Rape with Consent?
April 6, 2017 § Leave a comment
He said, she said.
Did he or didn’t he? Did she or didn’t she?
I’m not going there.
There’s blame enough to spread around.
But one thing is sure. Definitions of what constitutes rape have evolved over the years that have mostly benefited the female victims, and mostly brought about by the unrelenting work of progressive women, and women’s organizations.
One hundred thirty years ago today–April 6, 1887–the Austin Daily Statesman closed the book on
The Laws That Were Passed by the Twentieth Legislature.
A Resume of the Laws Enacted During the Last “Weary Three Months.”
That handful of laws included
“Chapter 10 [H.B. No 47].–An act to amend article 528, chapter 7, title 15, of the penal code, more fully defining rape,
It reads as follows:
Article 528.—Rape is the carnal knowledge of a woman, without her consent, obtained by force, threats or fraud; or the carnal knowledge of a female under the age of ten years, with or without consent, and with or without the use of force, threats or fraud; or the carnal knowledge of a woman other than the wife of the person having such carnal knowledge, with or without consent, and with or without the use of force, threats or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having carnal knowledge of her knowing her to be so mentally diseased.”
A Victim of Life’s Circumstances?
Wash Hardy was sentenced to be hanged on July 23, 1897, having been tried and convicted in the district court of Victoria County for the offense of raping young Florence Williams, daughter of a respected citizen of color of Houston’s Second Ward. But on July 21, two days before the trapdoor was to be sprung, Governor Charles Culberson commuted the sentence to life imprisonment.
On March 15, 1896, Sheriff Albert Erichson, through the Houston Daily Post had advised all officers to look out for and arrest Wash Hardy, described as “a coal black negro about 50 years of age and about 5 feet 8 inches high, clean shaved except a small moustache, which he constantly twists. He has a wart or growth over left eye, generally wears a crush hat with crease in center and tilted over left eye, usually carries an old overcoat of a red or light brown color and makes a living playing upon a tin flute.
“He is wanted for the abduction of Florence Williams, a ginger cake colored girl 10 years of age, rather slight built, wide between the eyes and flat nose, has small mole or dark spot on right side of nose near eye. They were last seen near Cold Spring, in San Jacinto County, at a wood camp.”
A $25 reward was being offered for his arrest.
On August 4, 1897, as Hardy settled into his new for-life style, the Daily Statesman reported:
THE GOVERNOR’S REASONS
For Commuting the Life Sentence of Wash Hardy of Victoria.
HARDY A VICTIM OF CIRCUMSTANCES.
It Seems That The Girl In The Case Was Quite Willing In The Cohabitation, Though She Said To The Contrary.
In regard to his recent commutation to life imprisonment of Wash Hardy, Governor Culberson offered this explanation:
Hardy was a man of color, as was the female, a girl alleged to have been about 11 years of age at the time the offense was committed. It seemed from the testimony and accompanying papers that the conviction rested largely on the charge that the female was less than 15 years of age, want of consent not being essential in that case, but there were many indications in the record that she consented to the acts of defendant, inasmuch as they were well acquainted with each other in Houston, went together from there to Victoria, and lived together, occupying the same room and the same bed for many weeks at Goliad and Victoria, and she could have prevented the outrage by making complaint.
Florence testified on the trial that her failure to make complaint was due to threats of defendant, but this had to be taken in connection with the distinctly proven fact that the defendant was often away from the place where she was stopping, and at those times complaint could have been made without opportunity on his part to injure her before his arrest, Culberson said. While the evidence of the mother and father of the girl was to the effect that she was about 11 years of age, when questioned closely, particularly the mother, no satisfactory answers were made to questions tending to show her actual and real age. The case could, therefore, be said to be one of carnal knowledge of a female, probably with her consent, and whose exact age at the time of the commission of the crime was in doubt. …
As was the case in such matters, the state board of pardon advisors carefully considered Hardy’s case. The Board of Pardon Advisors, created in 1893, comprised two individuals chosen by the governor, who assisted him by reviewing applications and making recommendations for executive clemency. The board was able to review more applications and examine these more thoroughly than the governor was able to do, which resulted in more pardons being granted.
On June 29, the board reported to the governor: “The facts show that applicant had been visiting this girl at her grandmother’s house in Houston for some time, but finally the two left and went to Victoria, where they lived together as man and wife, applicant, however, was claiming that the girl was his daughter and telling this story to the negroes with whom he boarded in Victoria. Applicant evidently committed rape on the child, but it was apparent that it was with her consent. We do not think the character of the offense is such as to justify the death penalty, and therefore advise that the sentence be commuted to life imprisonment in the penitentiary.”