Abstract

During the American Civil War, laboring African American women and girls in Union-occupied territory embarked on their own war over the use of their bodies. As fugitives, “contraband,” and refugees, displaced Black women and girls of liminal status confronted gender violence in conditions that often resembled the systemic sexual violence of slavery. As this article argues, central to this gender violence was the assumption that Black women were always willing to negotiate sex as part of their (nonsexual) labor. The introduction of wartime legislation protecting women from sexual assault was pivotal. In race-neutral terms, such legislation created a powerful avenue for refugee Black women and girls not only to seek sexual justice but also to challenge and redefine existing cultural and legal understandings of sexual consent. Analysis of testimonies to wartime sexual violence uncovers how formerly enslaved African American women and girls located their violation in relation to their sense of virtue, respectability, and sexual sovereignty. These testimonies mark a significant period of Black women's vocalization as liminal and stateless actors, prompting a reframing of histories of dissemblance, respectability, labor, and gender violence.

It was the middle of spring in 1865, a month after Confederate general Robert E. Lee's surrender in Appomattox, Virginia. Susan was in the final days of her pregnancy. She was a woman of color residing on a plantation near Salisbury, North Carolina, owned by her former enslaver, George Lyerly.1 Like many other freedpeople, Susan likely felt immeasurable joy knowing that her baby would be born free. The threat of routine family separation that plagued enslaved motherhood was, for the most part, behind her.2 Susan could expect to negotiate her time and labor for a wage. She might commit herself to familial and collective duties as a wife, mother, and community member. As an emancipated woman, the many horrors inherent to the market in the sale and exploitation of human flesh and labor should no longer have been part of her lived reality.

But Susan's dreams of freedom were viciously interrupted when she was raped by a Union soldier.3 The terror occurred on or about May 10, 1865. Private Adolph Bork of the 183rd Ohio Volunteers and four other soldiers had visited Lyerly's plantation. Along with several other Black women, Susan recalled standing on a porch and watching as the soldiers roamed around the plantation grounds asserting their power. Presuming the availability of the labor of the Black female onlookers, a soldier ordered them to prepare some dinner. Unable to help due to her condition, Susan left the company of the other women and headed over to her cabin. There she found three of the soldiers. She waited until they departed before entering her home, shutting the door behind her.

When Susan was done gathering her things, she confronted Bork at her door. Addressing her as “Aunty,” Bork showed that he did not view Susan as a person. He asked if she had any Confederate money. She told him that she didn't but that her “old man” did and that he could have it.4 He then asked her if she wanted to make some money. Seeking clarification, Susan asked Bork, “What sort,” to which he responded: “Confederate.”5 She refused Bork's offer, knowing that Confederate currency “was no account.”6 In doing so, Susan refused to participate in the games that men who rape deploy in their assaults.7 Bork then threatened Susan at gunpoint, telling her that whether “you want to make money or not you will have to.”8 Susan, who had been holding the child of another woman on her lap, got up and laid the child down. Knowing Bork's intentions, she fearfully began removing her clothes. Susan pleaded as Bork—the supposed enforcer of her emancipation—raped her. In a testimony before a General Court Martial, Susan asserted that she neither consented nor accepted any money from Bork. “I told him to let me alone,” Susan testified, “that he hurt me.”9 In offering further “proof” that she did not consent, Susan emphasized her marital status as an indication of her sexual respectability. “I am a married woman,” she stated. “I was married by a colored exhorter.”10 At the close of the trial, Bork was sentenced “to be shot to death with musketry,” a sentence later mitigated to five years of hard labor.11 Susan's experience transpired under the assumption that African American women were always prepared to negotiate sex in addition to, or as part of, their (nonsexual) labor.

The Constraints of Consent

Scholars of nineteenth-century American liberalism have rightly exposed how the concept of consent as stipulated in relation to the “social contract” has been anything but universal in its historical application.12 As the feminist scholar Pamela Haag argues, “The deployment of consent or violence in one type of relationship necessarily affects and is modified with reference to other social ‘contracts’ inherent to citizenship and labor.”13 Had Susan been sexually assaulted six months earlier, the outcome would have been different. Before the completion of Union general George Stoneman's raid on Salisbury, North Carolina, in early 1865, Susan's sexual assault would not have been prosecuted as an injury on her person, if appealed at all.14 Sexual access to enslaved women was foundational to the accumulation of white capital and the culture of slavery as a whole.15 The sexual availability of enslaved women was built into the definition and exploitation of their labor. Their enslaved status was rooted in the negation of their capacity to give consent.16 Any power for legal redress would have rested in the proprietary rights of Susan's owner.17

The Emancipation Proclamation and the Lieber Code, each issued in 1863, marked a major turning point as much in the lives of African American women as in the American Civil War. The Lieber Code acknowledged Black women as victims of sexual violence for the first time in US history.18 Still, this new legal recognition existed in tension with the everyday reality evident in Susan's case. For Black women, the right to refuse unwanted sex remained elusive even after the end of slavery. How does one account for a history of sexual violence against African American women of liminal status on shifting legal ground?

Refugee and freedwomen's testimonies of sexual violence must be read as part of a contestation over labor and sexual consent in the mid-nineteenth-century United States. In their petitions before the military courts, fugitive and refugee enslaved women and girls asserted themselves foremost as sexually sovereign, especially as respectable, morally sound, and virtuous women and girls. These women and girls understood the racist and sexist structure of southern rape laws. Victorian sexual morality, combined with narrow rape laws centered on the premise of (white) female chastity, determined the most “acceptable” representation of female sexual sovereignty.19 The laws that previously prohibited Black testimony against a white assailant, and the cultural values that made no distinction among Black women's nonsexual and sexual labor, ensured that only white middle-class women could be considered “chaste.” Black women were considered “unrapable” because any violence done to their person was either legally sanctioned or culturally beneath notice. The testimonies of Black women and girls in these courts-martial attempted to overturn all these legal and cultural attitudes. Through the language of sexual respectability, Black women in occupied territory who were not sex workers argued that sexual assaults interfered with their ability to be productive as women, wives, and mothers. Grasping the power offered them by the Lieber Code, these formerly disempowered women created a rupture in what feminine virtue meant and who could be said to possess it.

