Black-on-White Rape and Retribution in Twentieth-Century Virginia: "Men, Even Negroes, Must Have Some Protection".

IN HARPER LEE'S 1960 NOVEL, TO KILL A MOCKINGBIRD, TOM ROBINSON, a crippled black man, is accused in 1935 of trying to rape a poor white woman in Maycomb, Alabama. Narrated by Scout Finch, a nine-year-old white girl and the daughter of Robinson's attorney, Atticus Finch, the trial reveals that rather than attempting to rape Mayella Ewell, Robinson is the victim of her sexual advances. When Mayella's father interrupted her seduction of Tom Robinson, he beat her and forced her to accuse Robinson of rape. Scout, realizing for the first time the ugly nature of race relations in the segregated South, informs the reader that Robinson's death is foreordained. "Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men's hearts Atticus had no case. Tom was a dead man the minute Mayella Ewell opened her mouth and screamed."(1)

Robinson's fictional experience parallels the experiences of many black men in the twentieth-century South, and Scout echoes many scholars' conclusions when she claims that his death was inescapable. For historians, this sense of inevitability is so pervasive that it has shaped most analyses, not only of interracial sexual relations and lynching but also of race relations in the twentieth-century South. The words of Leon F. Litwack in 1998 recall those of Scout Finch: "For a black man, a sexual advance to a white woman was a certain invitation to a tortured death."(2)

Robinson's death may not have been as inevitable as Scout believed. Lee makes clear that the whites in Maycomb were divided along class lines about Tom Robinson's guilt. The rural farmers who composed the jury refused to consider Atticus Finch's appeals to rationality, and they found Robinson guilty. After the jurors had rendered their verdict, their role in the case was finished, The verdict was a catharsis--a performance that resolved the racial tensions raised by Mayella Ewell's accusation. However, white legal authorities, whose class interests were not always aligned with those of the white jurors, controlled the disposition of Tom Robinson's sentence. Elite white men were skeptical of the accusations of Mayella Ewell, the daughter of poor, white "trash." They believed, Lee implies, that the accusation against Robinson grew out of poisoned relations between blacks and poor whites rather than out of attempted rape. The judge and prosecuting attorney at trial made their opinions clear. Scout noticed throughout the trial that Mr. Gilmer, the prosecuting attorney, did not give the case his best effort. Atticus Finch, after the trial, commented on the attitude of the judge towards the Ewells: "John [Taylor, the judge] made [Bob Ewell] look like a fool.... John looked at him as if he were a three-legged chicken or a square egg. Don't tell me judges don't try to prejudice juries."(3) Despite the jury's apparent certainty of Robinson's guilt, Atticus Finch thought it likely that Robinson's conviction would be overturned on appeal. One might surmise that, given the different, class-based opinions about Robinson's guilt, had he not attempted to escape, as his guards claimed, he probably would not have been executed by the state. Class and gender tensions clouded issues of race and suggest that not all whites believed black men accused of assaulting white women should invariably pay with their lives. The possibility that guards staged Robinson's escape in order to mask their vigilante justice underscores this point.(4)

Comparing fictional narratives with actual events, though useful, is complicated. Although fictional situations rarely conform exactly to actual events, Harper Lee's exploration of race, class, and gender relations in a small southern town exposed how racial prejudice produced irrationality among whites, ultimately depriving African Americans of justice. As Atticus said, "people go stark raving mad when anything involving a Negro comes up."(5) To Kill A Mockingbird suggests that social prejudices, attitudes, and beliefs, controlled primarily by race and class attitudes, determined justice. Lee makes a valid observation: justice was emphatically not color blind in the segregated South. And many black men lost their lives after being accused, some of them falsely, of sexual assault by white women.

Accepting the notion that the course of events was unswerving--that "Tom was a dead man the minute Mayella Ewell opened her mouth and screamed"--obscures a more complex reality. Cases of black-on-white sexual assault, rather than revealing a rigid color line, illuminate how the interaction of race, gender, class, and sexuality were defined by and continually redefined racial relations. Historians, by confining their analyses to spectacular resolutions of interracial conflict--lynchings and infamous cases like that in Scottsboro, Alabama, in 1931--have implied that ideas about race alone propelled white southerners' reactions to charges of interracial crime.

Analyzing cases of black-on-white sexual assault that came to the attention of Virginia authorities between 1900 and 1960 reveals that, rather than revolving solely around race, these cases also involve underlying and related class and gender tensions. This article focuses on approximately 230 cases that occurred between 1900 and 1945 and is less concerned with change over time than with interactions of race, class, and gender in the courtroom during this period. This focus may fly in the face of accepted periodizations; nevertheless, legal dynamics and outcomes remain surprisingly consistent throughout the period, despite radical demographic changes caused by black migration between 1915 and 1925. No single set of interpretations about black-on-white rape can account for the nuances and variations presented by each case or by all the cases aggregated over time. Nor can any interpretive framework completely clarify the influence exerted by the local circumstances of every community in which an assault occurred. The arguments put forward in this article illuminate and draw into focus the complex dynamics surrounding cases between 1900 and 1945. As the later part of this article makes clear, the rise of an organized civil rights movement after World War II, coupled with African Americans' increasingly vocal sense of injustice, strikingly altered the legal system's treatment of interracial rape cases. Cases occurring between 1945 and 1960, although touched on here, are more fully treated elsewhere.(6)

Black-on-white rape involved issues other than race, which is indicated by the failure of white Virginians to exact the death penalty in most of these cases: three-quarters of the black men accused of rape were neither lynched nor executed. Race, gender, and class did not operate independently and predictably. Instead, they acted simultaneously, influencing one another in varied and complex ways. White women were not merely white victims of alleged black aggression. They were women with the privileges and the suspicions that femaleness evoked in a racist, male-dominated society. White men counteracted segregation's tendency to assert race over gender by occasionally uniting with black men and shoring up masculine privilege. The dialectic between race and gender at times operated in contradictory ways and at other times in complementary ways, but they always operated simultaneously. The willingness of whites to act contrary to segregation's mandates invites historians to reexamine the relationship among gender, race, and class in situations where issues of race seem paramount. Exploring how southern communities reacted to, defined, understood, and resolved contested interactions between white women and black men reveals how issues of class, gender, and race continually created and refined the boundaries of segregation.

A close examination of 288 cases of black-on-white rape between 1900 and 1960 in Virginia reveals the interactions among race, class, and gender as embodied in the legal system, which shaped and conditioned social relationships in the segregated South.(7) At the outset, one must acknowledge that it is impossible to determine if black men who were accused of crimes against white women were indeed guilty. A few, some, many, or even most of these men may have been entirely innocent of the charges levied against them. Many black men faced criminal prosecution for actions that would never have placed a white man in legal jeopardy. These cases underscore the subtle power of white legal authorities to police both consensual and forced interracial relationships. Seventeen of the 288 accused black men (6 percent) were killed through extralegal violence.(8) Approximately 83 percent of the 271 men not lynched, or 226, were convicted of some crime, ranging from rape and murder to robbery, assault and battery, and even "annoying a white woman."(9) Of those 226 convicted men, fifty (22 percent) were executed after being convicted at trial. Though an appalling number of black men paid with their lives, the death of accused black men in Virginia was by no means foreordained. While forty-eight (21 percent of the 226 convicted men) of those not sentenced to death received the maximum prison sentences allowed under Virginia law, the majority received lesser sentences. Fifty-two convicted men (23 percent of the 226 convicted men) received sentences of five years or less, Thirty-five of the 271 men who stood trial (13 percent) were acquitted, or the charges against them were dismissed. Finally, Virginia governors granted many convicted men conditional pardons long before they completed their sentences.(10) In To Kill a Mockingbird, Atticus Finch chided his son, Jem, for wondering why the jury did not give Tom Robinson a prison sentence rather than the death sentence by saying, "[He's] a colored man, Jem. No jury in this part of the world' s going to say, `We think you're guilty, but not very' on a charge like that."(11) Despite Atticus Finch's stated belief, evidence from Virginia shows that white juries made such determinations most of the time. These cases indicate that whites involved in trials initially appeared to be united by race, as all but thirty-five men were convicted of some crime. As requests for pardon reveal, however, whites were not always united by their common whiteness and were willing to consider issues of gender or class alongside issues of race. Virginia's criminal justice system was by no means fair or equitable, but its treatment of black-on-white rape cases was not predictable either.

The fact that most black men accused of raping white women in Virginia faced a trial rather than a lynch mob does not mean that they received justice. The ability of Virginia authorities to circumvent lynchings, hold trials, and grant mercy to individual black men does not lessen the legal terrorism that the criminal justice system visited upon Virginia's African Americans. Though white Virginians did not frequently lynch black men accused of rape, they nevertheless considered such crimes to be profoundly threatening to the racial hierarchy and punished them accordingly. One judge wrote in 1912, "By common consent ... [black-on-white rape] is regarded as the worst crime in all the catalogue denounced by our laws. No other crime so excites, alarms, and arouses our people. It not only violates the laws of God and Man, but owing to the peculiar conditions prevailing in this our land, it is a deadly menace to the very framework of society itself."(12) Most whites would not have disagreed with his statement. Virginia was one of the few states that made both rape and attempted rape capital crimes. Fifty-six men were executed in Virginia for rape or attempted rape between 1908, when executions were centralized at the Richmond Penitentiary, and 1963, and not one of them was white. Oliver Hill, an African American attorney for the National Association for the Advancement of Colored People (NAACP) in Virginia, who defended several black men accused of rape, cynically commented: "We don't need to lynch the niggers. We can try them and then hang them."(13)

Black men accused of assaulting white women in Virginia fared worse at every stage of the legal process than did their white counterparts. They did so at least partly because Virginia law placed the power of sentencing solely in the hands of all-white (and, until the 1950s, all-male) juries. By 1938 only five other states--Arkansas, Illinois, Kentucky, Missouri, and Texas--did the same. This legislative sleight of hand, enacted during Reconstruction when the General Assembly removed race-specific sentences from the penal code, allowed juries to express their racial solidarity. Though the statutes directing punishment for sexual violence made no racial distinctions, placing sentencing solely in the hands of all-white, all-male juries allowed those juries to draw on their own racial prejudices and race-specific gender ideologies to impose disparate sentences based on race. The decisions of juries grew out of legal process and also community beliefs, embodied in the jury, about the nature and severity of a given assault.(14) Legal officials occasionally acknowledged that a guilty verdict did not necessarily indicate the jury's belief in the defendant's guilt. Judges and prosecuting attorneys stated in pardon decisions that any sentence short of death for a black man accused of assaulting a white woman could indicate the jury' s doubt about the defendant' s guilt.(15) Such statements underscore the jeopardy that black men faced, regardless of their guilt or innocence, when being accused by white women of assault.

