A Comparative Legal History of Sexual Violence and Coercion on the Nineteenth-Century Plains
In 1887, Annie Sadilek Pavelka, prototype for Willa Cather’s novel, My Ántonia, experienced sexual assault in Red Cloud, Nebraska. In 1895, Daisy Lammey of rural Smith County, Kansas, faced sexual coercion and then the accusation of incest, a legal ploy used by the accused to escape punishment. Regrettably, most scholars have failed to acknowledge this type of violence on par with the clichéd violence associated with the nineteenth-century West, such as gun-slinging, saloon brawls, and armed robbery. Relative historiography also stops short of recognizing that women actively fought against crimes of a sexual nature by using the laws of their state and their local courts of law. Evidence of this exists in abundance within such courthouses of the Plains today, yet these legal files remain largely unseen and the histories unwritten, leaving the story of the American West incomplete. This presentation will expose the records of these courthouses as modern-day witnesses to the sexual violence and coercion of this rapidly developing region during the late-nineteenth century, expanding our knowledge of the developing legal systems of the West, and giving a voice to women forced to reckon with such violence.
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[00:00:01.700]Hello, welcome to my talk on
[00:00:04.960]Sexual Violence and Coercion: A Legal History.
[00:00:08.830]Thank you to the UNL Women's Center
[00:00:11.950]and the UNL Women and Genders Program
[00:00:14.290]for allowing me to present my research
[00:00:17.490]at this online conference.
[00:00:19.970]This will, I think, demonstrate the empowerment,
[00:00:23.770]the resilience of women on the 19th-century Plains
[00:00:29.550]in the late 19th century.
[00:00:32.620]These women have faced tremendous difficulty
[00:00:37.230]and used their abilities
[00:00:41.430]to combat their situations through law,
[00:00:45.750]and so I will be discussing that today.
[00:00:49.820]My name is Donna Devlin, and I'm a fourth year PhD candidate
[00:00:54.500]at the University of Nebraska-Lincoln,
[00:00:57.280]and my general interests include looking at
[00:01:02.010]the legal, the political, the social ramifications
[00:01:06.330]of Westward Expansionism,
[00:01:09.140]and we are gonna look today at the problems
[00:01:15.230]that arose in this region, particularly Kansas and Nebraska,
[00:01:23.090]sexual violence as a part of the story.
[00:01:28.410]The narrative of the West
[00:01:32.683]does not always include sexual violence,
[00:01:35.490]and my aim is to change or alter
[00:01:40.050]the course of that discussion.
[00:01:54.800]So what this project does
[00:01:57.370]is it critically examines the late 19th-century law,
[00:02:03.200]its creators, its interpreters,
[00:02:06.930]as it relates to the sexual relations
[00:02:09.990]in Kansas and Nebraska.
[00:02:12.610]Understanding that there is an intersection
[00:02:16.970]between law and society in the arena of sexual relations,
[00:02:22.300]and that the law itself is constructed
[00:02:26.100]in a gendered fashion, not only in the West,
[00:02:30.320]but in the United States in general,
[00:02:33.460]and this is a time that should be remembered
[00:02:37.230]that women without any political authority at this time
[00:02:42.040]did use the law, perhaps even more
[00:02:45.770]than I had originally thought when I began this project.
[00:02:51.730]What we do here is we explore the patterns then
[00:02:57.090]that sort of relate sexual violence, coercion
[00:03:03.630]between the 19th century, 20th century, 21st century.
[00:03:08.080]These cases that I am looking at
[00:03:10.130]demonstrate a similar language pattern, as you will see,
[00:03:14.630]and similar tactics of abuse over centuries,
[00:03:19.420]as well as unfortunate patterns of legal injustice,
[00:03:25.210]so we need to understand that sexual violence and coercion,
[00:03:29.780]it's not a contemporary issue only, it has a great history,
[00:03:36.840]a legal history that needs to be examined.
[00:03:40.700]We're also going to then be able to hear the voices of women
[00:03:45.040]who experienced this sexual violence, coercion
[00:03:49.460]and then challenged it through legal means
[00:03:51.700]and these voices are those of women
[00:03:55.500]probably unknown to everyone today,
[00:04:01.260]they were average American women,
[00:04:06.640]many were immigrants and poor, some in a servitude position,
[00:04:14.250]so what we're gonna look at is the agency of women,
[00:04:20.400]rather than simply accepting a narrative
[00:04:24.480]of stereotypical passivity,
[00:04:27.490]women actually utilized the courtrooms of the West,
[00:04:31.600]and often despite their class designation
[00:04:36.090]or their other circumstances,
[00:04:40.200]to combat sexual misconduct.
