Rape, Incest, and Harper Lee's to Kill a Mockingbird: On Alabama's Legal Construction of Gender and Sexuality in the Context of Racial Subordination


RAPE, INCEST, AND HARPER LEE'S TO KILL
A MOCKINGBIRD: ON ALABAMA'S LEGAL
CONSTRUCTION OF GENDER AND
SEXUALITY IN THE CONTEXT OF RACIAL
SUBORDINATION

IRIS HALPERN*

In 1960, To Kill a Mockingbird' was published to significant
popular acclaim: a reception that has proved enduring. Mockingbird
remains one of the most widely circulated works in United States history.2

Curiously enough, however, the nonpareil American novel known for its
condemnation of racism has proven itself a more venerable object in the
heart of the legal establishment than in that of the literary-a peculiarity
which has given rise to frequent comment. Despite its Pulitzer Prize, few
literary scholars have engaged critically with the work.3 Comparatively,
Harper Lee's novel and the characters she constructs therein have received
an unexpected and atypical amount of attention from a field-law4-that is
defined by objective, rational perspectivalism and which is notorious for its

* J.D., University of California, Berkeley, School of Law (Boalt Hall), 2008. 1

would especially like to thank Kathryn Abrams for all of her suggestions while I authored
this Article in my third year at Berkeley. Thanks as well to the editors and members of the
Columbia Journal of Gender and Law for their painstaking and excellent editing efforts.

1 HARPER LEE, To KILL A MOCKINGBIRD (Perennial 2002) (1961) [hereinafter
MOCKINGBIRD].

2See CLAUDIA DURST JOHNSON, To KILL A MOCKINGBIRD: THREATENING

BOUNDARIES 13-14 (1994).

3 The few in-depth literary analyses that do exist note this irony. Johnson observes,
for example, that the book has never been the subject of a dissertation and has been the
subject of only six literary studies. See JOHNSON, supra note 2, at 20, 25-26.

4 For purposes of this Article, the phrase "the field of law" consists only of a
narrow set of legal actors-primarily judges and lawyers (or those trained in the law but
serving in other forms of regulatory capacity, such as legislatures). For other purposes
outside of the purview of this essay, legal actors would certainly include a broader range of
players (e.g., the police, scholars). However, because the focus of this Article is a discrete
one, I have restricted the definition.



744 Columbia Journal of Gender and Law [Vol. 18:3

ostensible disdain of the fictional and activist. Indeed, entire symposia and
law review volumes have been dedicated to the work.5

The book, however, steadfastly maintains its position as a
masterpiece in the canons of American literature. Popular response to
Mockingbird has been remarkable: it has enjoyed ninety-four separate
printings and appeared on secondary school reading lists as often as any
other book in the English language.6 By the close of the 1980s, Lee's story
was mandatory reading in seventy percent of all public schools. 7 A 1991
survey found To Kill a Mockingbird listed second only to the Bible as the
book that has had the most meaningful impact on the respondents' lives. 8

The popular and nascent critical treatment of Mockingbird has
emphasized the story's racial themes. Perceptions of race-particularly
white notions of black inferiority-are clearly a central object of critique in
Lee's novel. To Kill a Mockingbird, after all, was a work penned in
response to the agitated and volatile scenery of 1950s and 60s America-a
period renowned as much for its omnipresent reactionary violence as for its
peaceful protest and civil disobedience. All around Lee, the intransigence of
the South following the Supreme Court's 1954 desegregation ruling in
Brown v. Board of Education9 was on stark display. 10 In scripting
Mockingbird, Lee sought to document the region's historic problem with
racism and expose the anatomy of segregation at the moment of its legal
dismantling. In doing so, she perspicaciously commented on the

5 The greatest volume of critical reading about the text has been generated by two
legal scholars who use Atticus Finch as a source of material for legal ethics analysis. See
Alice Hall Petry, Introduction to ON HARPER LEE xv-xvi, xxii (Alice Hall Petry ed., 2007)
(discussing the scant coverage of the book in literary analysis and the surprisingly in-depth
work done by several law scholars). Whole symposia and journal volumes have analyzed the
novel and its characters. See generally Symposium, To Kill a Mockingbird, 45 ALA. L. REv.
389 (1994); Symposium, Classics Revisited, 97 MICH. L. REV. 1339 (1999). A brief search in
July 2009 of the LexisNexis legal database by title generated some 662 Law Review,
Journal, and Magazine hits.

6 JOHNSON, supra note 2, at 13-14.

7 Id.; See also Petry, supra note 5, at xv-xvi.

8 Petry, supra note 5, at xv-xvi (sample of five thousand participants).

9 347 U.S. 483, 495 (1954) (Brown I).

10 JOHNSON, supra note 2, at 11-12; Patrick Chura, Prolepsis and Anachronism:
Emmett Till and the Historicity of To Kill a Mockingbird, in BLOOM'S MODERN CRITICAL
INTERPRETATIONS: To KILL A MOCKINGBIRD 115, 115-16 (Harold Bloom ed., 2007).



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 745

institutional mechanisms of racial hierarchy," and ultimately turned to
fiction to facilitate cultural change in the face of law's failure to end the
injustices visited upon black citizens of southern towns. 12

While Mockingbird remarks on race openly, the book also invokes
the theoretical framework of "intersectionality" developed by critical race
theorists in the legal academy. These theorists argue that race does not
occur independently of the histories of gender or sexuality.' 3 Rather, gender
and sexuality heavily influence and shape our conceptions of race. It is this
additional layer to Lee's writing, her condemnation of southern mores
regarding femininity and sexuality, which helps further expose the variety
of institutional strategies operating to construct and police race both in past
and present.

The theory of intersectionality is explicated by Professor Kimberl6
Crenshaw in her landmark essay Demarginalizing the Intersection of Race
and Sex: A Black Feminist Critique of Antidiscrimination Doctrine,
Feminist Theory, and Antiracist Politics.'4 Professor Crenshaw postulates
that a black woman is more than just the separate layerings of gender plus
race; she is a distinct personality who confronts distinctive forms of
harassment and bias.15 Because courts fail to grasp the mutually constitutive
ways in which race and gender interact, black women's subjectivity and
injuries go unrecognized.'

6

Warning us, Crenshaw extends the following cautionary advice: It
is incumbent on feminism to interrogate and take account of the ways in

1 See Eric J. Sundquist, Blues for Atticus Finch: Scottsboro, Brown, and Harper

Lee, in BLOOM'S MODERN CRITICAL INTERPRETATIONS, supra note 10, at 75, 77-78.

12 See Calvin Woodard, On Racism and the Law, in BLOOM'S GUIDES: TO KILL A

MOCKINGBIRD 69, 69-70 (Harold Bloom ed., 2004).

13 See, e.g., infra notes 14-17 and accompanying text.

14 Kimberl Williams Crenshaw, Demarginalizing the Intersection of Race and

Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and
Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 140. Professor Crenshaw notes that failing to
adopt this framework erases many groups, for example black women, in the
"conceptualization, identification, and remediation" of experience. Id.

5 See id. at 159.

161d. at 150. Professor Crenshaw argues that contemporary antidiscrimination

frameworks are inadequate by demonstrating how poorly they operate in the employment
law setting. Focusing on Title VII of the Civil Rights Act of 1964, Crenshaw describes how
black women are disenfranchised because their particular experiences and identity fall
outside of judicial consciousness. Id



Columbia Journal of Gender and Law

which dominant conceptions of gender are situated in, and operate in
tandem with, histories of racial subordination. As she explains, "[a]n effort
to develop an ideological explanation of gender domination in the Black
community should proceed from an understanding of how crosscutting
forces establish gender norms and how the conditions of Black
subordination wholly frustrate access to these norms."' 7

Through examination of Lee's Mockingbird, this Article will take
up Crenshaw's admonition and ask from where our contemporary
epistemologies of gender come and what potential ideological struggles
have informed them. How have prevailing constructs of femaleness and
sexuality been manufactured, internalized, enacted, and policed in response
to America's history of racial subordination? In what ways do they
interconnect? Lee explored these very questions as she forayed into the
heart of American racism.

Conventions of gender and sexuality ceaselessly respond to
society's agenda for race, as is true of the converse. The inaccessible
interpretations of womanhood that Crenshaw contests have been
systematically naturalized in American culture for the same reasons
underpinning the development of racial taxonomies: desire to maintain geo
and socio political hierarchies. 18 Lee situates Jim Crow era gender and
sexuality within the region's overarching "rape complex"-the discourse
produced to validate segregation and black subordination. 19 By doing so,
she elucidates the convergence of gendered, sexual, and racial ideologies
and comments on how cultural and legal institutions promulgate these
conditions.

Part I of this Article briefly surveys the legal and cultural
environment before and during desegregation in the South and dissects the
mechanics of white supremacy by analyzing how gender and sexuality were
oriented under its discourse. Part II explores the narratives of gender and
sexuality interwoven into Mockingbird with the intention of showing how
Lee's characters and plot criticized temporal constructions of gender and
heteronormativity as facilitating racial signification and hierarchy. As this
Part explains, normative models of femininity and masculinity served to

7 Id. at 155-56.

18 See generally Michael Omi & Howard Winant, Racial Formations, in RACE,

CLASS, AND GENDER IN THE UNITED STATES: AN INTEGRATED STUDY (Paula S. Rothenberg
ed., 1998); Ian Haney L6pez, The Social Construction of Race: Some Observations on
Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 27-40 (1994).

19 Chura, supra note 10, at 117-18.

746 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 747

justify racial stratification and sanction the forms of particularized violence
visited upon blacks throughout the era. Further, these personifications were
reached in part by restricting the sexual agency of both white and black
women (although sexual dominion over each occurred for different reasons
and was achieved through different means).

Part III uses Lee's insights to decipher the legal system's function
in creating and policing certain forms of sexuality and explores law's
potential investments in doing so. This Part juxtaposes Lee's criticisms with
Alabama's 20 jurisprudence and legislation on rape, incest, and evidence, and
theorizes the ways that the sexuality of both black and white women was
manipulated to effectuate gender norms and maintain a racial caste system.
Though obscured when viewed through more traditional modes of legal
analysis, this Part highlights the ways that Lee's multiple narratives of
sexuality illuminate the otherwise veiled motivations behind Alabama's
evolving treatment of these crimes before and during the years of
desegregation. It concludes that Lee depicts a period where sexuality
became a crucial site of contention in white supremacy's struggle to
reinforce and legitimize its stronghold over the South.2

I. CONTEXT

To Kill a Mockingbird's value as a resource for thinking about
transformations in the country's regulation of race may be extrapolated
from its iconic status. The text's popularity, familiarity, and subject matter
provide insights into law's operation during an epoch when the authority of
the law functioned to entrench segregation through pervasive activity on a
number of seemingly unrelated fronts. It is this subplot that ultimately
provides the roots of the legal profession's romance with Lee's novel.

From where does the faithful relationship between law and
Mockingbird arise? One possible explanation for the attraction is intimated
by Charles Lamb's introductory quote that concedes: "Lawyers, I suppose,
were children once." 22 Mockingbird depicts legal actors warmly and
decently, in contrast to their stereotypical renderings as avarice-motivated,
argumentative, and even heartless creatures obsessed with the technical.

20 Mockingbird is set in Alabama. See MOCKINGBIRD, supra note 1.

21 Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic

in the Reconstruction South, 100 MICH. L. REV. 675, 676 (2002).

22 Charles Lamb, Introduction to MOCKINGBIRD, supra note 1.

23 This presumably correlates with Lee's personal history. Her father, Amasa

Coleman Lee, and her sister were lawyers-the former being credited as the character study



748 Columbia Journal of Gender and Law [Vol. 18:3

Intuitively then, the legal community retains its fascination with
Mockingbird at least in part because it strongly identifies with the novel's
positive characters--especially with the affirming "hero-lawyer" persona of
Atticus Finch. The profusion of legal scholarship lauding Atticus's ethics
and comport in the face of tumult supports this hypothesis.24

The captivating father figure of the novel, Atticus, has indeed
evolved into such a revered symbol in the legal community that Professor
Monroe Freeman, upon censuring the character for complacency in certain
structures of racism in his Legal Times column, was forced to reevaluate his
criticisms following an outpouring of disquieted responses from fellow
academics, attorneys, and even the then-president of the American Bar
Association, Talbot D'Alemberte Other legal characters have also
emerged from the text with a slightly romanticized flavor. Judge Taylor, for
example, has procured a minor role in legal pedagogy for his attempt to
maintain rule of law in his courtroom.26

for the much-revered patriarch of the book, Atticus Finch. See Timothy Hoff, Influences on
Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 392-94 (1994); Petry,
supra note 5, at xiv. Lee herself studied law at the University of Alabama. Hoff, supra, at
396-97.

