Tag Archives: Sexual Violence

Slavery, Sexual Violence, and the Law

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That slavery and slaveholders often subjected the enslaved to sexual exploitation, coercion, and assault has been well documented by scholars and by ex-slave narrators like Harriet Jacobs and Louisa Picquet, both of whom endured unwanted sexual advances.[1] For at least two of slavery’s survivors, and probably countless more, the guerrilla conflict that engulfed Kentucky late in the Civil War also brought with it an additional danger of sexual violence. [2] Incomplete though they are, what follows are the stories of these two women—what they endured; how it was preserved in the historical record; and what that tells us about the politics of sex, race, gender, and the law on the cusp of slavery’s demise.

In November 1864, Hugh H. Martin, a Greenville farmer and avowed Unionist, wrote to Thomas Bramlette to “complain of the conduct of some of the men calling themselves State Guards.”[3] Eight to ten days earlier while a group of men under the command of Sebastian C. Vick commandeered a wagonload of corn from Martin’s property, one of the men “pursued and caught” a slave woman owned by Martin and “despite her resistance committed violence on her.” Since then, wrote Martin, the woman and her husband and been “greatly distressed and outraged, and I as their protector feel deeply injured.”[4] The identity of the woman is unknown, as Martin never names her in the letter. He mentions only that she was the wife of his favorite slave and that the couple had two children. The U.S. census shows that Martin owned four enslaved persons in 1860—three males ages 10, 18, and 36 and one woman who was 23 years old at the time.[5] But it is unclear if she is the same woman of whom Martin wrote. What is clear is the paternalism that permeates Martin’s account of sexual violence. Although he acknowledged that the woman and her husband felt “greatly distressed and outraged,” he also managed to make the assault, ultimately, about his perceived injury as a slaveholder. By styling himself as the couple’s “protector,” Martin conjured a favorite argument of slavery’s defenders that figured the relationship between master and slave as tantamount to that between parent and child. It portrayed bondspeople as perpetual children in need of protection and obscured the reality of slavery as a violent, exploitative institution in which the master benefitted from slaves’ expropriated labor. In reporting his own feelings of deep injury, Martin also gestured toward a feature of 19th century jurisprudence. In a case of sexual assault against a slave, an antebellum slaveowner might sue another white man for damages to his legal property, but the enslaved had no legal recourse; if the owner of the enslaved committed the assault, the law demanded no culpability.[6] The crime of rape against an adult slave did not exist until shortly before the Civil War, when an 1861 Georgia statute expanded the definition of rape to include victims both slave and free. [7]  In Kentucky, the law defined rape specifically in terms of gender and race: “Whoever shall unlawfully and carnally know any white woman [emphasis added], against her will or consent, or by force, or whilst she is insensible, shall be guilty of rape.”[8] Not until February of 1866 could black or multiracial Kentuckians charge a white person with a crime, and then only by affidavit; they could be witnesses in criminal proceedings only against other African-Americans.[9] In a time and place where the law did not acknowledge sexual violence against African-Americans as a crime, the assault committed against the unnamed enslaved woman was ultimately recorded in the grievance registered by the man who owned her as property. Hugh Martin complained to the governor that he could not expect “protection or redress” from officers who could not keep their men in line, but at the time, if there had been any possibility of redress, it would have been Martin’s to seek, not that of the woman who had endured the assault.

Martin also felt compelled to assure the governor of his belief that the enslaved spouses were “faithful to one another.”[10] That Martin thought this detail material to the case betrays, if not his own acceptance, then at least an awareness of the derogatory stereotype of bondspeople as promiscuous. Specifically, Martin may have wanted to dispel the idea that the woman who was assaulted resembled in any way the cultural myth of the Jezebel, the unchaste African-American woman who was, according to Deborah Gray White, “the counterimage of the mid-nineteenth century ideal of the Victorian lady.”[11] A number of factors contributed to the myth of Jezebel in the minds of white Americans,  including the fact that slavery left the bodies of female slaves exposed–whether due to ragged clothing, methods of punishment, or the intrusive examinations to which they were subjected on the auction block—and the concubinage often imposed by the men who owned them.[12] Even when the law seemed prepared to punish predation against enslaved children, it managed to reinforce the Jezebel stereotype. In Kentucky the “rape upon the body of an infant under the age of twelve years,” was punishable by death, and the statute did not specify the race of the victim.[13] But such a statute, even if used to prosecute the sexual abuse of an enslaved child–as Peter Bardaglio has argued about a Mississippi law that established the same age of consent–essentially codified the Jezebel myth into law by implying that slaves older than twelve could not be raped because they were, to borrow Bardaglio’s phrase,  “incapable of withholding consent.”[14]