[00:04:46.550]So we're gonna look also then
[00:04:48.450]at altering the Western narratives
[00:04:51.830]that prevail even today in the 21st century
[00:04:55.950]and the stereotypical gender roles
[00:04:59.560]that existed in the Plains.
[00:05:03.130]We have a couple of accepted storylines that deal with
[00:05:10.900]the narrative of men in the Wild Wild West,
[00:05:15.500]stories of gun slinging, saloon brawls,
[00:05:18.820]armed robbery, murder, et cetera,
[00:05:22.360]and in that same storyline with women
[00:05:25.690]are often depicted as prostitutes or victims of attacks
[00:05:33.770]in the sense that well, Native Americans are often thought
[00:05:40.470]to be the greatest affected populations,
[00:05:45.470]and they certainly were affected,
[00:05:48.320]we're going to broaden that narrative
[00:05:50.730]to look at women in general,
[00:05:53.760]as a part of the population moving westward as well.
[00:06:01.130]The second accepted storyline is that these pioneers were,
[00:06:08.870]if you were a man, pious, hardworking,
[00:06:13.450]and forging a civilization, an agrarian civilization
[00:06:19.280]out of uninhabited wilderness, which we know is not true,
[00:06:24.680]the areas of Kansas and Nebraska
[00:06:27.320]were heavily populated with native populations
[00:06:31.780]prior to the emergence of Anglo-Americans into the region.
[00:06:37.970]In this storyline, women are also pious, hardworking,
[00:06:42.130]and often acquiescent pioneering wives and mothers
[00:06:46.710]supporting their families, their husbands
[00:06:51.916]in this unsettled place,
[00:06:55.990]sort of bringing a sense of stability,
[00:06:59.440]and so we're going to sort of look at
[00:07:02.590]how to change that narrative,
[00:07:06.880]we need to no more consistently present the West
[00:07:14.710]in either of these stereotypical formats.
[00:07:21.880]Another unfortunate issue with the study of the West
[00:07:25.630]is the tendency to romanticize that West,
[00:07:31.610]and this research asks us
[00:07:36.270]to challenge that methodology
[00:07:43.070]and ask, what is the danger in leaving the reputation
[00:07:48.560]of a saintly pioneer in place?
[00:07:52.290]What is the legacy of the Plains pioneer?
[00:07:58.440]Is there any benefit to limiting that history?
[00:08:06.750]Are we mistakenly presenting it for the purpose
[00:08:12.250]of a nationalist trope of manifest destiny,
[00:08:18.980]because it fortifies the history of the nation in the world?
[00:08:29.630]In doing some of my research I came across this passage
[00:08:34.870]that was utilized by a family member of one of the women
[00:08:41.300]who was coerced into a sexual relationship,
[00:08:47.650]and I think it brings us to the point of discussion then
[00:08:51.840]for today's topic, the Saintly Pioneer.
[00:08:56.097]"Truly he did lift up his soul
[00:08:58.870]and made the world a better place in which to live,
[00:09:02.040]because he passed this way.
[00:09:04.330]They all endured the perils, heartbreak and poverty
[00:09:08.430]in order that we might have a better way of life,
[00:09:11.690]each generation striving, reaching for better opportunities
[00:09:15.960]for their children and children's children.
[00:09:18.800]This was our Legacy, left by a Saintly Pioneer.
[00:09:23.030]May we forever keep it untarnished."
[00:09:27.160]Well, my objective is to tell the real story,
[00:09:33.450]and if this tarnishes the reputation of the saintly pioneer,
[00:09:42.620]I guess that's its intention
[00:09:44.990]so that we have a truer understanding
[00:09:48.190]of the development of the West,
[00:09:51.030]the violence that did prevail in many ways in the West,
[00:09:57.270]it was not simply gun slinging
[00:10:00.050]and saloon fights, the murders,
[00:10:06.190]this was an environment, a landscape
[00:10:10.680]that was ripe for sexual violence and coercion.
