Common Claims: Polanski and Rape in Early America 

In September 2009 director Roman Polanski was detained in Switzerland for extradition to the United States. He was to face a sexual assault-related conviction, from which he’d run away three decades earlier. A plethora of news reports followed. Movie stars, politicians, legal experts, bloggers, and other commentators took sides.

Some were appalled at the unjust targeting of a talented artist and good man who had inadvisable sexual relations with an underage wannabe-actress decades ago. Others expressed outrage at those who supported a convicted rapist, one who had used his fame and fortune to escape justice.

The Polanski furor reflects an array of assumptions that grow out of a long history of sexual violence in the United States. Most pronounced are the often-unexamined ways that men’s social and economic power translates into sexual power. Equally apparent is society’s unwillingness to recognize rape beyond the image of a dark alley, a violent stranger, and a lethal weapon. For centuries these beliefs have allowed some men to commit rape with virtual impunity and have revictimized assaulted women.

Analyzing these beliefs in a less politically fraught historical context makes clear the assumptions that allow rape and sexual coercion to continue in modern society. With my decade-plus of research into rape in early America (1700-1820), I trace the historically intransigent beliefs that rape isn’t something committed by good men, that bad women don’t really resist rape, and that men not only commit rape as an act of power but also use their power to redefine the act as something other than a sexual assault.

Power: Redefining the Act of Rape

Despite being indicted for six felonies related to sexual battery and admitting guilt to statutory rape in a plea bargain, Roman Polanski’s vaginal, oral, and anal sex with a thirteen-year-old didn’t seem like “rape-rape”.

It has become an important political mantra that rape is an act of violence, not sex. While crucial to feminist activism, calling rape violence unfortunately mimics a limited understanding of rape as an unstoppable act of overt physicality, rather than an act that might include many forms of sexual coercion beyond physical battery. Throughout history societal power relations have underwritten sexual power, not just in the ability to evade legal punishment, but also through the very process of sexual coercion.

Early America included a world of sexual force beyond the violent-outsider-as-attacker scenario: Sexual assaults by neighbors, household members, or masters could deviate sharply from the seemingly sudden and absolute physical force of stranger-rapes. Take the case of Phyllis, a Delaware slave. Phyllis repeatedly recalled how her master would place her in situations where he could be alone with her and force her into sexual relations without the threating of immediate physical force. He would call her out to the stable to hold a light for him, where he would “pull up her clothes and put [it] into her.” Or he would have Phyllis bring him water in the middle of the night, where he could lay her “down on the kitchen floor, and have carnal knowledge of her body.”

While slavery exploited extreme power inequities, early American women from all walks of life told similar stories about neighbors, employers, and friends. A father told his daughter that it was his right to force her to obey sexual orders; a landowner told a renter that sex was part of what she owed him; a neighbor convinced a young girl to agree to sexual relations or risk harm to her family. Having social or economic power over their victims gave men access to a type of sexually coercive behavior that did not match the image of a violent rape but was, nonetheless, coercive.

It is also worth noting that such means of coercion was only available to relatively elite men: Enslaved men in early America, for instance, did not usually have this kind authority over women that could be translated into sexual power. They weren’t masters, owners, landowners, employers, or even legitimately recognized fathers. And without those forms of societally-recognized authority, enslaved men could not access associated sexual power either.

Consent: She Asked For It

Roman Polanski’s thirteen-year-old victim was said to be a “sophisticated teen” whose mother sent her alone to see the forty-three-year-old director because they were hoping he could help her break into acting. So she really was seduced, more than raped.

One of the historically intransigent obstructions to successful rape prosecutions has been the underlying belief that a victim really consented to the rape. Early American society expected women to be virtuous and chaste but feared that women desired sexual interactions. For example, The Sot-Weed Factor, first published in Maryland in 1731, told of the “Maid upon the downy Field, Pretends a Force, and Fights to yield.” Drinking songs, stories, and jokes in early America imagined all women saying no but meaning yes—and that left it up to men to decide a woman’s consent for her.

In rape cases themselves victims were often portrayed as consenting to the act. In 1793 a lawyer argued: “a virtuous girl upon the point of yielding, will not appear to give a willing consent, though her manner sufficiently evinces her wishes.” Given that statement, the lawyer could argue that the defendant—who had held the young woman captive for hours—“may have seduced the girl; yet he did not force her.” Because women’s resistance was suspect in all sexual encounters, rape could more easily bleed into seeming seduction.

Early Americans found other ways to evaluate women’s consent beyond her word. Sometimes they forwarded rationales for a woman’s consent—she desired money, marriage, or other financial advantages from a sexual partner. And just as early Americans implicitly allowed men’s social power to translate into sexual power, they saw women’s social relations with men as evidence of her sexual consent. In one 1792 case petitioners argued that a supposed victim of a rape had really consented because, in part, “she confessed he had given her fish.” Apparently accepting seafood meant that she had accepted his penis as well.

