Marginalized Victims: Women and the Preservation of Honor in Civil War Kentucky

JURY, n. A number of persons appointed by a court to assist the attorneys in preventing law from degenerating into justice. – Ambrose Bierce, The Devil’s Dictionary

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By Matthew C. Hulbert

In July 1863, a Gallatin County man named Frank Story overpowered Jane Kelly, a local white woman. (This racial distinction is important because had Kelly been African American, a trial record would probably not exist.) He abducted his victim with one purpose in mind: “to have carnal knowledge with her.” Details are few and far between of the attack itself—but we do know that Story’s advances were unwanted (hence the abduction) and that he failed to complete his above stated purpose before being interrupted by multiple witnesses, who turned out to be children. A Grand Jury swiftly convened in Gallatin County and indicted Story for attempted rape (read the full document in Early Access). Not long after, a trial jury convicted him of a lesser charge; rather than attempted rape, these jurors found Story guilty of assault and battery and sentenced him to a measly four months in prison and a $100 fine.

Oftentimes we find examples in the CWG-K archive wherein a trial jury is compelled for one reason or another to produce a certain verdict and then immediately requests that the governor use his executive power to override the original decision. Put another way, the jury does what they feel the letter of the law obligated them to do before turning to the chief executive of the Commonwealth to ensure that justice is meted out. (The same jurors convicting Caroline Dennant of infanticide and then requesting her pardon is one such illustration.) In this case, a petition was sent to Governor Thomas Bramlette; it was signed by all twelve of the jurors who convicted Story along with the sheriff of Gallatin County, the attorney who prosecuted the case, and numerous other officeholders and private citizens. Given that Story’s sentence seems so short and the nature of his transgression so violent; contemporary readers might jump to the conclusion that the jurors were compelled to lessen his charges on a legal technicality. They might also assume that the governor, Thomas Bramlette—himself a former judge with a fire and brimstone reputation—will set things right based on the petition. Unfortunately for Jane Kelly, those assumptions would be wrong. The petitioners actually believed that her attempted rapist had been the party robbed of justice.

According to the petition, which was spearheaded by Thomas Ritchey, the trial jury refused to convict Story of attempted rape based on the testimony of children—despite the fact that the Grand Jury had used the same testimony to indict. Moreover, the men writing on Story’s behalf believed Bramlette should grant a full pardon because 1) Story was only fifteen years old at the time of the crime; and, 2) because his father had been away in the Union army and as a result “had not that Control over his Son & could not govern his conduct as he would like to have done.” In other words, at fifteen years of age, Frank Story could not be expected to control himself in the manner of an adult and thus should not have been held responsible for attempting to rape Jane Kelly.

As past readers of the CWG-K blog will note, the law in Kentucky generally failed to take a consistent stance on the convicting and sentencing of minors. For instance, William Spencer, himself fifteen years old, was initially sentenced to 3.5 years in the state pen for stealing a pair of used trousers before having the punishment commuted to one month. Also recall the case of Graham Akin, a fourteen year old from Danville who was convicted of attempted homicide but only fined $50. So, it really should not surprise anyone that Kentuckians in 1863-64 tried to use Frank Story’s age to get him out of an already truncated prison sentence. Nor should it stun you to learn that Thomas Bramlette did, in fact, exercise clemency—freeing Story halfway through his prison term and remitting the $100 fine.

Kentucky’s legal system in the 1860s had little idea how to define childhood and thus struggled mightily to sentence minors. That much has been established already. The more revealing line of inquiry raised by the Story-Lane encounter has to do with the way male jurors and court officers reconciled their own conceptions of self-honor with gender, age, and the weight of one’s word. Unlike in the aforementioned case of William Spencer—who was convicted based on the testimony of an adult male victim/witness and received a relatively harsh sentence—the main witnesses against Frank Story were a mix of minor and adult, but neither was the magic combination of adult male. So on one hand, the jurors in The Commonwealth vs. Frank Story would have been willing to punish children as adults under certain circumstances, while not considering the testimony of children on equal terms with that of an adult (even when the defendant himself was a child).

What jumps out here is that the testimony of Jane Kelly hadn’t mattered from the start. The petition specifically stated that, “His [Story’s] guilt was proven by children only” (my emphasis). This wasn’t a case of accidental oversight—it’s where the honor component comes into the story. Despite her being both an adult and a firsthand witness to the crime, Kelly’s word wasn’t valued enough to land a full conviction. Not because male jurors believed she was untrustworthy—because a female voice was never supposed to be an integral part of the process at all.

In 1850s and 1860s, southern men liked to believe their lives were structured around a paternalistic, hyper-masculine code of honor in which dependents—women and children—required their protection. At the same time, within the gendered confines of this system those same women were not considered competent enough as witnesses to describe to their would-be protectors from what or from whom they actually required defense. Therein, at least in theory, women were fundamentally no different than their children. With this in mind, Jane Kelly was only supposed to play the role of damsel in distress and then of grateful ward. But the logistics of the crime and subsequent trial didn’t work out that way. No men could take the stand to testify, so it was either a woman or children whose voices would have to be lent authority in court. Faced with this decision, the jurors begrudgingly chose to prioritize the children’s testimony, which kept Jane Kelly in her proper role.