[00:10:18.390]What this project does not do.
[00:10:21.330]It does not seek to produce legal verdicts
[00:10:25.050]of guilt or innocence of the accused and the accuser,
[00:10:28.560]although you will probably become a jury of sorts
[00:10:35.570]or feel like you are a jury of sorts
[00:10:38.060]in doing this type of research.
[00:10:40.880]We need to avoid presentism when at all possible,
[00:10:45.990]which is using, of course, modern values
[00:10:48.410]to judge 19th-century behaviors,
[00:10:51.460]remember that the sexual violence and coercion
[00:10:54.940]is not isolated to the 19th century,
[00:10:59.490]it's not isolated to any century,
[00:11:01.930]so we must examine it, if at all possible,
[00:11:06.080]in the environment within which it was produced.
[00:11:12.450]We reexamine this evidence to help develop
[00:11:17.740]those patterns of understanding,
[00:11:20.560]and then we can use that information to better understand
[00:11:27.060]today's continuance of sexual violence and coercion.
[00:11:35.230]To truly begin our conversation,
[00:11:38.740]I'm going to present a couple of situations
[00:11:42.560]that speak to those patterns.
[00:11:52.040]Our first case study, an 18-year-old woman
[00:11:57.270]and a 17-year-old man leave a dance together.
[00:12:01.610]The girl testifies that she expected
[00:12:04.350]to have trouble with him,
[00:12:06.420]she testifies that she had known him for about one year,
[00:12:10.340]this was in a pre-trial deposition.
[00:12:14.300]She testifies that he told her
[00:12:17.150]he had got tired of the other women
[00:12:20.580]and wanted to bang someone else.
[00:12:24.190]She offers resistance, but she testifies that
[00:12:27.130]he threw her down beside the gate,
[00:12:29.890]and then he pulled shears or a knife from his pocket
[00:12:33.940]and cut her drawers.
[00:12:36.100]She testifies that he told her to shut up.
[00:12:40.100]During this pre-trial hearing,
[00:12:42.150]the accused had the legal right
[00:12:44.250]to ask questions under the law, but chose not to speak.
[00:12:50.090]So a question we could ask is,
[00:12:53.140]if the allegations are truthful,
[00:12:55.710]this never went to trial, so there was no conviction,
[00:12:59.510]is this rape according to 19th-century law?
[00:13:06.800]Our second case study,
[00:13:09.200]the boy, term used loosely, is 24,
[00:13:14.450]the girl is 16.
[00:13:17.280]The girl testifies that she was walking home from school
[00:13:21.040]and he petitioned her to have relations, she refused.
[00:13:26.350]She testifies, again, this is a pre-trial hearing,
[00:13:30.470]to a second occurrence walking home from school.
[00:13:33.940]This time she ran, he caught up with her,
[00:13:37.550]he promised her a gift and she refused.
[00:13:42.200]She testifies to a third occurrence
[00:13:44.450]walking home from school,
[00:13:46.060]she states that he kept teasing me
[00:13:48.950]and I told him I wouldn't,
[00:13:50.710]but he accomplished his work that time.
[00:13:53.830]At least three more incidents are testified to after this.
[00:13:59.980]During this hearing,
[00:14:00.870]the defendant offered no witnesses of his own,
[00:14:03.830]and again, with the right to speak on his own behalf,
[00:14:09.710]again, he chose not to.
[00:14:12.090]So again we ask the question,
[00:14:13.860]if the allegations are truthful,
[00:14:16.440]this never went to trial, there was no conviction,
[00:14:20.160]is this rape according to 19th-century law?
[00:14:30.530]What may surprise you to know is that the first case study
[00:14:37.090]was actually someone that at least literary scholars,
[00:14:44.620]those who typically read older literature,
[00:14:50.930]if you've read "My Antonia" by Willa Cather,
[00:14:55.560]published in 1918, if you are one of these individuals,
[00:14:59.010]you will know her as the prototype
[00:15:03.140]for the woman Willa Cather portrayed in her novel.
[00:15:09.520]Her real name was Annie Sadilek Pavelka,
[00:15:14.450]this instance takes place in Red Cloud, Nebraska in 1887,
[00:15:21.920]and this is an interesting case that no one,
[00:15:29.140]until these legal records were discovered, knew of.