24 The heroic lawyerly behavior of Atticus Finch is discussed extensively in legal,
as well as literary, scholarship. See, e.g., JOHNSON, supra note 2, at 17 (quoting Claudia
Carter's description of Atticus's influence as a lawyer-hero); Petry, supra note 5, at xxiv-
xxv (providing examples of lawyers characterizing Atticus Finch in a heroizing fashion);
Cynthia L. Fountaine, In the Shadow of Atticus Finch: Constructing a Heroic Lawyer, 13
WIDENER L.J. 123 (2003); Michael Asimow, When Lawyers Were Heroes, 30 U.S.F. L. REv.
1131, 1136-38 (1996).

25 Claudia Johnson, Without Tradition and Within Reason: Judge Horton and

Atticus Finch in Court, 45 ALA. L. REV. 483, 483-86 (1994) (recounting the response to
Freeman's column and noting the attention Atticus Finch has received in the law); JOHNSON,

supra note 2, at 17-19; Petry, supra note 5, at xxii-xxiv. Almost a canonical figure, Atticus
Finch has been cited by acclaimed public interest attorneys such as Morris Dees, the founder
of the Southern Poverty Law Center, as an inspiration for their specific careers. Petry, supra
note 5, at xxiv. Professor Freeman revived some of his criticisms of Atticus Finch in
subsequent years, critiquing his complicity in the racist structures of the South. See Monroe
H. Freedman, Atticus Finch-Right and Wrong, 45 ALA. L. REv. 473 (1994); Monroe H.
Freeman, Monroe Freeman on the Difficulty of Atticus Finch as a Role Model, in BLOOM'S
GUIDES, supra note 12, at 65, 65-69.

26 Judge Taylor obtained minor role model status because he assigned Atticus to

Tom Robinson's defense and attempted to administer law equitably in his courtroom-
activities explained as inherently dangerous and for which he was eventually targeted by Bob
Ewell. See, e.g., JOHNSON, supra note 2, at 19. Talbot D'Alemberte, in his exonerating
editorial in favor of Atticus Finch, also praised Judge Taylor as a legal role model. Thomas
L. Shaffer, Growing Up Good in Maycomb, 45 ALA. L. REV. 531, 535 (1994) ("Scout ...



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 749

While the legal community emphasizes the characters of
Mockingbird when articulating the book's appeal, the subject of the law's
own racist past also ineluctably emerges. The characters in Lee's novel are
admirable only because they duel against the nation's malefic history of
pervasive structural violence against African Americans. It is Lee's
condemnation of femininity and dominant sexual norms, however, that
most exposes the socially constructed and historically contingent nature of
race. Performances of gender and sexuality in the novel undermine the
assumptions fundamental to the maintenance of white supremacy-
specifically, that race, gender, and sexual orientation derive from
genotypes. Rather, race, gender and sexuality are revealed to be the
products of diverse institutional pressures and histories, as well as personal
agency in different contexts.

Lee's novel demonstrates this reality by dissecting the South's
"race problem." In 1954, the Supreme Court mandated the desegregation of
public schools in Brown v. Board of Education. Ultimately, that holding
served as the basis for rendering unconstitutional all state-administered de
jure "separate but equal" segregation, a tenet which had been consecrated in
the late nineteenth century in Plessy v. Ferguson,28 but which had risen to
prominence much earlier following the dismantling of the Black Codes.29

The following year, the Court heard the remedial phase of the
litigation and concluded that desegregation should proceed with "good faith
compliance at the earliest practicable date ... to admit to public schools on
a racially nondiscriminatory basis with all deliberate speed the parties to

learns about truth and courage from her father and from Mr. Underwood and Judge
Taylor."); Rob Atkinson, Liberating Lawyers: Divergent Parallels in Intruder in the Dust
and To Kill a Mockingbird, 49 DUKE L.J. 601, 638, 672 (1999) (discussing Judge Taylor's
intentional act of assigning Tom Robinson's case to Atticus and Judge Taylor's role as one
of Atticus's few white supporters).

27 347 U.S. 483 (1954) (Brown I).

28 163 U.S. 537 (1896). Private actors' discriminatory behavior absent state action

was statutorily banned in various sectors by the two Civil Rights Acts (those of 1866 and
1964). The Civil Rights Act of 1964 is the legislation which prohibited private
discrimination in terms of housing, employment, participation in services, etc. Civil Rights
Act of 1964, 42 U.S.C. § 2000 (2009).

29 The Black Codes arose after the Civil War and were invalidated by the passage

of the Civil Rights Act of 1866 and the Fourteenth Amendment. See Paul Finkelman, John
Bingham and the Background to the Fourteenth Amendment, 36 AKRoN L. REV. 671, 680-92
(2003).



Columbia Journal of Gender and Law

these cases. 30  The standard-foreshadowing the South's resistance to
desegregation--enabled regional de facto segregation to persist for years as
federal authorities, the impetus behind legal desegregation, were largely
deprived of enforcement power. By 1964, three years after Mockingbird
was published, less than two percent of black school children in the South
were attending integrated schools and several states, including South
Carolina, Alabama, and Mississippi, had yet to facilitate a single black
child's introduction into the white public education system.31

Lee integrates these and other experiential occurrences of race
relations into her writing. The characters and plot of her story reference
such tragedies as the murder of Emmett Till, a fourteen-year-old African
American boy who was viciously mutilated in 1955 for allegedly insulting a
white woman.32 Also alluded to are the horrific Scottsboro trials, where nine
illiterate black youths charged with raping two white women received such
inadequate legal protections that the Supreme Court reversed and remanded
their convictions and death sentences for due process violations, likening
the prior proceedings to mob justice.33

But less frequently commented upon is Lee's success in revealing
the relationship between conceptions of race, gender, and heteronormative
sexuality.34 As Gary Richards notes, Mockingbird "is a destabilization of
heterosexuality and normative gender that seems . . .radical . . . . Lee

30 Brown v. Bd. of Educ., 349 U.S. 294, 300-01 (1955) (Brown II).

31 Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80
VA. L. REV. 7, 9-10 (1994).

32 Chura, supra note 10, at 115-28 (noting similarities between the Emmett Till
tragedy and Mockingbird).

33 Powell v. Alabama, 287 U.S. 45, 59 (1932) (reversing and remanding
defendants' convictions for rape and death sentences because defendants were denied the
right to counsel in any real sense until the morning of their trial); JOHNSON, supra note 2, at
4-11 (discussing similarities between the Scottsboro trials and Mockingbird); Sundquist,
supra note 11, at 88-94 (discussing similarities between Mockingbird and the Scottsboro
trials and also the Emmett Till tragedy); see also Norris v. Alabama, 294 U.S. 587 (1935)
(reversing and remanding rape conviction and death sentence because of unconstitutional
exclusion of qualified African Americans from the jury).

34 Although race and racism are the most often discussed aspects of the novel,
gender and sexuality are also beginning to garner much attention. For example, The
Publishing Triangle, an association of lesbians and gay men in publishing, listed To Kill a
Mockingbird in their top one hundred gay and lesbian novels at position sixty-seven. The
Publishing Triangle, The 100 Best Lesbian and Gay Novels,
http://publishingtriangle.org/100best.asp (last visited Nov. 1, 2009).

750 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 751

presents [Maycomb] to be, without it ever being fully conscious of the fact,
already distinctively queer." 35 These transgressions are not unintentional.
Lee explicitly marks those persons in the story who most strenuously
demand gender and sexual conformity as those who also most vehemently
perpetuate the antebellum South's racism.3 6 Such linkages underscore the
interconnectedness of the three forces in an era when the specter of the
black rapist and the personification of the vulnerable and sacred southern
white woman were antithetically constructed and culturally internalized,
and where racial archetypes were enforced through the legal and tacit
policing of sexual intimacy to justify segregation and black subordination.37

As Lee's narrative implies, none of these embodiments are natural or
inevitable.

Lee's suggestion that gender and normative sexuality are
abstractions resonates with a branch of feminist thought long suspicious of
appeals to innateness as explanations for governing social and political
orders. As Simone De Beauvoir counsels in The Second Sex, marginalized
constituencies should be particularly wary of the rhetoric of biologism, for
it has historically been levered against them only as justification for their
own subjugation.' 8 For just as gender-masculine as well as feminine-is
constructed by patriarchy for purposes of valuation and power
distribution,39 so too have white supremacist philosophies invoked heredity
in their efforts to validate racial hierarchies and unjust conditions.

In proving woman's inferiority the antifeminists then began to
draw not only upon religion ... but also upon science-biology,

35 Gary Richards, Harper Lee and the Destabilization of Heterosexuality, in
BLOOM'S MODERN CRITICAL INTERPRETATIONS, supra note 10, at 149, 151.

361d. at 160.

37 See Chura, supra note 10, at 118-19.

38 SIMONE DE BEAUVOIR, THE SECOND SEX xxiii-xxiv (1952).

39 De Beauvoir elaborates on the construction of femininity by the male enterprise
in her well-known quote:

One is not born, but rather becomes, woman. No biological,
psychological, or economic fate determines the figure that the human
female presents in society; it is civilization as a whole that produces this
creature. . . . Only the intervention of someone else can establish an
individual as an Other.

Id. at 267.



752 Columbia Journal of Gender and Law [Vol. 18:3

experimental psychology, etc. At most they were willing to grant
"equality in difference" to the other sex. That profitable formula
is most significant; it is precisely like the "equal but separate"
formula of the Jim Crow laws aimed at the North American
Negroes.... The similarity just noted is in no way due to chance,
for whether it is a race, a caste, a class, or a sex that is reduced to
a position of inferiority, the methods of justification are the same.
"The eternal feminine" corresponds to "the black soul" and "the
Jewish character." ... In [all] cases the dominant class bases its
argument on the state of affairs that it has itself created. As
George Bernard Shaw puts it, in substance, "The American white
relegates the black to the rank of shoeshine boy; and he concludes
from this that the black is good for nothing but shining shoes."' 40

Lee effectuates her criticisms by exposing the theatrics of the
southern "rape complex"-a phantasm first discerned by Wilbur Cash in
The Mind of the South,41 a book which captures the hysteria of post-bellum
southern society at the specter of newly emancipated slaves sexually
polluting white femininity. By organizing the plot around a false rape claim
made by a white woman against a black man, Lee exposes the ideological
labor undertaken by sexual norms to frame cultural (and legal)
understandings of both gender and race. In his essay Blues for Atticus
Finch, Scottsboro, Brown, and Harper Lee, Eric Sundquist fleshes out the

42anti-miscegenation mechanics of Jim Crow implicated in Lee's writing.
Theorizing the South's rape complex, Sundquist explains the methods
employed by segregationists intent on forestalling integration 43 by
"ultimately referring every racial question to the mystical body of the white
woman." 44 The logic of this maneuver is to translate all sexual interactions
that traverse color lines, even consensual relations, into forms of violence
and abnormality and thus create grounds for prohibiting them.45 In
describing the relationship between the cult of southern womanhood and
anti-miscegenation philosophy, Cash notes:

40 Id. at xxiii-xxiv.

41 W.J. CASH, THE MIND OF THE SOUTH 115-16 (1941).

42 See Sundquist, supra note 11.

41 Id. at 78-79, 90, 92-93.

44 Id. at 90.
45 See Chura, supra note 10, at 117-19.

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2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 753

The upshot, in this land of spreading notions of chivalry, was
downright gyneolatry. She was the South's Palladium, this
Southern woman-the shield-bearing Athena gleaming whitely in
the clouds, the standard for its rallying, the mystic symbol of its
nationality in face of the foe. She was the lily-pure maid of
Astolate and the hunting goddess of the Bcetician hill. And-she
was the pitiful Mother of God. Merely to mention her was to send
strong men into tears-or shouts ... the ranks of the Confederacy
went rolling into battle in the misty conviction that it was wholly
for her they fought.