In her insightful analysis of the culture of segregation, Grace Hale asserts that segregation was continually in process; it was never a completed product.(16) Hale's analysis reveals that one of segregation's strengths was its malleability, its ability to allow local improvisation within the basic southern script. Segregation could mutate to fit and control the circumstances of any mixed-race southern community. If, by contrast, segregation had upheld impermeable boundaries and been enforced by rigid rules that insisted on a violent response, it would have been too brittle to survive. As Hale argues, "Since southern black inferiority and white supremacy could not, despite whites' desires, be assumed, southern whites created a modern social order in which this difference would instead be continually performed. For whites, this performance, in turn, made reality conform to the script."(17) Communities could overlook sexual interactions between white women and black men as long as their visible, public performances, as women and men, blacks and whites, continued to conform to segregation's rules. A system of racial relations in which some transgressions of racial boundaries could be forgiven, erased, or ignored was a more flexible, and therefore more durable mode of control. The threat of lynching struck fear in the hearts of all blacks. But lynching's power to uphold segregation and to control those who lived under its mandate derived from its arbitrariness, its unpredictability. Whose life was sacrificed for racial transgressions, and whose was not, was largely random. At the same time, the willingness of white elites to show mercy to black men accused and convicted of crimes was also a means of control over the black community. The terror of lynching combined with the hope of court-mandated mercy, either through acquittal, short sentence, or pardon, created a subtle and effective system of control that policed in terracial boundaries while simultaneously maintaining class and gender norms.(18)

This analysis suggests significant continuities between attitudes toward black-on-white rape in the nineteenth and twentieth centuries, which challenge aspects of recent historiography on interracial sexual relations in the nineteenth century. Martha Hodes and Diane Miller Sommerville both skillfully demonstrated the fluidity of attitudes towards sexual congress between white women and black men before the Civil War. Communities tolerated sexual relations between white women and black men as long as they did not obscure, usually through the birth of a "black" child to a white woman, the correlation between race and slavery. Sexual relations between black men and white women became politicized only after Reconstruction, as whites conflated black men's desire for white women with their desire for political rights as men. By the twentieth century, Hodes and Somerville conclude, whites no longer tolerated sexual relations between white women and black men.(19)

The conclusion that whites' responses to black-on-white rape changed abruptly at the beginning of the twentieth century is a logical outgrowth of the scholarship on the period's increasing racial intolerance; race riots, lynching, and disfranchisement, along with notorious cases of black-on-white rape, exemplified this nadir of American race relations.(20) Historians have shown that lynching was a means of controlling African Americans through fear and uniting whites across class and gender lines. Lynching became the catalyst for civil rights activism among African Americans and occasionally resulted in federal intervention.(21) Many southerners considered lynching the appropriate response to the rape of white women, but most lynchings did not derive from charges of sexual assault.(22) Consequently, since lynching was only one of a range of possible responses to black-white sexual relationships (and not even the most common one), its utility for historians in illuminating social attitudes and norms is necessarily limited.(23) Similarly, analyses of legal cases that garnered widespread national and international media attention, like the Scottsboro case in 1931, perpetuate the impression that twentieth-century southerners were predictable and consistent in their reactions to charges of black-on-white rape.(24) While cases like Scottsboro highlight the struggle for civil rights in the criminal justice system, as well as southern resentment over northern and radical interference in what southerners considered their own affairs, they fail to illuminate southern responses toward the bulk of less prominent cases. The widely studied, well-known trials represent extreme southern responses and contain hardened rhetoric about white men's duty to protect white women, which often obscures the controversy that such cases stirred among whites, including doubts about the veracity of white women's charges. Although the scholarship on notorious cases like Scottsboro is invaluable, its ability to reveal and explain the majority of white responses toward black-on-white sexual violence in the twentieth century is limited. Yet historians' conclusions that discontinuity marked attitudes towards interracial sex between the nineteenth and twentieth centuries are largely based on the evidence from such cases and the scholarship they have generated.(25)

The scholarship on lynching and cases like Scottsboro analyzed exceptional events and reactions in order to form generalizations about daily or normative attitudes regarding sexual relations between white women and black men. These case studies explain particularly egregious examples of racial discrimination but do not explain the more pervasive, less crystallized, but equally influential racism that affected the majority of cases. Exceptional events, by their very nature, are atypical and, therefore, do not indicate how southerners approached and responded to less spectacular instances of interracial sexual relations. A far more accurate picture emerges when one analyzes the many unpublicized cases that did not involve widespread news coverage, attention from civil rights groups, appeals to higher courts, and threatening mobs. Such cases constituted the majority in Virginia. Analyzing them reveals that significant continuities existed between nineteenth- and twentieth-century treatment of black-on-white rape, as white legal elites incorporated attitudes about gender, sexuality, respectability, and class status in determining what constituted "justice" for convicted black men.

Previous scholars, primarily interested in racial control through violence, have tended to confine their analyses to lynchings and near-lynchings and have thus neglected those cases of black-on-white rape that were handled through the courts. Research in Virginia records, however, reveals that the majority of cases proceeded quietly and smoothly through the legal system, without mob action, without the intervention of the NAACP or the Communist Party, without appellate decisions, and without news coverage beyond the local community. Virginians lynched fewer people than did other southerners and were more willing to rely on the legal system to reinforce racial hierarchy.(26) Nevertheless, an analysis of Virginians' treatment of black-on-white rape suggests the possibility of similar circumstances and outcomes in other southern states. Though Virginia has a history of "managed" racial relations, with little populist fervor and powerful white leaders who wished to use social engineering to control racial interactions, the peaceful adjudication of black-on-white cases of rape may have been distinctive only in terms of degree. A cursory glance through the Richmond Times-Dispatch uncovers instances in other southern states of black men receiving short prison sentences or even acquittals after being accused of assaulting white women.(27) The cases of black-on-white rape decided by high courts in other southern states, though not a perfect index of how all such cases were decided at the county level, also indicate that other southern whites, like those in Virginia, considered factors of class and gender alongside race when evaluating a white woman's allegations. This evidence, along with the NAACP's conclusions that the precipitating causes of lynching generally were not rape, supports the contention that cases of black-on-white rape in the South usually ended in legal action rather than mob violence.(28)

It is not possible to determine what occurred between the accused black men and the white women who named them as assailants. Though rape trials ostensibly sought to ascertain the truth about the encounter between defendant and victim, in reality they functioned as spectacles that diffused the furor usually awakened by the alleged assault. Seen in this light, rape trials were not about justice in any objective sense, but rather were public, front-stage performances in which white juries usually, though not always, acted out their role as protectors of white women, adhering to a "script" of sexual and racial ideologies made familiar through southern rhetoric. As public events, trials were progressive, modern spectacles of punishment, occasionally climaxing in death by execution, which reified appropriate social relations.(29) The verdict of the jury indicated which side's version better adhered to accepted social realities and expectations. Most accused black men were convicted, but they were not necessarily guilty. After the jury returned its verdict, backstage maneuverings in appeals or clemency petitions allowed white legal authorities to balance the need to punish black men with the need to reassert simultaneously related class and gender hierarchies.(30) Their decisions rendered veiled judgments upon related issues: the white woman's behavior as victim, her or her family's reputation for abiding by accepted social norms, and even the previous good reputation, age, or mental ability of her alleged assailant. The script of black-on-white rape could be improvised, according to the influence of gender and class upon the case, either at trial or in subsequent petitions for executive clemency.

The penalties that black men paid for alleged racial and gender transgressions were not rigidly prescribed but instead flowed within the convoluted channels of cross-racial social interaction within communities. These cases reveal another side of segregated southern society where social relationships across class lines often violated the "rules" of interracial contact, sometimes producing unusual results in criminal trials. Rather than demonstrating racial solidarity as the inevitable norm, cases of black men accused of assaulting white women resulted in a multitude of cross-racial (and cross-gender) alliances, and these often became more pronounced and active after the jury returned its verdict. White men did not always automatically leap to the defense of white women. Some white men chose to support their black tenants and laborers rather than their white neighbors. Some white men reluctantly sided with black men against white women whose class or sexual history they found suspect. Sometimes whites trusted the word of black men whose families they had known for generations over the sworn testimony of white women whose backgrounds were unknown or (even worse) known and despised. White women retained their status as innocent victim only as long as they followed the dictates of middle-class morality--even long after the jury returned its verdict. The "trial-as-performance" provided a necessary catharsis, defusing tension and allowing the community to return to normal. Though most black men were convicted, the length of time they spent in prison--and many were released early--reflected the attempts of local and state authorities to address the intertwined issues of class and gender raised by the case.

Historians tend to think that whites alone controlled and "directed" performances of racial hierarchy, especially when the action concerned the familiar script associated with black-on-white rape. But the standardized quality of front-stage scripts occasionally allowed blacks to manipulate the performance to their own ends. The case of Samuel Legions, accused of raping a white married woman in 1941, provides a good example. Although whites deviated from the script in their final judgment in Legions's case, this was only because his lawyer, the NAACP's Charles H. Houston, was able to capitalize on their stereotypes about black-on-white rape. Houston was able to improvise in such a way that whites, in their blind adherence to dominant white social beliefs about black-on-white rape, were compelled to release his client.

In October 1941 Viola Miller, a twenty-eight-year-old mother of four, told police that Legions had broken into the Miller home while she and her husband were sleeping. Brandishing a pocketknife, he had forced her into the kitchen where he raped her.(31) Trial testimony painted a more conflicted picture. While his wife was being raped, Ralph Miller, after attempting to resist Legions with a window shade as a weapon, remained in the bedroom trying, at Legions's request, to quiet their crying child. Failing that, he left by the window and went to a restaurant across the street, presumably for help. Soon after, Viola Miller appeared around the side of the house, calmly tiptoeing over the sharp stones in the street. Legions was tried in February 1942, convicted, and sentenced to death.(32)

Charles Houston appealed Legions's conviction to the Virginia Supreme Court and used his knowledge of the rhetorical scripts and the legal system to argue that the evidence produced at trial was insufficient for a rape conviction. Houston claimed that Viola Miller and her husband did not behave as a white couple should when faced with a black rapist. He termed Viola Miller's behavior "absolutely inconsistent with human experience," as her testimony showed no resistance to Legions's actions, no plea for her husband's aid, no hysteria after the assault, and no concern for her crying child. He stated that "Mrs. Miller does none of the things a woman would do who has just been raped, and does the normal things a woman would do who has not been raped." Mr. Miller's actions were also improbable, even feminine, as he "never made a single complaint or plea against his wife being `raped' either before or during the act. His entire concern was for the wailing baby." Houston also pointed out that Legions's behavior, according to the Millers' testimony, was unbelievable. The defense petition stated three times that it was inconceivable that a black man reared in the South, even a "sex-mad buck," would rape a white woman while her husband was in the next room, across the street from a crowded restaurant where help was available. Houston carefully manipulated white fears of the rhetorical "black beast rapist," but only to show that this stock image could not have been present in the Millers' house that night. Either Legions was welcomed into their home to engage in consensual sex with Viola Miller, or the Millers had fabricated the entire tale.(33) Either scenario, Houston implied, revoked their right as whites to protection.