[00:15:35.480]In doing research at the National Willa Cather Center
[00:15:40.190]as an intern in the summer of 2018,
[00:15:46.520]I was privileged to be tasked with
[00:15:56.201]the study of the Pavelka family,
[00:16:00.870]for genealogical purposes,
[00:16:03.050]the Foundation wants to recognize the real characters
[00:16:12.790]that fostered Willa Cather's imagination.
[00:16:19.470]Annie and Willa were childhood friends,
[00:16:23.550]even though they were a couple of years apart,
[00:16:26.160]Willa Cather being younger than Annie Sadilek.
[00:16:33.010]And Annie, an individual who was in a servant position
[00:16:41.680]for the Miner family,
[00:16:49.730]the Miner family, of course,
[00:16:51.690]was the Harling family in the novel,
[00:16:54.900]she worked there as a servant for a short time,
[00:16:59.270]the novel itself is in part
[00:17:03.560]a biographical sort of synopsis of her experiences,
[00:17:08.960]but yet the novel leaves out this history here.
[00:17:14.380]What we do know is that Annie
[00:17:19.750]actually went to the courthouse
[00:17:23.010]to file the deposition and report this instance,
[00:17:30.301]we'll call it sexual coercion at least,
[00:17:35.670]if not outright rape, and she does it in a unique way.
[00:17:41.700]Rather than charging for either of those instances,
[00:17:48.280]what she does is bring a case forth for bastardy,
[00:17:53.690]the unfortunate reality for her was that
[00:17:57.400]as a result of that sexual experience, she was pregnant,
[00:18:04.410]and this story itself lends an interesting aspect
[00:18:11.430]to the study of sexual violence and coercion
[00:18:15.600]because it brings forth the question
[00:18:17.890]of why did she not charge for rape?
[00:18:23.320]So we have to look in part to the law
[00:18:26.570]and what were the legal boundaries for that experience?
[00:18:39.210]What did the courts say about forcible rape?
[00:18:46.170]What were the boundaries of statutory rape at this time,
[00:18:56.260]so did age play a factor here?
[00:18:59.350]And so we have much to examine with this case,
[00:19:03.410]although I will do so in brief.
[00:19:05.610]If you'd like more information, there is a recent article
[00:19:09.280]published in the Willa Cather Review,
[00:19:11.780]the winter 2020 edition available online,
[00:19:17.790]so you will get a fuller picture if you'd like to read that,
[00:19:22.700]that story of discovery,
[00:19:25.500]but we'll move on to the second case study now.
[00:19:31.040]I'd like to introduce you now to Daisy Dean Lammey,
[00:19:36.550]one of those lesser known individuals or unknown individuals
[00:19:42.440]that experienced sexual coercion
[00:19:46.210]on the Kansas Prairie in 1895.
[00:19:51.280]She actually is my great-great aunt
[00:19:54.720]and the community in which this case was prosecuted
[00:19:59.100]is a small town in North Central Kansas, Smith Center,
[00:20:04.330]and this was a region that was seeing
[00:20:08.450]rapid population growth.
[00:20:13.930]Between the years of 1870 and 1900, Smith County, Kansas
[00:20:21.740]saw a population explosion of over 24,000%,
[00:20:29.200]they went from 66 persons in 1870
[00:20:34.570]to well over 16,000 individuals by 1900.
[00:20:40.910]When comparing this to United States growth
[00:20:43.810]during that same time period,
[00:20:45.970]the US growth was around 98% positive growth,
[00:20:50.600]Kansas itself as a state
[00:20:53.030]during the same time period grew over 1,200%,
[00:20:59.230]but Smith County, an explosion of over 24,000%
[00:21:05.330]in this 30-year time period.
[00:21:07.820]That made it extremely difficult for the populations
[00:21:13.590]to set up quickly the systems of law
[00:21:16.410]needed to handle all sorts of issues,
[00:21:21.320]not just sexual violence and coercion.
[00:21:26.520]This particular case is of interest
[00:21:29.610]because it tells a unique story
[00:21:34.330]of almost legal choreography and manipulation.
[00:21:43.060]The woman, Daisy Dean Lammey,
[00:21:47.170]brings charges of statutory rape against Charlie,
[00:21:58.849]Charlie is actually a distant relative of hers.
