Shadow Trials, or a History of Sexual Assault Trials in the Jim Crow South

Based on an immense and heretofore underutilized archive of trial transcripts and legal briefs, this Article provides the first holistic study of sexual assault trials in the Jim Crow south. It reveals that, rather than merely procedures for determining legal guilt or innocence, these trials were also (and often primarily) rituals for discerning which member or members of a community had violated that community’s social mores in such a way as to warrant violence—the violence of ostracism, incarceration, or death. Sexual assault certainly represented a violation of the Jim Crow south’s social mores, but to many it was not the most significant such violation. Rather, transgressing the race, sexual, gender, and class hierarchies on which Jim Crow society depended was the far greater crime. To juries in the Jim Crow south, a white woman behaving promiscuously or a Black woman refusing to act subordinately might be more deserving of punishment than her rapist. Likewise, a white man who acted too effeminately or a Black man who acted too familiarly with white women might deserve punishment regardless of whether he had committed a rape; indeed, his violation of these social mores might be more significant to his neighbors than rape. For generations, scholars have closely examined sexual assault trials. Undergirding nearly all of their analyses is the presumption © 2022 Scott W. Stern. All rights reserved. * J.D., Yale Law School, 2020; B.A., M.A., Yale University, 2015. I am immensely grateful to so many friends, professors, and family members that gave me feedback or advice as I was researching and writing this Article. These include (but are certainly not limited to) Judith Resnik, Mara Keire, Monica Bell, John Witt, and Rhonda Wasserman. I am further indebted to the many archivists that assisted me in acquiring the avalanche of archival sources on which this Article is based, especially the very generous Kathryn Fitzhugh and Curtis Williams. My thanks, as well, to the talented team at the UCLA Journal of Gender & Law. Finally, my endless gratitude to all those who have encouraged me over the years that I have worked on the ongoing book project of which this Article is a part. I thank the Yale Law Journal for financially supporting one of my research trips. 258 Vol. 29.2 JOURNAL OF GENDER & LAW that these trials represent sites where adversaries debate whether the interaction between the accused and the accuser was, in fact, sexual assault. According to this idea, attorneys and witnesses in such trials seek to persuade jurors that their version of the facts is actually true, and jurors seek to determine whether a sexual assault actually occurred. In other words, implicit or explicit in nearly all of the voluminous scholarship on sexual assault trials is the idea that, for all of the problems with these trials, the pursuit of truth—the resolution of the question of what actually happened—is their impetus, or at least one of their animating features. Even scholars that argue that jurors rely on dominant cultural myths or narratives in deciding rape trials appear to presuppose that jurors do so in order “to assess what ‘really happened’” or decide whom they will “ultimately believe.” Likewise, even those scholars a generation ago that approached trials (sexual assault trials or otherwise) from a “legal storytelling” perspective—rejecting the idea of a unitary, objective truth and arguing that decisionmakers choose among truths—still presumed that jurors