapist, insisting that no one race had a monopoly on sexual assault. By the 1930s, as lynching declined, activists were turning to legal issues: Attaining fair trials for black men accused of rape, including giving African-Americans access to jury service and adequate counsel, became central to the nascent civil-rights movement. All those efforts illustrate how rape, far from a private matter, has been thoroughly intertwined with public life.
In the 19th century, authorities often presumed that children lied when they reported sexual abuse.
Although our contemporary discourse on rape occurs within a very different context, one in which suffrage and jury service have been formally extended beyond white males, striking continuities appear in this long history. For one, women’s movements often concentrate on expanding criminal prosecution, from the response to seduction in the 19th century to the passage of the federal Violence Against Women Act, in 1994. Even strengthened rape laws, however, have incorporated debilitating compromises, and their enforcement has depended heavily on cultural understandings of race and gender. In addition, the privileges associated with social status such as race and class have had enormous staying power, protecting certain men and disproportionately singling out others for prosecution. Perhaps most disheartening is the consistent discrediting of female accusers as duplicitous and unable to refuse consent, especially if they may have been sexually active in the past. These legacies suggest the importance of placing critiques of sexual assault within broad analyses of intersecting cultural, economic, and social hierarchies.
The accomplishments, as well as the limitations, of legal reform can be seen within the earliest political critiques of sexual assault, articulated by white female reformers long before they had achieved suffrage. In the 19th century, moral reformers petitioned state legislators to criminalize seduction, persuading most states to add imprisonment to the civil fines already imposed on men who coerced acquaintances to consent to sexual relations, whether through false promises of marriage or deceptions like drugging a drink. At a time when the loss of female virtue carried significant cultural and economic consequences, moral reformers railed against the “licentious man” who deceived a woman and then left her to pay the full costs of a sullied reputation or an out-of-wedlock birth.
Similarly, social-purity and suffrage advocates at the turn of the 20th century waged a campaign to revise statutory-rape laws to protect adolescent girls, including the increasing numbers of young wage-earning women. They persuaded legislators in most states to raise the age at which a young woman could legally consent to sexual relations from the common-law standard of 10 years old to between 14 and 18 years old.
Criminal seduction and statutory-rape cases encompassed a range of sexual scenarios, from breach of promise to emotional coercion to physical force. Given the difficulty of proving rape—many states required proof of prior chastity, corroborating witnesses, and physical evidence of resistance to violence—women often declined to report or to press charges. Laws regarding seduction and age of consent gave some of them greater leverage in the courtroom by eliminating consent as a defense strategy.
In a sense, the laws challenged the sexual double standard by holding white men accountable for the consequences of premarital sex. Because they typically incorporated the requirement of evidence of prior female chastity and rested on the notion of sexual ruin, however, the new criminal statutes adopted rather than questioned the cultural preoccupation with female purity. Only radical free-love advocates like the anarchist Lillian Harman pointed out that pitfall. Harman, imprisoned at age 16 in Kansas in 1886 for marrying without state or church sanction, preferred to allow women to experiment sexually without lifelong consequences.
Criminal-seduction and statutory-rape laws also reinforced racial distinctions in the prosecution of sexual assault. For one, in practice their protections applied almost entirely to white women, given stereotypes about black immorality. In addition, by associating white men with less-serious crimes of seduction and statutory rape, which carried lighter punishments than rape, they left intact the dominant scenario that depicted black men as violent rapists who deserved long imprisonment or execution, even lynching.
Indeed, throughout American history, the privileges associated with race and economic standing have largely determined the prosecution of sexual assault. Certain men—the elite libertine, the slave owner, the employer—enjoyed a level of sexual impunity when they coerced or forced servants, slaves, or working women to have sex. Soldiers and settlers justified sexual license with the notion that conquered peoples, including American Indian women, represented the “spoils of war.”
Even after Emancipation, when rape laws in the South formally became race-neutral, Southerners claimed that African-American women could not be raped because they had no moral purity to defend; Southern white journalists and politicians elaborated upon the myth of the black male rapist as a constant threat to white female purity. Along with justifying lynching, the labeling of rape as “the Negro Crime” masked white men’s sexual assaults on women of any race. It also bolstered the disenfranchisement of black men, for representations of African-Americans as sexually uncontrollable marked them as incapable of the rational behavior required for full citizenship.
Between the 1890s and the 1930s, advocates for racial justice like Ida B. Wells, W.E.B. Du Bois, Walter Frances White, and Jesse Daniel Ames recognized the importance of separating race and rape in order to undermine the scourge of lynching. In 1892, Wells risked her life by acknowledging in print that charges of interracial rape were often applied to consensual unions. She also insisted on sexual respectability for black women, proclaiming, “Virtue knows no color line.” And she identified economic and political competition, rather than sexual, as the primary motivation for lynching. Du Bois clearly articulated the political implications of the racialized definition of rape. “Every Negro question at times becomes a matter of sex,” he said in 1925. “Voting? They want social equality. Schools? They are after our daughters. Land? They’ll rape our wives.”
As the migration of blacks to the North expanded in the early 20th century, the burgeoning African-American press repeatedly turned the tables on the racial construction of rape. The black press reported stories about white men accused or convicted of assaulting black women, and it applauded working women who resisted the advances of white customers or employers and pressed formal charges. In a 1911 story titled “White Gentleman Commits Rape,” The Chicago Defender criticized the double standards of law enforcement in a subheadline: “That’s All Right—It Was on a Colored Girl—Permitted by the United States Government and the Confederacy.”