What this hiccup in the system ultimately confirms is that the “code of honor” undergirding it was never actually based on protecting dependents. It was designed to appear that way to advance a patriarchal agenda. As such, it was laden with loopholes designed to give men a way to protect themselves and their status/authority first, even at the expense of a sexual assault victim like Jane Kelly.

 

Matthew C. Hulbert is an Assistant Editor of the Civil War Governors of Kentucky Digital Documentary Edition.

Homefront Hazards: Sexual Violence and the Court-Martial of Lt. Charles Helton

By Matthew C. Hulbert

In January 1864, a court-martial convened in Lexington, Kentucky, to decide the fate of Charles Helton. As Second Lieutenant of Company I, 39th Regiment, Kentucky Volunteer Mounted Infantry (U.S.A.), Helton and the men he commanded had an inherent duty to protect civilians from all manner of Confederate assault. The events of December 14, 1863, however, underscored the extent to which those civilians often needed guarding from the very men supposedly paid to protect them.

According to court documents, on the aforementioned December 14, 1863, Helton went to the house of Thomas Russell, himself a Union officer (a captain of the 45th Kentucky Volunteer Infantry) and “did in a rude and ungentlemanly manner use threatening and insulting Language to the wife and daughter of Capt Thos Russell.” More startlingly, Helton also tried to persuade Russell’s daughter to “accompany him from the house” and, when the young girl refused, he drew his pistol and shouted “By god you shall go or I will kill you.” The victim, whose first name was not revealed in the proceedings, successfully fled from the scene and escaped Helton’s ultimatum. For this incident, he was charged with “conduct unbecoming an officer and gentleman,” though attempted kidnapping with the intent to commit rape might have been more appropriate given how the rest of the day would unfold…

Stung by his failure to lure off the young Miss Russell, Helton next went to the home of Emanuel Spence. There, he again hurled “insulting Language” and managed to fire his pistol in the house (fortunately not wounding anyone). Once more, he attempted to abscond with a female captive; having already displayed a willingness to use his gun, Helton employed “threats” of violence to “compel Mrs Zelphina Spence to accompany him one-fourth of a mile from her house, attempting to persuade her to go to camp with him, there to be as a wife to him.” She declined the invitation—and also managed to get away from Helton unharmed. This episode was added as a second specification to the “conduct unbecoming” charge.

Now smarting from two [un]romantic rejections, a more desperate (and almost certainly more inebriated) Helton returned to the Russell house and commenced to “rudely assault the wife of said Capt Russell.” Helton declared that he would “stay all night with her,” to which Mrs. Russell responded by telling him to leave. Not to be deterred, Helton replied emphatically, “By god. I will stay,” at which point Mrs. Russell wisely “ran into another room, and shut the door.” From there, the situation quickly turned violent.

Said Helton kicked the door violently, and said to her, “If you do not open the door, I will blow your God damned brains out,” and forced the door open, and followed said Mrs. Russell into another room; and caught hold of her and tore her dress open and thrust his hand into her bosom, saying, I have been on a scout fourteen days, and by God I must have you for my purposes now, and the said Helton did, by force, attempt to throw said Mrs. Russell on the bed.

As noted in court testimony, only the “timely appearance of two countrymen” stopped the assault and spared Mrs. Russell. For his final assault of the day, Helton was charged with “assault and battery with intent to commit rape.”

With regard to assault and battery, attempted rape, and conduct unbecoming, Helton plead guilty and was found as such on each charge. More curiously, he was not guilty of “drunkenness on duty,” despite the fact that liquor had clearly helped fuel his daylong “rampage” through Rock Castle, a community near the Kentucky-West Virginia border. The decision seems doubly odd in light of evidence showing that while on a scouting mission on the very morning of the day the assaults took place, Helton was deemed “intoxicated to such an extent that he was unable to command, and did permit his company to become demoralized and scattered in consequence of said intoxication.”

In addition to being stripped of his rank and pay, Helton was sentenced to three years of hard labor “with ball and chain attached to his leg.” At the end of his prison term, he was to be dishonorably discharged from the Union military. To modern eyes, Helton’s sentence appears rather light for an attempted rapist running around drunkenly with a gun—and even lighter for one essentially guilty three times over on the same day. But in 1864, three years of hard labor was a relatively harsh punishment for Helton’s crimes. In fact, the archives of the Civil War Governors of Kentucky Digital Documentary Edition are replete with cases of attempted rape and rape being downplayed, if not outright excused or justified, by male judges, lawyers, and jurors.

With this in mind, what probably provoked the firm sentence had less to do with justice for Mrs. Russell or Helton’s other female victims than it did with preserving support for the Union cause among civilians. In many parts of the state, the relationship between the Union government and civilians who wanted to remain in the Union but also to protect slavery was already rocky—and the military could scarcely afford to concede its ability to protect them from Confederate invaders or neighborhood bushwhackers, let alone from its own soldiers. Nor, for that matter, could it concede that civilians might be safer joining the ranks of the irregular war than relying on regular troops for protection.

In any case, as this story makes clear, we would be wise to remember that while Kentucky’s Civil War homefront was fraught with hazards—especially sexual ones for women—the danger didn’t always stem from contact with “the enemy” as we typically like to imagine him.

 

Matthew C. Hulbert is an Assistant Editor of the Civil War Governors of Kentucky Digital Documentary Edition.


SOURCE: “General Orders No. 89,” Kentucky Department for Libraries and Archives, Frankfort, Kentucky.