In the perilous and jagged transition from slavery to emancipation, fugitive and refugee enslaved women and girls embarked on a fight to renegotiate assumptions around their labor. This article illuminates some of their stories. Ushering in their own meanings of consent that drew sharp distinctions between their (nonsexual) labor and sexual availability, African American women and girls asserted their right to withhold consent on their own terms.20 Using testimonies of wartime rape of Black women and girls by Union soldiers and other military personnel, this article explicates the ways Black women and girls fought for sexual autonomy, and sometimes won acknowledgment of it, regardless of their class, status, or statelessness.21

Race, Sexual Violence, and the Civil War Military Record

Even by a conservative estimate, at least 250 Union soldiers faced military courts-martial on charges of sexual assault during the Civil War. Scholars E. Susan Barber and Charles F. Ritter have counted around 450 cases.22 Both historically and contemporarily, sexual violence is heavily underreported, with even fewer cases making it to legal proceedings. The confirmed incidents of Union-perpetrated sexual violence during the Civil War may be inferred to represent but a small fraction of a larger phenomenon. With the number of cases in the Union army court record, the overrepresentation of Black women and girls as victims and white Union servicemen as perpetrators underscores two essential points.23 First, it demonstrates that stereotypes of African American women's sexual availability were not confined to the white South. White and northern Union soldiers’ sexual expectations of Black women and girls were remarkably reflective of the attitudes of their white southern and pro-Confederate counterparts. Second, the fact that such an historical record of Black women's and girls’ testimonies of sexual violence during the Civil War exists shows the huge importance of legal developments that empowered them to pursue justice.24

Sexual violence cases involving African American female victims reflect the arbitrary and racialized nature of record-keeping during wartime in the mid-nineteenth-century. In some instances, Black female victim's names are not identified. Unnamed women are sometimes referred to as “a woman of color” or “a Negro” woman.” This was most prevalent in courts-martial that did not feature the testimonies or firsthand accounts of Black women. Union military courts often showed greater concern with the conduct of soldiers than with the harm suffered by the victim, meaning that statements invoking the voices of survivors themselves were not always a priority. It is also possible that some of these women and girls chose to remain anonymous due to fear of retaliation. Depending on the outcome of these trials, many survivors could expect to live and work within the vicinity of their assailants.

In addition to the erasure of Black women's personhood, the record is problematic in its repeated reformulation of Black girls as women. Born in enslavement, many victims could not accurately recall their age. Few courts took this unique context into account in their treatment of younger victims. Where prepubescent girls may have received sympathy, adolescent girls were more systemically “adultified.” The violence of “adultification” in the court environment dehumanized and further traumatized Black girls by diminishing their childhood innocence and undeveloped maturity.25

Despite these limits, though, Union courts-martial and commissions give a rare insight into the environment that refugee and freed female sexual violence victims navigated in their struggle for sexual autonomy. They offer a useful site for investigating the complexity of the interactions between contraband, fugitive, and refugee women and the Union army. These women often conducted nonsexual labor in the company of soldiers, increasing their vulnerability to sexual attacks from soldiers. Black women and girls were compelled to seek justice from military courts, the same entity whose representatives were responsible for their ill-treatment.

Testimonies of Sexual Violence

African American women's and girls’ testimonies of sexual violence during the Civil War and the emancipation era challenged cultural and legal assumptions around sexual consent in mid-nineteenth-century America. The battlefield of this rupture manifested primarily in relations of labor involving fugitive and refugee women and girls, and military personnel. During the first part of the Civil War, fugitives, “contraband,” and refugees were mainly African American men. However, by 1863, with the passage of the Emancipation Proclamation, greater numbers of African American women, children, and elderly people flocked to Union lines. “Attaching themselves to the rear of columns on the move,” formerly enslaved people established makeshift communities.26 Thousands of men, women, and children contributed to the war effort through noncombatant military labor. Refugee women and girls took on roles as officer's servants, laundresses, cooks, nurses, and plantation field hands, though it was not uncommon for Black women to engage in more physically grueling labor like hoisting wheelbarrows, digging ditches, building roads and bridges, clearing canals, and burying the dead.27 As historian Thavolia Glymph notes, “For them, it was an opportunity to work for their own freedom and for Union victory.”28

Scholars of sexual violence during the Civil War underscore the significance of groundbreaking wartime legislation in creating an avenue for Black female rape survivors to seek justice. Clauses within legislation such as the Enrollment Act of March 1863 pried open a door. In Section 30 of this act, the US military acquired “jurisdiction over common-law felonies,” including rape, “when committed by US military personnel.”29 Thus, in language aimed at regulating the sexual conduct of Union soldiers, the government set in motion an unprecedented, albeit incidental, recognition of Black women and girls within the category of sexual assault victims. In a social and legal culture that narrowly defined rape as an assault on a chaste white woman, and rendered Black, especially enslaved women, unrapable, such legislation was innovative in its implications.

The introduction of President Abraham Lincoln's “General Order No. 100: Instructions for the Government of the Armies of the United States in the Field,” also known as the Lieber Code, fortified both the Emancipation Proclamation and section 30 of the Enrollment Act. Issued on April 24, 1863, the Lieber Code further outlined the terms of conduct during warfare. In article 37, section 2 of the Lieber Code, the US government promised to protect the “religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations” in Union-occupied territory.30 In addition, articles 44 and 47 each invoked rape—among “all wanton violence”—as a punishable crime when committed by Union soldiers against “persons in the invaded country.”31 As historian Crystal N. Feimster emphasizes, these three articles collectively “conceived and defined rape in women-specific terms as a crime against property, as a crime of troop discipline, and a crime against family honor.”32 The absence of the language of crimes committed against specifically white women meant that African American women and girls gained access to the protections of the Lieber Code.