The specter of the black rapist, however, lingered for generations. Only gradually did white journalists and activists question its validity. The national publicity raised during the Scottsboro trials of the 1930s, with their false accusations that nine black teenagers had raped two white girls, forced many liberal whites to question Southern rape myths. In the following decades, with support from the NAACP, an interracial organization, advocates increasingly tried to extend to African-American men the safeguards long available to white men charged with assault, including the consent defense and the interrogation of an accuser’s sexual character.
Stereotypes of black promiscuity particularly hindered African-American women’s efforts to prosecute rape, but women and children of any race and age faced formidable disbelief when they reported sexual assault. In the 19th century, authorities often presumed that children lied when they reported sexual abuse. One physician rejected the story of an 11-year-old girl who accused a man of assault. The doctor argued that because the defendant was married, he had “abundant means for the indulgence of passion” and thus had no need to gratify himself “upon a child.” Defense lawyers regularly questioned the purity of even very young girls and required proof of the “utmost resistance.” In 1870 an appellate court ruled that a jury could conclude that even if a 14-year-old servant girl repeatedly fought back against her assailant, if she eventually yielded “before being overcome by greater force,” then the act “was not against her will.” Statutory-rape laws were designed to protect adolescent girls from those presumptions of consent.
In the early 20th century, however, more young women openly engaged in sexual relations, and the protective impulse of statutory-rape laws diminished. Jurists and even some equal-rights feminists believed that the extension of suffrage to women created a level playing field, politically and sexually. In this view, if girls and adult women took risks by socializing or flirting in public, men should not be held responsible. New psychiatric theories on earlier representations of desiring and duplicitous women were used to question whether sex with adolescents should even constitute a crime. One critic referred to girls who charged older men with rape as “willing victims” and suggested that they were essentially prostitutes—an assumption historically applied to black women who complained of assault.
By the 1950s, protecting black or white men from prosecution, rather than protecting young women from exploitation, came to dominate the liberal reform agenda. At the same time, fears of nonconformity and of sexual deviance during the cold war rekindled a moral panic over sexual psychopaths that had begun in the 1930s. As more states passed specialized sexual-psychopath laws, allowing indeterminate incarceration in psychiatric prisons, the media tended to demonize homosexuals as child predators. The psychopath scare contributed to minimizing earlier concerns about assaults on adult women and adolescent girls. The price of sexual liberalism seemed to be a more laissez-faire attitude toward nonconsensual and coercive heterosexual relations, one that sustained the classic scenario of a violent stranger as the real rapist.
The revival of feminism during the 1960s and its growing influence in the following decades practically reversed that course. Second-wave feminists tried to put women’s experience of sexual violence at the center of a new political analysis of rape. Although they built upon both the protective and empowering strategies of the suffrage era, this new generation of antirape activists started a more radical critique that explicitly linked the problem of sexual violence to male privilege. As it evolved from the margins to the political mainstream, this movement proved far more effective than its predecessors, not only in revising the legal meaning of rape but also in changing institutional practices.
Rape-shield laws that limit questioning about the past sexual experience of the accuser; statutes that mandate the reporting of child sexual abuse; and the naming and criminalization of marital rape offer a few illustrations of the results of this campaign on American law and culture. Today the redefinition of rape continues to expand, so that the term now encompasses a variety of coercive or violent behaviors, committed by men or women of any race, whether heterosexual or homosexual, in public or in private. In 2012, for example, the FBI revised the narrow criteria used since 1927 in compiling the Uniform Crime Reports. The bureau now includes any form of forced penetration of a man or woman, as well as “nonforcible rape,” in which the victim is impaired or cannot give consent.
Despite significant departures from the past, current controversies over the meaning and prosecution of rape reveal historical continuities. For one, reform often relies on changing laws more than challenging social hierarchies. Like earlier protective laws, the recently reauthorized Violence Against Women Act provides a symbol of women’s growing political clout. A part of the Omnibus Crime Bill, its provisions facilitate services for those affected by rape and domestic violence. Yet some community activists have questioned whether the emphasis on enforcement has had any notable effect in preventing rape, and they point to the disproportionate incarceration of low-income and minority men.
As in the past, not only race and class but also other markers of social status continue to determine which sexual assailants face prosecution. Although members of the clergy have come under closer scrutiny, military rank still carries significant sexual privilege. In high schools and colleges—in places like Steubenville, Ohio, and State College, Pa.—athletes and coaches still seem to think they can enjoy sexual entitlement, banking on the reluctance of authorities to prosecute them. Recent revelations of the unreported or unpunished rapes of migrant agricultural workers highlight the sexual, as well as economic and legal, vulnerabilities of immigrants. And the cultural practice of blaming women for putting themselves in harm’s way, whether by drinking or by wearing clothes considered provocative, persists as a defense against rape accusations across social groups.
As discouraging as those parallels may be, the history of antirape movements reminds us that contemporary critics, in contrast to their predecessors, can employ a far greater range of political resources. Beyond the journalism and petitions that characterized earlier reform efforts, groups once excluded from the full rights of citizenship now have formal access to suffrage, juries, and elective office. The presence of women and minorities in Congress, for example, has made possible not only the passage and reauthorization of the Violence Against Women Act but also the Congressional hearings on protecting American Indian women and on the widespread problem of sexual assault within the military.
Securing and expanding these rights of citizenship will prove crucial to dealing with the persistent inequalities in the treatment of rape. As Americans rethink which nonconsensual sexual acts to tolerate and which to prosecute, the legacies of past reforms underscore the importance of considering both cultural and legal change—and both racial and gender justice—in future redefinitions of rape.