[00:22:04.950]Now with this case, one has to examine
[00:22:10.420]the rapid change in law in regard to
[00:22:15.790]when women could give consent to sexual relations,
[00:22:21.850]and by the time of this case in 1895,
[00:22:26.030]Kansas had a policy in place, a legal policy
[00:22:31.680]that stipulated women could not give consent to sex
[00:22:39.660]if they were under the age of 18.
[00:22:42.830]In other words, at any point,
[00:22:46.550]if a man over the age of 21, generally speaking,
[00:22:55.430]took advantage of a woman under the age of 18,
[00:23:01.880]there was no question as to the criminality
[00:23:06.150]of the sexual relations, of these sexual relations.
[00:23:11.330]In so far as the age of the male,
[00:23:16.410]even someone, even a male aged 18
[00:23:22.220]could be prosecuted for statutory rape.
[00:23:27.310]There was some ambiguity in the law
[00:23:31.390]and complicating this case then
[00:23:34.760]was the environment where society was not wholly accepting
[00:23:43.490]of this age change to consent,
[00:23:50.890]and so legal challenges mounted across the state.
[00:23:54.820]In this particular case, the accused,
[00:24:00.130]in coordination with neighbors who tried
[00:24:05.720]to downplay the good reputation of Daisy Dean,
[00:24:14.880]he's going to bring charges of incest against her
[00:24:19.550]and her brother as a way to combat statutory rape charges.
[00:24:26.370]Now this case becomes even more complicated
[00:24:29.890]when you understand that there is, again, a shift,
[00:24:34.870]a choreography in those who are prosecuting this case,
[00:24:39.140]both cases, it's a tangled web,
[00:24:44.110]and we see the lawyers flip sides.
[00:24:57.640]Most importantly, the defense attorney
[00:25:01.380]for the accused, Charlie Glenn,
[00:25:06.550]actually becomes the prosecuting attorney
[00:25:09.600]with the County attorney in the case for incest,
[00:25:14.350]so he is representing the defendant
[00:25:18.670]in the statutory rape case
[00:25:20.600]but also prosecuting against the Lammeys
[00:25:24.540]in the incest case.
[00:25:29.120]This same defense lawyer, or prosecuting attorney
[00:25:32.650]in the case of the incest legal case,
[00:25:37.090]Myers, actually knew very well
[00:25:40.340]how to challenge accusations of statutory rape
[00:25:47.010]as he had been the primary legal counsel in a case
[00:25:53.940]that went to the State Supreme Court in 1884,
[00:25:57.530]State versus Bryan in a case of seduction,
[00:26:01.240]a legal classification that existed
[00:26:04.460]prior to statutory rape laws,
[00:26:07.610]and he knew how to fight these charges
[00:26:11.000]on the basis of challenging a girl's reputation.
[00:26:15.630]Where the prosecutrix has recently lived
[00:26:18.820]in the neighborhood of the witness,
[00:26:20.370]which is about five miles from her home,
[00:26:23.290]and is generally acquainted in that neighborhood,
[00:26:26.160]and such witness knows the general reputation
[00:26:29.450]of the prosecutrix for chastity in such neighborhood,
[00:26:34.720]but does not know her general reputation for chastity
[00:26:37.620]in the particular neighborhood
[00:26:39.230]in which she resides at the time of the trial,
[00:26:42.320]such witness may be permitted to give evidence
[00:26:45.210]of her general reputation for chastity in his neighborhood.
[00:26:49.560]In other words, the community
[00:26:52.890]becomes witness jury themselves,
[00:26:57.320]and they are allowed to testify,
[00:27:02.660]perhaps even in a negligent fashion,
[00:27:08.470]as to the reputation of the woman.
[00:27:11.610]And it is this State versus Bryan case,
[00:27:16.160]this legal understanding
[00:27:18.370]that a woman's reputation can be challenged,
[00:27:22.920]that he brings to the courtroom
[00:27:25.050]in Smith County, Kansas in 1895.
[00:27:30.410]Needless to say,
[00:27:32.680]further action is taken by the County attorney
[00:27:39.090]who takes it upon himself to dismiss both cases,
[00:27:44.510]the statutory rape charge and the incest charge,
[00:27:50.220]and Charlie Glenn is never prosecuted
[00:27:54.520]for his participation in these events,
[00:28:01.973]and it is Daisy Dean who must go on
[00:28:06.860]and live a life of an unwed mother,
[00:28:12.090]certainly a stigma to have to be overcome
[00:28:15.930]on the 19th-century Plains.
