Estelle Freedman’s new book Redefining Rape begins in the nineteenth century, when the definition of rape in America coalesced around a particular, narrow paradigm: a violent, usually black, male stranger physically overpowering a young, virgin, white woman. This template was not only culturally dominant but also, to some extent, codified in law. Several Southern states specified “white” before “woman” in the legal definition of a rape victim, or imposed harsher penalties if the victim were white. In New York and other states, a woman could prove rape only if she had shown the “utmost resistance” to her assailant—ideally, resulting in physical wounds. If she had not fought “so hard and so long as she was able,” a New York judge wrote in 1874, “must it not be that she is not entirely reluctant?”
Redefining Rape traces the history of efforts to expand and reconfigure both legal and cultural definitions of who could be raped, who could rape, and in what types of scenarios. “When I started working on this project,” Freedman says, “I thought of it as the prehistory of the anti-rape movement of the late twentieth century. But I found that anti-rape movements did not begin in the 1960s and ‘70s. There are important antecedents that we need to know about, which we can look back to for both positive and negative legacies.”
I talked with Professor Freedman about her book and how her historical research relates to today’s continuing debates over the meaning of rape.
Sara Mayeux: One chapter in the book is called “Smashing the Masher.” Who exactly was the “masher”?
Estelle Freedman: The “masher” was typically a white man who hung around on street corners or near public buildings and ogled, annoyed, or otherwise harassed women on city streets. There was an explosion of interest in the problem of the masher in the first two decades of the twentieth century, particularly in the white press, and then in the next two decades, during the Great Migration, in the black press.
SM: What were some of the proposed solutions?
EF: Well, in the beginning, men were called on to protect women. The context for the masher problem is the increased presence of women in public space, particularly unescorted women, who are doing things other than traveling from a private domestic place to another private domestic place. You have not only working-class women going to earn wages but also middle-class women who are out shopping, going to department stores, to downtown hotels to have tea. They’re moving in public space and some of them are professional workers.
So the responses originally were that men should protect them. But then there was this interesting, increasing emphasis on women protecting themselves. Women defending themselves, fighting back physically, reporting these men to the police. Sometime before World War I and escalating in the 1920s, there were calls to appoint policewomen, sometimes called police matrons, particularly to protect women on the streets.
There was a large range of behaviors that defined these "mashers," from simply whistling and ogling and calling out propositions, to also following a woman, trying to get her to go on a date or to go for a walk in the park or to go on a boat ride. And it could escalate to men who assaulted or laid hands on her. And certainly in the case of African-American women, who had historically not been safe on the street from white men’s attentions, there was a thin line between calling out, “Hey, baby, will you go with me,” to forcing a woman to go with him, or presuming that every black woman was a prostitute and of course wanted to go with a white man.
SM: I’m sure we've both encountered the opinion that street harassment might be unpleasant, but it’s not really the most pressing issue facing women. In the book you include these anti-masher campaigns along with the history of anti-rape organizing, the anti-lynching movement, all of that. How does street harassment fit into the larger picture of the history of sexual violence?
EF: I should say that my book covers a spectrum of responses to sexual vulnerability that range from, at one end, simply cat-calls on the street, to an extreme end of rape and murder. But in between there, I was interested in asking: when and how did women, or African-American men, try to redefine rape? Those efforts ran from, “We have the right to be on the streets without being harassed,” to the black press pointing out that some of these white mashers were in fact physically assaulting and forcing black women into cars in the 1920s, to the nineteenth-century efforts to reform state laws to criminalize "seduction" or to raise the age of consent—much of that last movement was about what we would today call “acquaintance rape.”
So, even if these were “lesser” crimes (or, we should say, less physically traumatic crimes), people were still naming them as a problem. There was a surprising amount of concern about public and private experiences of sexual vulnerability, sexual violation, sexual exploitation, that were outside that dominant definition of rape as involving a violent stranger. People recognized that there was more to address: that, if you can’t walk safely in the street, your self-worth and economic opportunities are both limited. It doesn’t have to only be that a violent stranger finds you in an isolated alley or out in the fields in the countryside and “really” rapes you—that is not the only complaint people had during these years. Because, for the most part, the law covered that. It’s what the law didn’t cover that people were trying to chip away at.
