Can you give an overview of how the rape laws worked at the time?

The court martial tried to do by the state laws of the time. During the time, women had to essentially prove they had been raped, and that meant that she had to give the ultimate resistance against the attacker’s force. One thing that was different in the Civil War era was that girls as young as 10 could often be considered as trying to entice men.

Women in court settings also were often barraged with questions of how she had resisted his advances. If she consented because he beat her, or if he was holding a gun to her head and she was scared to death, that was still considered that she had given her consent.

Do you know what would have been an acceptable answer?

As far as resistance? Well, the woman usually had to go out of their way to say how much they had resisted. That’s where the title came from, “I had rather die.” A woman was testifying that she “had rather die” than be raped, and it was during those resistance questions.

Explain the distinction between “persuasion” and “force”—it seemed like that was a very nebulous thing.

Basically, if a man could persuade a woman in any way to have intercourse, then it was not considered rape. Again, it didn’t matter if he beat her silly in order to “persuade” her, or if he had a weapon and persuaded her that way. In other words, a man could use as much persuasion as he wanted in order to have intercourse and it not be considered rape.

There’s a sort of double standard, especially if you think about the idea of what was considered “being a lady” at the time. Now you have to be able to fight off a man—even though normally society thought you should be dainty.

Even if it was an upper-class white woman, who was more likely to believed, sometimes judges would dismiss it because they would feel, “Oh, [if she were really a lady] she would have been too ashamed to actually come forward.” So everything was stacked against the woman.

That’s the other thing: both the North and the South rarely thought it was rape when it was a black woman. It wasn’t until the Civil War when black women were actually able to come forward and call it rape. Before that time, even in the North, they would make it a lesser charge [for black women], if at all. I do have at least one record where a black woman was able to testify about a sexual assault in New York or someplace like that, but that was very rare. For the most part, black women’s voices went unheard.

It seems there was every kind of hurdle: race, class, and whether or not the person had a weapon, or witnesses to corroborate the story. And the more factors you had in your favor, the more likely you’d be successful.

And if you had a white male witness, you generally were more likely to be believed.

Most of the black men that were found guilty of rape and executed, generally speaking, they were gang rapes, so it was multiple men against a white woman. And with the white men, most of them had other crimes [on their records], and a high percentage of the white men that were executed were foreign born—so there’s an obvious prejudice there, too. They tended to have a history of desertion or other crimes that they were guilty of in the past.