The Virginia Supreme Court of Appeals agreed, ruling that Viola Miller's claim of rape was inherently unbelievable. Calling Ralph Miller "servile as a slave" and his attempts to protect his wife "feeble," the court rhetorically inverted his social position. Using stereotypes normally reserved for blacks, the court asserted that his behavior constituted "nothing but shameful surrender and capitulation descending almost to complacence." His wife's attempts at resistance were no better. Ruling that the Millers' actions did "such shocking violence to any righteous conception of human conduct as to be unbelievable even to the most credulous and naive," they dismissed the prosecution's case and Legions's conviction. Affirming their belief in the familiar racial script, the justices determined that it did not apply in this case. "While we do not know what occurred on the night of the alleged offense, our common sense and knowledge of human nature tell us that that which the prosecutrix and her husband have related did not occur." Legions was set free, and Loudoun County authorities declined to try him again.(34)

Legions's case was not accompanied by familiar racial rhetoric in the public press. Only Houston invoked it directly, and the court acknowledged it in its decision. Though the local white jury affirmed the Millers' behavior on the front stage at trial, their affirmation did not stand in the eyes of legal authorities. Legions's case makes clear the importance of the racial script, and how deviations from (or improvisations upon) it could be used to confound whites. Ralph Miller's failure to defend his wife (the only acceptable response to such an assault), his wife's corresponding failure to exhibit sufficient hysteria after the rape, and Legions's supposed willingness to rape a white woman who had help and protection nearby--all unacceptable variations on the racial script--indicated to the Virginia justices that an assault could not have taken place and that any sexual relations between Legions and Viola Miller had been consensual in nature.

Other cases reveal that the legal system did not apply the script of interracial assault uniformly to every case in which a black man was accused of sexual violence against a white woman. Attitudes surrounding relations between whites and blacks and men and women depended upon widely held conceptions among whites of whiteness, blackness, maleness, and femaleness. But in a society where race was no longer signified by slavery, and in which racial mixing had occurred, determining race was never a clear-cut matter. Despite the vigilance of African Americans, and African American men in particular, to determine a woman's race, they sometimes made mistakes. Andrew Johnson, for example, was fined $250 in 1918 for annoying a white woman in Richmond. Johnson's offense consisted of writing notes to a woman employed at his workplace. In his defense, he insisted that he thought she was mulatto. Mistaking her race reduced his offense, as he was not charged with attempted rape.(35)

Other cases required the jury to determine the meaning behind nonsexual physical contact, a difficult matter even in cases where black men were accused of attempting to rape white women. Percy Forby, for example, was arrested in 1910 in Norfolk when several white men pulled him off Lucy Upshur, a white woman whom he had attacked and tackled. Despite having thrown her to the ground and straddled her body--acts that mimicked intercourse and were sufficient evidence of intent to rape in other cases--he was nonetheless found guilty of assault, not attempted rape. Forby claimed that the attack on Lucy Upshur was a case of mistaken identity. He believed he was assaulting an African American woman with whom he had a dispute. The judge instructed the jury that if they believed Forby thought he was attacking an African American woman with no intent to rape her, they were required to find him not guilty of attempted rape. The judge thereby made Upshur's whiteness irrelevant and allowed a black man in effect to determine temporarily her racial identity. A white victim was only as white as her assailant believed her to be, and white men's protection was meted out accordingly. Percy Forby was judged to be innocent of a racial trespass. He had merely assaulted a woman, for which he received a sentence of six months in jail.(36)

Like racial distinctions, the nature of the threat that black men posed to white women was not absolutely clear, as Forby's experience attests. Black men's actions were not necessarily perceived as sexual threats to white women, nor (by extension) as attacks on white supremacy. In cases in which black men were convicted of attempted rape, the meaning of interactions between white females and black men could shift over the course of a given case. Actions by a black man that seemed to merit severe punishment at the time of trial might later seem less threatening, even when committed against the relatives of prominent men. Charles Griffin, for example, was convicted of attempted rape in 1906 and sentenced to fifteen years in prison. At the time, his crime caused considerable commotion. He was accused of accosting a young white girl from "one of the best families in the county," throwing her to the ground, climbing upon her, and tearing her clothes. Culpeper officials feared mob violence and swiftly transferred Griffin to Alexandria for safekeeping. Ten years later, the prosecuting attorney, judge, and even relatives of the victim, who had been "the most active people in pushing the prosecution," agreed that the "ends of justice" had been met. Though Griffin's actions had raised the specter of mob violence in 1906 and earned a fifteen-year sentence, by 1916 the prosecuting attorney viewed them differently, acknowledging that Griffin had not used force. "The circumstances were not very aggravated and ... the only evidence against him was that of the young white girl and ... her evidence was only to the fact that he put his hand on her and made indecent proposals." The governor granted Charles Griffin a conditional pardon.(37)

The passage of time also changed the opinions of the legal officials in Halifax County who prosecuted James Acree in 1923. Though originally sentenced to death, his sentence was immediately commuted to life because of his mental disability. Sixteen years later, in 1939, Acree petitioned the governor for a conditional pardon. The prosecuting attorney indirectly supported his petition: "The fact that I am unable to clearly recall this indicates to my mind that there was nothing particularly aggravating about the circumstances...." In 1923 chasing a white schoolgirl resulted in the death penalty, but by 1939 those same circumstances, which had slipped from memory, merited his release. The governor concurred, and Acree was released in 1939.(38)

Race was rarely the sole issue in determining the severity of an alleged assault by a black man against a white woman. Though most accused black men were convicted of some crime, white men who controlled the legal process acknowledged that some violations of a white female's body were more serious than others, a determination that often depended upon the actions of the white woman. Daniel Johnson avoided several years in prison because his alleged victim failed to abide by the rules of racial interaction. Convicted in 1903 in Albemarle County of attempted rape and sentenced to twelve years in prison, he was granted a conditional pardon in 1909 after Micajah Woods, his lawyer, wrote to the governor that the alleged victim had compromised her claim to the protection of white men. "The prosecutrix is one of a notorious Shiflett class from Shiflett Hollow in the Blue Ridge and this colored boy was received and treated in the family as though he was their social equal and while perhaps he made some improper advances to this woman, I have never considered that his conduct warranted such a severe sentence." Woods pointedly contrasted Johnson's character with that of the victim, writing, "[Johnson's] parents are among the most respectable colored people in the county, they have raised a number of children, all of whom are good citizens...." The woman's reputation, and her treatment of Johnson as a "social equal," in Woods' eyes compromised both her bodily integrity and her claim to protection, as "what [Johnson] was charged with was scarcely in the range of attempted rape--a mere fondling of her--without force." Governor Claude A. Swanson concurred with Woods's arguments, and Johnson was released.(39)

As Daniel Johnson's plea for pardon attests, blacks and whites did socialize across the color line. In Johnson's case, allegations that the victim had herself transgressed racial boundaries by treating Johnson as a social equal--a term that implied sexual access--justified Johnson's early release from prison. Johnson's lawyer subtly suggested that it was not unreasonable for Johnson to presume that, after being treated as such, his caresses would be welcome. Many cases hinted at cross-racial and cross-gender relationships that violated the spirit of segregation, and occasionally disputes among participants in these relationships resulted in a charge of rape. Sallie Sigman, a married white woman, accused Solomon Douglas of rape in Pittsylvania County in December 1921. According to news reports, Douglas came to the Sigman house, and Sallie Sigman told him her husband was away from home. He allegedly replied, "It's you I want and not your husband" and attempted to rape her. Sigman broke free, grabbed her husband's gun, and shot twice at Douglas as he fled out the door. He was arrested shortly after. Though Douglas had previously served time in prison for rape and was charged with attempted rape for his alleged assault on Sigman, the jury convicted him only of misdemeanor assault, sentencing him to six months in jail and a fine. Douglas, insisting he was innocent, petitioned the governor to pardon him, arguing that the accusation against him grew out of his interaction with the Sigmans in the illegal alcohol trade that flourished during Prohibition.(40)

Prior to Douglas's arrest for attempted rape, Sallie's husband, Percy Sigman, had been arrested and charged with violating the Prohibition laws. According to law enforcement officials who signed Douglas's petition for pardon, "The prosecutrix and her husband had been suspected of being bootleggers by all the officers around Schoolfield for some time...." Solomon Douglas was one of the Sigmans' regular customers. Douglas testified at trial that he had purchased whiskey from the Sigmans on many occasions and, on the night in question, had purchased a pint of whiskey for two dollars from Sallie Sigman at her home. He insisted that he made no attempt to rape her. He purchased that last pint of whiskey just after Percy Sigman had been indicted. According to Douglas, Sallie Sigman suspected that Douglas had reported her husband to authorities. She "saw her chance to get even with them and woman-like started this hue and cry."(41) According to Douglas, the Sigmans ambushed him and shot him twice and then swore out a complaint for attempted rape against him. Douglas's attorney had very little sympathy for the Sigmans and, disregarding Sallie Sigman's race, chastised her on the basis of gender and class. "It is deplorable that people of this character and especially a woman will resort to such low means in order to accomplish their heinous purposes."(42)

Few legal officials disputed the facts as they were set forth by the defense in the petition for pardon. The judge and the prosecuting attorney pointed out to the governor, however, that these allegations had been raised at Douglas's trial, had been considered by the jury, and were reflected in the jury's sentence. Judge Richard Ker wrote to the governor that he saw no reason to recommend clemency as "all questions of the credibility of the prosecuting witness [were] disposed of by the verdict of the jury." The prosecuting attorney also recommended against clemency, writing that the particulars of the case, and even Douglas's possible innocence, were unimportant. "She [Sallie Sigman] is a white woman, and both live in a community made up of negroes and whites; and a pardon to this negro would have a bad effect on other negroes." Despite the assertions by both the deputy sheriff and the justice of the peace that Douglas's conviction represented a miscarriage of justice, the governor declined to grant Solomon Douglas a pardon.(43)

The motivation for the jury's verdict in Solomon Douglas's case is ambiguous. Presented with evidence that Sallie Sigman's charge grew out of a desire for revenge and that the Sigmans were involved in criminal activities, the jury nonetheless decided to convict Douglas. Such a verdict may have represented the jury's discomfort with the casual and illegal commerce across racial and gender lines that formed the foundation of the case.(44) Yet the reduction of the charge against Douglas from felony attempted rape to misdemeanor assault indicated the limited protection a woman of Sallie Sigman's character could claim. Though no one directly impugned her reputation, the attempted assault against her was considered only a minor offense. Her participation in bootlegging, and even her willingness to plot revenge, mitigated her power as a white woman. The decision on the part of the judge and the prosecuting attorney to recommend against Douglas's pardon was equally ambiguous. Declining to comment on Douglas's allegations and leaving them in the hands of the jury, the commonwealth's attorney placed broader issues of social order over questions of justice. Douglas could not be released because that action might send the wrong message to other African Americans living in mixed-race communities, although what exactly it would encourage them to do was unclear. Whether the attorney worried about black men assaulting white women or encouraging illegal activities across race and gender lines did not matter. Either activity was potentially threatening to carefully monitored racial, gender, and class hierarchies.

