Sex and Punishment: Four Thousand Years of Judging Desire (37 page)

American antimiscegenation laws would remain in place in many states until 1967, when the U.S. Supreme Court passed on the marriage of Mildred and Richard Loving. Mildred was a mixture of black and American Indian descent, and Richard was white. She had been eleven years old and he seventeen when they began dating in their hometown of Central Point, Virginia. In 1958, around Mildred’s eighteenth birthday, she became pregnant. The couple decided to marry, but as interracial unions were illegal in Virginia, they traveled to Washington, D.C., to exchange their vows. A few weeks after their return to Central Point, a group of police officers invaded their home. Mildred pointed to their marriage certificate on the bedroom wall, but that only made their situation worse. They were charged with, among other things, “cohabiting as man and wife, against the peace and dignity of the Commonwealth.” Under the threat of substantial jail time they agreed to leave the state for twenty-five years. The case was then picked up by civil rights lawyers; lawsuits were filed, and years of bruising litigation began.

Fortunately, this was the era of broadening civil rights laws. The U.S. Supreme Court unanimously agreed that Virginia’s antimiscegenation law, and similar laws in all states, should be struck down. “The freedom to marry, or not marry, a person of another race,” wrote Chief Justice Earl Warren, “resides with the individual and cannot be infringed by the State.” That seems rather obvious to most of us now, but for others it remains difficult to swallow. It took South Carolina and Alabama until 1998 and 2000, respectively, to formally repeal their antimiscegenation laws. In 2009, a Louisiana justice of the peace refused to marry a black man and a white woman. “There is a problem with both groups accepting a child from such a marriage,” he said. “I think those children suffer, and I won’t help put them through it.”
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RACE AS A LICENSE TO RAPE

The historian Michel Foucault observed, rather ironically, that “men think that women can only experience pleasure in recognizing men as masters.” Had Foucault expressed that idea to the aforementioned shipmate of Christopher Columbus, who whipped a terrified Carib woman into sexual submission, he would have found hearty agreement. Although we have no direct record of the woman’s thoughts, we can safely conclude that she only “came to terms” sexually with the Italian upon realizing that her life would end if she did not submit. In other words, she was raped. This onboard encounter was one of the first of millions of rapes perpetrated by European men against women of color in Africa and the New World. Had the rape occurred at home, the Italian would have been exposed to criminal prosecution and possibly even death, but he knew the laws of Europe had no force or effect in the tropics. The fulfillment of his cruel desires was now possible.

As we have seen, European men took native women (and imported slaves) at their violent pleasure in every land they conquered. The laws of the Old World were left behind as soon as it disappeared over the horizon. Occasionally there were directives, such as one by Hernán Cortés, not to treat local women “outside of our law,” but they never had much effect. When commanders (such as the Spanish Bernal Díaz) referred to “pretty women” as “spoil,” the message was clear: Sex could be had by any means necessary. Not long after Cortés told his men to stop raping native women, another conquistador in Jalisco felt no compunction about chopping off a local woman’s hands when she resisted him. When the woman still refused to submit, the man’s companions stabbed her to death. Stories like this got around, as did accounts of thirty native women in Chile giving birth about nine months after encountering a company of Spanish soldiers. Vespucci’s promise that native women were happy to make themselves available for sex with Christians described a rare occurrence, if it existed at all. Sexual conquest was violent in the extreme and made possible by the absence of any risk of punishment.