Amid these legal developments, as well as Black women's noncombatant military labor, refugee women and girls in Union territory navigated what historian Stephanie McCurry describes as a “different and more forbidding landscape than the men.”33 Many Union soldiers were volunteers from predominantly small white rural regions in the North. Most had little prior interaction with African American women. With ideas of Black women drawn from cultural stereotypes rooted in slavery, Union soldiers who committed acts of sexual violence on refugee and freedwomen abused their power and mistreated Black women with the belief that sex could be freely solicited as part of their labor. This contrasted sharply with Union soldiers’ treatment of Confederate women, though it is not to suggest that white women were spared Union-perpetrated sexual violence. As historian Drew Gilpin Faust argues, “Most Yankee soldiers were reluctant to harm white southern women, particularly those who seemed to be ladies of the middle or upper class.”34 Class and race therefore contributed to laboring Black women's sexual vulnerability in Union-occupied territory. Though Union soldiers were supposed to represent the enforcers of emancipation, some directed their aggression toward Confederate property, including human “contraband.” “In all likelihood,” Faust continues, “black women served as the unfortunate sexual spoils when Union soldiers asserted their traditional right of military conquest.”35 Whether in the officers’ quarters in a camp, a cabin on a plantation leased by the federal government, or in the homes of Black families living in occupied territory, “contraband,” fugitive and refugee women and girls were uniquely situated as targets of the kinds of gender violence that too often accompanies war.

It is crucial to stress that amid the uncertainty of war, refugee and freed women and girls in occupied territory did not wait for their legal status to be defined in order to protect their dignity and bodily integrity. As a class of poor, uneducated, and stateless workers, these women and girls launched arguments that hinged on their moral authority to compel the state to punish those soldiers who violated their person. Constructing their freedom from the ground up in the midst of war, African American women and girls were clear about what it meant for them to live, work, and provide for themselves and their families free from the constant threat of rape and sexual assault.

The well-known Port Royal Experiment offers a powerful case in point. Introduced in late 1861, this vast and profitable labor program put ten thousand former slaves to work the land on South Carolina's abandoned Sea Islands. “Contraband” and refugees picked and ginned cotton—valued at a premium rate from this region. They produced and distributed manure. Potatoes and corn that they harvested formed part of their main diet. Months without pay for Black soldiers meant that their wives had to help support their families. These women washed “for the officers of the gunboats and the soldiers” and made “cakes and pies which they sold to the boys in camp.”36 While the Port Royal Experiment was touted as assisting African Americans’ self-determination, expectations around their labor—defined in slavery—were readily adopted by the federal government. For example, Charles Francis Adams Jr., a member of the prominent political family, was reluctant to dissociate emancipated African Americans from their previously enslaved status. As a Union soldier in 1862, Adams penned a letter in which he reflected: “The scheme, so far as I can see it, seems to be for the Government, recognizing and encouraging private philanthropy and leaving to it the task of educating the slaves to the standard of self-support, to hold itself a sort of guardian to the slave in his indefinite state of transition, exacting from him that amount of labor which he owes to the community and the cotton market.”37 Calling refugees “slaves” and describing their transition to self-determined labor as disruptive to the market and deficit in nature, Adams's language revealed the logic that undergirded government policy towards former slaves. By 1862, the US Treasury projected upward of 2.5 million pounds of ginned cotton from the hands of refugees.38

Government agents viewed Black women at Port Royal with suspicion and contempt. “The women, it is said,” wrote E. L. Pierce in a report, “are easily persuaded by white men . . . a facility readily accounted for by the power of the master over them, whose solicitation was equivalent to a command.”39 In stating this, Pierce acknowledged the cultural presumption that sex constituted part of the labor expected of Black women. However, rather than criticizing white men who exploited the sexual vulnerability of Black women, Pierce consigned Black women's sexuality to pathology. “They have been apt to regard what ought to be a disgrace as a compliment, when they were approached by a paramour of superior condition and race,” he concluded.40

Yet multiple sexual assault charges brought against Assistant Surgeon Charles F. Lauer in Beaufort, South Carolina, in 1863, proved that for many Black women, white men who abused their power were a nuisance and a danger in their working lives. Laundresses Sarah and Jane were among several women who testified against Lauer for offences committed on the Milne plantation on Port Royal Island.41 They asserted that Lauer sexually abused them under the pretense of a medical examination. In his defense, Lauer ascertained that he conducted an examination of their genitalia because he suspected they had contracted a venereal disease.42 In doing so, Lauer brought the possibility that Sarah and Jane were sex workers into the military court's line of sight.

Captain S. S. Metzger, a witness for the prosecution who was present during Jane's examination, corroborated Lauer's challenge to Jane's virtue. In his testimony, Metzger confirmed that Jane initially resisted the examination. He went on to imply that Jane was a prostitute, noting the “general impression” being that “some of the members of the regiment had been diseased by her.”43 In a court environment that evaluated the sexual reputation of women to determine whether they were “true” victims of sexual assault, Lauer's view clearly aligned with this presumption. The belief that Jane was a prostitute—or at least sexually active—appeared to have forfeited her right to withhold consent to an invasive “medical” procedure. Lauer exploited this gray area in his assault.