Influence: Avoiding Conviction and Punishment

Roman Polanski was indicted (meaning there was ample evidence to believe he could be convicted) for six felonies, including rape by use of drugs, child molesting, and sodomy. But he plea-bargained down to the lesser offence of statutory rape (called unlawful sexual intercourse in California at the time).

In colonial America, elite men were consistently able to avoid criminal punishment for rape in ways that their less-privileged brethren could not. Every stage of criminal prosecution offered options, advantages, and safeguards to white defendants that were denied to black defendants.

An array of statistics on the prosecution of sexual assaults between 1700 and 1820 reveals the extent of white men’s privilege. Less than half of white men’s known prosecutions for sexual assault included the most serious charge of rape, compared to close to three-quarters of black men’s prosecutions. Three-quarters of the dropped prosecutions involved white defendants. The reverse pattern held for rape convictions: Courts convicted only 35 percent of white men but 84 percent of black men. Likewise, nearly two-thirds of all sexual assaults prosecuted against black men would end with a death sentence, compared to only slightly more than 10 percent of white men’s prosecutions. In total, of all the men known to have been executed for a rape between 1700 and 1820, more than 80 percent were of African descent.

Overall, then, white men—who were the privileged members of early American’s profoundly racist society—were charged with less serious crimes, were more likely to have charges dropped, were convicted at much lower rates, and received lighter sentences. The societal authority that allowed an array of white men to coerce sex in ways that did not seem like typical rape continued to privilege these men in their interactions with the criminal justice system.

Deviance: Making Rape Seem Like Rape

Modern commentators critical of Roman Polanski made frequent mention of his having committed sodomy, as evidence of the girl’s nonconsent and the heinousness of his crime. Supporters were less likely to focus on that transgressive sexual act.

In early America white men’s sexual assaults made the news only when their acts were exceptionally violent, vile, and depraved. Indeed, it was these features that made a rape into an unambiguous attack. So when a Quaker man violently raped a four-year-old girl, newspapers reported it. When two men raped a dead woman, newspapers reported it. Readers who were outraged at such unquestionably uncivilized and immoral acts would immediately adjudge those acts as real rapes because acts seen as deviant were not something to which victims would believably consent.

Good Men Don’t Rape, Bad Women Can’t Be Raped

Roman Polanski should not be extradited to serve time for rape because he is a “an ingenious filmmaker,” a “brilliant fantastic genius,”“ a wonderful man,” and moreover, “This is somebody who could not be a rapist!” Conversely, his victim’s previous sexual experience was used as evidence against her in the original trial.

In early America community members would defend men from rape charges by explaining how their good behavior made them unlikely rapists. Defendants might be said to have “an unimpeachable Reputation,” an “uprite Caracter,” or come from “a large family of Good Citizens.” Instead, early Americans imagined rapists as vile and evil men or, as one judge proclaimed, “of worthless character.” A man’s character was seen to indicate his likely guilt to a rape charge.

Conversely, victims of sexual assault regularly faced accusations of illicit sexual misbehavior. Nearly a dozen witnesses told a Massachusetts court that a rape victim was a common strumpet. A New York victim was said to have a venereal disease, be a prostitute, and to have improperly bared her legs in public. Any previous illicit sexual activity undermined a victim’s ability to believably refuse sexual relations—so much so that one victim preemptively gave the court a certificate from her Pennsylvania church verifying that she was not a whore. Just as “good” men didn’t seem like rapists, “bad” women did not make believable rape victims.

In Conclusion: How much have Attitudes to Rape Changed?

When I talk to feminist groups or students about rape in early America, they regularly comment: That sounds so much like today! Undoubtedly, some things have changed—we no longer have race-based institutionalized slavery, for one. But the foundations of rape have changed far less than many of us would like.

This surprisingly consistent history means that incidents like the Polanski sexual assault still get read through a belief system that questions women’s ability to own their own consent and is hesitant to admit that powerful men would do bad things. We also have not come to terms with the reality that rape is often not accomplished through immediate violence—we need only open a newspaper to see that sexual coercion still gets committed through social and economic power in many settings.

Still, unlike comparable incidents in early America, there have been commentators who recognize that Polanski illegally forced sexual relations on a thirteen-year-old girl. Several celebrities have noted Polanski’s racial and class privilege in avoiding punishment. Others have pointed to the declining acceptance of sex with children and sex as a privilege of power in the past decades. These changes may not go far enough or happen quickly enough but do show how feminism and civil rights have had fundamental impacts on the ways that rape is understood. I only hope that the Polanski episode is emblematic of a long history that we are finally leaving behind.

Sharon Block is an associate professor of history at the University of California, Irvine. More on early American sexual coercion can be found in her book, Rape and Sexual Power in Early America. She is now researching colonial understandings of physicality, has published on data mining for historical research, and has worked extensively toward racial and gender equity at her university.