The privilege of raping foreigners without consequence did not start with the discovery of the New World. European men had always taken the women of conquered societies, and voyages across the Atlantic Ocean ended in no different a result. These were not sightseeing cruises, but missions of conquest. The men who manned the vessels were, by and large, ragtag treasure-seekers. They were paid in what they were able to take, and indigenous women were prime booty. Additionally, the conquerors’ use of natives as slaves in overseas settlements and the development of the African slave trade called up another set of age-old privileges. Slaves were there to be sexually abused, especially when there was general agreement that natives were inferior to whites in all respects. The notion of giving them the right to refuse sex to their superiors would have been viewed as treasonous.
¹⁵

From the beginning of its colonial adventures, the Portuguese Crown assigned slaves to its seagoing men, and even
degredados
, to let them blow off steam and increase colonial populations. The niceties of Portuguese law, which barred the rape of slaves, were easily circumvented. Slaves were forbidden from testifying in court against their masters, so unless a rape took place within sight of a free person, it was as though it had never occurred. Additionally, many of the African societies the Portuguese encountered were themselves slave-owning. In such cases, the use of slave women as sexual playthings matched local traditions. To the Spanish, the children issuing from such rape were a notch superior to the offspring of two natives alone. As observed by Francisco de Aguirre, the conquistador and governor of Tucumán, “the service rendered to God in producing
mestizos
is greater than the sin committed by the same act.” Whereas at home rape was a capital crime, in the New World it thus became an act of devotion.

THE OPPORTUNITIES FOR forcible sex multiplied as slaves were shipped from Africa to the plantations of the West Indies. In the Danish colonies, for example, the law equated a slave with a beast, “entirely under the authority of his master, who can treat him as he wishes, just as he might treat any other piece of property.” A key aspect of this “authority” was sexual. From the moment they were abducted and stuck in the atrocious seaside holding pens known as barracoons, and then loaded onto the trading ships, African women were subject to exploitation. Officers usually had first pick, while their subordinates waited their turns. Slave ships were, in the words of an eighteenth-century slaver, “half bedlam and half brothel” from the African coast all the way to the New World.

Once ashore, slaves were sold, marked with hot brands, and put to work. Their “pay” usually consisted of small quantities of food and cheap powerful rum known as “kill-devil.” In the Danish colonies, as in others, black women who resisted the sexual advances of white men were punished harshly. In one eighteenth-century case, a woman who refused her master sex was imprisoned in a dungeon, beaten, and scorched with hot sealing wax before another white man interceded and persuaded her owner to sell her. Other men used less violent means of persuasion. In the mid-nineteenth century, the Danish manager of a plantation persuaded a slave girl “hardly fourteen years old” to live with him, with the pledge that he would one day free her. She did so, and bore him three children—but he broke his promise and kept them all in bondage. Other, more powerful whites attempted to persuade him to free the slaves, to no avail; there were no laws requiring him to keep his promise, or even to admit that the children were his.

Thistlewood, the English slave overseer who counted about seventeen hundred sexual encounters with black females in Jamaica, also faced no risk of punishment. Sometimes such men were criticized for enjoying the “goatish” embraces of dark-skinned women, but that kind of carping deterred no one. An entry in Thistlewood’s diary tells of two of his white acquaintances who “burnt” one of his slaves, a woman named Sarah, for trying to resist them. The men also tried to burn Sarah’s hut to the ground. Thistlewood felt no sympathy for Sarah, although he seemed to like her. Rather, he was bothered that the men would try to harm his property. On another occasion Thistlewood’s boss, John Cope, joined six drunken men to “haw’l” Eve, a female slave, into a room where they were “Concern’d with her.” Thistlewood did nothing to stop the gang rape. Cope was later made chief magistrate for the parish.

Thistlewood and Cope couldn’t care less about the opprobrium of whites back home. What terrified them were angry black men. Whites were vastly outnumbered in Jamaica, and the danger of retaliatory violence by slaves against their owners was a daily reality. Thistlewood used terror to keep slave men in line and affirm his absolute control over the plantation. He beat them frequently and without provocation, usually in ways designed to humiliate them to the maximum possible extent. One punishment he invented, called “Derby’s dose,” involved having one slave defecate into the mouth of another and then wiring the recipient’s mouth shut. Thistlewood’s constant raping of his female slaves also constituted a humiliation. There could be few experiences more demeaning to the slave population than watching a white man with a whip ride into the fields and take females into the nearest shelter.
¹⁶

When a black man was suspected of sexual violence—at least against white women—no punishment was harsh enough. Several states in the antebellum South passed laws mandating castration for black men who raped or attempted to rape white females, although execution was the more common punishment. The women victims were characterized, whenever possible, as delicate creatures whose beauty and honor were cruelly stolen, while the men were reviled as devils on earth.