Eda and Rebecca were among the women who testified to Lauer's violence and sexual harassment.44 Eda told the court that Lauer visited her home on three nights trying to “knock” her. To avoid any further harassment, she told the court that she started sleeping in the cotton fields.45 She described how the doctor punched her when she refused his advances. Similarly, Rebecca testified that the doctor approached her as she sat on a bench, asking if she “would do it.” “I said no,” she stated, “He asked why. I told him I didn't want to do it and then went into the house. He followed me. When I said again I wouldn't do it, he slapped me.”46 Rebecca's experience descended into further violence and a failed attempt to get immediate help. “He kicked me twice in the stomach and boxed me on the face,” she continued.47 Rebecca escaped and reported Lauer to Captain Nesbitt, who “said he didn't think the doctor would do such a thing.”48 In the moment of terror, the presumed respectability of the doctor as indicated by Nesbitt overshadowed Rebecca's claims. Substantiating Rebecca's account, Sarah spoke as a witness. “I am well-acquainted with him [Dr. Lauer]. I used to do his laundry,” Sarah testified. “I heard him trying to get her to go to his tent. She didn't want to. He slapped her and I said to him. ‘Doctor . . . when a woman did not give it up to him, he should leave her alone instead of striking her.’ ”49 The testimony of these Black women in court was disruptive. Union officials were compelled to listen to refugee Black laundresses scold a white doctor about sexual consent. As stateless, noncombatant military laborers who may or may not have engaged in sex for pay, including survival sex, these women were clear about asserting control over the borders around their own bodies. They upended so many existing beliefs about race, class, respectability, and sexual consent.

Like Lauer, Union soldiers and military personnel who sexually assaulted formerly enslaved women not only upheld ideas about the availability their sexual labor, but also deployed racist arguments that reinforced Black women's legal marginalization. Within months of the hard-fought Battle of Stones River campaign, which pushed the Confederate army from its post in Murfreesboro, Tennessee, Harriet Elizabeth McKinley and Matilda McKinley brought rape and attempted rape charges against Privates Perry Pierson and William Lindsey of the Indiana Volunteer Infantry.50 Harriet was living on the plantation of her former owner, Joseph R. McKinley, when Pierson raped her. When Harriet was first called before the military tribunal, Pierson objected to her testimony on the ground that she “was not a qualified witness, being a colored woman.”51 Taking Pierson's charge of Harriet's social inferiority seriously, the commissioners cleared the court for deliberation. The mere existence of Harriet's body in a courtroom caused debate.52

The commission rejected Pierson's attempt at legal obstruction, but that was only Harriet's first challenge. Despite confidently recalling her experience with details attesting to her sound-mindedness and credibility as a witness to her own body, the court repeatedly asked whether or not she consented. Harriet was compelled to perform her trauma. She insisted that she screamed throughout the entire assault and told the court explicitly that she did not consent to the act. Harriet was also was forced to disclose that she was unmarried and a virgin. Pierson was found guilty. He was sentenced to a year of hard labor and deprived of pay for four months.53

Harriet and Matilda each offered testimonies that emphasized their militant protection of their sexual and bodily integrity. Matilda, who accused Lindsey of attempted rape, testified that she was prepared to have her throat cut when Lindsey threatened that as an alternative to sex.54 Similarly, after Harriet professed her sexual innocence before the court, she added that when Pierson penetrated her, she “hollered so that you might hear me for two miles.”55 By stating that she was a virgin and emphasizing her pain, Harriet defied the stereotype of enslaved female promiscuity and availability for illicit sex as well as the common ideological belief that African Americans were less susceptible to pain.56 She asserted her bodily violation before the Union army despite her liminal status and demonstrated her sense of self-ownership. Formerly enslaved women made the best of a legal culture that invited them to testify within the narrow script of the (white) chaste female victim while equally subjecting them to suspicion and condescension because of their race.

Harriet and Matilda's defense of their chastity and sexual self-possession brings into view the fact that formerly enslaved women and girls adhered to their own codes of sexual ethics in defiance of white assumptions about their sexuality. Testifying in military courts enabled Black women and girls to define these sexual and moral values and, relatedly, their meaning of sexual consent. This was especially evident in cases involving violence against Black girls. It is important to stress that Black girls were not spared the violence of rape and sexual assault. Like Black women, prepubescent and adolescent girls faced sometimes hostile military courts that compelled them to recount in excruciating detail the horrors of their trauma, often with the assailant present. If their apparent young age promised to sever the suspicion that illicit sex occurred, their race and gender also subjected them to the violence of “adultification.”57 As a form of dehumanization, Black girls struggled with the violence of “adultification” in myriad ways. At the level of their assaults, perpetrators either approached them as mature women or later attempted to justify their attacks with arguments that Black girls were actually women who consented to illicit sex.58 Additionally, Black girls were further traumatized by “adultification” within the court environment, from modes of questioning to the ways that their cases were recorded. In the mid-nineteenth-century US, the legal age of sexual consent was set between ten and twelve across most states. But, as historian Wilma King notes, “enslaved girls, who had no legal protection against sexual violence, were assumed to be experienced without concern about whether or not they were sexually active.”59 While ascribing moral meaning to age helped to underline the innocence and victimhood of African American girls, their race, status, and the labor they were compelled to perform nevertheless depicted Black girls as fair game, like Black women.

Thus, Black girls experienced sexual violence as part of the normalized conditions of violence that Black women experienced. Their testimonies and statements offered repeated markers of their sexual innocence as well as the moral and cultural values that they developed from their enslaved upbringing. In Wilmington, Virginia, an unnamed sixteen-year-old described her terrifying experience of sexual assault by five men, one of whom was John Murray of the 117th New York Infantry. She did not testify in court but evidently shared with a nearby witness, who testified that “they tried to take my maidenhead”—an expression that underlined the scale of the soldiers’ crime.60 Jennie Green did not know her age when she was raped by Lieutenant Andrew J. Smith of the Eleventh Pennsylvania Cavalry in City Point, Virginia, in 1864. She was an enslaved girl who transitioned to fugitivity when she followed Union soldiers to federal lines sometime in late spring 1864. Yet Jennie carried with her a clear sense of right and wrong. Despite her young age, lack of formal education, and liminal legal status in a country in the throes of a Civil War, she sought sexual justice.