Within a few weeks of the assault in Greenville, a band of about twenty-five guerrillas carried out a robbery and murder spree in Washington County, leaving four men dead.[15] One of the leaders, Samuel O. Berry, was later tried for his guerrilla activities by a U.S. military commission. The charges included fourteen murders, six counts of robbery, and two counts of rape. The trial was held in Louisville and covered extensively by the Daily Courier, which published a daily transcript of the testimony. Among the prosecution witnesses was a Nelson County freedwoman named Laura, who testified that she had been raped by Berry at gunpoint. “I cried and begged him not to,” Laura told the prosecutor, “but he would do it; he had his pistol drawn on me all the time.” Asked if she was a free woman at the time of the assault, Laura answered, “Well, I supposed I was what was called ‘free’; I had a husband in the army.” Her response seemingly hinted at a disparity between the legal qualification of freedom and the reality of Laura’s living situation at the time, but it was also essential to her ability to testify. Before he began his cross-examination, Berry’s attorney moved to have Laura’s testimony excluded because of her color and on the grounds that she had been a slave at the time of the assault. Implicit in his motion was the abhorrent suggestion that these two factors somehow rendered the violence against Laura insignificant, that her color and her enslaved status negated her right to seek legal redress against her rapist. And that might have been the case but for the one critical factor that her husband was in the army. Legally, this made her a free woman at the time of the assault. Her testimony would stand.[16]

On cross-examination, the defense asked all manner of intrusive and degrading questions in an attempt to blame and discredit the witness. Why hadn’t she run away or called for help? “I was afraid to,” replied Laura, who testified that her child was also upstairs in the house where the rape occurred and that Berry held a pistol the whole time. The defendant, who reportedly lost his hand above the wrist in an industrial accident before the war, was widely known as “One-Armed Berry.”[17] Throughout the trial, as the attorney for the defense attempted to challenge witness identifications of Berry, his efforts were undermined when people who did not know Berry personally, cited this distinguishing feature as the means by which they recognized him during the commission of various crimes. In cross-examining Laura, the defense tried to use this disability—which had not seemed to interfere with Berry’s marauding—as a way to cast doubt on her testimony. “How could he ravish you if he kept his pistol in his hand all the time?” the attorney asked. Laura’s terse and matter-of-fact reply suggests she was unflappable: “Well, he did it.” “I want to know how he did it,” the attorney persisted. Again, Laura stated, “He ravished me with his pistol in his hand.” The attorney turned to another line of questioning: “Did this party that went up stairs with you offer you any money?” In the exchange that followed, Laura revealed that the assailant had given her a quarter “after he got through and [was] just ready to come downstairs.”[18] Though he did not say as much directly, the implication of the defense’s question was that the monetary transaction had rendered the incident an act of prostitution for which Laura was financially compensated. But Laura stated repeatedly throughout her testimony that her assailant had held a gun and that fear prevented her from running away or calling for help. No wonder she did not refuse the coin, as that act might have provoked the rapist to shoot Laura or harm her child.

Berry was found guilty of being a guerrilla and of the various specifications of robbery, rape, and murder. He received a sentence of death, but this was later commuted to ten years in prison.[19] That Laura’s status as a free woman and, thus, the admission of her testimony hinged on her marriage to a U.S. soldier highlights the reality that emancipation and the citizenship rights of freedpeople rested largely on the military service of African-American men. Laura was able to tell her story and to speak for herself in the public record. Still, it was her relationship to her husband that made that possible. Laura’s case can hardly be read as a sweeping victory for the formerly enslaved who endured sexual exploitation and assault in slavery. It seems unlikely that the rape would have been prosecuted had it not been one in a litany of charges brought in a U.S. military court against an infamous guerrilla leader.  But in a justice system that was more apt to treat victims like the anonymous enslaved woman owned by Hugh H. Martin, it was a notable, if rare, instance in which a survivor had her day in court.

Christina K. Adkins has a PhD in American Studies. Her work focuses on slavery and cultural memory.