[00:28:23.350]A quick note here about the public side
[00:28:28.230]of sexual violence and coercion,
[00:28:30.980]and that is 19th-century newspapers.
[00:28:34.750]Understanding that at this particular time
[00:28:36.970]print media is expanding rapidly,
[00:28:39.730]even in these regions of the West that are developing
[00:28:46.620]you often had multiple newspapers competing,
[00:28:50.360]starting up, folding,
[00:28:53.870]new newspapers coming out for brief periods of time,
[00:28:59.640]some that last for decades,
[00:29:03.160]but they all sort of, in a way, carried out a role,
[00:29:11.540]and that was sensationalistic reporting.
[00:29:15.310]And often on the front pages of these newspapers
[00:29:18.640]rape and other violent crimes made front page news,
[00:29:23.520]even with specifics, like this particular example
[00:29:27.670]that comes from a neighboring county of Smith County,
[00:29:31.140]and that would be Phillipsburg, Kansas,
[00:29:36.160]or Phillips County, December 12th, 1895,
[00:29:40.840]and I'll read it quickly here.
[00:29:43.150]It says "At the preliminary hearing of Ed Sands last Friday,
[00:29:47.430]who is charged with the rape of a 14-year-old girl,
[00:29:50.870]the evidence was convincing and concise",
[00:29:57.820]sorry, hard to read,
[00:30:01.237]"and if not controverted at the formal trial in January
[00:30:05.470]will send Sands over the road
[00:30:07.480]for the full period of punishment of 21 year.
[00:30:11.240]The case is about this,
[00:30:12.960]Sands is a brother-in-law of the girl
[00:30:15.150]who was born in October of 1881.
[00:30:18.040]The child was visiting at her sisters
[00:30:20.420]when Sands invited her to go into the corn field
[00:30:23.570]for corn for the horses,
[00:30:25.010]and while there, outraged her person",
[00:30:28.180]a common term for 19th-century sexual violence,
[00:30:32.050]rather than rape they use the term outraged,
[00:30:36.597]"outraged her person and kept her silent
[00:30:39.100]by threats of further violence.
[00:30:41.150]Finally, the story of the crime came out
[00:30:43.890]and Sands was arrested and brought to town
[00:30:46.520]and placed in jail where he now is awaiting trial.
[00:30:49.970]Every father and mother is interested in this case
[00:30:52.960]and will not be satisfied unless this crime,
[00:30:55.990]the most horrible that can be committed,
[00:30:58.250]is punished in a most severe manner.
[00:31:00.620]The prisoner must have a fair trial,
[00:31:02.580]and if guilty must be shown no mercy.
[00:31:05.130]The public demand it and will not be satisfied
[00:31:07.900]with any trifling punishment."
[00:31:12.450]With these sorts of details in the local newspapers,
[00:31:17.280]one can understand why first,
[00:31:21.450]justice may not be handed down accordingly,
[00:31:25.120]but second, why a woman may resist
[00:31:32.258]the use of the law to seek justice.
[00:31:38.180]Her reputation was at stake,
[00:31:43.220]her name out there for everyone to know,
[00:31:46.800]and in these communities,
[00:31:49.440]oftentimes the knowledge of the act,
[00:31:55.750]the reputation of the woman,
[00:31:58.560]these situations remained within the purview of society
[00:32:05.070]for years after any sort of legal action.
[00:32:11.720]Ultimately then what my project aims to do
[00:32:16.250]is to look at these legal sources
[00:32:19.910]that are in the courthouses of Kansas, Nebraska.
[00:32:24.660]Eventually I'd like to expand that beyond the two states,
[00:32:28.890]beyond a comparative study of the two states,
[00:32:32.630]and to illustrate the need for this,
[00:32:37.230]Mary Block, a historian who wrote
[00:32:40.057]"Rape Law in 19th-Century America",
[00:32:43.580]she writes, "there is a striking paucity of studies
[00:32:46.870]on how rape law operated in the Midwest
[00:32:49.900]and we have virtually no historical monographs
[00:32:52.880]of rape law in the Far West."