Like most refugee and freed women and girls who were sexually assaulted by Union soldiers, Jennie's experience occurred as she was providing nonsexual labor. She was working as an officer's servant in a military camp. In her testimony, Jennie explained that she had entered Smith's quarters to deliver his supper. When she turned to leave, he grabbed her arm and locked the door behind her. She described how Smith forced her on the ground and proceeded to rape her. Testifying to her sexual innocence as well as her sense of sexual sovereignty, even as a young girl, Jennie stated, “He did the same thing that married people do. . . . That was what hurt me. I did not give my consent to have that done.”61

One should not rush over the precise language Jennie used in her testimony. For an enslaved girl, barely weeks off the plantation, to use the language of “consent” in this context speaks volumes about the kind of consciousness that would assertively seek redress in a military court. What Jennie said to the court reveals to what extent she possessed a moral code and set of principles in enslavement that permitted her to make claims about her power, privilege, and self-ownership in court. The term consent belies the assumed consciousness of an enslaved girl. The notion of power, privilege, and self-ownership inherent in the language of consent was incongruous to the logic of slavery. Jennie not only affirmed that she did not consent to have sex but also defined her understanding of sexual intercourse as a practice that should be reserved for “married people.” In a society where marriage between enslaved couples held no legitimacy under the law, the fact that Jennie framed sex as part of a marital union sheds light on the ways that sexual respectability operated as a subversive script in the testimonies of fugitive and refugee women and girls.

By the summer of 1864, Jennie was at the center of a high-profile rape case. The surviving record of her case reveals the kind of inconsistencies that spoke to her struggle with systemic “adultification.” In one statement, she is described as “a young negro girl”; in another, Jennie is presented before the court-martial as a “colored woman.”62 Nellie Wyatt, an African American woman who testified as a witness for the prosecution, corroborated Jennie's youth and sexual innocence. She explicitly asserted that Jennie was “nothing but a child.”63 Wyatt went further in her defense of Jennie's challenged childhood by arguing that it was precisely because of Jennie's young age that Smith took advantage of her. Understanding that Smith might just as easily have attempted an attack on her, Wyatt testified, “I got off by being married.”64

Smith was convicted with the endorsement of General Benjamin Butler. The recommendation for his sentence consisted of years at hard labor combined with the loss of rank and position. A known enforcer of the Lieber Code's policy regarding the conduct of Union soldiers, General Butler expressed his disgust. “A female negro child quits slavery, and comes into the protection of the Federal government, and upon first reaching the limits of the Federal lines receives the brutal treatment from an officer, himself a husband and a father, of violation of her person,” Butler wrote. “Of this the evidence is conclusive.”65 Butler's response revealed that some white Union officials were open to an inclusive understanding of sexual consent. Lincoln, however, was unconvinced that Jennie had accurately identified her assailant. After Smith had spent a short period in a penitentiary, the president issued repeated orders for his release. While Jennie likely never received full sexual justice, her self-presentation as a moral subject, assertion of sexual sovereignty and insistence on sexual consent attests to the subversive potential of her testimony.

Jennie's case shows that Black female servants working for Union officials were especially vulnerable to sexual assault. Accessing the private space of officials’ quarters made inappropriate contact much easier to execute. In addition, the threat of losing their provisions offered a potential reason to remain silent, while the authority of Union officials often masked their predatory behavior. Many Black women testified with arguments that demonstrated their demands not only around the question of consent, but also for a safer working environment. On April 22, 1865, at a contraband camp on the south side of the Cape Fear River, Julia Jennison told a tribunal that she had explicitly told William McManus of the Thirty-Third New Jersey Infantry that she did not want to sleep with him. Working as a servant in the officers’ quarters, Jennison recalled that she was in one of the officers’ rooms, making the bed, when McManus accosted her. “He asked me if I would sleep with him. I told him no. He said I got to do it. I told him I wouldn't.”66 McManus then attacked Jennison, and she fought back. As she tried to protect herself, McManus punched her in the eye and stated, “Jeff Davis had but one eye and why couldn't [she] have?”67 Jennison's case clearly highlighted the assumption that sex formed part of the service that Black women owed to Union soldiers.

The routine assertion of one's moral authority within the overlapping frameworks of Protestant Christianity and Victorian sexual morality was undeniably strategic. In asserting their identities as married women, for example, refugees made explicit claims to their sexual respectability as evidence of the absence of their consent. In the mid-nineteenth century, marriage constituted the cornerstone of a moral, civilized society.68 For African Americans, this notion held consequences that affected their material lives. Slaveholders prohibited legal marriage among enslaved couples, while abolitionists pointed to the lack of legitimate marriage as the main cause of sexual immorality within the enslaved community. For white Americans on both sides of the slavery debate, the idea that African Americans simply didn't value the covenant of marriage was commonplace.