Had one young Georgia victim, Mary Daniel, been black, her rape would never have raised notice; but she was white and her attacker was a slave, which changed everything. The judge in her 1852 case (
Stephen v. State
) lamented the “dark cloud” of shame over “the unhappy victim, her family and friends, and . . . society at large,” brought on by “the defendant’s unhallowed lust.” After the Civil War, when racial tensions in the South reached their apex, a man’s dark skin was proof enough that he was a rapist. Juries were allowed to infer that any sexual encounter between a black man and a white woman involved intent on the part of the man to commit rape. As one court put it, no black man could assume that a white woman “would consent to his lustful embraces.” Between 1700 and 1820, more than 80 percent of the men executed in the United States for rape were of African descent; 95 percent of the females in these cases were white.

BLACK MEN WERE seen as sexual beasts, but the law paid little attention when the violence was directed away from whites. In the 1859 Mississippi case of
George v. State
, a black man’s conviction for raping a ten-year-old black slave girl was thrown out, because no law made the attack illegal. “The crime of rape does not exist in this State between African slaves,” said the court. Any rights to the girl’s body rested with her owner. Had the little girl been white, of course, the defendant would have been put to death. Punishments for black rapists in the South included, in addition to the occasional castration, being burned alive and decapitation followed by display of the severed head on a pole. Some black men were punished even when they were acquitted: One unfortunate slave in Virginia named Prince was given thirty-nine lashes after he had been found not guilty of attempted rape. Instead, he was punished for the hitherto unknown crime of
intending to attempt
rape.

Still, there were cases when black men accused of assaulting white women were treated mercifully. This was especially the case when the women were seen as dubious characters. In the case of Tasco Thompson, a free black man charged in Virginia in 1833 of the attempted rape of Mary Jane Stevens, the jury convicted him as the law required—but recommended that the governor grant him mercy. The jury foreman explained that the Stevens family was “exceedingly disreputable,” and that Stevens’s mother “had long entertained negroes.” There is no doubt, he continued, that Thompson went to the Stevens house believing that Mary Jane’s mother “would cheerfully submit to his embraces, as she doubtless had often done before, but finding her absent he probably supposed his embraces would be equally agreeable to her daughter.” In the same way, when a slave named Peter was sentenced to death for the rape of a white woman named Patsy Hooker, sixty-two local citizens petitioned the governor in 1808 for mercy, declaring that Hooker was “a common strumpet.” The jury had no choice under the law but to convict Peter, but they were clearly uneasy with this result.

In another case, a black man named Fields used creative logic to fight his rape charge. Fields was tried in 1832 for “attempting [to] ravish a white woman,” but was freed after the jury found that his attempt to have sex with her had not been forcible. Rather, Fields merely tried “to have such carnal knowledge of her while she was asleep,” and used no force except “getting to bed with her and stripping up her night garment in which she was sleeping.” Perhaps the drowsy woman was also seen as the sort who would have sex with black men in her sleep, or Fields was an unusually sympathetic character; we will never know. What is apparent is that courts and juries were not always comfortable with the harshness of the laws punishing interracial rape.
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HOMOSEXUALITY AWAY FROM HOME

The prevalence of real or imagined homosexuality among natives in the New World was used as a pretext for violent conquest. Sodomy in Renaissance Europe also came to be associated with witchcraft and heresy, so it is no surprise that colonial law adopted the intolerant attitudes of the Old World. In every one of the American colonies, homosexuals and people who had sex with animals risked execution. However, putting harsh laws on the books and enforcing them are quite different matters. In practice, American colonists were more tolerant of this kind of sexual behavior than their counterparts in England, Holland, and France. There was presumably no less sodomy taking place in Boston than in London or Amsterdam, but when such cases came up the New England courts were reluctant to enforce the law to its fullest.