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  • Written by Mary Frances Berry
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Episodes of Racism and Sexism in the Courts from 1865 to the Present

Written by Mary Frances BerryAuthor Alerts:  Random House will alert you to new works by Mary Frances Berry

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On Sale: July 20, 2011
Pages: 304 | ISBN: 978-0-307-79729-2
Published by : Vintage Knopf
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Synopsis

"Sweeping and important.... Provides a fascinating vision of justice and history." --The Washington Post Book World

From the head of the U.S. Civil Rights Commission comes a landmark study of the ways in which prejudice has shaped American justice from the Civil War era to the present. With an ear tuned to the social subtext of every judicial decision, Mary Frances Berry examines a century's worth of appellate cases,  ranging from a nineteenth-century Alabama case in which a white woman was denied her divorce petition because an affair between a white man (her husband) and a black woman (his lover) was "of no consequence," to such recent, high-profile cases as the William Kennedy Smith and O.J. Simpson trials. By turns shocking, moving, ironic, and tragic, each tale ends in the laying down of law. And because the law perpetuates myths of race, gender, and class, they are stories that affect the lives of us all.

Excerpt

Every legal consideration of sexuality is influenced by stories of race, gender, and class. Judicial decisions concerning heterosexual fornication, sex outside of marriage, have depended on several interacting stories. They tell of the licentiousness of African Americans, the purity of white women, the toleration of a husband's sex with African American women, and the power of white men to exercise control over their own sexuality and that of African Americans and white women.

This interplay of stories was clearly displayed in the case of a white Alabama husband, Matthew Turner. Despite the economic hard times brought on by war and the abolition of slavery, Turner's estate was worth nearly $400,000 in 1867. His wife of fourteen years, Ann G. Turner, had brought little capital into the marriage except for her excellent reputation. Everyone agreed, she was "a chaste, . . . useful and obedient wife." One Sunday evening in 1867, Mrs. Turner went to visit a near neighbor. When she returned, "probably sooner than her husband expected," she found him "in adulterous association with . . . Sally, his former slave" in their bedroom. Mrs. Turner forgave her husband, but he kept Sally working at the house despite Mrs. Turner's "request to have her removed." Supported by the authority of her master, Sally became "insolent" to Mrs. Turner, who chastised her. Thereupon, Mr. Turner "upbraided his wife" and "forbade her to correct Sally in the future." Mrs. Turner replied that if Sally remained in the household, she, Mrs. Turner, would punish her for any insolent behavior. Matthew Turner's infidelity, Ann Turner's jealousy, and Sally's defiance created a drama of race, class, and gender dynamics that was played out in the courtroom.

Turner, outraged at his wife's threat to disrupt his sexual access to Sally, "threatened to whip" her. He had Sally "go out and get switches for that purpose." He was a reputed wife batterer, but he did not actually strike Ann Turner on this occasion; instead, he made her "stand on the floor before him and his paramour, the colored woman Sally, and cower under the switches, which the latter had brought for the chastisement of her, the mistress!" Mrs. Turner now filed for divorce, on the grounds of adultery, cruelty, and abandonment.

Turner admitted having sex with Sally but insisted, despite voluminous testimony sustaining his wife's story, that Mrs. Turner condoned it. A lower court refused to grant Mrs. Turner alimony or even a divorce. The Alabama Supreme Court overturned the lower court's decision. Meanwhile, Turner went to Indiana, at the time a haven for easy divorce, and sued successfully to dissolve the marriage. To insure the payment of alimony, the Alabama court enjoined the couple's son, who sided with his father, from removing Turner's assets from the state and established a lien on the property.

The Alabama judges drew upon a number of narratives as they implemented the formal legal rules that outlawed fornication. One narrative viewed sex between a white man and a black woman as of no consequence-- indeed, as the continuation of an old practice condoned under slavery. A second story, that well may have influenced the judges, told of the chaste white woman, pure, faithful, and frail, in need of her husband's protection. White Madonna and black Venus mirrored one another in white men's sexual fantasies. Familiar with such stories, the Alabama judges saw no need to challenge Turner's concubinage with Sally.

They did, however, challenge his treatment of Mrs. Turner. She won her case because Mr. Turner deviated from the well-accepted story that gentlemen protected the honor of their families by treating their wives with respect and shielding them from knowledge of their extramarital, cross-racial affairs. Turner insisted on more than his wife's tolerance of his concubine. He demanded her acknowledgment of the situation--and more, her submission to Sally. He let his sexual passions turn the South's system of race privileges upside down. By repeatedly humiliating his wife in the presence of his black concubine, Turner had inverted well-established social and racial norms. He had crossed the line between acceptable and transgressive behavior. Having violated the script of Southern chivalry, he was duly rebuked by the court.

The legal treatment of heterosexual fornication depended on the intersection of stories of gender, race, and class in the shaping of sexual behavior. Such narratives, fusing sexual myths and fantasies, floated forward in time on a sea of assumptions that incorporated stories from slave pens in Africa, from the Middle Passage, slavery, emancipation, and the days of Jim Crow until they resurfaced in modern discussions of unwed pregnancy and family values, best encapsulated in the 1965 Moynihan Report. The rationale of African racial inferiority as a basis for disparate treatment has persisted from the colonial period to today.