Black women's self-presentation as wives did more than simply convey that they valued chastity, or even that they sought participation in conventions set by white American society. As wage earners as well as wives, refugee women brought attention to their uniquely situated racialized sexual oppression. The mention of husbands exposed the fact that even after emancipation, they could not expect the kind of patriarchal protection available to white women. For example, a woman addressed as Mrs. Cornelius Robinson was introduced as the “wife of a loyal colored citizen” when she appeared in court in February 1865. She was the mother of a five-day-old infant when George Hakes of the Sixth Michigan Cavalry raped her at her home, roughly two miles from Winchester, Virginia.69 In her account, Mrs. Robinson stated that Hakes entered her family home and ordered her husband on an errand to buy some sheepskin. When Mr. Robinson left, Hakes pushed Mrs. Robinson into the bedroom and assaulted her: “He said if I did not give up to him he would shoot me. I said, ‘Then you'll have to shoot me.’ ”70 While the horror of the assault was central in Robinson's testimony, her husband's absence augmented both her defenselessness and the magnitude of the crime. Framing her assault as a violation of her individual self and the sanctity of her marriage, Robinson's testimony stood in accordance with the Lieber Code's definition of rape as “a crime against family honor.”71

Refugee and freedwomen also emphasized their chastity and marital status as a form of sexual resistance and an assertion of their sexual autonomy, both individually and in relation to their husbands. On a Saturday night in March 1865 in Central Knob, near Chattanooga, Tennessee, a Black Union soldier entered the home of Mrs. Sarah Beuford and “did by force try to have dealings of a carnal nature.”72 Beuford was awakened by a knocking at her door. Her visitor, Private John Lewis of the Sixteenth United States Colored Infantry (USCI), introduced himself as a patrol guard on a routine check. This puzzled Beuford, because two guards had already passed by earlier before she went to bed. Lewis used his authority to gain access to Beuford's home, and in doing so he established an expectation for Beuford's deference and service. He asked for some bread, and she explained that she hadn't had any for several days. He stole some meat from a pig that she had killed earlier that morning. Shortly thereafter, Lewis's pillaging evolved into the threat of rape. He informed Beuford that he'd thought she was “an old woman”—an ominous comment gesturing to his sexual interest.73 Slapping her on the shoulder, he asked if she “had nothing else to give him.”74 “I asked what he meant and he said I know what,” Beuford later recalled, “I asked him about a hundred times what he meant and he said I know.”75 By insisting that Lewis name his intentions, Beuford refused the terms of secrecy that empowered and protected sexual predators. Thus, when Lewis asked for “some skin,” Beuford replied that it was “a pretty question to ask a married woman.”76

Offering $40, Lewis attempted to recast his sexual affront into an illicit, consensual exchange. He promised Beuford that her husband wouldn't find out about the encounter. In a court-martial testimony, Beuford was clear in her response to Lewis. She underscored that her chastity was a self-governing virtue and a reflection of her identity as a Christian and a wife. “I told him if my husband would not know it God would and that if I had done the like I could not be depended on by my husband,” she declared. “[I] said I was a lady before my husband's face and behind his back.”77 In a legal culture where rape laws and statutes scrutinized the chastity, reputation, and character of sexual assault victims, Beuford was aware that her credibility as a respectable woman was also on trial.78 She told the court that Lewis held her at gunpoint and threatened to have her gang-raped by “thirty of the boys.”79 “I told him if they come, I would have more Company to go to the Lieutenant with and asked if he had any objection,” she stated.80 Beuford succeeded in scaring Lewis off. Risking her life in the pursuit of sexual justice, she followed Lewis back toward the military camp where he was stationed, undeterred by his attempts to shoot at her.81 The next day, she reported Lewis to Lieutenant John Scott, commander of Company C.82 At the close of the trial, Lewis was found guilty of three charges, including assault and attempted rape.83

The resistive tension between Lewis's solicitation of “some skin” and Mrs. Beuford's riposte as a married woman is emblematic of the sexual precarity of African American women and girls in the transition from slavery to emancipation. Beuford's self-identification as a married woman was strategically encoded in the protections of a female liberal subject-position. That Lewis was an African American soldier, added to Black women and girls’ dangerously confounding relationship to representatives who were at once their assailants and protectors. Living within the vicinity of a military base, Beuford may easily have been a Black soldier's wife—a point that augments Lewis's dishonor as a soldier and community member. As noted, notions of the safeguard of marriage were not readily available to Black women, including Beuford, a free(d)woman living in Union-occupied Tennessee in early 1865.84 But the assertion of her identity as a married woman combined with her use of the language of sovereignty and inverted dependency—“I could not be depended on by my husband”—demonstrates how Black women like Beuford self-fashioned a position that claimed the prerogatives usually limited to the (white) female liberal subject.

African American women were intentional about spotlighting their respectability and moral character in military courts and commissions by differentiating themselves from sex workers in a society where prostitution was often publicly visible and not explicitly illegal. Presenting themselves as “not that kind of woman” emphasized their understanding of a distinction between women who engaged in illicit sex and those who chose the path of chastity, modesty, and Christian morality. Using gendered conventions of modesty and respectability, Black women sought to dismantle the assumption that their labor was indivisibly nonsexual and sexual.

Of course, in emphasizing their sexual respectability, refugee and freedwomen reinforced the problematic belief that women who had any past sexual experience outside of marriage did not deserve justice. In the early nineteenth century, prostitutes and other women of so-called “lost virtue” were often removed from consideration as victims of rape and sexual assault. “Virtuous” women were believed to be the true victims, as their lifestyles did not conform to the kind that invited male sexual attention.