SM: I was surprised to learn that South Dakota was the first state to eliminate the “marital rape exception” [under which a husband could not be prosecuted for raping his wife], and they did this in 1975. Women secured other rights within marriage, like the right to have property in their own name, much earlier.
EF: That’s correct. Over the course of the nineteenth century many of the vestiges of “coverture” were lifted, legally, including rights to one’s own property and earnings. However, the husband’s right of sexual access to his wife was one of the longest-lasting vestiges of coverture. And, as you say, it really did not end until the late twentieth century, and even then, the laws differentiate marital rape and other forms of rape. And there’s still a sense that the more intimate one has been with an assailant, the less serious it is, that if it’s an acquaintance, or a fiance, or a husband, the law doesn’t treat it as seriously as if it’s a stranger.
I should say that in the early twentieth century there was a changing understanding of marital relations, certainly among the middle class. There was advice literature calling for “companionate marriage,” and an understanding that it was really bad form to force yourself on your wife. But rape was not grounds for divorce in the early twentieth century. You could make the case that excessive sexual demands, particularly if they injured a woman’s health, could be grounds for [divorce on the basis of] cruelty, but it was up to the judge to decide. It wasn’t in any way categorical that forced sex was grounds for divorce.
SM: There are some unfortunate recurring tensions throughout this history, one of which was that white women activists were often working on a different track from their African-American counterparts, ignoring at best if not exacerbating the different sexual vulnerabilities of African-American women.
EF: Yes, I was struck by the fact that—even though, within the women’s rights movement of the nineteenth century, so many leaders and members had been abolitionists and had pointed to the sexual vulnerability of enslaved women as one of the evils of slavery—in their own movement, they pretty much ignore African-American women. And one of the reasons it was so hard to pass those laws in the South is that white male southern legislators said, explicitly, this is going to be a law that lets black girls accuse white men.
The women who were working for those reforms, though they weren’t drawing a color line per se, they were ignoring the racialization of rape and the lynching of black men. And, in many cases, white women reformers bought into the Southern rape myth. Frances Willard, the president of the [Women’s Christian Temperance Union], is the famous example. When Ida B. Wells tried to get the WCTU to oppose lynching, Willard managed a kind of mild critique which suggested, “Yes, lynching is bad, and it would also be good if black men didn’t rape white women because that encourages lynching.” She did not recognize, as Wells did, that most lynchings had nothing to do with rape.
So white women focused on gender inequality, where black women were unable to separate their gender inequality from their race. The laws were passed, seduction laws and age of consent laws, but it was harder for black women to use those laws, because they all rest on a requirement of prior chastity; the white women’s club members and people who supported these laws often bought into not only the myth of the black male rapist but also the idea that black women didn’t have moral virtue to defend. And that’s where the black press and the black women’s clubs came in. They really started waging this cultural war to say that black women are victims of rape, and white men rape, and white men harass black women—to really change that definition of who could be a victim, whether of mashing or of sexual assault more generally.
SM: Historically it seems a lot of these women’s movements were defining their goal in terms of casting a wider net, or making it easier to punish or imprison a wider range of men for rape and other sexual crimes—
EF: Not just to punish and imprison, but I think to warn them, “You can’t get away with it.” To set limits and give leverage to women so that white men didn’t just assume that they had sexual access to their acquaintances or to young women, and all they had to do was claim that the woman had consented and that would be that.
SM: Right. But then, towards the late twentieth century, a few groups started pointing out that the United States has very high rates of incarceration already, and that people who are marginalized might have good reason not to trust law enforcement: that they might not take these issues to the state, which is already a source of violence to them. I'm talking about recent groups like INCITE! that you note towards the end of the book.
EF: Those are even more recent—we’re talking, really, twenty-first century. But I guess a historical antecedent could be the anarchist Free Lovers, in the nineteenth century, who very much distrusted the state. They condemned rape in marriage, but they also condemned marriage, and they didn’t think the state should have anything to do with it. They felt that sex should not be criminalized except in the most extreme circumstances, and certainly that consensual sex should never be criminalized. Still, they were different from this more recent critique: that expanding state power and punitive power to more groups can reinforce the racialization of incarceration as well as the over-dependence on punishment that falls unevenly on different groups. This critique calls attention to the fact that the benefits of all of these reforms remain differently distributed.