The events surrounding the Sigmans and Solomon Douglas attest to the invisible culture of cross-racial and cross-gender relationships that existed despite carefully constructed laws and conventions separating the races and defining acceptable interactions between men and women of different races.(45) The Sigmans and Douglas, and probably countless other whites and blacks, engaged in casual commercial exchanges, both legal and illegal, dominated not by rules of white supremacy and racial domination but by the laws of supply and demand. Solomon Douglas and Sallie Sigman acted more as equals in their exchange of money for whiskey. Sallie Sigman only resorted to the power that her status as a white woman accorded her after she decided that Douglas had violated the "rules" surrounding their illicit commercial exchange. She may have thought that her charge of rape would not be questioned, that it was a guaranteed means of revenge. However, the white men who composed Douglas's jury were not cooperative. Her whiteness and her gender carried only moderate influence. The court ignored her gender by convicting Douglas of a non-sexual offense. Her class and her character, and that of her husband as well, overrode considerations of race.

Sallie Sigman apparently thought the jury would not consider her character if she charged a black man with rape. She was wrong. A woman's character was never fixed permanently, and a white woman's status as innocent victim was never wholly accepted, even after the jury rendered its verdict. Any subsequent action that compromised her respectability could retroactively diminish the credibility of her testimony. Joseph Boone, for example, was convicted of an attempted rape on Lula Fulford in 1900 in Northampton County and sentenced to sixteen years in prison. Six years later both the judge and the commonwealth's attorney at his trial wrote to the governor requesting that Boone be pardoned. They believed that subsequent behavior on the part of the victim had both mitigated Boone's alleged offense and put her testimony in a suspicious light. "Since this trial it has become well known that this Mrs. Fulford, who had not long lived in the county at that time was a most disreputable character, who afterwards created much trouble in the neighborhood. Beleiving [sic] that on this account her word was unreliable, and that it was really a case of solicitation, and not attempt at rape, we think that the sentence ... was too great, and that the prisoner should now be pardoned." Boone was released, but only after he had spent six years in prison for a crime that white officials later decided had not occurred.(46)

In the eyes of legal authorities, the character of the rape victim had a direct bearing on an attacker's guilt or innocence, regardless of race. Three centuries ago, the British Lord Chief Justice Matthew Hale intoned that rape is a charge "easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent."(47) Well into the twentieth century American courts, including those in Virginia, incorporated Hale's warnings into the legal code, in effect placing the burden of proof on the alleged victim. In order for a man to be convicted of rape, Virginia law required that the victim prove that she physically resisted his assault and also that the assault was accomplished by force and without her consent. The woman's word was usually insufficient proof of resistance but required corroboration by independent evidence, such as the victim's torn clothing or injuries. Most courts considered the victim's sexual history as relevant evidence of her willingness to consent. Such stipulations were not uniformly applied; women who claimed assault by strangers or by black men usually, though not always, were exempt from having to prove their lack of consent. Some judges instructed juries that white victims must still resist black men's advances; as one judge wrote, beyond "mere verbal expressions ... there must be the exercise of every means of faculty within the woman's power."(48) Legal officials also conceded that the victim's character was a legitimate line of inquiry for the defense even in cases of black-on-white rape involving respectable women.(49) Allegations about the victim's character, in cases of black-on-white rape, appeared far more often when the victim came from a poor family, or one that the community did not consider to be respectable. But respectability was not always neatly tied to socioeconomic status, nor were victims from prominent families or of sterling reputations assured that an accused man would face serious punishment or serve his full sentence. In such cases, the justifications for pardon usually centered around the victim's identification of her assailant, his age, mental ability, or whites' vague belief that the "ends of justice" had been met. Making allegations about the poor character of the victim as a defense strategy at any phase of the legal process was successful only if such allegations confirmed what the community already believed about the victim.

Questions regarding the victim's character did not have to be negative to work in favor of black men. In some cases, the subsequent marriage of the victim was cited as partial justification for the pardon of the convicted assailant. Bernard Fleming was convicted in 1933 in Powhatan County of raping a young white schoolgirl as she walked home from school. He was sentenced to life in prison. After serving approximately twenty years of his sentence, he was given a conditional pardon over the objections of the victim's father. The pardon papers indicated that she still lived in the area and had since married. Though no state official said so explicitly, these observations about the victim's marriage made subtle statements about the harm that the assault had caused. Evidence that the victim was not irrevocably "ruined," was able to marry, bear children, and thereby perform her expected female role diminished white men's perception of the severity of her assailant's crime and increased the likelihood that he would receive a conditional pardon.(50) Similarly, court officials sometimes argued that victims who had left the location of the assault would suffer no ill effects if their assailants were released. The prosecuting attorney in Dinwiddie County wrote to the governor that Albert Clark's victim was working in another state, adding "I doubt that it makes really so much difference to the girl as to whether or not this man is pardoned."(51) In both cases, the victim's trauma from assault even by a black man was seen as transient and therefore not an impediment to a convicted assailant's freedom.

Although white legal officials did not always grant convicted black men the pardons they desired, they sometimes seemed sympathetic to their pleas. In the 1919 case of John Spencer, convicted of rape in Page County, the sympathy of white men did not grow out of disapproval over a white woman's attempts at revenge or her later moral indiscretions, but rather from an acknowledgment of men's common sexual appetites. The very desire on the part of a black man for a white woman did not always evoke hysteria, violence, nor the accompanying rhetoric of the need to protect white women. Spencer's alleged sexual longing for a white woman operated as a catalyst for his eventual release. Tried and convicted of rape in October 1919, he had been accused by Cora Sours, an eighteen-year-old unmarried white woman. Spencer's conviction occurred without much fanfare. The court records are sparse, and his trial was quick and apparently without incident. The assault itself never received media coverage, and there is no evidence that reports of this assault by a black man on a white woman caused any expressions of outrage in the community. Spencer, a fifty-one-year-old married black man, was sentenced to the minimum prison term for a conviction of rape, five years, and he served just over a year of his sentence before he received a conditional pardon.(52)

In November 1920, Spencer's attorney, R.S. Parks, submitted a petition to Governor Westmoreland Davis requesting Spencer's release; he included a formal petition signed by eight other white men who were members of the community in which both John Spencer and Cora Sours lived. The petition contended that Spencer's only crime was adultery. Spencer, according to the petition, had "always been regarded as an honest well behaved colored man, knowing his place and attending to his own business." For several years, he had worked as a driver hauling supplies in a horse and wagon from the town of Luray to Skyland, a nearby summer resort. Cora Sours lived along his route, and "she would come out to the road and get on the wagon and ride back and forth with him ... [S]he was seen with her arm around him and in other ways showed her intimacy or fondness for the man." At his trial, Spencer did not deny that he had engaged in sexual intercourse with Sours, but it was left to the jury to determine if that intercourse constituted rape.(53)

The remaining evidence, located in the court files and the petition for clemency in the governor's papers, does not indicate how the jury viewed the testimony, or even if Spencer tried to claim that Sours consented to intercourse. Such a defense could be dangerous for a black man accused of assaulting a white woman.(54) The remaining evidence does not indicate why the case came to the attention of the legal system. The only information about the victim comes through the petition for Spencer's release. One can speculate that Cora Sours, knowing her relationship with Spencer was causing community comment, may have accused him of rape to save her reputation. Her family may have made the charge without her knowledge to save their own collective reputation. Sours's presence in Spencer's wagon on a public road suggests that she was not concerned about being seen in public with John Spencer. Such an attitude may have angered whites in the area, especially if the couple met too brazenly or too frequently. After ignoring their relationship for a period of time, the community may have reached the end of its tolerance, encouraging the legal system to initiate charges against Spencer, or else the prosecuting attorney, with the support of the white residents of Page County, may have charged and convicted Spencer in an attempt to discourage other African American men from similar actions.(55) This explanation has more supporting evidence. Both the letter from Spencer's attorney and the petition itself insisted that any deterrent effect of Spencer's conviction had already been accomplished. The judge, leery of pardoning Spencer too quickly, warned that Spencer had admitted adultery, and his sentence "would serve as a deterrent to other negroes not to interfere with white women." He recommended Spencer serve one year of his sentence.(56)

Regardless of why he was charged with rape, Spencer went to prison, and a cohort of white men gathered to plead his cause. The signers of the petition did not believe that Spencer's actions threatened existing racial hierarchies. The linchpin of their argument acknowledged Spencer's manhood; these white men did not believe that he should suffer punishment because he had succumbed to sexual temptation. "We did not believe then and we do not believe now that rape was committed and the man only did what others might of [sic] done, take what was offered and thrown at him." Spencer's attorney put the same sentiments more forcefully. "That the man was guilty of a violation of law, in that he had time and again had sexual intercourse with the woman was not denied by him but admitted, and the evidence clearly showed that she visited the negro, rode up and down the road with him with her arms around him and threw herself in his way and he took what was thrown at him, as many mwn [sic] would have done, especially a negro man [who] would feel himself complimented and ivited [invited?] by a woman of a different and superior race." To these white men, Spencer's temptation was increased because Cora Sours was white, and that only made his capitulation to desire more understandable. Spencer was, after all, a man. He could hardly be blamed, they suggested, for accepting the attentions of a younger woman, and a white one at that.(57)

The Luray community, through the actions of the jury, had completed its duty to protect white women, as the script of interracial rape insisted they do. Their verdict, however, was not an unqualified endorsement of the rape charge. They sent a message to black men, but the short sentence, the minimum allowed by law, simultaneously revealed the jury's misgivings. White men in Luray would convict black men for engaging in affairs with white women, but they were also willing to recognize the common temptations of white women's sexuality. Spencer's conviction thus gave a nod to conventional ideology and rhetoric, while his sentence and subsequent pardon gave a nudge and a wink to black men as men. All males felt the temptations of the flesh in the presence of a willing and insistent woman. And all men might stand together to let a man, even a black one, off the hook for succumbing to those enticements.

Accusations of black-on-white rape sometimes led to implausible alliances. Few white men were as willing as those in Luray to acknowledge in writing their common male temptations, but many white men allied themselves with black men accused by white women. Visible, public support for black men by white men underscores the fissures that occasionally appeared in the edifice of segregation. White men's racial solidarity with white female victims, though commonly expressed in public statements, was not guaranteed in reality. Patronage relationships provided African Americans with leverage--a means of opposing white power within the framework of white controlled institutions--which itself revealed the complexity of relations between blacks and whites in Virginia. Such leverage heightened the ability of the black community to carve out and utilize both direct and indirect sources of power and influence to their advantage. Like a lever, intermediaries such as white patrons or white lawyers served as mechanisms magnifying the small amounts of power that African Americans could exert on their own behalf. At the same time, it was precisely the intermediary nature of these mechanisms that allowed blacks to influence the legal process without seeming to threaten white power.(58) The daily interactions between whites and blacks created relational bonds that could take precedence over white men's supposed duty to protect white women. For black men accused of assault, having a powerful white patron on their side could mean the difference between execution, long years in prison, a conditional pardon, or even an acquittal.