Still, the precarious nature of life for African American women meant that their virtue was continuously challenged by men who sought illicit sex. Black women and girls contended with real as well as scam enticements of payment before, during, and after sexual affronts and violence. Detractors’ efforts to recast an assault through offerings of money and gifts spoke to the common attitude that Black women were always prepared to negotiate sex as part of a labor transaction. In a court-martial on March 14, 1865, Laura Ennis similarly testified that Charles Clark attempted to bribe her with coffee and sugar in exchange for her silence after he attacked her.85 Sarah Beuford told the military court that she refused John Lewis's offerings of money, gloves, and shoes after his attempted assault.86 Women, Black or white, explicitly framed solicitations for sex in exchange for payment as an insult to their character. On September 12, 1863, Mrs. Ellie Farnan and her daughter beat up a drunken Private William Van Buren of Company B, 212th Illinois, after he tried to accost them. He had offered to exchange money for “some skin,” and Mrs. Farnan and her daughter reportedly took this offer as an “insult and abuse.” In a statement offered by a witness for the prosecution, Mrs. Farnan apparently said to Van Buren: “You god damned old son of a bitch, you had the impudence to offer a decent woman like myself a dollar and my girl, that I'm raising, three [dollars].”87

Indeed, not all Black women and girls were able to, or even desired to, define sexual consent within the frame of respectability. Some pushed for more sophisticated understandings of sexual consent in ways that deviated from the legal script of the virtuous female victim. In 1865, in Clarksville, Tennessee, a fourteen-year-old noted on record as “Rachel, a Negro Girl” told a court-martial that Private John Locker had attempted to rape her. Rachel was staying at a known “house of ill fame” when Locker met and attacked her. According to the court proceedings, Locker was intoxicated and initially groped Rachel on her bosom. Witnesses differ in their accounts of how much Rachel resisted this act, but Rachel testified that she told Locker “to quit.”88 She became more vocal in her resistance when Locker progressed with an attempt to penetrate her. Once again, Rachel, like other Black girls who sought sexual justice, was treated with the presumption of her fully developed maturity—regardless of whether she was sexually active or not. Interestingly, when the defense asked Rachel, “Why would you not permit the accused to have carnal knowledge of you?” she responded: “Because he was not of my color.”89 Rather than appealing to ideals of chastity, Rachel, who was likely a sex worker, invoked her own notion of sexual respectability. To be sure, the defense asked if “color was the only object,” to which Rachel said yes.90 Perhaps the taboo of interracial sex was where Rachel drew the line. What is compelling about this case is that Rachel claimed moral authority on her terms, and when the borders of her body were violated, she pursued full legal recognition and justice.

Conclusion

In their refusal to be reconstituted as sexually available laborers in the crucial period of Civil War and emancipation, fugitive, refugee and freed women and girls embarked on a contestation over labor and sexual consent. Intervening in, and weaponizing, nineteenth-century ideals of sexual respectability, refugee and freed women's and girls’ testimonies resisted the persistence of cultural assumptions that sex could be negotiated as part of, or in addition to, their nonsexual labor. Survivors of sexual violence were especially positioned to intervene in existing definitions of Black women's labor, and many seized the opportunity to shape this reformulation. Married women also challenged the attitude that African American marriage was a mere inconvenience that a man wanting sex could easily evade or ignore. Their deployment of the language of chastity and assertion of their marital status subverted the legal premise of the chaste white female sexual assault victim. As a result, stateless working women and girls ushered in more sophisticated meanings of sexual violence and consent in mid-nineteenth-century America.

But appeals to chastity neither guaranteed these women and girls sufficient sexual justice or protection. The window of recognition that wartime legislation offered them was not sustainable. Enforced to regulate the conduct of Union military personnel, legislation such as the Lieber Code acknowledged Black women and girls as rape victims within the specific context of war. The period of Reconstruction introduced a formal rights framework for freedwomen to define their sexual autonomy as citizens. To be sure, neither citizenship nor education, literacy, or middle-class status were ever prerequisites for Black women and girls to assert their moral agency, dignity, and desire for sexual ownership. Their struggle for sexual sovereignty joined a long-standing tradition of sexual resistance fashioned by enslaved women—the most marginalized and nontraditional political actors. As citizens, freedwomen gained access, at least in theory, to a model of female citizenship. But as Reconstruction came to a close, the resurgence of southern white male political power unleashed a nadir of extreme racial and sexual terror. Working-class, middle-class, and educated African American women within the Black Baptist community would deploy strategies of sexual resistance similar to those used by their fugitive and refugee forebears in what historian Evelyn Brooks Higginbotham has defined as a “politics of respectability.”91 The shifting legal ground and character of the state that Black women and girls confronted reveals their fraught historical relationship to notions of sexual consent within the framework of Western liberalism. Their strategies speak to the ultimately burdened ways that African American women were compelled to seek sexual freedom in the mid- to late nineteenth-century United States.

I would like to extend my gratitude to co-organizers Christopher Phelps and Leon Fink for the invitation to contribute to this timely special issue. In addition to the feedback from my co-contributors, I wish to also thank Beryl Satter, Ashraf Rushdy, Kidada E. Williams, Cheryl Hicks, Kali Gross, Alexandria Russell, Miya Carey, Nakia D. Parker, and Ashleigh Lawrence Sanders for their penetrating and invigorating comments on earlier drafts.

Notes

1.

Susan's testimony names George “Larley” as the owner of the plantation where she lived. This is likely a misspelling. The 1860 US Federal Census—Slave Schedule identifies a person called George Lyiely (more commonly spelled as “Lyerly” or “Lyrely”) who owned a plantation in Salisbury, Rowan County, NC. See Records of the Judge Advocate General's Office (Army), Entry 15, Court Martial Case File, file MM2407, Record Group 153, National Archives and Records Administration (hereafter cited as RG 153, NARA); US Federal Census, George Lyrely, 1860, Salisbury, Rowan, NC, p. 529, Family History Library Film 803912; George Lyrely, 1870; Providence, Rowan, NC, Roll M593_1158, p. 548A.

2.

In the wake of emancipation, formerly enslaved families confronted new systems of oppression, such as forced apprenticeships, that undermined parental authority. See Zipf, Labor of Innocents.

3.

MM2407, NARA, RG 153.

4.

MM2407, NARA, RG 153.

5.

MM2407, NARA, RG 153.

6.

MM2407, NARA, RG 153.

7.

Early American historian Sharon Block makes the excellent point that “social and economic power relations underwrote sexual power, not only in the ability to evade legal punishment but also through the very commission of sexual coercion. . . . In other words, men could commit rape not just as an act of power—they could use their power to define the act.” Block, Rape and Sexual Power in Early America, 54.