4 6

White supremacy demarcated the boundaries of womanhood,
constituting the female as virginal, chaste, passive, and above all white.
Conversely, black masculinity was posited as animalistic, overtly
sexualized, and inherently threatening to the (white) female's personhood.4 7

Intimacy between them was cast as violating the precepts of natural law.

Using the rhetoric of legal rationality, science, and god, the Alabama
Supreme Court vehemently elaborated on this state of affairs often, for
example, in the 1912 interracial rape trial Story v. State.48 In Story, the court
reversed a lower decision that forbade the black defendant from introducing
general character evidence of a white woman's reputation for unchastity in
his attempt to negate the element of non-consent, 49 even though the woman
herself had admitted to engaging in prostitution. 50 But, as the court

declaimed in Catholic detail, even where a white woman admits to
employment in prostitution, the court required particularized information or
evidence that the woman engaged in commercial intercourse with black
men, not merely a willingness to have sex in exchange for money with other
whites. 51 The presumption that even a fallen white woman, depraved as she
was, would still not voluntarily engage in intercourse with African
Americans was nearly irrefutable, for if she were to engage in sex with
black men it would violate an elemental pecking order derived from the

46 CASH, supra note 41, at 86.

47 See Chura, supra note 10, at 117-19.

48 178 Ala. 98 (1912).

41 Id. at 102-03.

50 Id. at 101.

" Id. at 103-05.



Columbia Journal of Gender and Law

"immutable rules of social conduct., 52 Based on these perceived rules of the
natural social arrangement, Alabama law codified prohibitions against
miscegenation.5 3 "Since the fundamental, initial suggestion of the social
separation of the races is conceived in nature ... only ignorance or unholy
purpose ignorance or unholy purpose [could] question or assail . . . the
natural result that laws should be enacted promotive of the social purpose of
the dominant race." 54 Those few, if any, white women who both engaged in
prostitution and practiced their trade with black men were doubly degraded:
first for unchastity and secondly for transgressing against racial norms. It
was the sexually active female herself that was posited as anomalously
diseased. In so reasoning, the court demarcated the use of sexual activity as
a source of threat not only to dominant framings of race relations, but as a
medium of assault on the female's sexual identity. Sex, for white women,
was both a debased and debasing act when divorced from procreation,
monogamy, and the husband's control: a fatal flaw inhering within the
promiscuous female that was, when deployed across color lines, an even
greater sickness and defect. It was "conclusive[] among both the races" that
a white woman, "will not yield-has not yielded-even in her confirmed
depravity, to commerce with a negro .... The consensus of public opinion,
unrestricted to either race, is that a white woman prostitute is yet, though
lost of virtue, above the even greater sacrifice of the voluntary submission
of her person to the embraces of the other race." 55

The fact that performances of gender and sexuality were responding
to racist ideology, both preceding and following the decision in Brown I,
was evidenced not only by their manifestations in daily life and routines,
but also in the political rhetoric espoused by segregationist leaders. In the
language of Mississippi Circuit Judge Tom Brady following the Brown I
decision: "a new black threat [has arisen] to the loveliest and purest of
God's creatures .. . the well-bred, cultured Southern white woman or her
blue-eyed, golden-haired little girl."56 This construction of womanhood and
sexuality vindicated adherence to race-based hierarchization.

52 Id. at 103.

53 id.

54 Id.

" Id. at 104.

56 Sundquist, supra note 11, at 78-79.

754 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 755

II. WITH RACE IN MIND: NARRATIVES OF GENDER AND
SEXUALITY IN TO KILL A MOCKINGBIRD

Harper Lee denotes the ways in which racial stratification relies on
the perpetuation of specific embodiments of femininity and sexuality by
divorcing the positive qualities often associated with womanhood-
compassion, love, tenderness, caring-from those characters in the novel
who most adamantly insist on the traditional trappings of femininity.
Instead, these individuals are frequently associated with the negative aspect
of racist discourse.57 Recall, for example, the figures of Aunt Alexandra and
the ladies of the Missionary Circle, the characters in the story whom most
efficaciously personify the feminine, and who serve as the foils Miss Jean
Louise Finch-Scout-is contrasted against. Scout contemplates with awe
their perfect execution of the feminine role as she struggles to assimilate
and gain societal approbation.58 Yet, in the moments when these women
anthropomorphize presumptively biological gender most acutely, Lee
stresses the performative aspects of their practices and interpolated racism
into the dialogue.

Following the trial of Tom Robinson, Scout is privy to a gathering
where the women of the Circle, sheathed in pastel prints, have "put on their
hats to go across the street.",59 They smell heavenly and achieve femaleness
through artificial means which they nonetheless pass off as unstaged.6 °

Their faces are "heavily powdered but unrouged," and wear masks of
"Tangee Natural" lipstick accompanied by "Cutex Natural" nail polish.6'
This elaborate paradox between "natural" essence but fastidiously contrived
aesthetics and mannerisms 62 also occurs in the same scene where the

57 Karen Getman likewise illuminates the necessity of policing sex in the
antebellum South. Karen A. Getman, Sexual Control in the Slaveholding South: The
Implementation and Maintenance of a Racial Caste System, 7 HARV. WOMEN'S L.J. 115
(1984).

58 See generally MOCKINGBIRD, supra note 1, at 132, 262. Indeed, a central theme

in Mockingbird is Scout's coming of age-the pressures forced upon her as she enters a
gendered world where she can no longer continue to wear overalls, fight, and generally act
like a tomboy.

" Id. at 262.

60 id.

61 id.

62 See Richards, supra note 35, at 156-57.



Columbia Journal of Gender and Law

women express opprobrium for "a sulky darky" and discuss those "poor
Mrunas. 63 They condemn Helen (Tom Robinson's wife), and congratulate
themselves by commenting that "[a]t least we don't have the deceit to say to
'em yes you're as good as we are but stay away from US." ' 6 4 Manifesting the
internalization of the South's rape complex and the ways it precipitated
sexual self-monitoring, Mrs. Farrow, with her "fresh permanent wave,"
complains, "there's no lady safe in her bed these nights. 65

It is informative to compare this stream of commentary with Lee's
depiction of these women as visually pleasing, as the only (white) mothers
in the story, as religious moralists, and as, also importantly, the wealthy
women of Maycomb County. The characteristics ubiquitously associated
with femininity are vested solely in women of the Circle. Conversely, Scout
has no mother, nor do the impoverished Ewells, who are denigrated by their
racial peers as responsible for their own economic demise.66 Miss Maudie
Atkinson is both a bachelorette and childless. 67 With these comparisons,
Lee illustrates how porous the boundaries of femininity can be. The
women's strict adherence to the performance of "femaleness," dominated
by ideologies of innateness, decorum, and asexuality, is one of Lee's most
prominent examples of the constructed nature of gender. Femaleness is not
a natural occurrence-it is a complex, ongoing process that evolves along
with, and takes account of, revolutions in counterpart social norms.

The women of the Missionary Circle are not the only
representatives in Mockingbird whom Lee reprimands for rigidly adhering
to gender norms under the guise of authenticity. Lee further links gender
conventionality with racism in the character of Mrs. Henry Lafayette
Dubose. Mrs. Dubose warns Scout that wearing overalls is unladylike
behavior that dishonors the Finch lineage and augurs future sexual
degradation: "a Finch waiting on tables at the O.K. Cafe-hah!" Mrs.
Dubose threatens. 68 Scout reacts appropriately: "I was terrified. The O.K.
Cafe was a dim organization on the north side of the square. 69

63 MOCKINGBIRD, supra note 1, at 263.

64 Id. at 263-64, 267; see also Dean Shakelford, On Gender Issues, in BLOOM'S
GUIDES, supra note 12, at 71, 75-76.

65 MOCKINGBIRD, supra note 1, at 265.

66 See infra text accompanying notes 120-25.

67 Infra note 143 and accompanying text.

61d. at 117.

69 Id. (emphasis added).

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 757

Simultaneously, Mrs. Dubose attacks Atticus for associating with African
Americans and representing them in court. "Not only a Finch waiting on
tables but one in the courthouse lawing for niggers . . . Your father's no
better than the niggers and trash he works for."70

Lee's insights into gender tropes are subtler than her observations
on race; she pens her characters in such a fashion that their gendered
characteristics are less instantaneously obvious. Representations of Tom
Robinson and his wife Helen, Calpurnia and her son Zeebo, the Reverend
Sykes, and even the African American community of Maycomb at large are
positive with only a few minor exceptions 7 '-effectively combating
caricatures of the black community that were prevalent at the time the book
was released. Explicitly linking her critique of gender (or sexuality) with
the racial politics of the era would have radicalized the novel to the point of
alienating her mainstream target audience, so Lee obnubilated these
subtexts, expositing their prominence in the politics of the time period
discretely while making primarily legible her protests against dominant
white imaginaries of African Americans. Lee's choice explains why
Mockingbird was initially celebrated for its overt commentaries on race,
and it is only now that critical assessors have begun to focus on the role
gender and sexuality played within her book and critiques of racism.

Professor Claudia Durst Johnson notes in her comprehensive
examination, To Kill a Mockingbird- Threatening Boundaries,2 that the
importance of the novel, at least in part, "arises from its challenge of the
southerner's stereotype of African-Americans. ' 3 In defending the family's
continuing relationship with Calpumia, Atticus tells Alexandra that, in his
wife's absence, Calpumia is more than just a cook-she is the closest
approximation to a maternal force that exists in Jem's and Scout's lives;
although not a substitute for their mother, she is pivotal to their successful
upbringing.74 The Reverend Sykes, another positive image, preaches
nonviolence and exudes an ethos of compassion towards both his
congregation and the white citizens of Maycomb. Without apprehension, he

70 Id.

71 Lula is the one minor character Lee represents as angry, to the point of causing

conflict within her own community, when she openly critiques Calpurnia for bringing Jem
and Scout to the African American church where the two women are members.

72 JOHNSON, supra note 2, at 16.

73 Id.

74
MOCKINGBIRD, supra note 1, at 155.



Columbia Journal of Gender and Law

welcomes Jem and Scout into his church, and later into the area of the
courtroom to which the African American community is restricted.7 5 The
black citizens of Maycomb rise as one, silently, in respect for Atticus as he
completes the trial, exiting the courtroom. The next morning, Atticus
awakes to find such a multitude of gifts of appreciation from the poverty-
stricken community that it brings tears to his eyes.76 Though on trial for
allegedly raping a woman, Tom, ultimately, is the most beneficent character
of the novel. Without claim to the youthful innocence granted to child
protagonists in most literature, he yet still shows more kindness to Mayella
Ewell than she receives from the state, or from her own family and white
neighbors. He volunteers to assist with her regular household chores,
expecting nothing in return.77 All the while, he maintains an impeccable
work record, despite his physical disability, and earns praise for his work
ethic even from sectors of the white citizenry. 8

Lee juxtaposes these images with several depictions of degenerate
white characters who exhibit blatant bigotry and violence. Bob Ewell, for
example, is not only exceedingly racist, but is also indolent, proudly
uneducated, an abusive father, and a scofflaw. In due course he reveals
himself as a coward as well; he hunts deer off-season, pulls his sons from
school, lives unabashedly off the government dole, and targets children as
the objects of his fatal violence.7 9

But the axis of segregation is not race as a self-contained category.
Rather, it is the prohibition of miscegenation. Without this restriction, the
racial classification system risked being rendered meaningless.
Miscegenation threatened to destabilize and ultimately render illegible what
society understood as race.80 Lee comprehends this foundational rule of
racism and uses her writing to target the structures that police racial borders
through gender and sexual norms. The apprehension surrounding interracial

751d. at 137, 139, 186.
76 Id. at 244.

" Id. at 223-24.