Employers were the most likely source of white support for black men. Such support was only visibly lacking when the man was accused of assaulting his employer's wife or daughter. Even with the intervention of white employers, juries found most black men guilty of the charges against them. Once a black man had served part of his sentence, however, many white employers initiated petitions for executive pardon. John Will Bond was convicted of attempted rape in 1906 in Bedford County and received a sentence of eighteen years. His employer, E. A. Edwards, began petitioning for Bond's release in 1917, drawing Governor Henry C. Stuart's attention to the victim's "doubtful character." Bond was released in 1920, four years early.(59) John Mays Jr. was convicted of attempted rape in 1923 in Nelson County and sentenced to eighteen years in prison. He was released in December 1930 because of the intercession of his white employer, Dr. A. A. Sizer. Sizer based his petition for clemency on his assessment of Mays's character and that of his victim. Sizer argued that Mays "comes of our best negro stock." He had known Mays's family for more than three generations and everyone in the family exhibited "integrity and humble faithfulness." Mays himself, though only fourteen at the time of the crime, was devoutly religious and was a virtuoso preacher in his community, and Sizer had schooled him alongside his own son. Mays' s alleged victim, although she was a seven-year-old girl, suffered in comparison in Sizer's eyes. "This girl comes from our lowest breed of poor whites.... Her mother is utterly immoral and without principle; and this child has been accustomed from her very babyhood to behold scenes of the grossest immorality. None of our welfare work affects her, she is brazenly immoral." Though Sizer did not directly impugn the victim herself, direct evidence was unnecessary during the heyday of eugenic family studies. The victim, coming from the same inferior "stock," would likely share her mother's moral character. Calling Mays "a defenseless negro.... far more respectable than the family of the white girl who accused him," Sizer asked that Mays be released. The governor complied, releasing Mays in time for Christmas.(60)

Dr. Sizer's tactics--questioning the character of the victim, or in this case, the victim's mother and family--were not uncommon. It was a strategy, however, that was much more likely to be undertaken by a white man working for an accused black man's benefit rather than by the defendant himself or the black community. Virginia governors justified decisions to release black men convicted of assaulting white women by citing doubts about the victim's identification of her attacker, questions about the accused's guilt, or belief that "the ends of justice" had been met, but allegations about the victim's character could be persuasive additional evidence. James Yager, convicted in a sensationalized trial in 1922 and sentenced to twenty years in prison for rape, received a conditional pardon after serving only four years of his sentence. Though white legal authorities cited doubts about the victim's identification of her assailant, they also noted having "heard rumors to the effect that the moral reputation of this witness [the victim] was not what it might have been." Governors, however, were usually unwilling to grant conditional pardons based solely on rumors of the victim's immoral character, even if whites raised the allegations. Ernest McKnight, for example, convicted of attempted rape in Fairfax County in 1909, was denied a conditional pardon even though his attorney presented testimony from a white doctor and McKnight's white neighbor that the alleged victim had borne a stillborn child out of wedlock and had recently been forced to marry because of another premarital pregnancy. In either case, black men spent years in prison for crimes they may not have committed.(61)

The intercession of a powerful white man on behalf of a black man accused of rape or attempted rape occasionally was sufficient to convince a white male jury to acquit. In 1932 Leon Fry was accused of attempted rape by Ethel Meyer, a young schoolgirl. Fry, described as being somewhere between seventeen and twenty-two years old, lived and worked near the location where Ethel Meyer claimed she was attacked. When police tried to question him, he fled, dodging police bullets, and spent the night in the woods. The next day, with former sheriff Nathan Sedgwick at his side, he turned himself in. Fry had lived and worked for Sedgwick's family for most of his life, and Sedgwick was convinced of Fry's innocence.(62)

The unqualified endorsement of one of the most prominent members of the community improved Fry's legal position immeasurably. Sedgwick provided Fry with an alibi for all but fifteen minutes of the afternoon of the crime. Sedgwick's refusal to consider Fry guilty discouraged the white community from automatically assuming his guilt. Because of Sedgwick's support, the community became more willing to lend credence to reports of other strange black men in the area and became skeptical of the victim's shaky identification of Fry as her assailant. News accounts reflected the public's shift in opinion; one headline announced "Feeling Is Growing Fry Is Innocent." Doubts increased when Fry pointed out that he had known the victim some three years, and if he had indeed been her assailant, she should have been able to identify him with more certainty. Sedgwick also supported Fry by hiring Lynn Lucas, the son of the current sheriff, as Fry's defense counsel. State Senator Aubrey Weaver also joined the defense team, his interest piqued by reports that Fry might be innocent.(63) Though the jury was deadlocked at his first trial, in the second trial the jury, after forty-five minutes of deliberation, acquitted him.(64)

Leon Fry's patron, Nathan Sedgwick, was able to establish reasonable doubt about Fry's guilt in several ways. Not only did he provide for Fry's legal defense and arrange for his bail after the first trial, he lent Fry credibility. Sedgwick provided the sanction of whiteness that allowed other whites to shift their focus from Fry's race to the specific factors of the crime. With Fry protected by the whiteness and power of the former sheriff, the white community could justify doubts about the victim's identification of her assailant and acknowledge that another black man could have been in the area. The white community could believe Fry without directly disbelieving the victim, a white female child. Ethel Moyer and her family could not compete with Nathan Sedgwick's status and social power. Moyer's authority as a white female victim of a black man diminished in the face of public support offered Fry by white male community leaders.

White men could be tremendously powerful allies for black men accused of assaulting white women.(65) Many black men sought to harness the power of their white employers. The intervention of whites on behalf of accused black men attests to the dynamic aspects of patronage--the push and pull of obligation and deference--and suggests that these relationships, though unequal, moved beyond whites' desires merely to maintain control over good workers.(66) The borrowed armor of white protection shielded black men from the white women who accused them, a curious inversion of southern insistence on protecting white women from black men. But the effect of that shield, both social and legal, went beyond offering to provide legal counsel or an alibi. Whites, and especially prominent white employers, could testify that a black man "knew his place" and was thus unlikely to commit what whites considered an egregious violation of racial boundaries. Such testimony provided assurance that the accused black man accepted the racial hierarchy and constituted no threat to whites, racial norms, or white supremacy. As such, white patronage did not come without cost to the African American men who called upon it. Using the support of white patrons as a form of leverage prevented accused men from challenging either racial discrimination in the legal system or the assumptions of whites about interactions between white women and black men. Relying on patronage relations affirmed the very system--legally enforced racial inequality--that made black men vulnerable in the first place.

Black men's use of white support does not mean that blacks abandoned all personal agency in favor of white intercession. African Americans exerted other forms of leverage over the legal process in a variety of ways. Blacks frequently provided each other with needed alibis, which occasionally supplied evidence for acquittal despite the white victim's testimony. Sandy Brown was acquitted of assaulting a white woman in 1914 partly because six African American men testified that Brown was with them at the time of the assault. The jury accepted these men's testimony, even though the victim had been "positive in her identification" of Brown as the man who attacked her.(67) Several African American men provided John Clements with an alibi when he was accused of assaulting Fannie Chenault, also in 1914. The jury may have been helped in its decision by Chenault's apparent enjoyment of her position in the local spotlight. Newspapers reported that "[s]he seemed to take a lively interest in the proceedings and did not appear to mind the stares of the crowd."(68) Even without alibis, counternarratives by African Americans challenged white assumptions about black men's intentions towards white women. In 1940 a white waitress accused four black men of beating and gang-raping her. She told police she had accepted a ride with the men after her white date had abandoned her by the side of the road when she refused his sexual advances. The four black men claimed that the victim had already been beaten by her spurned white companion when they picked her up by the side of the road. In taking her home, they claimed, they had only acted as "good samaritans." This alternative scenario shifted attention away from the volatile issue of interracial rape to the reality that white men denied sexual access could become violent. At the same time, the counternarrative of four "good samaritans" created a more complicated picture of interactions across race and gender lines. Black men could have non-sexual, benevolent intentions towards white women, and, more pointedly, at times treated them better than did white men. In this case, though the four men were convicted of raping the woman, they each received the relatively light sentence of ten years in prison.(69) African Americans also petitioned Virginia governors for leniency through letter-writing campaigns and formed defense committees to raise money for legal counsel for accused men. Though such efforts rarely won acquittals for accused black men, they were important factors in pardon considerations. And undoubtedly, though proof is difficult to uncover, African Americans brought rumors of white women's compromised characters to the right ears. The presence of the NAACP on a given case is only the most obvious evidence that the black community resisted the treatment black men received in the legal system.

Although the black community asserted what leverage it could, these efforts became both more focused and more effective in the post-World War II era. Coverage of cases in the black press reveals that African Americans increasingly described such cases in the light of systematic, legally enforced racial inequality and jurisprudential bias.(70) Attorneys for the Martinsville Seven, black men convicted in 1949 for rape and executed in 1951, based their appeal to the U.S. Supreme Court on Virginia's persistent racial disparities in sentencing, pointing out that every convicted rapist executed in Virginia in the twentieth century to that point had been black. Armed with these statistics, the black press began to compare black men's treatment in the legal system with that of white men accused of assaults against black women. The increasing presence of African American men and women on juries of rape trials beginning in the 1950s allowed blacks to exert more control over the legal process.(71) Raymond Palmer's jury, which included an African-American man, deadlocked in their deliberations during his second trial on a rape charge in Suffolk in 1958. He was later convicted without a jury.(72) Conversely, the presence of six African American men on the jury of a white man accused of raping a black schoolgirl in 1951 may have caused the jury to deadlock. Though they prevented an outright acquittal, their victory was illusory. The prosecutor declined to retry the case.(73) Certainly, these changes did not make black men's experiences in the legal system approach genuine standards of fairness, nor did they necessarily result in justice. By the late 1940s and 1950s, however, blacks articulated black-on-white assault within a new context--one of racial struggle and increasingly successful agitation for civil rights. Their efforts bore fruit. Of the fifty-nine men accused of a sexual crime against a white woman between 1945 and 1960, sixteen were acquitted or the charges against them were dismissed. An additional eight men received a sentence of a fine or a prison term of less than one year. According to statistics produced for the Martinsville Seven case, between 1940 and 1950 it was becoming less likely that black men convicted of rape would receive the death penalty.(74) African Americans had always engaged in struggle against racial injustice in a variety of ways when black men were accused of sexual crimes against white women, but previously such efforts had been undertaken on a case-by-case basis with mixed results. But now the tide seemed to be turning, so that institutionalized racial injustice might almost prove the exception rather than the rule.

In conclusion, considered individually and collectively, instances of alleged assault by black men on white women present a complex picture of racial relations. The boundaries that separated white and black and men and women were far more permeable than historians have hitherto acknowledged. Though the rules of segregation seemed fixed in theory, the limitations governing cross-racial interaction remained remarkably elastic in practice. They could expand to accept some interactions between white women and black men and they could contract to punish others. Social relationships blurred segregation's seemingly neat categories. Elite whites took black youths into their homes or educated them alongside their white sons. Some landlords and employers even ate with their black tenants at the same table. Forms of illegal commerce provided a basis for relationships between blacks and whites of lower status, especially during Prohibition. Lower-class whites were also more likely to live in mixed-race neighborhoods and engage in more egalitarian social and sexual relationships with African Americans. But whites across class lines engaged in relationships with blacks in a variety of contexts, all of which could shape the treatment black men received in the legal system.