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[1] Harriet Jacobs, 1861, Incidents in the Life of a Slave Girl, Documenting the American South, University Library, The University of North Carolina at Chapel Hill, 2003, https://docsouth.unc.edu/fpn/jacobs/jacobs.html; Louisa Picquet,1861, Louisa Picquet, the Octoroon: or Inside Views of Southern Domestic Life, Documenting the American South, University Library, The University of North Carolina at Chapel Hill, 2003, https://docsouth.unc.edu/neh/picquet/picquet.html.

[2] On guerrilla war in Kentucky, see especially Daniel Sutherland, A Savage Conflict: The Decisive Role of Guerrillas in the American Civil War (Chapel Hill: University of North Carolina Press, 2009) 220-25.

[3] Martin and at least one other correspondent, W. H. Faris, questioned whether Vick and his men had the governor’s approval to operate as members of the State Guard. Faris reported to the governor that Vick had been  “acting out the most complete military force that has come to pass during this war” and warned Bramlette that if Vick and his men were allowed to continue a controversial policy of impressment, they would grow bolder and “a vast amount of civil injuries…will grow out of this thing,” W. H. Faris to Thomas E. Bramlette,  10 August 1864,  Guerilla Letters,  Document Box 1, Folder G. L. 1864,  Kentucky Department of Military Affairs,  Frankfort,  KY.  Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0002-225-0052

[4] H. H. Martin to Thomas E. Bramlette,  11 November 1864,  Guerilla Letters,  Document Box 1, Folder G. L. 1864,  Kentucky Department of Military Affairs,  Frankfort,  KY.  Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0002-225-0059.

[5] Eighth Manuscript Census of the United States (1860), Slave Schedules, Kentucky, Muhlenberg County, District 1, p. 8.

[6] Peter W. Bardaglio, Reconstructing the Household: Families, Sex, And the Law in the Nineteenth-Century South, (Chapel Hill: The University of North Carolina Press, 1995), 66.

[7] Peter W. Bardaglio, Reconstructing the Household: Families, Sex, And the Law in the Nineteenth-Century South, (Chapel Hill: The University of North Carolina Press, 1995), 68.

[8] Richard Stanton, Revised Statutes of Kentucky, Approved and Adopted By the General Assembly, 1851 And 1852, And In Force From July 1, 1852, vol. 1 (Cincinnati: Robert Clarke & Co., 1867) 379-80.

[9] Harvey Meyers, ed., A Digest of the General Laws of Kentucky: Enacted by the Legislature, Between the Fourth Day of December, 1859, And the Fourth Day of June, 1865: Embracing the General Laws Passed Since the Publication of Stanton’s Edition of the Revised Statutes : With Notes of the Decisions of the Court of Appeals of Kentucky : With an Appendix Containing the Laws of the Winter Session, 1865-’66 (Cincinnati: R. Clarke, 1866), 735-36.

[10] H. H. Martin to Thomas E. Bramlette,  11 November 1864,  Guerilla Letters,  Document Box 1, Folder G. L. 1864,  Kentucky Department of Military Affairs,  Frankfort,  KY.  Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0002-225-0059.

[11] Deborah Gray White, Ar’n’t I a Woman: Female Slaves in the Plantation South, rev. ed. (New York: W. W. Norton & Company, 1999), 29.

[12] White, Ar’n’t I a Woman, 31-34.

[13] Stanton, Revised Statutes, 379.

[14] Bardaglio, Reconstructing the Household, 68.

[15] Richard J. Browne to Thomas E. Bramlette,  29 November 1864,  Guerilla Letters,  Document Box 1, Folder G. L. 1864,  Kentucky Department of Military Affairs,  Frankfort,  KY.  Accessed via the Civil War Governors of Kentucky Digital Documentary Edition, discovery.civilwargovernors.org/document/KYR-0002-225-0060

[16] William L. Myers and Albert E. Cochran, “Trial of One-Armed Berry, the Guerrilla: Second Day’s Proceedings,” The Louisville Daily Journal (Louisville, Ky.), Jan 17, 1866, p. 1.

[17] “Sam Berry’s Lost Arm,” Louisville Daily Courier, (Louisville, Ky.), January 26, 1866, p. 3.

[18] Myers and Cochran, “Trial of One-Armed Berry,” 1.

[19] The Papers of Andrew Johnson, vol. 10, February- July 1866, ed., Paul H. Bergeron (Knoxville: University of Tennessee Press, 1992), 249.

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

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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

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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.