8.

MM2407, NARA, RG 153.

9.

MM2407, NARA, RG 153.

10.

MM2407, NARA, RG 153.

11.

Bork was also on trial for “assault with intent to kill” another soldier. In a broader military court culture that repeatedly failed to recognize the humanity of Black female victims, the severity of the initial sentence was most certainly due to this second charge. MM2407, NARA, RG 153.

12.

As a concept in Western liberalism, the idea of consent has traditionally affirmed notions of individual proprietary rights as part of the social contract. Feminist critiques of contract theory have underscored how consent has historically served as a mechanism of white patriarchal supremacy. With such rights demarcated within the parameters of the law, consent thus must be understood as an instrument of subjectivity and its attendant freedoms, as well as an aide of imperial conquest, Indigenous dispossession, colonialism, slavery, and capitalist exploitation. See Pateman, Sexual Contract; Haag, Consent.

13.

Haag, Consent, xviii.

15.

Black feminist scholar Adrienne Davis offers the crucial language of the “sexual economy of American slavery” to describe enslaved women's systemic sexual exploitation within the institution. See Davis, “Don't Let Nobody Bother Yo’ Principle.” 

20.

In a meeting with Secretary of War and Major-General William T. Sherman on January 12, 1865, twenty African American ministers and church officers expressed their understanding of slavery. They stated, “Slavery is, receiving by irresistible power the work of another man, and not by his consent.” Invoking the language of consent, these figures demonstrated that African Americans held their own meanings of consent. It bears highlighting that the voices in this interview represent an African American male perspective. The systemic intimate abuses that marked Black women's experiences in slavery demonstrated the gendered nature of the institution. As such, meanings of slavery and freedom should be analyzed along gendered lines. See Berlin et al., Freedom; and for an excellent discussion of gendered meanings of liberation, see Threadcraft, Intimate Justice. 

22.

Thomas P. Lowry estimates around 250 prosecuted cases, whereas an ongoing project by scholars E. Susan Barber and Charles F. Ritter have measured at least 450 cases. Lowry, Sexual Misbehavior in the Civil War; Barber and Ritter, “Physical Abuse . . . and Rough Handling,” 51.

23.

Many of these cases involved Black female victims. Acknowledging this point, Barber and Ritter also emphasize that “no woman was safe from wartime sexual predation. The female victims came from all economic and social strata of Southern society.” Barber and Ritter, “Physical Abuse . . . and Rough Handling,” 57–58.

37.

“Letter from Charles Francis Adams, Jr., to Henry Adams, Milne Plantation, Port Royal Island, Monday, April 6, 1862,” in Ford, ed., Cycle of Adams Letters, 1861–1865, 128.

38.

US Department of the Treasury and Edward Lillie Pierce, Negroes at Port Royal, 7.

39.

US Department of the Treasury and Edward Lillie Pierce, Negroes at Port Royal, 13.

40.

US Department of the Treasury and Edward Lillie Pierce, Negroes at Port Royal, 13.

41.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

42.

See Barber and Ritter, “Dangerous Liaisons,” 8.

44.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

45.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

46.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

47.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

48.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

49.

NN624, NARA, RG 153, as quoted in Lowry, Sexual Misbehavior in the Civil War, 138–39.

50.

MM746, NARA, RG 153.

51.

MM746, NARA, RG 153.

53.

MM746, NARA, RG 153.

54.

MM746, NARA, RG 153.

55.

MM746, NARA, RG 153.

56.

For more on slavery and discourses of pain see Clark, “ ‘Sacred Rights of the Weak.’ ” 

61.

NN2099, NARA, RG 153.

62.

NN2099, NARA, RG 153.

63.

NN2099, NARA, RG 153.

64.

NN2099, NARA, RG 153.

65.

NN2099, NARA, RG 153.

66.

OO1056, NARA, RG 153.

67.

OO1056, NARA, RG 153.

72.

MM2774, NARA, RG 153.

73.

MM2774, NARA, RG 153.

74.

MM2774, NARA, RG 153.

75.

MM2774, NARA, RG 153.

76.

MM2774, NARA, RG 153.

77.

MM2774, NARA, RG 153.

79.

MM2774, NARA, RG 153, RG 153.

80.

MM2774, NARA, RG 153, RG 153.

81.

Between 1863 and 1865, the town of Chattanooga, Tennessee, was under military occupation by the Union army. Ideally located near the Tennessee River and railroad connections, Chattanooga “retained the appearance of an armed camp” with an “important supply base.” This attracted a number of freedpeople who set up residence within the vicinity of the town. Govan and Livingood, “Chattanooga under Military Occupation, 1863–1865,” 23.

82.

MM2774, NARA, RG 153. African American soldiers generally received harsher sentences for the same crime committed by white soldiers. Private John Lewis's conviction was the result of three charges. The first charge was “Disobedience of Orders”; the second charge was “Pillaging”; and the third charge was “Assault and Attempt to Commit Rape.” Private Lewis was sentenced to one year of hard labor in a military prison, and the loss of pay and allowances for the duration of that time.

83.

MM2774, NARA, RG 153.

84.

Mrs. Sarah Beuford's status is not explicitly referenced in the court-martial record. It is possible that she was a free or freed person. I draw the distinction on the basis of her legal status prior to Andrew Johnson's emancipation notice in Tennessee, delivered in October 1864.

85.

OO654, NARA, RG 153.

86.

MM2774, NARA, RG 153.

87.

NN854, NARA, RG 153. See also Lowry, Story the Soldiers Wouldn't Tell, 124. Mrs. Farnan's race is not listed in the military record.

88.

OO857, NARA, RG 153.

89.

OO857, NARA, RG 153.

90.

OO857, NARA, RG 153.

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