[00:32:56.540]But if we utilize these courtrooms,
[00:33:02.004]these repositories of testimony and legal acts
[00:33:11.370]that date back, oftentimes in Kansas and Nebraska,
[00:33:16.150]if not to the 1870s,
[00:33:18.640]in some places of Eastern Kansas and even Eastern Nebraska,
[00:33:24.830]because the region is settled
[00:33:28.230]with law systems developing as early as the 1850s,
[00:33:32.610]in some courthouses you have records
[00:33:35.290]that date back to this time period as well,
[00:33:38.780]so we need to use these local, state and regional studies
[00:33:43.800]to understand the development
[00:33:46.810]of the law systems of the West.
[00:33:48.450]We can even then make comparisons
[00:33:52.670]about how different states, territories becoming states,
[00:33:59.780]developed their systems of law,
[00:34:02.260]to understand that law or precedent traveled West
[00:34:06.880]with settlement patterns,
[00:34:10.180]and this in itself becomes then a critical legal history.
[00:34:16.120]Briefly we'll look here at how law
[00:34:21.010]defined forcible rape and statutory rape,
[00:34:24.590]two elements of my dissertation work,
[00:34:27.600]and we'll first look at Nebraska's
[00:34:31.700]forcible rape law in 1877.
[00:34:35.760]Generally speaking, however,
[00:34:38.880]the primary elements of rape, as defined by law,
[00:34:42.510]become, I guess you could limit it to carnal knowledge.
[00:34:48.160]So in Nebraska, we've got this understanding,
[00:34:54.087]"If any person shall have carnal knowledge
[00:34:56.670]of any other woman or female child
[00:34:59.840]than his daughter or sister, as aforesaid,
[00:35:02.650]forcibly and against her will,
[00:35:04.470]or if any male person of the age of 18 years or upwards
[00:35:08.870]shall carnally know or abuse any female child
[00:35:12.300]under the age of 15 years with her consent,
[00:35:15.970]every person so offending shall be deemed guilty of a rape
[00:35:19.530]and shall be imprisoned in the penitentiary
[00:35:22.250]not more than 20 nor less than three years".
[00:35:25.940]The first case from the Supreme Court
[00:35:28.510]to truly give definition to this,
[00:35:33.970]the elements of rape
[00:35:36.200]was Garrison v. the State of Nebraska in 1877,
[00:35:41.060]and law at this time was gendered,
[00:35:43.290]so that needs to be understood,
[00:35:46.140]where at this time women were the victims
[00:35:50.640]and men were the perpetrators.
[00:35:53.240]So the gender law in this Garrison case
[00:35:56.260]required that a woman must oppose the act
[00:35:59.910]and that if she in any manner favor it,
[00:36:02.450]the party accused cannot be convicted of rape,
[00:36:05.800]with the exception made for any woman
[00:36:08.280]who has been reduced to a state of insensibility
[00:36:11.330]and violated while in that condition,
[00:36:14.130]and cases where consent has been induced
[00:36:17.070]by fears of personal violence.
[00:36:20.120]In looking at the Kansas statutory rape law,
[00:36:22.940]which we'll examine statutory rape law
[00:36:25.630]a little further on the next slide,
[00:36:28.090]we're gonna look here because it applies to the Lammey case,
[00:36:35.520]the rape law in 1895,
[00:36:38.377]"Every person who shall be convicted of rape
[00:36:41.390]either by carnally and unlawfully knowing any female",
[00:36:45.550]previously known as child in the law,
[00:36:49.127]"under the age of 18 years,
[00:36:51.040]or by forcibly ravishing any woman
[00:36:53.780]of the age of 18 years or upwards
[00:36:55.770]shall be punished by confinement and hard labor
[00:36:59.090]not less than five years nor more than 21 years".
[00:37:04.340]And then the state of Kansas versus Ruth,
[00:37:08.640]we had an understanding
[00:37:11.400]that the courts interpreting the rape
[00:37:15.210]or the early forcible rape law in this way,
[00:37:20.167]"Actual force is not necessary,
[00:37:22.900]threat-induced consent is not consent".
[00:37:32.140]So in looking at the age of consent campaigns
[00:37:34.900]which generally took place between 1885 and 1915,
[00:37:39.970]prior to this period, the age of sexual consent for females
[00:37:44.290]was actually 10 in most states,
[00:37:46.860]this is a English Common Law understanding,
[00:37:51.980]in some cases it was 12,
[00:37:53.850]but Delaware actually had the age of seven.
