Written by Eva Beere
“The secrets of slavery are concealed like those of the Inquisition. My master was, to my knowledge, the father of eleven slaves. But did the mothers dare to tell who was the father of their children? Did the other slaves dare to allude to it, except in whispers among themselves? No, indeed! They knew too well the terrible consequences.” Harriet Jacobs, Incidents in the Life of a Slave Girl (Boston: 1861), 55
When Harriet Jacobs wrote Incidents in the Life of a Slave Girl, she was seeking freedom in New York City, having previously escaped from her slave master, Dr. James Norcom, in North Carolina. Besides exposing the chronic exploitation of enslaved people, her autobiography captures the commonplace sexual abuse enslaved women faced in the antebellum period, where they were forced into sexual relationships often without their consent. Although the reasons for this rape epidemic in the South are multifaceted, historians, such as Rachel A. Feinstein, have reached two main reasons for the explosion of sexual violence: to increase slave labour and preserve white male dominance. Behind this exploitation were two main inconsistencies in rape law in the Southern judicial system: firstly, the assumption that all victims could give consent resulted in Black women having limited legal protection compared to white women, and secondly, the scapegoating of Black men in rape cases to protect white masculinity and femininity led to the Black female voice being neglected. Recognising the failures of the antebellum legal system to acknowledge the rape of enslaved Black women is not only necessary in understanding the unique experience of these women on Southern plantations but also in realising the legacy of white male dominance in modern-day rape cases.
In the antebellum South, the rape of an enslaved Black woman was not a criminal offence under common or slave laws, due to the centrality of consent and mens rea to rape statutes. The centrality of consent to US antebellum rape laws assumed that all victims had an equal opportunity to give or deny consent, disproportionately harming Black enslaved women. This was also perpetuated by the concept of mens rea, which was imperative for a rape prosecution. Mens rea is a Latin term which refers to the intention or knowledge of the wrongdoing of a crime. In this instance, mens rea was concerned whether the perpetrator knew he was having sex without consent or whether he willingly wanted to have sex without consent. By placing consent as the cornerstone for rape prosecutions, for enslaved women who were deemed as property under the law and unable to give or withhold consent, the Southern judicial system turned a blind eye to their cases of rape. This created an inconsistency between Black and white female protection; white women were legally allowed to consent, and could thus challenge their perpetrator, whereas enslaved Black women were not deemed subjects of antebellum law, so they were legally unable to be raped.
The case of George v. State asserted that slaves were not subject to the protection of antebellum law, perpetuating this divide. In 1859, the Mississippi court overturned the conviction of a slave, called George, who was sentenced to death for the rape of a female slave under the age of ten. The prisoner was discharged by Justice William Littleton Harris on the ground that “the crime of rape does not exist in this State between African slaves.” Mississippi law also concluded that “the regulations of law, as to the white race, on the subject of sexual intercourse, do not and cannot, for obvious reasons, apply to slaves.” In other words, the rape of an enslaved Black woman by both white and Black men was not illegal.
The silencing of enslaved Black women by the antebellum legal system was motivated by the economic incentive of expanding the slave workforce. The principle of partus sequitur ventrem was the foundation of slavery’s sexualised nature, a legal doctrine passed in 1662 which defined the status of a child born into slavery as the status of the mother. In other words, slaves gave birth to slaves. This doctrine was an unusual introduction into the English colony, as despite the patriarchal society in England, it gave full ownership of the child to the mother. By having no legal obligation to care for and protect the child, slave masters could thus exploit these enslaved children into the slave workforce.
The unique aspect of North American slavery as a ‘self-reproducing’ institution was further fuelled by the 1808 US Constitution banning the legal importation of enslaved people from abroad. At the beginning of the nineteenth century, cotton production steadily increased in the South, thus becoming more intertwined with Southern economic success, leaving the South in need of larger workforces. Although sexual exploitation had been a characteristic of slavery from its inception, the growing success of the cotton industry added a greater monetaristic value to this. By creating a self-reproducing slave population, white slaveowners could continue to expand their economic profits whilst abiding by the new law of 1808. This monetary incentive for white men to rape Black enslaved women was described in Feinstein as a ‘form of terrorism,’ whereby slaves feared the punishments they would receive if they did not comply with their masters’ sexual and economic demands. Threats of physical injury meant enslaved women and men had no choice but to comply with their master’s demands, paving the way for continued rape. Therefore, by placing consent as the central doctrine in rape cases, and upholding the principle of partus sequitur ventrem, white men were legally allowed to sexually exploit enslaved women for their economic advantage.
The scapegoating of Black men in cases of rape also ensured Black women’s voices were silenced. The stereotype of the predatory Black man was created to maintain racial order in southern society, whereby interracial relations between Black men and white women were seen as both a threat to white masculinity and white femininity. The need to maintain the racial hierarchy in southern society led to even harsher punishments being administered by the US legal system for Black men. Attempts to exert racial control by southern judicial systems resulted in an inconsistency between how punishments were given to white and Black men in cases of the rape of a white woman. For instance, as late as 1819, Virginia legislature allowed castration of enslaved Black men convicted of raping a white woman. This inconsistency shows how the antebellum legal system protected white masculinity, permitting the continued violence and rape of women by white men.
This criminalisation of Black men meant that the rape of Black women was rarely considered. Whilst the case of Black men involved both white men and white women, Black women were ignored, with the legal system erasing any concerns of sexual violence against them. The narratives of Olaudah Equiano, a previously enslaved man who was sold into slavery in Virginia, highlight the effects of these inconsistencies on Black enslaved women. In his account of life under his master, he recalls: ‘And yet in Montserrat I have seen a negro man staked to the ground, and cut most shockingly, and then his ears cut off bit by bit, because he had been connected with a white woman who was a common prostitute; as if it were no crime in the whites to rob an innocent African girl of her virtue.’ Therefore, the inconsistencies between how Black and white men were persecuted meant the US legal system justified an environment which silenced and neglected Black women’s voices, allowing for rape to become commonplace in the antebellum South.
The blindness of American legal systems in the pre-war period has seeped into modern-day law, whereby Black women are still neglected when it comes to their sexual exploitation. An added emphasis on victim reporting, whereby cases of rape often go unnoticed if the victim does not report the crime, leads to a different experience for Black and white women. Whilst Black women experience rape and sexual assault at higher rates than white women, Black women are less likely to report their rape due to this historical relationship between the law and Black women. For every Black woman that reports her rape, fifteen Black women do not report, demonstrating how the legacy of the antebellum rape laws, which consistently silenced Black women for over two centuries, is still detrimental to the lives of Black women in the twenty-first century.
Antebellum rape laws adhered to the privileges of white supremacy in the American South, constructing a notion of the ‘unrapable’ Black woman and the ‘sexually permissive’ Black man to maintain white male dominance in society. These stereotypes were created and perpetuated by antebellum rape laws, placing the US legal system as the driving force of the rape epidemic on southern plantations. The centrality of consent in rape cases, combined with the harsher punishments administered to Black men, worked together to silence Black enslaved women for over two centuries. What transpired in antebellum courts in the eighteenth and nineteenth centuries still has a profound effect on the US legal system today, whereby Black men are disproportionately punished, and Black women receive less legal protection. Exposing the harsh reality that ‘white men have historically regulated who is and is not rapeable,’ encourages us to unveil the hidden racial biases present in modern-day rape cases, a crucial step in allowing Black women the legal protection they have been denied since the beginning of American chattel slavery.
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