Outside the courtroom, the rape of African American women became a tool for inspiring terror and ensuring continued subordination in the Reconstruction South. After the Civil War rape laws became race neutral, yet prosecutors, judges, and juries were slow to punish the assailants of black women. The rape of enslaved women also had a powerful economic justification: a child inherited the legal status of its mother, not its father-rape thus became a tool for increasing the labor force.
Some of the same stereotypes that justified slavery in the first place-that black people required the civilizing influence of subjugation to tame their sexual appetites-were pressed into the service of rationalizing these rapes: because the rape laws of that time denied protection to all unchaste women, black women, according to the stereotypes employed by their white masters, could simply never fall within the law’s ambit.
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The law simply gave human property no protection from sexual assault even free black women had little recourse, as the inability of black people to testify in court or to serve on juries would have made successful prosecutions of their assailants impossible. In the antebellum South, the rape of enslaved black women-by enslaved men or by white men-was commonplace, but it was not a crime. While the connection is not necessarily clear cut, slavery and its legacy of bigotry and sexual violence likely play key roles in the continuing discrimination against black rape victims. The story of the disparate treatment of African American rape victims must begin with slavery. Often at work within a complicated mix of factors, including defendant race, juror race, and the relationship between victim and defendant, victim race nevertheless affects outcomes at several critical phases in a rape prosecution. While many studies have demonstrated a bias against African Americans as defendants in cases of rape and other violent crimes, a smaller, but still significant number, have sought to examine those junctures in the criminal justice system where victims are disadvantaged because they are black. An individual’s race should have no impact on her willingness to report a sexual assault, her acceptance of certain myths and stereotypes about rape, or her credibility and culpability, yet it seems to. That a rape victim happens to be African American should have no effect on the prosecution, conviction, and sentencing of her attacker, but it does. Research Analyst, Feminist Sexual Ethics Project
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