78 Id at 222 (describing Link Deas voluminous proclamation to the courtroom
audience, in the midst of the trial, that Tom was never a "speck o'trouble" in his eight years'
tenure).

79 JOHNSON, supra note 2, at 102.

80 See generally Bennet Capres, The Trial of Bigger Thomas: Race, Gender, and

Trespass, 31 N.Y.U. REV. L. & SOC. CHANGE 1, 38-43 (2006) (analyzing Richard Wright's
novel Native Son and the trial of the main character, Bigger, to demonstrate racial trespass).

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 759

intercourse that is evidenced by Maycomb's white society81 girds the
statutory circumscription of cross-race sexual relationships for centuries.

Collette Guillaumin unmasks these operations in her work Race
and Nature: The System of Marks by provocatively asking the question:
What "natural group" did the children of slaves and masters fall into during
the eighteenth century? 82 In answering the question, Guillaumin exposes the
fallacy of presuming that the morphological "markings" of a body, the
ostensible basis for race, arise from immutable inheritances or natural law. 83

Instead, she exposits that the mark of race, and therefore slavery, is
relational: it did not pre-exist the social condition of enslavement. 84 Biracial
children exposed the artificiality of the racialized body by falling into more
than one column of the rubric at once. Thus, their destabilizing potential,
rather than their physiognomy, explains their treatment. 85 Such a premise
better explains the motivation behind placing children in a variant of
servitude-either indentured service or slavery-regardless of their
biological forbears' status. Typically, a child born to an enslaved black
mother was bound because it was argued the baby's identity could not be
severed from that of the maternal biology. 86 In Virginia, biracial children's
legal status was derived from their mother as a matter of law.87 If the child
was born to an enslaved woman it would likewise be deemed a slave.88

However-still invoking the rationale of maternal lineage-if the biracial
child was born to a white woman, despite her independence, the offspring
would be forced into indentured servitude until the age of thirty. 89 Likewise,

81 MOCKINGBIRD, supra note 1, at 231-32 (describing Atticus's closing statement

in which he discusses social taboos against interracial intimacy).

82 Colette Guillaumin, Race and Nature: The System of Marks, in FRENCH

FEMINISM READER 77, 84 (Kelly Oliver ed., 2000).

83 Id. at 88-89.

84 Id. at 89.

85 See id. at 88-89.

86 See id. at 88.

87 Karen Woods Weierman, "For the Better Government of Servants and Slaves

The Law of Slavery and Miscegenation, 24 LEGAL STUD. F. 133, 134-36 (2000) (tracing the
history of the "condition of the mother" laws in Virginia).

88 id,

89 Id. See generally Guillaumin, supra note 82, at 84-85.



Columbia Journal of Gender and Law

Maryland law, although purporting to align with paternal blood, evolved to
render all mixed race children slaves, even those born to white women. 90

South Carolina forced all biracial children to work as indentured servants
until adulthood, even after adopting the maternal lineage rule in 1740.91

The precept that morphological markings of the body precede an
individual's social relationships was essential for the viability of slavery as
an institution and for continued subordination of African Americans under
Jim Crow regimes. Aunt Alexandra's preoccupation with, and insistence on,
models of heredity captures this ideology. 92 White supremacy relied heavily
upon theories of hermetic reproduction and replication, physiologically
closed borders between races, and distinguishing physical characteristics.9 3

As Guillaumin states:

The social idea of a natural group rests on the ideological
postulation that there is a closed unit, endo-determined
[determined from within], hereditary and dissimilar to other
social units. This unit, always empirically social, is supposed to
reproduce itself and within itself All this rests on the clever
finding that whites bear whites and blacks bear blacks, that the
former are the masters and the latter the slaves, etc. and nothing
can happen, and that nothing does happen, to trouble this
impeccable logic. The children of slaves are slaves, as we know,
while the children of slaves can also be-and often are-the
children of the master. What 'natural' group do they belong to? 94

Gender was therefore cardinal in maintaining the South's racial
caste system. Anti-miscegenation was enforced by scripting "woman"-
always white-as sexually passive and virginal in order to support the
cultural mythology underlying segregation and black inferiority. As Lillian
Smith unpacks:

[C]onventional white southern fears of black sexuality, which
drove the South . . . superimpose[d] the semiotics of Jim Crow

90 Weierman, supra note 87, at 141-42.

91 Id. (discussing the process of indenturing and, finally, the decision to make all

children born of enslaved persons likewise slaves under Maryland law).
92 

MOCKINGBIRD, supra note 1, at 147.

93 Guillaumin, supra note 82, at 83-85.

9' Id. at 84.

760 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 761

upon the white female body[;] . . .part[s] of [her] body are
segregated areas which [she] must stay away from and keep
others away from. These areas [she] touch[es] only when
necessary. In other words, [she] cannot associate freely with them
any more than [she] can associate freely with colored children. 95

Reinforcing her critique, Lee conversely narrates those white
characters in the novel who contest dominant conceptions of gender and
sexuality as the most enlightened individuals in terms of the South's
overarching race problem. A host of positive white characters reinforce
Lee's argument that gender and its behaviors are socially constructed.
Unlike the members of the Missionary Circle, however, these figures do not
participate in the model blindly, but by appraising the process of gender
assimilation and either consciously attempting to emulate it or by
repudiating parts of the performance entirely. Scout, in particular,
interrogates the process of achieving femaleness. Attempting to reconstitute
herself as feminine, a role she finds exceedingly difficult to fulfill,96 she
watches Calpurnia cooking and "beg[ins] to think there [i]s some skill
involved in being a girl."97 Being female, Scout intuitively comprehends, is
an acquired proficiency. The essentialized woman does not inevitably exist.
Rather, she is an ideal-one that female children aspire to become; a stage
"where on its surface fragrant ladies rocked slowly, fanned gently, and
drank cool water;" 98 and "a polite fiction at the expense of human life." 99

Likewise, the inspiration for Charles Baker Harris-better known
as Dill-is known to be Harper Lee's childhood friend Truman Capote, the
openly gay author of the classic In Cold Blood.'00 In the scenes when Dill's
effeminacy and queerness are most pronounced, Lee reflects on the
procedures of racism most explicitly. During Tom's trial, for example,
Dill's protracted sobs reverberate so audibly and that Scout must escort him

95 LILLIAN SMITH, KILLERS OF THE DREAM 87 (1961).

96 Id. at 90, 117, 131, 263. Scout does not want to be, and does not succeed in
being, a "lady." See also JOHNSON, supra note 2, at 53-56; Richards, supra note 35, at 154-
55 (noting how tomboyish ways were monitored and disciplined in line with codes of the
South).

97 MOCKINGBIRD, supra note 1, at 132.
98 Id. at 266.

99 1d. at 167.

100 Richards, supra note 35, at 153-54.



Columbia Journal of Gender and Law

from the courthouse. She is tearless, despite belonging to the sex considered
too "frail" to serve on Alabama juries. 01 But Dill, in a visceral response to
the racism of the trial, falls physically ill.10 2 His epicene behavior is a
response to the degrading cross-examination that Tom had been subjected
to moments earlier. Dill's nonconformity testifies to the utter wrongness of
the South's behavior. Dolphus Raymond, who escapes punishment for
trespassing color barriers only by feigning alcoholism,'0 3 remarks as Dill
vomits, "[t]hings haven't caught up with that one's instinct yet. Let him get
a little older . . . he won't cry... not when he gets a few years on him.",0 4

Mr. Raymond's insights into masculinity echo Scout's earlier musings on
becoming female. It is a learned behavior. Mr. Raymond's words also serve
as a warning to Dill about what assimilating into masculinity means within
the contours of southern social codes: losing part of his humanity.

Almost immediately, the costs of his increasing acculturation
become evident as Dill moves to erase his effeminacy by expunging his
race consciousness. "'Cry about what, Mr. Raymond?' Dill's maleness was
beginning to assert itself.' 1 5 Scout's observation speaks on two levels. In
one sense, the essence of masculinity is exposed. Maleness, like femaleness,
is not a natural state but is rather an institution into which children are
recruited. At the same time, Scout's prognostications elucidate the ways in
which race is marginalized upon entry into the sphere of the quintessential
male who, like the female, is always white in the southern imagination. To
acquire admission, boys must revisit their relationship with inequality,
become inured to the violence of racism, and make whiteness the universal
experience-the same way in which whiteness serves as the focal point of
femininity.

Representations of Atticus-his age, eyesight, profession,
mannerisms and hobbies °06- function to undermine assumptions about
straight maleness by associating his self-aware aberrance from masculine
norms with more noble racial aspirations, against the backdrop of a hostile
racial climate. Lee writes:

101 MOCKINGBIRD, supra note 1, at 252.

Id. at 225.

103 Id. at 227-28.

4 Id. at 228-29.

'05 Id. at 229.

116 Id. at 102-03.

762 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mock-ingbird

Atticus was feeble: he was nearly fifty.... Our father didn't do
anything. He worked in an office, not a drugstore. Atticus did not
drive a dump-truck for the county, he was not the sheriff, he did
not farm, work in a garage, or do anything that could possibly
arouse admiration of anyone. Besides that, he wore glasses ... he
never went hunting, he did not play poker or fish or drink or
smoke. He sat in the livingroom and read.107

As with Dill, it is in the scenes where Atticus loses or rejects his
claims to heteronormative maleness that masculinity is most lucidly
stripped down to structural violence by whites and systemic subordination
of blacks. When Atticus's eyes "fill[] with tears" it is in response to the
generosity of Maycomb's African American community,108 despite contrary
perceptions of them among the white citizens of Maycomb as "dissatisfied,"
"sulky," unintelligent, and living in "sin and squalor."10 9 Later, when the
citizens of Maycomb attempt to lynch Tom, Atticus suffers an almost
maternal "flash of plain fear" and "trembling" for his imperiled children. 1 0

In bare contrast, at the same moment, the white residents of Old Suram who
comprise the lynch mob are represented, at least initially, as homicidal,
dishonest, threatening to youth, "cold-natured," and "sullen-looking." ' '

Through the repeated collocation of hyper-masculinity with
problematic racial politics, Lee succeeds in demonstrating the mutual
influence these phenomena have on each other. She uses an analogous
technique in associating femininity with racism through the women of the
Missionary Circle. But, it is also important to note that Lee's gender
narratives are not always as monolithic as they might seem at first glance.
By presenting inconsistencies, she illustrates the malleability of identity and
thus allows for the possibility of a changed future-an impossible trajectory
without recognition of the potential for human agency, consciousness, and
capacity for transformation. Thus, there are instances when her characters
transgress the tropes originally assigned to them. Atticus, for example,
clearly harbors certain skills classically associated with masculine identity.
This is demonstrated by his single-shot confrontation with the rabid dog,

117 Id. at 102-03.

"' Id. at 244.

109 Id. at 264-67.

"Old. at 172.

111 Id. See also JOHNSON, supra note 2, at 99.

763



Columbia Journal of Gender and Law

Tim Johnson-a feat so impressive that even the county sheriff defers to
Atticus's skill.' 1 2 As Miss Maudie tells it, "Atticus Finch was the deadest
shot in Maycomb County in his time. ... His nickname was 01' One-Shot..
• . If he shot fifteen times and hit fourteen doves he'd complain about
wasting ammunition."'" 3 Similarly, Mrs. Dubose functions as another such
exemplar, frustrating her own gender normative and sexuality normative
rhetoric with her markedly unladylike qualities. Before her death, Mrs.
Dubose is vindictive, vicious, uncharacteristically loud, dishonest, and
belligerent." 4 Unlike the women of the Missionary Circle, she is not
graceful or beautiful. After rebuking Scout for her undesirable trajectory in
life, she "put her hand to her mouth. When she drew it away, it trailed a
long silver thread of saliva."" 5 Descriptions of Mrs. Dubose are often
grotesque, itemizing her monstrosity; Mrs. Dubose had a face

the color of a dirty pillowcase[;] ... her mouth glistened wet....
Old-age liver spots dotted her cheeks and her pale eyes had black
pinpoint pupils[;] ... cuticles were grown up over her fingernails.
Her bottom plate was not in, and her upper lip protruded[;] ...
she would draw her nether lip to her upper plate .... This made
the wet move faster.116

The incongruities between these characters and the idealized norms
of the time delineate the lapses between personal experience and
institutional agendas. In so doing, Lee's imagery outlines a space for
reconstituting gender through the very act of making visible its
performative disposition. Further, by illustrating the traumatic
psychological, economic, and emotional toll exacted from the characters,
who despite their best efforts fail to satisfy institutional dictates, Lee
illuminates the assiduous efforts undertaken by society in maintaining the
legitimacy of governing gender norms. Atticus compliments Mrs. Dubose,
"Good Evening, Mrs. Dubose! You look like a picture this evening."' 7 The
praise observes that femaleness is always about visage-it is about being a

112 MOCKINGBIRD, supra note 1, at 109-10.

Id. at 112.