Virginia's criminal justice system was not color-blind, as black men routinely faced severe penalties for crimes that white men committed with near-impunity against black women. Criminal trials did not objectively determine black men's guilt or innocence. Instead, trials revealed the contested meanings ascribed to any contact between white women and black men. Racial identities were not always obvious; intentions between strangers could be misunderstood. Friendships could dissolve into mistrust and accusation, even into efforts at revenge. White women could accuse black men of rape to cloak their own indiscretions with both white and black men. Black men could rape white women whose reputations then made their demands for protection suspect. Despite the best efforts of white southerners, blacks and whites were not completely separate, nor were they invariably antagonistic toward one another. Community relationships flowed across racial lines, and racial conflict did not always unite whites across class and gender lines, even in cases of black-on-white rape. Racial solidarity was far more elusive than the rhetoric of the white South has led historians to believe.

Segregation's very structure was elastic, able to respond to a wide range of situations. In cases of black-on-white assault and rape, white men weighed racial solidarity against gender solidarity and class power. In so doing, they acknowledged that not all violations of white women's bodies were equally serious racial violations, and that not all black men nor all white women were the same. The boundaries around cross-racial and cross-gender interaction shifted in order to resolve perceived threats to the social order. The legal adjudications and resolutions of such cases constituted performances that reinscribed appropriate relations for the community. Ideology dictated rhetoric, but competing interests and alliances, involving both race and gender, determined the perceived severity of the assault, its threat to the social order, and the need, if any, for punishment. Judge George J. Hundley had astutely observed in 1912 that such cases constituted a menace to society. Scarcely a year later, a defense attorney, doubting the veracity of a rape charge, asserted that "a woman tells a tale and men believe it. They believe it because their passions and prejudices want them to believe and arouse them to act.... While women must be protected, men, even negroes, must have some protection." Accepting this statement, Governor William H. Mann commuted Luther Tyler's death sentence, thereby implicitly valuing the life of a man (who happened to be black) over the word of a woman (who happened to be white).(75) Tyler had avoided becoming the "dead man" that Scout Finch saw foreordained as soon as a white woman "opened her mouth and screamed," and he, along with many others, thus stand in glaring contradiction to the accepted historical paradigm.

(1) Harper Lee, To Kill A Mockingbird (Philadelphia and New York, 1960), 254. I would like to thank Reginal Butler, Gregory M. Dorr, Grace Hale, Ann J. Lane, and the anonymous reviewers for the Journal of Southern History for their insightful comments on earlier drafts of this article.

(2) Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York, 1998), 344. Litwack frequently mentions the explosive potential of black men's sexual interest in white women.

(3) Lee, To Kill a Mockingbird, 264.

(4) For Tom Robinson's escape attempt and Atticus Finch's hopes for an appeal see ibid., 248-49. Lee makes it unclear whether Tom Robinson actually tried to escape from prison or whether his attempt was manufactured in order to justify shooting him. The latter explanation raises the possibility that the guards were aware that Tom would not pay for his "crime" with his life unless they took the law into their own hands.

(5) Ibid., 97.

(6) See Lisa Lindquist Dorr, "`Another Negro-Did-It Crime': Black Protest and Interracial Rape in Virginia, 1900-1960," presented at the annual meeting of the Organization of American Historians, St. Louis, Missouri, March 2000; and Lisa Lindquist Dorr, "`Messin' White Women': White Women, Black Men, and Rape in Virginia, 1900-1960" (Ph.D. dissertation, University of Virginia, 2000).

(7) The 288 cases (which include 59 cases that occurred after 1945) represent those in which authorities arrested the man they held responsible for the attack. There are numerous instances in which no suspect was ever apprehended. I located cases by examining daily editions of the Richmond Times-Dispatch from 1900 to 1960 and weekly editions of the Richmond Planet, the Richmond Afro-American, and the Norfolk Journal and Guide. I found additional cases in county circuit court files and by reviewing the clemency papers of Virginia governors for approximately seven months, chosen at random, of every year between 1900 and 1960. I supplemented these sources with local newspaper reports. While I may have missed a handful of cases (my study, however, includes every case that I found), I am confident that my sample is representative of all cases in Virginia during the period. If anything, I may have missed some low-profile cases that resulted in acquittal or very short sentences, making it unnecessary or unlikely that the accused would present his case to the governor for pardon; therefore, the percentage of harsh sentences is probably exaggerated. In addition, in 1942 Virginia established a formal parole board, which took over most of the governor's role in determining who was eligible for early release; see Paul W. Keve, The History of Corrections in Virginia (Charlottesville, 1986), 183. Unfortunately, the board's records are not open to the public, so while I have no doubt that many men received parole, their cases cannot be included in my analysis.

(8) Dorr, "`Messin' White Women'," 27-37. The seventeen men killed by extralegal violence include two who, after being chased by posses, were found hanged but whose deaths were ruled suicides. These incidents, in 1932 and 1935, occurred after Virginia had passed anti-lynching legislation; see Harrisonburg Daily News-Record, September 23, 1932, p. 4; and Richmond Planet, May 25, 1935, p. 12.

(9) I have been unable to determine the final disposition of 9 cases of the 271 that resulted in formal charges.

(10) Until 1924 the Virginia Code prescribed penalties of either between three and eighteen years in prison or death for attempted rape, and either between five and twenty years in prison or death for rape. In 1924 the General Assembly extended the maximum prison sentence allowed by law to life in prison for both rape and attempted rape. This change resulted from jurors' complaints that the maximum prison terms were inadequate punishment in cases that they did not feel merited death; see Donald H. Partington, "The Incidence of the Death Penalty for Rape in Virginia," Washington and Lee Law Review, XXII (Spring 1965), 50. Several juries tried to lengthen the maximum prison term on their own, sentencing black men to death and simultaneously recommending the sentence be commuted to life imprisonment. In one case, that of Lee Strother in Madison County in 1908, Governor Claude A. Swanson refused to commute the sentence, saying that he was not bound by the jury's recommendation for mercy and saw no extenuating circumstances justifying commutation. See "Reasons" [n.d.], Commonwealth v. Lee Strother, Petition for Commutation, Box 194, July-August 1908, Executive Papers (Library of Virginia, Richmond). In the 1929 case of Joe Gibbs in Prince George County, his sentence was commuted and he was granted a conditional pardon--similar to what is now parole, though without supervision--in 1947, having served eighteen years for his conviction of attempted rape. See Commonwealth v. Joe Gibbs, Petition for Commutation, Box 524, December 11-December 22, 1929, Executive Papers (Library of Virginia). Since my work is based on a representative sample of pardon petitions for every year of the study, I cannot accurately compare the number of men granted pardons with the number of those denied. Nevertheless, this sample revealed that throughout the period covered by this study, it was not uncommon for black men convicted of assaulting white women to he released before completing their full sentences, and many returned to the communities in which they had been convicted without further extralegal violence by whites. For Virginia law regarding the death penalty see Kenneth Murchison and Arthur J. Schwab, "Capital Punishment in Virginia," Virginia Law Review, LVIII (January 1972), 97-142.

(11) Lee, To Kill a Mockingbird, 232.

(12) Judge George J. Hundley, Commonwealth v. Alfred Wright, Law Order Book 1, p. 511 (Appomattox County Circuit Court, Appomattox).

(13) Quoted in Eric W. Rise, The Martinsville Seven: Race, Rape, and Capital Punishment (Charlottesville and London, 1995), 3. For the statistics on Virginia's use of capital punishment for rapists, see Partington, "Incidence of the Death Penalty for Rape in Virginia," 43-75.

(14) See Murchison and Schwab, "Capital Punishment in Virginia," 97-142; and Partington, "Incidence of the Death Penalty for Rape."

(15) For example, Charles Wilson was convicted of rape in 1904 and sentenced to twenty years in prison. He petitioned for a conditional pardon in 1915. The prosecuting attorney wrote to the governor, and after noting that the alleged victim "was not of the best reputation," stated, "It is clear to me now that the jury was not fully satisfied that a rape had been committed; if they had the death penalty would have been imposed, I think, without a doubt." The governor granted Wilson a pardon soon after. Manly Barnes to Governor Henry C. Smart, August 17, 1915, Commonwealth v. Charles Wilson, Petition for Conditional Pardon, Box 262, September 1- September 28, 1915, Executive Papers. These statements occur almost exclusively in the early part of the twentieth century.

(16) Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York, 1998).

(17) Ibid., 284.

(18) The paradigm of "terror-mercy" is familiar to British legal historians. This paradigm suggests that social and political elites used court sentences as a means of inflicting terror on peasants and granted mercy as a tool to legitimate the larger legal system and justify the social order to those who generally did not experience its privileges. See Douglas Hay, "Property, Authority and the Criminal Law" in Douglas Hay et at., eds., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975), 17-63; E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London, 1975); and John Brewer and John Styles, eds., An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries (New Brunswick, N.J., 1980).

(19) See Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven and London, 1997); Diane Miller Sommerville, "The Rape Myth in the Old South Reconsidered," Journal of Southern History, LXI (August 1995), 481-518; and Sommerville, "Rape, Race, and Castration in Slave Law in the Colonial and Early South," in Catherine Clinton and Michele Gillespie, eds., The Devil's Lane: Sex and Race in the Early South (New York and London, 1997), 74-89. Other scholars have also touched on black-on-white sexual assault. See Laura F. Edwards, "The Disappearance of Susan Daniel and Henderson Cooper: Gender and Narratives of Political Conflict in the Reconstruction-Era U.S. South," Feminist Studies, XXII (Summer 1996), 363-86; Peter W. Bardaglio, "Rape and the Law in the Old South: `Calculated to excite indignation in every heart'," Journal of Southern History, LX (November 1994), 749-72; and Victoria E. Bynum, Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill and London, 1992), 117-18. Other scholarship reinforces Hodes's and Sommerville's contentions that antebellum southern communities could overlook ongoing sexual relations between black men and white women. See Thomas E. Buckley, S.J., "Unfixing Race: Class, Power, and Identity in an Interracial Family," Virginia Magazine of History and Biography, CII (July 1994), 349-80; Timothy J. Lockley, "Crossing the Race Divide: Interracial Sex in Antebellum Savannah," Slavery and Abolition, XVIII (December 1997), 159-73; and Gary B. Mills, "Miscegenation and the Free Negro in Antebellum `Anglo' Alabama: A Reexamination of Southern Race Relations," Journal of American History, LXVIII (June 1981), 16-34.

(20) C. Vann Woodward's Strange Career of Jim Crow (New York, 1955) is the bellwether study of increasing racial antagonism that spurred interest in the component parts of that antagonism--lynching, race riots, and the legal persecution of black Americans (of which rape prosecutions are a part).

(21) The scholarship on lynching in general and specific lynchings in particular is too numerous to list. Important studies include Dominic J. Capeci Jr., The Lynching of Cleo Wright (Lexington, Ky., 1998); Walter T. Howard, Lynchings: Extralegal Violence in Florida during the 1930s (Selinsgrove, Pa., and London, 1995); W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia, 1880-1930 (Urbana and Chicago, 1993); Howard Smead, Blood Justice: The Lynching of Mack Charles Parker (New York and Oxford, 1986); and James R. McGovern, Anatomy of a Lynching: The Killing of Claude Neal (Baton Rouge and London, 1982).

