Sex without Consent: Rape and Sexual Coercion in America (review)

Rape is a complex social event. Yet the legal definition of rape, as a violent and forced sexual encounter without the consent of the victim, has narrowed our understanding of this culturally constructed and ideologically laden phenomenon. In Sex without Consent, the authors of thirteen essays cover American and Canadian history from the seventeenth century to the present, examining rape both inside and outside the courtroom. They assess how different ethnic and social groups, in different historical periods and in different colonies, states, and regions, defined and regulated the practice of rape. As with most historical subjects, the available sources have determined what conclusions can be drawn. While most of the authors have relied on legal sources, they have, with varying degrees of success, moved beyond a purely legalistic (or monolithic) perspective on rape.

The first five chapters cover the colonial period. The opening essay by Alice Nash explores the captive tradition among the Wabanaki tribes in colonial New England, while the remaining four assess rape in different political contexts: Puritan Massachusetts, Virginia, New Netherland, and Quaker Pennsylvania. Nash demonstrates that consent had nothing to do with the captive tradition: the strict distinction between sexually available indigenous female captives and English women (who were treated not as potential wives or concubines but as sisters) reflected the larger cultural boundaries between "insiders" and "outsiders." By using oral histories of the Wabanaki, Nash offers a more complex picture of captivity. Most scholars have relied on the Iroquois experience to explain captivity practices, but the Wabanaki had a system of honor that presented a different image of native women not merely as pawns of men or replacements for the dead lost in war but as heroic avengers who exhibited cleverness, violence, and stoic endurance.

Nash thus introduces the organizing theme of this collection: honor and reputation. In fact, the book might just as well have been titled Rape and the Cultural Meaning of Honor. Although the English common law definition of rape used consent to distinguish rape from supposedly consensual sexuality, these essays all suggest that legal consent was rarely the primary cultural category by which communities evaluated rape. In Puritan Massachusetts, as Else L. Hambleton argues, what really mattered was whether the act of rape had violated Mosaic law and the institution of marriage. As a capital crime, men who raped a married woman or fiancée were more likely to face a death sentence than those who attacked a single woman. Puritan judges were more intent on policing sex outside of marriage (fornication, adultery, sodomy, and bestiality); verbal consent of the female victims had little weight in the proceedings. Indeed, the judges felt more comfortable with somatic evidence, contending that if a woman became pregnant she enjoyed sex, and so her pregnancy constituted proof that she must have assented to the act. All in all, Puritan law protected the honor of God and punished those who broke the covenant by engaging in spiritual as well as physical fornication.

Terri L. Snyder has found that in colonial Virginia reputation was the crucial variable in rape cases for the accuser and the accused. She examines the intriguing struggle between Elizabeth Burt and John Eaton in 1692. Burt accused Eaton of rape but failed to convince the local magistrate to issue a warrant; in response, she sought to protect her honor by spreading rumors of the rape, which eventually led Eaton to file a defamation suit. In the end, a jury dismissed Eaton's suit, granting Burt some vindication for her mistreatment. Rather than receive justice in court, she defended her honor before a community of peers, among whom gossip and reputation mattered most.

Honor and moral regulation meant a great deal in New Netherland, as James Homer Williams has discovered. Grotius's Introduction...