By the late eighteenth century, distinctions of race and sexuality were firmly entrenched. In his Notes on the State of Virginia (1781), Thomas Jefferson recapitulated the reigning narrative concerning the subhuman character of African Americans. Jefferson, a slaveholder, had an intimate basis for his conclusions. African Americans, he claimed, exhibited lower-order animal traits, with little intellectual capacity and a strong desire for sexual satisfaction. Their childish emotionality made them more concerned with "sensation than [with] reflection." For "love seems with them to be more an eager desire, than a tender delicate mixture of sentiment and sensation." His unsubstantiated conclusions accurately reflected the dominant story of African American sexuality.

In the new American republic, stories filled with sexual imagery reinforced the subordination of women and African American men to the domination of propertied white males. In the 1800s, white middle-class women became defined as passionless creatures rather than as incarnations of Eve the temptress. Allowing themselves sexual license, white men defined respectable white women as the carriers of family virtue. The men feared, however, that white women regarded black men as their binary opposites, sweet but forbidden fruit. Therefore, they especially emphasized the sexual threat posed by African American males, and the need to control them. In keeping with their own desires, white men portrayed working-class white women as but one step removed from African women, that is, as sexually passionate and available. Working-class white women became increasingly vulnerable to male abuse. Black women, represented as excessively passionate enticers and seducers of white men and "oversexed black men," remained available and therefore "unrapable." The persistent interest in black male sexuality gained expression in the 1781 observations of a Pennsylvania military officer in Virginia concerning young black boys waiting on table, their "whole nakedness" exposed. The officer thought "it would Surprize a person to see . . . how well they are hung."

The way white masters presented African Americans in public and the limited control slaves had over the way they appeared embellished the stories. Black bodies signaled black subordination. White men displayed black women on the auction block, their bodies exposed, their flesh handled as beasts were handled. Black female slaves working in the fields, bodies visible through worn and tattered clothes, confirmed white portrayals of black women's lasciviousness. The African American male often appeared in a similar posture, physically exposed, represented as a stud on the auction block.

The willingness of some white women to consort with black men was shocking to white sensibilities--but not unknown. A Virginia woman in 1815 refused to apologize for giving birth to a mulatto, saying that "she had not been the first nor would she be the last guilty of such conduct, and that she saw no more harm in a white woman's having been the mother of a black child than in a white man's having one, though the latter was more frequent." The 1830 U.S. census for Nansemond County, Virginia, reported eight white "wives" of free "Negroes."

The antebellum North Carolina court chose with difficulty from among narratives of race and gender when two white men sought to divorce their wives because each gave birth to mulatto children shortly after their marriages. Both husbands had apparently had premarital sex with their wives.

In 1832, North Carolina Chief Justice Thomas Ruffin denied the husband in one of those cases a divorce. He explained that persons who marry agree to take each other as they are. Nothing would be more dangerous than to sever marriage vows because of spousal disagreements or fights. Ruffin acknowledged that his decision for the wife collided with societal feeling against the acknowledgment of interracial relationships, which made "contempt for the husband so marked and unextinguishable." The stigma was so indelible that he had "not been able, without a struggle," to reach a conclusion. However, Ruffin explained, the circumstances made his decision easier. The couple married in December and the infant was born in May. Ruffin thought the husband must have known his wife was pregnant and had therefore had sex with her. His complaint, then, was not her pregnancy but the fact that the child was not white. By knowingly marrying a lewd woman, he became an accessory to his own "dishonor." He wanted a divorce because her "infamy" had become "notorious, though he could reconcile himself in secret to the crime which makes her infamous." Finding refuge in a biblical story, Ruffin explained that since the days of Solomon, "he who marries a wanton, knowing her true character, submits himself to the lowest degradation." The court decision brought a storm of public protest. Thereafter, in the second divorce case, Ruffin aligned himself with white male power: it was unspeakable to expect a white man to keep a wife who bore a mulatto child. Concluding that the wife had engaged in nuptial fraud, he refused to deny the divorce. The outcome became a cautionary tale to warn white women against crossing sexual and racial boundaries.

Stories of differential punishment based on race transformed perceptions and thus reconstituted reality. Characterizing sexual relations between white women and African American men as unnatural and therefore taboo, and ignoring sexual relations between white men and African American women, taxed reason though not custom: the visible fruit of interracial sex abounded. The 1850 U.S. Census included a multiracial category for the first time; it found 406,000 mulattoes, 11 percent of the country's 3,639,000 African Americans. By 1860, about 50 percent of the nonwhite population in New Orleans, Baltimore, and St. Louis consisted of mulattoes. While some mulattoes had mulatto parents, interracial contacts constituted a central part of their lineage. Interracial sex, though formally forbidden, was a story everyone knew.

Mary Chestnut described households in which husbands abided by convention while fornicating with slave women: "Like the patriarchs of old, our men live all in one house with their wives and concubines; and the mulattoes one sees in every family partly resemble the white children. Any lady is ready to tell you who is the father of all the mulatto children in everybody's household but her own. Those, she seems to think, drop from the clouds."
Mary Frances Berry

About Mary Frances Berry

Mary Frances Berry - The Pig Farmer's Daughter and Other Tales of American Justice

Photo © Joyce Ravid

Mary Frances Berry received bachelor's and master's degrees at Howard University, a doctorate in history from the University of Michigan, and a Juris Doctor from the University of Michigan Law School. Dr. Berry is the Geraldine R. Segal Professor of American Social Thought at the University of Pennsylvania and lives in Washington, D.C.
Praise

Praise

"Incisive and poignant...[The Pig Farmer's Daughter] tell[s] us how far we must go before becoming a truly colorblind society and why we must never abandon that journey." --St. Louis Post-Dispatch

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