Topic for Assignment: Representation of women in judicial positions and the impact of their presence in the Judicial system historically
Secondary Source: Williams, Matthew L. 2014. “To Lay Violent Hands: Prosecuting Sexual Violence in Colonial New York.” New York History 95, no. 2: 172-192. America: History and Life with Full Text, EBSCOhost (accessed November 14, 2016).
In July of 1772, Jemimah Sutton rode home from the wedding of her brother with two male neighbors and her brother, James. As the group was riding, they reached a fork in the road and one of the neighbors, David Reynolds, forced Jemimah and her horse down the opposite side of the fork–away from her brother and other neighbor, Daniel Haizen. He then grabbed the reins of her horse and lead her past three roads before throwing her to the ground and having “carnal knowledge by penetrating her body”. When they both arrived back at her family’s home, James noted that Jemimah appeared to be “very unwell”. She told James and Haizen what had happened and they mentioned that they had heard her tell Reynolds (before being separated from the group) that she would not “commit so grait a sin” (Reynolds had been harassing her the entire way home by asking her “rude questions” and threatening her with “rude actions”). She mentioned as well that she had “cry’d murder”, but they were too far from anyone for her cries to be heard. When Reynolds was confronted, he denied doing anything wrong until Jemimah threatened to involve the courts–as a result, he then tried to bribe her with “15 pounds”. While James attempted to secure an arrest warrant for Reynolds on behalf of his sister, the court records do not show whether charges were brought against Reynolds or if he was even convicted of rape.
Stories like Jemimah Sutton’s were more common than not in Colonial New York. While colonists were against rape on legislative and religious grounds, juries rarely brought charges against those suspected of rape or attempted rape. Due to this, cases of rape were often brought to the courts as a last resort and as a result, during the tenure of one specific judge, rape cases constituted less than one percent of the 736 cases he heard as attorney general from 1759 to 1776). The corresponding prevalence of rape and lack of rape cases taken to court was due to factors such as negative perceptions held regarding youth and sexual immaturity; judicial discretion when denying or demanding evidence; and the overwhelmingly patriarchal nature of the courts themselves. While theoretically, the law offered a clear basis for prosecuting offenders especially in regard to a woman’s word being the basis for rape cases or laws that explicitly stated that girls below the age of ten did not have carnal knowledge (sexual impulses etc.); when put into practice, courts often took a woman’s reputation into account over her word and questioned the “veracity” of younger girls due to their age and lack of “sexual maturity” (understanding what constitutes rape). Additionally, due to the patriarchal and masculine nature of the judicial system, courts were often “a roomful of men”. This was a dangerous reality given that the “degree to which provincial law followed the common law depended on how each jury evaluated the evidence and meted out justice” and that:
“…when victims and witnesses made complaints of rape or attempted rape, grand juries reserved the right to ignore the evidence or to alter the charges from rape to attempted rape, assault, or even to a minor offense such as lascivious behavior…As one scholar has argued, all-male grand juries decided cases of rape based on assumed norms of aggressive male sexuality and a woman’s assumed ‘lustfulness’.”
The fact of this is evident in other cases from this time period. Mary Moor was raped by a man named John Stanbank and when she brought the case to court–with witnesses vouching for her, Stanbank was charged for “laying hands” on her and “exposure”, rather than rape itself. What makes this even more disturbing, is that a few years prior to this case, Stanbank received a harsher punishment from the court for uprooting a neighbor’s tree than for the rape of a woman–showing that the system favored legal patriarchy rather than equality. Building off of the argument provided by Barbara Palmer in a previous post, it seems to be that had there been women in the judiciary during this time period, more rape cases would have been prosecuted and justice more frequently served due to the gendered nature of sexual crimes (men have a harder time understanding the severity of rape than women do). Additionally, while women were not allowed to serve in judicial positions at this point in time, older women and mothers were often the primary advocates for young women who had been raped (it was rare for men to speak up as witnesses in sexual assault cases unless they were accused during this time period)–further proving Palmer’s point. With this in mind, the stories of rape victims during the Colonial period in New York serve as poignant examples of why women are important within the judiciary and that when women are not represented in the courts, justice is often gendered.
In Palmer’s article, she mentioned that when Sandra Day O’Connor was appointed to the United States Supreme Court, support for women’s claims increased from 63% to 75%. Due to the masculine nature of Colonial courts and the fact that they were essentially a “roomful of men”, it becomes easy to understand why women experienced intense difficulty when taking cases of rape to court (one mother had to persist for days just to attain an arrest warrant for the man who raped her nine-year-old daughter). Also, the difficulties that women faced just to be heard in court is reflected in the low number of rape cases reported during this time period–the courts were essentially a last resort if all else failed. Without female presence within the jury and other positions within the judiciary, female issues are not taken as seriously or considered as fairly as when female judicial figures are present. Additionally, while the law in theory protected women to some degree, when put to practice Colonial judicial figures often carried out the law according to their own dictates and molded it to the society in which they lived and the gender expectations they adhered to (something more or less still found in male-dominated courts today).Had there been women in Colonial court positions, their presence not only would have changed how many of these court cases were ruled, but also how the law was interpreted and the willingness of women to come before the court when raped as well.
For Colonial women, the courts and the common law were, in many ways, their only protectors when fighting against abuses carried out against them due to their lack of social status and powerlessness in the public sphere. However, instead of protecting these women, the patriarchal nature of the justice system and the law during this time favored their abusers and facilitated injustice rather than preventing it. As a result, women were marginalized, discounted, and discriminated against while their rapists often walked free with little more than a slap on the wrist as punishment.