Id at 114-16.

Id. at 117.

116 Id. at 122.

"'7Id. at 115.

764 [Vol. 18:3



90091 Rape, incest, and Harper Lee's To Kill a Mockingbird 765

picture, an image which is widely propagated, internalized, and believed.
Between the elaborate artifice of the women of the Circle, Atticus, and Mrs.
Dubose's inconsistent performances, Lee illuminates the disjuncture
between individual and ideology. Yet simultaneously, Mrs. Dubose's
victory over drug addiction just prior to her death fulfills Lee's second
ambition-to prove the existence of free will and the potential for positive
change within even the most entrenched players.

Due to Lee's understanding of gender as a schooling normative
force in the structures of racism, it is unsurprising that few of her characters
fulfill the criteria of successful gender performance. Mrs. Dubose's
alienation, drug addiction, and ninety-eight pound frame prove
unequivocally that when characters involuntarily fail to conform, the price
exacted is a heavy one. 118 Through punitive cultural censure, the strict
hierarchies and power arrangements are achieved and maintained. But there
is no better representative of the dangers of failure than Mayella Ewell who,
in Kathryn Lee Seidel's words, embodies the "destructiveness of the belle
gone wild."'1 19

Mayella Ewell serves as the focal point of the southern rape
complex in the novel both because of her gender and, crucially, because of
the control exercised over her sexuality by law, culture-even her own
father-in part for racist purposes. White society has utterly abandoned the
Ewells in all other aspects, especially Mayella, who despite her attempts to
assimilate into it-her red geraniums, efforts at cleanliness, literacy, and
desire for intimacy-is not permitted entrance. 20 The Ewell men ostensibly
fail even to try: the truancy police require but a single day of schooling for
the children, none of whom are functionally literate (with the exception of
Mayella). 121 The family lives surrounded by dirt and trash near the
community dump, closer in physical location to the black citizens of
Maycomb than to the white ones-living, even, in a house once occupied
by a black owner. 122 Lee depicts the Ewells as choosing this state with the

'18 id. at 127-28.

19 Kathryn Lee Seidel, Growing Up Southern: Resisting the Code for Southerners
in To Kill a Mockingbird, in ON HARPER LEE 79, 87 (Alice Hall Petry ed., 2007).

120 MOCKINGBIRD, supra note 1, at 33-34, 218. Scout recalls the clean corner of the
Ewell home and realizes how lonely Mayella is. During the trial it is revealed that Mayella is
the only child who can write at a rudimentary level as well, and throughout the book we are
reminded that the rest of the family cannot and does not particularly care to learn how.

121 MOCKINGBIRD, supra note 1, at 29-30.

122Id. at 33-34, 192-193.



Columbia Journal of Gender and Law

ambiguous exception of Mayella. She portrays them as indolent, black
hearted, and dishonest 123 -wards of the state who revel in their
circumstances and who harbor no intent or desire to change it. 124 They are
blamed for their own inhumane conditions, a refrain common in today's
contemporary discourse on poverty;1 25 the family is forgotten, reviled, and
distanced until the white community requires a temporarily alliance in the
face of racial integration.

Mayella is, for this reason, partially identified with Boo Radley, the
mysterious secondary protagonist of the novel. Both characters exist on the
fringes of society. Mayella is marginalized both because she desires-but
fails-to realize southern standards of femininity and because of her
family's poverty, the latter being a status that her racial peer group deems
deserved and thus a sufficient excuse and justification for ostracizing her. In
contrast, Boo is a voluntary outcast, understanding the brutality of
assimilation and wishing not to conform to the predominant social
directives, and choosing instead to remain secluded at the closing of the
novel. Boo aspires only to reclusiveness. "Will you take me home?" he asks
Scout, "in the voice of a child afraid of the dark."' 126 He enters his house,
closing the door behind him, and Scout "never [sees] him again.' ' 127 In his
brief, violent exchange with the outside world, Boo fatally stabs Bob Ewell
in order to defend the Finch children. He then self-consciously touches
Jem's head as the boy lies injured and unconscious, a gesture that
appreciates the innocence of youth and its inevitable violent lOSS. 128

Immediately thereafter he returns to his own psychological (and physical)
ambit, never to emerge again. By linking Boo and Mayella in their
relationship to society, Lee questions the role of violence and sexuality in
the maintenance of racial subordination, positioning sex as integral to
gender and racial personality. Both characters share a similar past: they
enter the story as hyper-sexualized, aggressive incarnations of their

123 Id. at 29-34,192-193.

1
24 1d. at 192-193.

125 Id; see Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To

Kill a Mockingbird, 45 ALA. L. REV. 511 (1994). For analysis in contemporary discourse see,
for example, Thomas Ross, The Rhetoric of Poverty: Their Immorality, Our Helplessness, 79
GEO. L.J. 1499 (1991).

126 MOCKINGBIRD, supra note 1, at 319-20.

121 Id. at 320.

21 Id. at 317-20.

766 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 767

respective genders. Maycomb speculates that Boo, falling in with a "bad"
crowd, stabbed his father in rebellion against the discipline the patriarch
represented and in the youth's attempt to gain independence and
ascendancy. 29 Mayella, despite clutching to racism, still proves willing to
miscegenate in order to satisfy her desire for sexual intimacy. Moreover,
she is the character in the book depicted as most overtly sexual and least
benignly domestic. Both Boo and Mayella are consequently punished
through the mechanism of exclusion from the community; Boo is physically
confined to his home, while Mayella is socially ostracized.

Because of his maleness, Boo's hermitic existence functions
differently. He cannot be dominated by his father male sentry as completely
as Mayella can by hers. His confinement emasculates and asexualizes him,
penalizing him for his youthful offenses, but it also facilitates his
redemption by distancing him from the degrading racial politics of the era.
The threat of his masculinity now eviscerated, it is Boo who ultimately kills
Bob Ewell, even though both are white, because Boo retains a degree of
autonomy and self-control by divorcing himself from the requirements of
his gender-and consequently of his race. Conversely, Mayella is trapped
because she does not want to estrange herself from her gender. Lee reveals
how Mayella's gender facilitates her sexual exploitation as she is
abandoned to incestuous sexual violence while trapped, like Boo, in the
private, familial sphere-the traditional realm of male authority. Her
acculturation thus takes a very different path from Boo's and eventually
culminates in the false rape claim she levies against Tom.

The constructions of gender-both masculine and feminine-which
Lee critiques are reflective not only of race but also of the enforcement of
compulsory heterosexuality and female sexual subordination. As the theory
of intersectionality predicts, sexual behavior plays a prominent role in
molding other social classifications and is itself a manifestation of
ideological forces, completely divorced from any claims to natural
inclination. Lee's narratives of heterosexual intimacy are either violent and
repulsive or are completely absent where they might otherwise be
represented positively. This sexual landscape not only implicates
configurations of gender and race, but also insinuates that law, a central
force in To Kill a Mockingbird,130 participates in reifying problematic and
often destructive embodiments of sexuality. The legal framework in which

1291d. at 11-12.

130 See generally Woodard, supra note 12, at 69-70; JOHNSON, supra note 2, at 95

("Laws and the legal system, both official and unofficial, form the skeleton of the
narrative.").



Columbia Journal of Gender and Law

Tom Robinson is punished and murdered13
1 is one in which "the kinds of

justice administered by southern mobs and southern courts were often
indistinguishable"1 32 and "mobs and juries [were] indistinguishable.0 33 Yet
Lee was writing during a period in United States history when federal
courts had attempted to dismantle legal segregation, and clashes between
the technical rule of law and lawless tacit social codes were common as the
two regulatory systems converged.1 34 Southern recalcitrance took the form
of mob justice as federal political will receded. 135

In the end, law in Mockingbird not only fails to solve the South's
race problem while "the secret courts of men's hearts"'' 36 predetermine the
verdict against Tom, but it also fails to take cognizance of or account for the
actual sexual violence which transpires in the text-incest and rape between
a (white) father and his daughter.137 Mayella and Bob Ewell's relationship is
the only actual performance of heterosexuality in Mockingbird, and it is
suffused with perverse brutality. Mayella's compelled accessibility to her
father assumes the form imposed by a race-based caste system responding
to fears of miscegenation. Societal organizing principles arise that focus the
cultural and legal gaze on one set of contacts-in this case interracial
relationships-while other combinations, often violent, are obfuscated.
Mayella is thus driven to fabricate rape charges against a black man instead
of making the same accusations against the true perpetrator, a white one.
But when Bob Ewell shouts at Mayella, "[Y]ou goddamn whore, I'll kill
ya, ' 138 after he finds her with Tom, it is clear her chastity or health are not
his concern; he never calls a doctor, and Mayella is distinctly not virginal.1 39

131 MOCKINGBIRD, supra note 1, at 268.

132 Sundquist, supra note 11, at 79.

133 Id. at 87.

134 See JOHNSON, supra note 2, at 96-103, 105-06.

135 See Sundquist, supra note 11, at 79 (describing a revival of "Judge Lynch").

136 MOCKINGBIRD, supra note 1, at 276.

137 See Seidel, supra note 119, at 87. (stating "According to Atticus's definition of
it ('carnal knowledge of a female by force and without consent'), Mayella was indeed raped
by her father, as he beats her if she does not comply.").

138 MOCKINGBIRD, supra note 1, at 221.

139 See Seidel, supra note 119, at 87 (noting that the codes of southern womanhood

produce the fiction of Mayella's virginity for the purposes of fortifying the South's rape
complex, but Mayella is not in fact a virgin; she is regularly raped by her father).

768 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 769

Instead, his anger is motivated both by racism and his own dominion over
Mayella's sexuality, which her intimacy with Tom threatens-an
expression of jealousy that is common in domestic abuse to this day. 140

Lee's novel is devoid of the prototypical narratives of heterosexual
romantic relationships common to much literature of this genre. Romance is
absent. Paralleling her strategies for gender, the white characters of the
novel that are favorably portrayed are either widowed, such as Atticus,14 1 or
adamantly single like his brother Jack. 142 Miss Maudie Atkinson, the white
woman who most challenges both normative femininity and racism,
remains disinterested in her marital prospects, as she annually declares with
relish her intention to remain single: "Call a little louder, Jack Finch, and
they'll hear you at the post office, I haven't heard you yet!"' 43 Atticus notes
of Judge Taylor, the straight, married minor hero of the book, that he
"didn't kiss [his wife] much."'144

The southern rape complex is one of only two prominently figured
heterosexual facets of the plot; the second is the extremely violent
relationship between Bob and Mayella Ewell.145 Lee reminds us that
Mayella, in her own subtle, complicated fashion, inverts the familiar
archetype of the southern woman. She is fundamentally pitiful-a failed
and destitute belle abandoned by both nation and neighbor, except when she
can be used to perpetuate racism. She is both produced and victimized by
the South's social and legal codes. Despite her utmost efforts to satisfy her
role, she is ignored by a community that shares nothing with her and
supports her only so far as she functions to maintain racial hierarchy. 46 Her

140 See generally Donna Coker, Heat of Passion and Wife Killing: Men Who

Batter/Men Who Kill, 2 S. CAL. REV. L. & WOMEN'S STUD. 71 (1992) (surveying historical
use of voluntary manslaughter in cases where husbands kill unfaithful wives).

141 MOCKINGBIRD, supra note 1, at 6.

142 Id. at 89, 99.

143 Id. at 49.

14 4 Id. at 188.