(22) Fitzhugh Brundage drew attention to the contingent nature of white racial violence in his analysis of the Varn Mill Riot in Georgia in 1891. He urged historians to move beyond interpreting lynchings as "rituals of white caste solidarity" by exploring how "forms of black behavior which might spark white retribution in one region went unnoticed in another area." Bryant Simon also examined divisions among whites over what actions by blacks constituted threats to white supremacy. Evidence of divisions among whites challenges monolithic understandings of white supremacy and indicates how these divisions could result in varied attitudes towards lynching both in general and in specific instances of black transgressions. W. Fitzhugh Brundage, "The Varn Mill Riot of 1891: Lynchings, Attempted Lynchings, and Justice in Ware County, Georgia," Georgia Historical Quarterly, LXVIII (Summer 1994), 258, 269; Bryant Simon, "The Appeal of Cole Blease of South Carolina: Race, Class, and Sex in the New South," Journal of Southern History, LXII (February 1996), 57-86. See also W. Fitzhugh Brundage, ed., Under Sentence of Death: Lynching in the New South (Chapel Hill and London, 1997).

(23) Jacquelyn Dowd Hall still provides the best analysis of lynching, race, sex, and the maintenance of white patriarchy in her study Revolt Against Chivalry: Jesse Daniel Ames and the Women's Campaign Against Lynching (New York, 1974).

(24) In that case, two white women accused nine black men of raping them while on a train. The only direct evidence of assault was the women's own testimony, which one recanted soon after the initial trial; nevertheless, the men were convicted and sentenced to death. The convicted men, with legal help from the Communist Party, were finally released after a series of retrials and two U.S. Supreme Court decisions. See James Goodman, Stories of Scottsboro (New York, 1994); and Dan T. Carter, Scottsboro: A Tragedy of the American South (Baton Rouge and London, 1969).

(25) For examples of the "discontinuity" thesis regarding interracial sex, see Litwack, Trouble in Mind, 301-6; Sommerville, "Rape Myth in the Old South Reconsidered," 517-18; and Hodes, White Women, Black Men, 176-208.

(26) For Virginia's reliance on the legal system to enforce racial hierarchy, see Brundage, Lynching in the New South, Chaps. 5 and 6.

(27) For example, Charles Crumley was saved from a mob in Florida and found not guilty (Richmond Times-Dispatch, February 12, 1909, p. 1); Preston Nelly was acquitted in Asheville, North Carolina (ibid., October 27, 1925, p. 1 and November 8, 1925, p. 1); and, in separate cases, South Carolina juries gave two black men three years each for assaults on white women (ibid., June 24, 1931, p. 5 and September 28, 1931, p. 2).

(28) National Association for the Advancement of Colored People, Thirty Years of Lynching in the United States, 1889-1918 (1919; rpt., New York, 1969), 7-10; Doff, "`Messin' White Women'," 426-35.

(29) Mary Frances Berry's latest work gives a sweeping account of race, sex, and power in legal cases. She argues that trial participants, including judge, jury, and lawyers, bring "stories" into the courtroom and that "[s]tories provide a frame of reference that determines what each of us believes is true about the law. They also shape law and how it is enforced." My use of the word script is similar, though I believe that scripts also reflect beliefs about social relationships in daily life and that, though the script seems rigid, it permits improvisation. Competing scripts appear in court cases and influence jury's verdicts, resulting in the varied verdicts, sentences, and prison terms that convicted black men received. Mary Frances Berry, The Pig Farmer's Daughter and Other Tales of American Justice: Episodes of Racism and Sexism in the Courts from 1865 to the Present (New York, 1999), 4.

(30) In arguing that responses to black-on-white rape occurred on both a public front stage and a less-visible backstage, I am building on the work of several scholars in European history. See Dean MacCannell, The Tourist: A New Theory of the Leisure Class (New York, 1976; rpt., 1989), esp. Chap. 5, "Staged Authenticity"; Paul Greenhalgh, Ephemeral Vistas: The Expositions Universelles, Great Exhibitions, and World Fairs, 1851-1939 (Manchester, Eng., 1988), Chap. 4, "Human Showcases"; and Timothy Mitchell, Colonising Egypt (Cambridge, Eng., and other cities, 1988), esp. Chap. 1. These authors develop the work of Erring Goffman. See Goffman, The Presentation of the Self in Everyday Life (New York, 1959).

(31) Leesburg Loudoun Times-Mirror, October 30, 1941, p. 1; December 11, 1941, p. 1; and February 12, 1942, p. 1.

(32) Legions v. Commonwealth, 181 Va. 89 (1943), at 89-93.

(33) Legions v. Commonwealth (Va.), Petition for Writ of Error, quotations appear in the same order on pp. 18-21.

(34) Legions v. Commonwealth (Va.), at 91-92.

(35) Johnson was tried in Richmond police court, and there are no extant records of his conviction; the account of his case appears in the Richmond Times-Dispatch, October 27, 1918, p. 11.

(36) Accounts of the assault are taken from Portsmouth Star, January 24, 1910, p. 1; and Richmond Times-Dispatch, January 24, 1910, p. 2. Commonwealth v. Percy Forby, Common Law Order Book 36, pp. 271, 283, Ended Cause File, February-March 1910 (Norfolk Corporation Court I, Norfolk, Va.).

(37) Culpeper Exponent, September 21, 1906, p. 2; C. M. Waite to Governor Henry C. Stuart, February 2, 1916, and Edwin Gibson to Alex Forward, Secretary to Governor Stuart, January 28, 1916, Petition for Conditional Pardon, Commonwealth v. Charles Griffin, Box 274, August 1-31, 1916, Executive Papers.

(38) Letter from James S. Easley to Governor James H. Price, March 24, 1939, Petition for Conditional Pardon, Commonwealth v. James Acree, May 4-18, 1939, Executive Papers.

(39) Woods originally petitioned Governor Swanson on Daniel Johnson's behalf in 1906, after Johnson had served only three years of his sentence. Swanson would have granted his petition had not Johnson committed numerous prison violations including sodomy, fighting, and stealing. Woods instructed Johnson to improve his behavior, and he was released in 1909 after no additional infractions. Micajah Woods to Governor Swanson, December 20, 1909, Petition for Conditional Pardon, Commonwealth v. Daniel Johnson, Box 248, December 1-31, 1909, Executive Papers (emphasis in original).

(40) Accounts of the alleged attack are taken from the Danville Register, December 27, 1921, p. 2; and the Richmond Times-Dispatch, December 27, 1921, p. 3, and December 28, 1921, p. 3. Prior to the attack on Sallie Sigman, Douglas had been acquitted of murder and convicted of rape in separate trials in 1913; see Commonwealth v. Solomon Douglas, Common Law Order Book 15, pp. 533 and 534, and Order Book 16, pp. 11 and 211 (Circuit Court of Pittsylvania County, Chatham, Virginia.).

(41) R. Irvine Overbey to Governor E. Lee Trinkle, January 18, 1923, Petition for Conditional Pardon, Commonwealth v. Solomon Douglas, Box 393, May 22-June 10, 1923, Executive Papers; see also the summary of trial testimony in Record 957 to the Supreme Court of Appeals of Virginia, which was included in the petition. The Supreme Court of Appeals refused to hear Douglas's petition because he could not afford to provide a full transcript of his trial.

(42) R. Irvine Overbey to Governor E. Lee Trinkle, June 14, 1922, Petition for Writ of Error to the Supreme Court of Appeals of Virginia, Commonwealth v. Solomon Douglas, Executive Papers.

(43) Judge Richard Ker to Governor E. Lee Trinkle, May 21, 1923, and George T. Rison to Governor E. Lee Trinkle, n.d., Petition for Conditional Pardon, Commonwealth v. Solomon Douglas, Executive Papers.

(44) Grace Hale has argued that the culture of consumption routinely resulted in social interactions in which the superiority of the white race was not readily apparent--which in turn made the culture of segregation and its enforcement through lynching necessary; see Hale, Making Whiteness, Chap. 4, "Bounding Consumption," 121-98.

(45) See Kevin J. Mumford, Interzones: Black/White Sex Districts in Chicago and New York in the Early Twentieth Century (New York, 1997). Mumford explores the proliferation of interracial speakeasies, called black-and-tans, in New York and Chicago in the 1920s and 1930s. Though there is no direct evidence that such establishments existed in Virginia, cases like that of Solomon Douglas suggest that the culture of prohibition in the South also crossed racial and gender lines. Moonshining was rampant in rural Virginia, as any glance at court records between 1920 and 1933 demonstrates. Courtrooms were crowded with men and women accused of violating the Prohibition laws.

(46) Gilmore S. Kendall to Governor Claude A. Swanson, October 30, 1906, Petition for Conditional Pardon, Commonwealth v. Joseph Boone, Box 181, November 20, 1907-January 31, 1908, Executive Papers.

(47) Sir Matthew Hale, The History of the Pleas of the Crown (2 vols., London, 1971; orig. published, 1736), I, 635.

(48) Judge's Instructions, December 1938, Case File, Commonwealth v. John Anderson, (Loudoun County Circuit Court, Leesburg, Virginia). Anderson's jury was also instructed that they "cannot and shall not permit themselves to [be] influenced by the fact that the defendant is a colored man and the prosecutrix a white woman." He was nonetheless found guilty, sentenced to death, and executed on the date set by the court. Commonwealth v. John Anderson, Common Law Book No. 16, pp. 308, 309, and 314.

(49) In 1914, when Fannie Chenault, a respected Sunday School teacher, accused John Clements of attempted rape in Richmond, the prosecution declared that the victim's character should make no difference in an assault between strangers--yet they still acknowledged that her character was a legitimate area of inquiry. In response to defense allegations, the prosecution added a doctor to their witness list to testify to Chenault's "chaste" life. Despite the prosecution's willingness to accept character questions, her family was outraged, hired an attorney specifically to protect her reputation, and took the extraordinary step of publishing Chenault's picture in the newspaper in an effort to stem rumors about her character. John Clements was eventually acquitted by a jury; see Richmond Evening Journal, October 30, 1914, p. 1. The prosecution's statements regarding the defense's use of character appear as follows: Richmond Evening Journal, June 17, 1914, p. 1, and Richmond News-Leader, July 6, 1914, p. 1; the addition of the doctor and the purpose of his testimony appears in the Richmond Evening Journal, July 20, 1914, p. 1; the substance of his testimony appears in the Richmond Times-Dispatch, October 28, 1914, p. 8; the use of the family attorney to stem rumors regarding Chenault's character was reported as follows in the Richmond Evening Journal, June 20, 1914, p. 1, Richmond Times-Dispatch, June 28, 1914, p. 8, and Richmond News-Leader, June 29, 1914, p. 1; Chenault's picture appeared in the Richmond Evening Journal on June 20, 1914, p. 1.