[00:37:59.910]The campaigns for age of consent changes
[00:38:04.530]often were led in the states
[00:38:06.410]by the Woman's Christian Temperance Union,
[00:38:09.820]and in comparative fashion here in looking at the way
[00:38:13.760]the law developed in Nebraska and Kansas,
[00:38:15.910]we see part of the ambiguity then of the law.
[00:38:20.480]Nebraska took the gradual approach
[00:38:23.400]in advancing the age of consent,
[00:38:27.230]between 1885 and 1895
[00:38:31.280]they went from 10 to 12 to 15 to 18,
[00:38:36.450]through various legislative acts
[00:38:39.250]the age of consent for women was raised gradually.
[00:38:43.640]In Kansas, however, and this is part of the issue
[00:38:47.690]regarding the Lammey case and other cases of statutory rape,
[00:38:53.370]society had to adjust very quickly,
[00:38:56.520]Kansas went from 10 to 18 in a single year in 1887.
[00:39:03.550]This prompted an attempt to actually reduce it back to 12
[00:39:08.310]in 1889 in the Kansas Legislature,
[00:39:12.230]but it actually failed and remained 18 for quite some time.
[00:39:20.820]There is, of course, much more to be discussed
[00:39:24.060]in regard to sexual violence and coercion
[00:39:29.560]on the Plains in the late 19th century,
[00:39:33.430]but rape itself, or outrage,
[00:39:37.070]these are very politicized terms, even in the 19th century,
[00:39:41.070]and as these cases helped to illustrate,
[00:39:43.770]the boundaries, the definitions of those terms
[00:39:50.250]were difficult to manage under law.
[00:39:54.670]Law tried to provide some sort of framework,
[00:39:57.530]but there's a lack of consistency
[00:39:59.830]in application and in interpretation,
[00:40:03.240]and by going in to look at the individual cases
[00:40:06.960]where women used their agency to fight sexual violence,
[00:40:13.450]we see this ambiguity within the law.
[00:40:19.820]So where is this overall project going?
[00:40:24.530]My vision for this research is very long-term,
[00:40:32.710]and it comes with an understanding
[00:40:35.630]that these records in these courthouses of the Plains
[00:40:42.190]need further examination.
[00:40:44.460]There are thousands of stories, and we need to examine,
[00:40:53.990]in a comparative fashion to start out with,
[00:40:58.610]how different states try to draw boundaries
[00:41:05.010]around sexual violence and coercion,
[00:41:08.960]and so I'm starting with Kansas and Nebraska.
[00:41:12.660]In total, there are 198 counties
[00:41:17.060]between Kansas and Nebraska,
[00:41:18.800]Kansas has 105, Nebraska 93,
[00:41:23.210]and most of these courthouses have records
[00:41:26.630]that date back to at least the 1870s.
[00:41:36.810]The work that needs to be done here is extensive,
[00:41:43.240]and we need to highlight women's voices in a time
[00:41:50.890]that it's understood they had very few political rights,
[00:41:55.220]their voices have remained stilled,
[00:42:01.210]distant or negated in history,
[00:42:05.830]leaving that saintly pioneer story essentially unchallenged,
[00:42:11.150]a sort of mythical and national
[00:42:15.040]Western narrative is preserved,
[00:42:19.370]and so my work aims to complete,
[00:42:24.820]provide a more complete picture
[00:42:27.300]of the settlement of the West, the violence of the West,
[00:42:30.930]by including a history of sexual violence and coercion.
[00:42:35.690]In the future, my book project,
[00:42:38.890]hopefully from my dissertation, my future project,
[00:42:42.817]would also try to digitize,
[00:42:47.890]through hopefully grant work,
[00:42:53.660]all of the local county courthouses in Kansas and Nebraska,
[00:42:57.530]even the Plains in general,
[00:42:59.860]because it is my ultimate belief that these court records,
[00:43:03.410]these land records, deeds, these school records
[00:43:06.780]housed in these courthouses of the West, these localities,
[00:43:11.370]this is where you find the true story of Western settlement,
[00:43:16.840]including the history of sexual violence and coercion.
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