145 See Richards, supra note 35, at 175.

146 MOCKINGBIRD, supra note 1. Poverty is often correlated with this consideration

as discussed supra, notes 120-25 and accompanying text. The Ewells are clearly poor, and
the Old Sarum residents hardest hit by the depression are those who generally comprise the
mobs as well as the juries. However, wealth does not go uncensored by Lee. Dolphus
Raymond, a wealthy character, and the Finch family might be of a higher socioeconomic
class, but Aunt Alexandra's tirade against white "trash," MOCKINGBIRD, supra note 1, at 256,
the Missionary circle's mores, Miss Gates's racism despite her proclaimed dislike of Hitler,



770 Columbia Journal of Gender and Law [Vol. 18:3

father neglects, rapes, and beats her. Though Bob Ewell is the person who
compels Mayella to come forward with rape charges, 147 her own intense
racism fuels the process. Mayella subscribes to her whiteness a source of
power and wields it readily, having gained little else of value to show for
championing the dominant segregationist political and social milieu. She
has no friends-she does not even recognize the term- she is regularly
physically assaulted, and her father drinks away his relief checks, leaving
her to raise her six younger brothers. 48 Scout understands that Mayella
Ewell "must have been the loneliest person in the world. She was even
lonelier than Boo Radley, who had not been out of the house in twenty-five
years. 149

Mayella's sexuality functions in several ways in Mockingbird: she
implicates miscegenation; she is physically controlled by and sexually
available to her father; and she fails at sexual propriety, for she cannot
control her own bodily desires and does not wish to do so. These three
themes reveal the many ways sexuality was produced in relation to the
midcentury South's obsession with race. Heterosexuality in Mockingbird is
portrayed as forced; the prominent heterosexual acts figuring in the novel
are those of incest, not of romance. For Tom Robinson testifies that Mayella
claimed, "she never kissed a grown man before an' she might as well kiss a
nigger. She says what her papa do to her don't count."' 50 The allusion to
incest and rape is drawn from the dialogue where Bob Ewell's abuse is
made evident, and Mayella's silence in response to questioning at trial is
suspiciously telling. By inverting the rape complex dominating southern
discourse during desegregation, Lee locates sexuality within the region's
historic social and political orders. Heterosexual intercourse is thereby
revealed not solely as a natural occurrence, but also as a project that,
although presumptively innate, is in fact a product of systemic institutional
construction.

id. at 282-83, and Atticus's explanation on why the wealthier don't participate in juries, id.
at 252-53, offer insights that contradict the facade that only the poor participated in racism
and facilitated ongoing inequality.

147 See id. at 199, 208-09, 212-14 (Bob Ewell was unconcerned with Mayella's

injuries because he instigated them. Lee also insinuates that Mayella was looking to her
father as the source of violence and for answers while testifying, and she indicates that he-
and not Tom-beat Mayella).

1
481d. at 199-201,207-09, 213,224.

1491d. at 218.

150 Id. at 221 (emphasis added).



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 771

Mayella's sexuality contrasts distinctly with that of other female
characters. Miss Maudie, for example, is distinctly asexual, exhibiting no
heterosexual impulses despite the pressure of constant societal expectation.
In his discussion of queerness among Maycomb's citizens, Richards queries
how we are to read her and other fixedly single characters. 15 ' The characters
whose performances of gender and sexuality contrast most to Mayella's are,
not surprisingly, the women in the Missionary Circle. Their sexuality is
marked by gender hierarchy, maternity, propriety, whiteness, and disavowal
of personal agency and transgressive desires. By juxtaposing Mayella's
sexuality with that of the Missionary Circle, Lee disambiguates
heterosexual behavior from its oft-ascribed positive qualities, as she does
likewise with gender identity. She thereby shows that sexuality, like gender,
is not a natural state of being but instead is socially constructed. Lee does
not, however, condemn all heterosexuality. Rather, by separating the fact of
heterosexuality from common positive assumptions about it, or tinting those
ostensibly positive attributes with racism, Lee makes her critical point:
there is nothing inherent about sexual normalcy, just as there is nothing
inherent about gendered performances. Norms surrounding sexuality are
malleable, evolutive, and are mutually constituted by considerations of race
and gender. Thus, women's sublimation of desires to the superior call of
chaste domesticity cannot necessarily be equated with compassion, caring,
and morality; heterosexual sexual intimacy does not necessarily yield
stability and peace. Where cultural mythologies alone fail, sexual violence
works in tandem to maintain existing gender and race power relations.
Consequently, there are two violent plot devices in Lee's novel: Mayella's
abuse and her contrived rape charges. These two acts problematize
dominant conceptions of sexuality that reinforce demarcated boundaries of
racial purity, as well as the allegedly innate nature of sexuality. Lee's
allusion to Bob Ewell's incestuous violence, though subtle, is an invaluable
part of her analysis because it brings to the forefront the role of sexuality in
upholding racial segregation.

III. INCEST AND RAPE:
ALABAMA LAW FROM 1930 TO 1960

In To Kill a Mockingbird, Harper Lee exposes the ways in which
gender and sexuality contribute to the construction of racial personalities.
Through her fiction, she acknowledges and addresses obliquely the forces
operating in the South's struggle over desegregation. Mockingbird's

151 See Richards, supra note 35, at 151.



Columbia Journal of Gender and Law

characters echo, but also subvert, the iconic southern belle, the menacing
black male rapist, and the constitutive relationship between gender and
sexual norms in an era defined by white obsession with creating and
maintaining racial signification. Lee discloses the continuous legal and
cultural labor white patriarchy exerts in order to frame the feminine
archetype as pure, virginal, white, threatened by black masculinity, and
subservient to white patriarchy.

The long relationship between law and the novel arises from the
shift in paradigm Lee employs-switching from Scout's daily life and
tribulations to the detailed scenes of a court trial-and from the use of her
characters as mechanisms of critique throughout. Mimicking dominant
cultural fables, Tom's trial draws upon themes from Lee's surroundings,
employing the adjudication trope as a plot device not only to explore legal
codes but the tacit social codes of the South as well. These interpolations,
amongst other achievements, reveal how women's sexuality was shaped by
the ideologies of white supremacy permeating both the courts and the
community at that time. Visions of black-on-white "rape" dominated
southern white psychology, mandating the prohibition of interracial
intimacy and justifying imprisonment, capital punishment, and even
extrajudicial lynching. 152 The merest insinuation of rape unleashed a frenzy
of violence, even in situations where the accusations were almost
completely unsupported by evidence.153 Conversely, black women were
rarely "raped" according to the legal and societal understandings of the
crime. 154 Though black women experienced sexual violence and assault
frequently, often systematically as part of broader processes of racial
subordination, their injuries were legally invisible, if not openly sanctioned
by the legal establishment itself.155

White women were themselves rarely "raped" when the assailant
was also white, though for considerably different reasons than those
pertaining to black women. Lee touches upon just this facet through the
sexual abuse that Mayella faces at the hands of Bob Ewell, and by the
town's noticeable indifference to her plight. While violations of white
women's innocence pervaded the regional imagination, the impetus for the

152 Sundquist, supra note 11, at 78-79, 90, 92-93.

'53 Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L.
REv. 581,599 (1990).

154 Id.

... Id. at 598-99.

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 773

obsession was racial antagonism, rather than a concern for female sexual
agency. In the words of one Maycomb citizen, "[tlhey c'n go loose and rape
up the countryside for all 'em who run this country care." 156 The emphasis
is on blacks "going loose," gaining mobility, not on the ill effects of sexual
invasion: hardly a disparagement evidencing the critical dissection of the
gendered nature of rape. As a consequence, recourse for sexual violence
was minimal when the assailant was white. 57 This was particularly true in
cases pertaining to white women who had reached the legal age of consent.
Courts often viewed sexual access in these instances as the prerogative of
husbands,'58 shied away from scrutinizing fathers, and located blame with
the victim herself. 59 Such state-sanctioned sexual prerogative, both legal
and cultural in nature, assumed many faces encapsulating marital rape and
incest. These intimate relationships were central in educating white women
about their proper roles within racial and gendered hierarchies.

Lee's explicit and implicit critiques of the law in Mockingbird
suggest some of the ways in which the legal institution inculcated Jim Crow
practices in the South. For example, legislators banned miscegenation and
recognized sexual access as the husband's proprietary interest in marriage,
courts adjudicated rape so as to exclude marital rape and incest, and, less
overtly, law conceptualized familial and sexual relationships among whites.
The ways in which legal regulation of the family contributed to shape
dominant perceptions of normative sexuality during slavery and Jim Crow
are only now beginning to be explored. However, the roles and
responsibilities assigned to each member of the family factored
significantly into creating the distinctly racially segregated and
heteronormative ideal critiqued in Mockingbird. Thus, it is not accidental
that the modes of sexual violence inflicted upon Mayella in Mockingbird
went overlooked by both the community and courts, while Tom was
victimized by cultural prohibitions of miscegenation. These narratives track

156 MOCKINGBIRD, supra note 1, at 153.

157As discussed throughout the pages that follow, rape occurring within
relationships that tend less frequently to cross the color line was not recognized as rape under
law. The most prominent example of this is of course marital rape, but it also includes such
sexual violence as incest, which I canvass in detail, and acquaintance rape, which I also
show was not prosecuted.

158 See Lalenya Weintraub Siegel, Note, The Marital Rape Exemption: Evolution

to Extinction, 43 CLEV. ST. L. REv. 351, 353-64 (1995) (detailing history and justifications
of the marital rape exclusion).

159 See infra notes 259-71 and accompanying text.



Columbia Journal of Gender and Law

law's failings during the decades implicated by the novel: the 1930s, in
which Mockingbirdis set, through the late 1950s, when it was written. In
the South's legal and societal efforts to construct the "bestial black man ' 1 60

and passive, white, heteronormative woman,' 61 sex-particularly women's
sexuality, whether black or white-became a critical battleground for
ideological race wars. How the female could experience her sexuality and
which intimate relationships she could enter became, therefore, subjects of
significant legal and soietal attention.

The sexual experiences of both black and white women were of
central import to the legal establishment, though in dissimilar ways.
Violence was meted out disproportionately upon the black community,
although white women who transgressed their assigned gender roles also
suffered severe consequences. White men were almost never punished for
these crimes, either legally or in society's heart. 162 In one graphic example,
a white woman's labia were slit on both sides, and a padlock strung through
and locked as the Ku Klux Klan's punishment for her cohabitation with a
black man. 163 In another instance, the KKK fatally burned three black men
and three white women for living with each other. 64

At the same time, as Professors Angela Harris and Kimberl
Crenshaw note, the intense forms of violence black women experienced
were never understood to be an injury before law.' 65 In Rape, Violence, and
Women's Autonomy, Professor Dorothy Roberts explores sexual violence
visited upon black women as a mechanism for asserting racial control: for
profit, for pleasure, or to instill fear. Whether to fragment the black family
and community or to emasculate black men, the rape and sexual abuse of
black women was prevalent and periodically legally sanctioned. 166

160 See generally N. Jeremi Duru, The Central Part Five, The Scottsboro Boys, and

the Myth of the Bestial Black Man, 25 CARDOZO L. REV. 1315, 1321-39 (2004); Cardyn,
supra note 21, at 695-96.

161 See Chura, supra note 10, at 119.

162 Cardyn, supra note 21, at 766.

163 Id. at 743-44.

164 Id. at 769.

165 Harris, supra note 153, at 599-601; Crenshaw, supra note 14.

166 Dorothy E. Roberts, Rape, Violence, and Women's Autonomy, 69 CHI.-KENT.

L. REV. 359, 366-67 (1993).

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 775

White men exploited Black women sexually before and after
slavery as a means of subjugating the entire Black community.
During slavery, white slavemasters raped Black women both for
pleasure and profit. They considered slave women to be purely
sexual objects, to be raped, bred or abused. After Emancipation,
white employers continued to subject Black women who worked
as servants in their homes to sexual violation. The Ku Klux
Klan's terror included the rape of Black women, as well as the
more commonly cited lynching of Black men. White sexual
violence attacked not only freed Black men's masculinity by
challenging their ability to protect Black women, but also freed
Black Women's devotion to their own families.