In some ways, of course, these reforms are aimed at that unequal distribution to begin with—that is, white men who get away with rape. But the way the criminal justice system works, you may well get more white men accused and convicted of rape—and you do, we've seen more white men convicted of assaults on black women, which is truly new to the twentieth century—but at the same time, we see the racial disparities continue in the prison system.
There’s a tension between legitimately protecting the rights of the accused, taking into account the disparities in prosecution and incarceration and execution, and at the same time, realizing that we still have huge underreporting of sexual assaults, that women continue to be disbelieved and blamed for their clothing, their dating, their past experience.
SM: It’s a really complex set of issues.
EF: It is. I would say that historically, both the white women and the black men and women who I studied did turn to the law, and they did turn to the state, and they wanted prosecution of rapists. What they had in common was they wanted white men to be named as assailants, and not just black men. I think that’s one thing they had in common, even if they didn’t cooperate in the early years.
SM: You’ve been thinking and writing and teaching about the history of sexuality more generally for a long time. When you turned to the history of sexual violence, was there anything that surprised you?
EF: One thing that I found parallel was that suffrage did not necessarily bring liberation. Just as the vote did not automatically bring about women’s full political participation, the claim that if women could vote then there would be more equitable treatment in rape trials certainly did not come to pass, because the vote is never enough. Women still could not serve on juries, for example. Economic inequality, I’ve always argued, underlies sexual inequality, and the history of sexuality can never be studied outside the context of economic inequality. So that was confirmed.
The masher was a total surprise. I had no idea there had been any outcry about what we now call street harassment. It just came up by chance in newspapers in Chicago in the early twentieth century, and then once I began looking for it, it was everywhere. It was just fascinating how much attention was paid back then to the struggle for sexual safety on the streets.
SM: It seems like in the past year or two there have been an unusual number of national stories spurring discussion about the definition of rape or the meaning of rape: Todd Akin, Steubenville, Montana.
EF: I do think we’re living in a particularly intense period of scrutiny about the meaning and the prosecution of rape, and how we respond to rape, and who are the assailants and how do we treat the women who are the accusers—or more generally, the people who are the accusers, whether it's boys, girls, young men, women, trans people.
A whole generation of young women has come of age expecting educational and economic opportunities, and finding that even though they have much more opportunity than their mothers or grandmothers, they are still extremely vulnerable. There are still limits placed on women who try to name assailants, whether in educational settings or by going to the local police. Given this intransigence—that so little has changed in terms of believing women and also the continuing racial disparity in who gets believed, and who gets accused and convicted—this issue is not going to go away.
The other thing still going on is that for many generations, people in authority—and usually men in authority, and usually elite white men in authority—have had a huge amount of immunity for various kinds of sexual exploitation. Teachers, clergy, coaches. There have been a few high-profile exposes of the exploitation and assault that a lot of men have gotten away with over the years, from Penn State to elite boarding schools to Native American reservation schools. Another story in the book has to do with the sexual vulnerability of boys, and beginning to chip away at the heterosexual definition of rape. It was only last year that the FBI Uniform Crime Reports began to define rape as a crime against a man or a woman.
So people are speaking out, and I think that’s a good thing. Unlike the people I studied, who were trying to get their rights as citizens and who recognized that their sexual vulnerabilities were part of that quest, today many formally have those rights, and they can use them. They can vote, they can get elected to Congress, they can hold congressional hearings, they can vote for people who believe in the things they believe in. Women and African American men can serve on juries now, and they can be lawyers and judges. Over the last 30 years, citizenship has been expanded to those who had been marginalized (and marginalized partly through sexual assault and sexual exploitation), and they are now in a position to change policy, and I hope they do.
Sara Mayeux is a PhD candidate in American history at Stanford University and is currently the Berger-Howe Legal History Fellow at Harvard Law School. She occasionally tweets at @saramayeux. A video interview with Estelle Freedman and more information on Redefining Rape, which Eve Ensler has called ‘a crucial book,’ is available at the Harvard University Press website.
We apologize for the lack of cool pictures of 1920's anti-harassment lady brigades in this article. For that, the Hairpin would like to thank Congress for being a bunch of mashers.