(50) Pardon Report, June 20, 1952, Petition for Conditional Pardon, Commonwealth v. Bernard Fleming, May 12-June 21, 1955, Executive Papers. The clemency files of Virginia governors that I examined contained several other cases in which the subsequent marriage of the victim was included in the request for pardon, including Joe Thompson, convicted of rape in 1906, death sentence commuted to life, pardoned in 1992; Ernest McKnight, convicted of rape in 1909, sentenced to eight years, pardon refused because of illness; John Johnson, convicted of rape in 1923 and sentenced to 20 years, pardon refused; Loo Rooster Jarvis, convicted of attempted rape in 1935 and sentenced to life, pardoned in 1962; and Randolph Hockaday, convicted of attempted rape in 1937, sentenced to life, pardon refused. For men who remained in prison after 1942, when Virginia established a formal parole board, being denied a conditional pardon did not mean they would be denied parole as well. As these parole files are not available to scholars, I do not know how many of these men later were released as parolees.

(51) W. Potter Sterne to Governor James H. Price, April 19, 1940, Petition for Conditional Pardon, Commonwealth v. Albert Clark, April 23-May 10, 1940, Executive Papers. Clark's pardon was refused. James Holmes, convicted of attempted rape in 1925 and sentenced to 10 years, received a pardon in 1930 after, among other things, court officials noted that his alleged victim had left the area; see Petition for Conditional Pardon, Commonwealth v. James Holmes, Box 541, February 26-March 3, 1931, Executive Papers.

(52) Commonwealth v. John Spencer, Common Law Order Book 10, pp. 246, 256, and Circuit Court Judgments, 1919 (Page County Circuit Court, Luray, Virginia).

(53) Petition to Governor Davis, n.d. [November 1920], Petition for Conditional Pardon, Commonwealth v. John Spencer, Box 348, November 10-31, 1920, Executive Papers.

(54) Conventional wisdom regarding black-on-white rape in the twentieth century insists that to claim consent at trial was suicide for a black man. In Virginia, though there are hints that black men may have tried to claim consent in a handful of cases, most allegations of consensual sexual relations were raised in petitions for executive clemency. Lee Strother, convicted of attempted rape and sentenced to death in 1908, later petitioned the governor to commute his sentence, claiming that he had engaged in consensual sexual relations with the alleged victim on multiple occasions. She only cried rape, he contended, when she feared they were about to be caught during a tryst. When asked why the claim of consent was not made at trial, his lawyer recounted Strother's belief that "if they [sic] jury had not believed him they would have hung him and if they did believe him and turn him out [acquitted him], the white folks would have killed him." Governor Claude A. Swanson declined to commute Strother's sentence and he was executed. J. F. Thrift to Governor Swanson, August 7, 1908, Petition for Commutation, Commonwealth v. Lee Strother, Box 194, July 1-August 31, 1908, Executive Papers. Other petitions claiming a consensual relationship with the alleged victim, however, were successful. Paul Washington was released from prison after serving seven years of a life sentence for rape in 1933 after the sheriff, prosecuting attorney, court clerk, and judge became convinced that the alleged victim had accused him of rape only after he broke off their sexual relationship. The accusation, they believed, did not grow out of a desire for revenge, but rather her need to explain her pregnancy. R. E. Dyche to V. E. McDougall, October 27, 1932, Petition for Conditional Pardon, Commonwealth v. Paul Washington, Box 588, April 10-22, 1933, Executive Papers.

(55) This argument is supported by evidence from other cases. For example, John Duncan was convicted of rape in 1927 and sentenced to eighteen years in prison. Five years later, Duncan petitioned for a pardon. The chief of police where Duncan was tried wrote a letter against Duncan's request, saying, "He had this [fourteen year-old white] girl come to his house several times each week until the entire neighborhood was scandalized. He was caught in the very act one night by Lieutenant I. H. Harris of this department, who had been watching his house." Police charged Duncan with rape only when the community reached the end of its patience, not because his alleged white victim or her family filed a complaint. J. H. Martin to Governor John G. Pollard, March 18, 1933, Petition for Conditional Pardon, Commonwealth v. John Duncan, April 1-30, 1933, Executive Papers.

(56) R. S. Parks to Governor Westmoreland Davis, November 20, 1920, Petition for Conditional Pardon, Commonwealth v. John Spencer, Box 348, November 10-31, 1920, Executive Papers.

(57) Petition to Governor Davis, n.d., and Parks to Governor Davis, November 20, 1920, Petition for Conditional Pardon, Commonwealth v. John Spencer, Executive Papers.

(58) I thank Reginald Butler and Gregory Michael Dorr for helping me to develop and refine this analytic concept.

(59) E. A. Edwards to Governor Stuart, October 1, 1917, Petition for Conditional Pardon, Commonwealth v. John Will Bond, Box 287, September 21-October 10, 1917; and Box 338, April 23-30, 1920, both in Executive Papers.

(60) Dr. A. A. Sizer to J. T. Coleman Jr., November 4, 1930, and Dr. and Mrs. Sizer to Governor Harry F. Byrd Sr., December 9, 1929, both in Commonwealth v. John Mays Jr., Petition for Conditional Pardon, Box 538, December 22-24, 1930, Executive Papers. For information on Virginians' eugenic beliefs about the heritability of moral character, see Paul A. Lombardo, "Three Generations, No Imbeciles: New Light on Buck v. Bell," New York University Law Review, LX (April 1985), 30-62.

(61) Yager was arrested for an assault in Culpeper, Virginia, but because of local excitement about the case, his trial was transferred to Louisa County. Governor Harry F. Byrd Sr. noted doubts about the victim's identification of Yager as justification for his pardon on the jacket surrounding the papers for Yager's case. T. E. Grimsley to Governor Byrd, November 9, 1926, Petition for Conditional Pardon, Commonwealth v. James Yager, Box 474, March 8-23, 1927, Executive Papers. Governor William H. Mann cited his policy of not pardoning prisoners with tuberculosis as his reason for denying Ernest McKnight a conditional pardon, believing the danger of contagion to the general public outweighed other considerations. Information about the victim's premarital pregnancies is found in affidavits from a doctor in Washington, D.C. and the victim's neighbor, a white woman; see Governor William H. Mann to R. R. Farr, March 28, 1912; affidavit by A. J. Browning, M.D., March 30, 1909; and affidavit by R. R. Farr, attorney for McKnight, March 16, 1909; all in Petition for Conditional Pardon, Commonwealth v. Ernest McKnight, Box 225, March 20-April 15, 1912, Executive Papers.

(62) Accounts of Fry's case are taken from the Richmond Times-Dispatch and the Harrisonburg Daily News-Record, cited below; the account of the assault and Fry's capture begin on April 28, 1932. Details about Fry's relationship with Nathan Sedgwick are scattered throughout coverage of the case.

(63) Harrisonburg Daily News-Record, May 7, 1932, p. 1 (quotation); May 19, 1932, p. 1, May 20, 1932, p. 1, and May 25, 1932, p. 6.

(64) Harrisonburg Daily News-Record, July 27, 1932, p. 1; Richmond Times-Dispatch, July 27, 1932, p. 8; Commonwealth v. Leon Fry, Order Book No. 14, pp. 40, 47, 59, 61; Circuit Court Judgments, May-November 1932 Term (Page County Circuit Court, Luray, Virginia).

(65) The support of white employers of black men accused of assault could be so powerful that, had Tom Robinson's case been real, Atticus Finch's failure to call his employer to testify would have been a serious, possibly fatal, oversight. As it was, Link Deas, out of desperation, leaped up from the spectators' seats to attest to Tom's respectability (Lee, To Kill a Mockingbird, 207). Such testimony would have allowed the jury to determine Robinson's fate by comparing the testimony of two whites--a white woman (one with little respectability other than her race) and a white man (one widely respected in the community)--rather than a white woman and a black man. Robinson's conviction was thus a foregone conclusion if for no other reason because Atticus Finch failed to give the jury any face-saving avenue of acquittal, forcing them to choose directly between the word of a white woman and that of a black man.

(66) Mary Frances Berry characterizes many efforts of elite whites on behalf of accused or convicted blacks as motivated solely by a desire to protect and control their workforce, or to aid "good Negroes," which oversimplifies the complex relationships whites and blacks could develop over many years. The fact that Dr. A. A. Sizer educated John Mays Jr. along with his own son (see the letters cited in note 60 above) is an example of more complicated interactions. Berry, The Pig Farmer's Daughter, 5, 193-94, and 209-10.

(67) Richmond Times-Dispatch, May 16, 1914, back page.

(68) The attack on Fannie Chenault in Richmond (see the discussion at note 49 above) caused a considerable furor and was heavily covered by the Richmond Times-Dispatch, the Richmond News-Leader, the Richmond Virginian, and the Richmond Evening News from the date of the assault in May until Clements's acquittal on October 30, 1914. The quotation is from the Richmond News-Leader, June 17, 1914, p. 1. The Clements case provides clear indication that the trials of black men accused of assaulting white women often became lurid mass entertainment for local communities. Newspapers reported that the public crowded into the courthouse to hear Fannie Chenault relate the details of her attack and described the audience as seeking a "thrill." One newspaper even pointedly noted that "forty or fifty young men" came repeatedly to the courthouse in hopes of hearing the victim herself describe her ordeal. Fannie Chenault, it seems, became an object of what Jacquelyn Dowd Hall termed "folk pornography." Richmond News-Leader, October 27, 1914, p. 1; Richmond Times-Dispatch, October 28, 1914, p. 8; and Richmond Evening Journal, October 27, 1914, p. 1; Hall, Revolt Against Chivalry, 150.

(69) The case was followed closely by both white dailies, the Richmond Times-Dispatch and the Richmond News-Leader, as well as by the Richmond Afro-American, from the alleged assault of September 11, 1940, through their conviction on November 12, 1940; for the description "good samaritans," see Richmond Afro-American, September 21, 1940, p. 1.

(70) Grace Hale, using the lynching of Claude Neal, argues that the NAACP counteracted lynching's power to unite whites by offering a counternarrative that portrayed southern whites as barbaric, forcing the nation to look at spectacle lynchings in a new light. Rather than trying to tell "the truth" about what happened, the NAACP sought to tell a more persuasive story about racial violence. African Americans' protests against black men's treatment under the law supports this contention; Hale, Making Whiteness, 285-86.

(71) Rise, Martinsville Seven, 128-30; Dorr, "`Messin' White Women'," 368-73, 376-80: Norfolk Journal and Guide (home edition), March 19, 1958, p. 1.

(72) Norfolk Journal and Guide (national edition), January 18, 1958, p. 1. It is impossible to prove that the lone black man on the jury caused the deadlock, but the presence of African Americans on any jury in a case of black-on-white assault was usually noted by black papers such as the Journal and Guide.

(73) Clifford Wulk was tried in Spotsylvania County. After the jury deadlocked at trial, the Richmond Afro-American declared that the hung jury "marked the first time in the history of Virginia that a mixed jury has been split down the middle" along racial lines; Richmond Afro-American, September 20, 1952, p. 1.

(74) Dorr, "`Messin' White Women'," 361-400; Rise, Martinsville Seven, 184 n. 58.

(75) Judge George J. Hundley, Commonwealth v. Alfred Wright, Law Order Book 1, p. 511 (Appomattox County Circuit Court, Appomattox); Petition for Commutation, Commonwealth v. Luther Tyler, Box 246, April 16-May 20, 1914, Executive Papers.

Ms. DORR is an assistant professor of history at the University of Alabama.