The criminal law has enforced this racial construction of rape.
The legal treatment of rape targets Black assaults of white
women and devalues rape's injury to Black women. For much of
American history, the rape of a white woman by a Black man was
considered a capital offense; while the rape of a Black woman
was hardly punished, if at all.' 67

Forms of sexual violence ranged from whipping and rape to other
types of sexual torture; all were unique methods of violence employed by
the white patriarchy long after the formal cessation of slavery' 68 as means of
reasserting racial, gender, and class dominance. 69 This interpretation of the
violence perpetrated against black women is buttressed by the collective
nature of the endeavor. 170 Going beyond private rape, violence against black
women regularly became a white male communal act, and one that
reinforced group psychologies of superiority and accomplishment. 71

Professor Roberts juxtaposes the different experiences of white and
black women with rape in order to illuminate the ways in which black male
and female sexuality was configured to validate their subjugation. 72

Simultaneously, the construction of female sexuality as chaste, virtuous,

167 Id.

168 See Cardyn, supra note 21, at 699, 704, 716, 736, 719 (discussing Klan

violence in the Reconstruction era).

169 Id. at 721.

'
70 Id. at 727.

171 See id. at 730.

172 Roberts, supra note 166, at 365.



Columbia Journal of Gender and Law

passive, and white served as an instrument of racial domination.' 73 Roberts
hints, however, that the anxiety surrounding miscegenation and interracial
rape was rendered invisible when the assailant and the victim were both
white. 174 As reflected in contemporary debates, white brutality often
remains under-regulated and unacknowledged by courts; in other words, the
assault of a white woman by a strange black man receives disproportionate
attention compared to other sexual crimes such as acquaintance and marital
rape which are far more prevalent. 175

This dynamic operated starkly in the South before and during
desegregation. Southern courts and legislatures played no small part in
creating these repressive conditions. By penalizing or privileging varying
performances of sexuality in gendered relationships, the law indoctrinated
society with heterosexual customs that advocated racial bias. Richards,
commenting on the queer landscape of Mockingbird, notes that Lee's
narratives function to bare the South's racial paradigm and the ways it
depended not merely on gender, but also on the policing of sexual
desires. 7 6 The novel's favored characters deviate from standards of
heteronormativity, though their choices are not part of a politically legible
debate. By representing characters such as Miss Maudie in ambiguous
terms with regard to sexuality, Lee scrutinizes dominant sexual ideologies
in the same way she questions prevalent gender discourses, seeking to mark
out sexualities as both constructed and operating in tandem with other
cultural agendas.

173 Id.

174 See id. at 363-64. While black men were convicted frequently of raping white

women, a host of relationships that would apply tend to apply to white-on-white rape, such
as marital rape, were not criminalized.

175 Id. at 363-65; see also Susan Estrich, Rape, 95 YALE L.J. 1087, 1088 (1986)
(using a personal narrative-in the form of a story, although unfortunately not a fiction-to
help concretize the claim that interracial and stranger rape are the two forms of coerced sex
most commonly perceived as "rape," and that when the two converge the crime becomes
especially legible). This is not to say that stranger rape is not important. I mean only that
stranger rape makes up a small percentage of total rape in this country, yet the legal system,
media, and cultural attention focus on it rather than working to form a more inclusive
framework that would also address acquaintance and marital rape in proportion to their
actual prevalence.

176 See generally Richards, supra note 35.

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 777

Adrienne Rich deploys the lexicon of "force" in her milestone essay
Compulsory Heterosexuality and Lesbian Existence.177 While feminist
theorists such as De Beauvoir focused their critiques on dissecting the
artificiality of gender, Rich argues against assuming that heterosexuality is
"natural"-paralleling Guillaumin's protestations regarding innate race and
sex and De Beauvior's criticisms of gender. 178 Rather, society subjects
women to intense physical and psychological propaganda and pressure
regarding heterosexuality in its bid to maintain a particular distribution of
power in society.

[W]omen have been convinced that marriage and sexual
orientation toward men are inevitable, even if unsatisfying or
oppressive components of their lives. The chastity belt; child
marriage; erasure of lesbian existence (except as exotic and
perverse) in art, literature, film; idealization of heterosexual
romance and marriage-these are some fairly obvious forms of
compulsion, the first two exemplifying physical force, the second
two control of consciousness. 179

The responsibility of heteronormativity in maintaining race-based
hierarchy is only now becoming manifest. Professor Darren Hutchinson
critiques the essentialist examination of homophobic assaults and asks
critical race theorists to grapple with the multidimensional aspects of
violence against the gay community. 180 Histories of violence against gay,
lesbian, bisexual, and transgender racial minorities have been particularly
brutal, intimating the correlation between racial subordination and the
policing of sexual norms. 18' Looking at breakthrough moments in the gay
rights movement, such as the Stonewall Riots of 1969, Professor
Hutchinson expounds the disproportionate violence visited upon sexually
transgressive racial minorities.' 82 This imbalance speaks to the fact that

177 See generally Adrienne Rich, Compulsory Heterosexuality and Lesbian

Existence, 5 SIGNs 631 (1980).

178 See Guillaumin, supra note 82; DE BEAUVOIR, supra note 38.

179 Rich, supra note 177, at 640.

180Darren Lenard Hutchinson, Ignoring the Sexualization of Race:
Heteronormativity, Critical Race Theory, and Anti-Racist Politics, in FEMINIST LEGAL
THEORY 371 (Nancy Dowd & Michelle Jacobs eds., 2003).

181 See id.

182 id.



Columbia Journal of Gender and Law

white hegemony found aberrant sexual behavior by people of color
particularly threatening. 183 Minority rioters during Stonewall were thus
responding to more than just homophobia; rather, they were reacting to "a
multidimensional system of sexualized racial violence and harassment
directed toward them by the 'protective' arm of the state."'1 84

Elaborating on Kathleen Gough's The Origins of the Family, Rich
argues that mandated heterosexuality is an institutional mechanism that
reifies male power by denying women their own sexuality and forcing male
sexuality upon them through rape, marital rape, domestic violence, and
father-daughter incest.185 She argues that training women to intrinsically
desire the male sexual drive amounts to a misogynistic privilege to control
women's potential through an elaborate system based on conceptions of
sexuality. 186 Lee makes this same point, regarding both gender and racial
oppression. She invokes the father-daughter incest milieu to illustrate how
the imposition of sexuality and gender ideals fortify the myth of white
supremacy. Without utilizing overt language of sexuality, Lee exposits a
model where the investments of patriarchy and segregationists in
controlling sexuality converge to erase white sexual violence, all while
disempowering blacks in the battle over desegregation.

Homosexuality was not criminalized solely in the South, but the
region suffers from a particular notoriety for instituting and enforcing harsh
punitive measures against gay men and lesbians. To wit: the now-infamous
case of Bowers v. Hardwick,187 which putatively legitimized the
criminalization of sodomy,' 88 was a known euphuism for harassing and
even incarcerating gay men throughout the latter part of the twentieth

183 The imbalance also speaks to a process paralleling that above, but which is

applied to the inculcation, adoption, and policing of sexual norms within a particular
community, as racial identity is defined both within a group and in relation to outside forces.
See generally Adele M. Morrison, Same-Sex Loving: Subverting White Supremacy Through
Same-Sex Marriage, 13 MICH. J. RACE & L. 177, 205 (2007).

"' ld. at 371-72.

185 Rich, supra note 177, at 638-39.

186 id.

187 478 U.S. 186 (1986). The court denied standing to a heterosexual couple that

attempted to join the plaintiffs in challenging the sodomy statute. The decision was explicitly
about homosexual sodomy; the legality of heterosexual sodomy was not a question before
the Court. Note, however, that in this instance, Hardwick himself was ultimately never
imprisoned

188 Bowers was later overruled by Lawrence v. Texas, 539 U.S. 558 (2003).

778 [Vol. 18:3



2009] Rape, Incest, and Harper Leei To Kill a Mockingbird 779

century. 189 In upholding Georgia's penal sodomy laws as applied to
consensual oral or anal sex between two male defendants, 190 the Supreme
Court portrayed gay sex as repugnant to the natural order, illicit, immoral,
and worthy of stronger legal censure than even rape.' 9' It also detailed
Georgia's long history of both legally and socially condemning gay sex.' 92

Chief Justice Burger concurred:

Homosexual sodomy was a capital crime under Roman law.
During the English Reformation when powers of the
ecclesiastical courts were transferred to the King's Courts, the
first English statute criminalizing sodomy was passed.
Blackstone described "the infamous crime against nature" as an
offense of "deeper malignity" than rape, a heinous act "the very
mention of which is a disgrace to human nature" and "a crime not
fit to be named." The common law of England, including its
prohibition of sodomy, became the received law of Georgia and
the other Colonies. In 1816 the Georgia Legislature passed the
statute at issue here, and that statute has been continuously in
force in one form or another since that time. To hold that the act
of homosexual sodomy is somehow protected as a fundamental
right would be to cast aside millennia of moral teaching. 193

Alabama's history is no less punishing than Georgia's. Alabama's
criminal code was specifically modified to make the consent of parties
engaging in the behavior immaterial to the criminality of homosexual
conduct. 194 In cases occurring as late as the 1970's, the state heavily
penalized sodomy with prison sentences of between two and ten years., 95

189 See Mary Bernstein, Liberalism and Social Movement Success: The Case of

United States Sodomy Statutes, in REGULATING SEX: THE POLITICS OF INTIMACY AND
IDENTITY 3 (2005).

190 The Court refused to consider an as-applied challenge by a heterosexual couple

attempting to claim a "chilling effect" injury. Bowers, 478 U.S. at 188 n.2.

191 Id. at 197 (Burger, J. concurring).

192 id.

193 Id. at 196-97 (Burger, J., concurring) (internal citations omitted) (emphasis
added).

194 ALA. CODE § 13A-6-65 (LexisNexis 2007).

195 Boyington v. State, 45 Ala. App. 176, 177 (Ct. App. 1969) (sodomy
prosecution).



Columbia Journal of Gender and Law

The courts allowed the most skeletal of indictments to suffice because "the
crime against nature ... [is] too well known and too disgusting to require
other definition or further details or description."' 96 Living as an out lesbian
also carried consequences, including criminal penalties and loss of right to
custody of a child because, in the words of one court as recently as 1998,
"[the lesbian mother] has chosen to expose the child continuously to a
lifestyle that is neither legal in this state, nor moral in the eyes of most of its
citizens. ' '1 97

Between the South's criminalization of homosexuality and the
region's history of prohibiting interracial marriage, Lee's narrative reflects
what were then prevailing norms about sexual and familial roles and
relationships. From the years of slavery 98 until 1967, when bans on marital
miscegenation were finally held unconstitutional in Loving v. Virginia,99

white women's bodies served as a conduit for both black subjugation and
white patriarchal empowerment. Legendary civil rights advocate Ida B.
Wells criticized this dynamic in her campaign against lynching throughout
the late 1800s and early 1900s.

Not fifty of these [lynchings] were for political causes; the rest
were for all manner of accusations from that of rape of white
women....

These statistics compiled by the Chicago Tribune were given the
first of this year (1892). Since then, not less than one hundred and
fifty have been known to have met violent death at the hands of
cruel bloodthirsty mobs during the past nine months.

To palliate this record (which grows worse as the Afro-American
becomes intelligent) and excuse some of the most heinous crimes
that ever stained the history of a country, the South is shielding
itself behind the plausible screen of defending the honor of its
women. This, too, in the face of the fact that only one-third of the
728 victims to mobs have been charged with rape, to say nothing
of those of that one-third who were innocent of the charge. A

196 id.

'9' Exparte J.M.F., 730 So. 2d 1190, 1196 (Ala. 1998). The section was finally
declared dead by the state attorney general but only following Lawrence. For related
proceedings, see Doe v. Pryor, 344 F.3d 1282 (1 1th Cir. 2003).

198 See generally Getman, supra note 57.

'9' 388 U.S. 1 (1967).

[Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 781

white correspondent of the Baltimore Sun declares that the Afro-
American who was lynched in Chestertown, Md., in May for
assault on a white girl was innocent; that the deed was done by a
white man who had since disappeared. The girl herself
maintained that her assailant was a white man.200

Wells quotes a newspaper article that explicated how lynch mobs
exploited "the new alarm about raping white women. The same program[]
of hanging, then shooting bullets into the lifeless bodies was carried out to
the letter," but that "[n]obody in this section of the country believes the old
thread-bare lie that Negro men rape white women.' '201 Wells criticized this
phenomenon: "white men used their ownership of the body of white
females as a terrain on which to lynch the black male." 20 2

Against this backdrop, it is unsurprising that Tom, symbolizing
black men, was convicted and murdered for rape, and that Mayella,
emblematic of the white woman, was sexually abused by her father but
remained invisible to the law. Alabama's judicial treatment of rape and
incest paralleled these characters' experiences. From slavery onwards, the
terrain of sexuality played a pivotal role in maintaining the racial order.203

America's history with African Americans thus heavily impacted notions of
sexual normalcy in response to an enduring cultural anxiety surrounding
miscegenation.20 4

Southern states were often explicit about the racist objectives of
their rape laws. In some instances, grossly disproportionate enforcement
occurred in states with facially neutral statutes.20 5 In other states, the rape

200 IDA B. WELLS, SOUTHERN HORRORS: LYNCH LAW IN ALL ITS PHASES (1892),

available at http://www.gutenberg.org/files/14975/14975-h/14975-h.htm#THENEWCRY.

201 Id.

202 Roberts, supra note 166, at 366.

203 See Chura, supra note 10, at 117.

204 See A. Leon Higginbotham, Jr. & Barbara K. Kopytoff, Racial Purity and

Interracial Sex in the Law of Colonial and Antebellum Virginia, 77 GEO. L.J. 1967, 1968,
1996-97 (1989).

205 See Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of And

Remedies for, Prosecutorial Race-of- Victim Charging Disparities, 7 NEV. L.J. 1, 22 (2006)
(discussing neutral law enforcement following the restructuring of dual, race-based, criminal
codes). Though this Article only discusses sexual violence in Alabama through the 1960s,
statistical evidence presented in Furman v. Georgia, 408 U.S. 238 (1972), shows that nearly
ninety percent of those executed for rape until that date were non-white. Pokorak, supra, at



Columbia Journal of Gender and Law

legislation expressly targeted black men. 20 6 Territories such as Virginia, for
example, promulgated Black Codes that provided for the death penalty
where a black man was convicted of raping a white woman, but that omitted
similar penalization where the perpetrator was a white man.2 7 Alabama,
Mississippi, and Texas also eliminated the death penalty for white men
convicted of rape prior to the Civil War.20 8 Though scant, statistical
evidence on the race of the victim also buttresses the racial tone permeating
prosecution of rape in southern courts. Florida, for example, between 1940
and 1964, sentenced fifty-four men to death for rape convictions. Despite
facially neutral laws, only six were white, while forty-eight were black.
Ultimately, only one white man was executed, and he was gay. 209 Three
others had their sentences commuted and the state supreme court reversed
the sentences of the remaining two. All six of the victims were white, four
of whom were children.2 10 In contrast, eighty-four black men were
convicted of raping white women, with forty-five ultimately executed-a
frequency of fifty-three percent.21' What is imperative to note is that the
race of both the defendant and victimized female were thus delineating
elements.1 2

Florida was not singular in its practices for the South. From 1937 to
1950, with the exception of three executions that took place in Missouri, all

213of the executions for rape in the nation took place in southern states. Priorto the Civil War, Virginia provided for only five capital crimes for whites,

206 See Higginbotham & Kopytoff, supra note 204, at 1968 ("Virginia applied the

early law of rape more harshly to blacks than to whites: it punished only black men for
interracial rape and, in the nineteenth century, the state formulated anti-rape statutes directed
specifically at blacks.").

'°'1d. at 14-15.

208 See Peter W. Bardaglio, Rape and the Law in the Old South.- "Calculated to
Excite Indignation in Every Heart", 60 J.S. HIST. 749, 755 n.22 (1994).

209 Pokorak, supra note 205, at 31-32.

210 Id. at 32.

211 id

212 Of the 1,238 defendants convicted of rape from 1945 through 1965, 317 were

black and were convicted of raping white women. Thirty-six percent of black perpetrators
convicted of raping white women received the death penalty. Of the remaining cases, only
two percent of the defendants were sentenced to death. Id. at 34.

213 Id. at 32-33.

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2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 783

but seventy-two for blacks.214 Between 1909 and 1949, Virginia executed
fifty-two black men for rape; although roughly 800 white men were
convicted of rape during the same period, none were executed.215

Louisiana's dual code system, which was similar to Alabama's,
differentiated between rape crimes by creating different classifications that
carried disparate sentences and by applying them, typically, according to
the defendant's race.216 Rape, a substrate of sexual violence that was
defined as an aggravated form, carried the death penalty; 2 17 carnal
knowledge, or other such euphemistic variants, was subject to extremely
light sentencing. 2 8 In Georgia, the rape of a white female by a black man
was punishable by death; rape by anyone else of a white female was
punishable by a sentence of only two to twenty years.2

1
9 Meanwhile, rape of

a black woman was penalized only through civil fines or, rarely, through
imprisonment at discretion of the court.22 °

Term sentencing was likewise tainted by considerations of race.
Black men convicted of raping white women were twice as likely to receive
life sentences as were their white male counterparts. 22  Differential
sentencing was often overtly encoded into statute. However, historically,
southern courts, including those in Alabama, perpetuated such differential
sentencing through evidentiary rules molded around race. Here too, the race
of both the defendant and the victim mattered. As early as 1850, the
Alabama Supreme Court was explicit about its hierarchal motives. Thurman
v. State demonstrates the reality: in that case, insufficient evidence of the
victim's race resulted in sympathetic treatment of the defendant, while,
simultaneously, inconclusive data of his race was grounds for a new trial.22

1141d. at 11.

215 Id. at 33.

216 Id.

217 Id. at 32-33.

"' Id. at 33.

2 19
1 Id. at 12-13, 12 n.57.

220 Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another Racial

Prosecution and Wrongful Conviction in Maycomb, 45 ALA. L. REV. 403, 438-39 (1994).

221 See Carol S. Steiker, Remembering Race, Rape, and Capital Punishment, 83
VA. L. REV. 693, 699 (1997) (book review).

222 Thurman v. State, 18 Ala. 276, 279 (1850).



784 Columbia Journal of Gender and Law [Vol. 18:3

The court reversed a man's conviction for rape of a white woman because
he produced proof that his maternal lineage was white. 223

The few statistical studies of the era focus on disparate application
of the death penalty, although they rarely systematically document the
causal relationship between the courts' racial determinations regarding the
defendant and rape victim and the resulting sentence, because of failures by
southern courts to properly track this connection.224 The identity of both the
accused and the victim can be extrapolated from the case law by situating
decision-making within the passing references, circumstantial evidence, and
historical overtones of the court's jurisprudence. A survey of reported
opinions from rape cases before the Alabama Supreme Court and Alabama
Court of Appeals between 1930 and 1960225 indicates that all but two
involved white female victims, and that all but five involved black
defendants. In addition, the death penalty was imposed exclusively-and
almost uniformly-when the defendant was black and the victim white226: a

223 See Bardaglio, supra note 208, at 764.

224 Pokorak, supra note 205, at 26 n.131.

225 My survey looked at Alabama court cases decided between Jan. 1, 1930 and

Jan. 1, 1960 because this represents the time period between when Mockingbird was set and
when it was written.

226 The death penalty was imposed in a majority of the electronically-available

Alabama rape or intent to rape cases I surveyed where the victim was white and the
defendant was black. I assume both or one of the parties is white where the text of the
decision is silent on racial identity because Alabama courts tended to explicitly state the
defendant's or victim's color where black parties were involved. A similar pattern is found in
the incest case law I survey infra notes 275-78 and accompanying text. See, e.g., Walker v.
State, 269 Ala. 555 (1959) (death penalty imposed); Luker v. State, 268 Ala. 346 (1958)
(both assumed white because no race of either party given; fifteen year sentence); Thomas v.
State, 267 Ala. 44 (1958) (burglary and intent to rape; fifty year sentence; race of victim not
given); Huff v. State, 267 Ala. 282 (1957) (defendant's race inferred from characterization
by counsel: "ignorant and possibly mentally deficient Negro"; victim's race not given; death
penalty imposed); Reif v. State, 267 Ala. 3 (1957) (assumed both parties white because no
race given; thirty-five year sentence); Taylor v. State, 266 Ala. 618 (1957) (death penalty);
Jackson v. State, 264 Ala. 528 (1956) (victim's race not given; death penalty); Reeves v.
State, 264 Ala. 476 (1956) (death penalty; further proceeds appear below); Mincy v. State,
262 Ala. 193 (1955) (race of victim not given; defendant's inferred from stenographer
commentary; death penalty); Reeves v. State, 260 Ala. 66 (1953) (death penalty); Myhand v.
State, 259 Ala. 415 (1953) (death penalty); Washington v. State, 259 Ala. 104 (1953)
(presumption that both parties are white but could be mistaken; conviction for burglary in the
nighttime with intent to commit rape; seventy-seven-year-old widowed victim; death
penalty); Thomas v. State, 257 Ala. 124 (1952) (death penalty); Drake v. State, 257 Ala. 205
(1952) (death penalty; defendant also convicted of murder); Arrington v. State, 253 Ala. 178
(1949) (death penalty); Huntley v. State, 250 Ala. 303 (1948) (death penalty); Ex parte



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 785

Taylor, 249 Ala. 667 (1947) (death penalty); Scott v. State, 249 Ala. 304 (1947) (death
penalty); Taylor v. State, 249 Ala. 130 (1947) (death penalty); Smith v. State, 248 Ala. 363
(1946) (death penalty); Smith v. State, 247 Ala. 354 (1946) (second of the two appeals; death
penalty); Underwood v. State, 248 Ala. 308 (1946) (convicted of burglary and intent to rape;
death penalty imposed; victim not identified as white though text strongly implies it);
Daniels v. State, 243 Ala. 675 (1943) (death penalty); Ellis v. State, 244 Ala. 79 (1943)
(neither race of defendant nor victim given although it can be inferred victim was white;
twenty-five year sentence); Johnson v. Williams, 244 Ala. 391 (1943) (race of victim not
stated; death penalty); Robinson v. State, 243 Ala. 684 (1943) (death penalty); Williams v.
State, 245 Ala. 32 (1943) (death penalty); Johnson v. State, 242 Ala. 278 (1942) (death
penalty); Clark v. State, 239 Ala. 380 (1940) (race of victim not given but can be heavily
inferred as white-especially by hostility from jury; death penalty); White v. State, 237 Ala.
610 (1939) (death penalty); Cooper v. State, 235 Ala. 523 (1938) (death penalty); Norris v.
State, 236 Ala. 281 (1938) (Scottsboro; death penalty); Weems v. State, 236 Ala. 261 (1938)
(Scottsboro; death penalty); Collins v. State, 234 Ala. 197 (1937) (death penalty); Patterson
v. State, 234 Ala. 342 (1937) (Scottsboro; death penalty); Brown v. State, 229 Ala. 58 (1934)
(race of victim is not given but can be heavily inferred from text as being white; death
penalty); Norris v. State, 229 Ala. 226 (1934) (Scottsboro; death penalty); Jordan v. State,
225 Ala. 350 (1932) (conviction for murder though a rape is mentioned; color of victims not
given though heavily insinuated that they are white from the text; death penalty); Patterson v.
State, 224 Ala. 531 (1932) (Scottsboro; death penalty); Powell v. State, 224 Ala. 540 (1932)
(Scottsboro; death penalty); Weems v. State, 224 Ala. 524 (1932) (Scottsboro; death
penalty); McQuirter v. State, 36 Ala. App. 707 (Ct. App. 1953) (assault with intent to rape;
sentence not stated); Russell v. State, 36 Ala. App. 19 (Ct. App. 1951) (sentence not given;
intent to burglar and rape; race of victims not given but probably were white); Autry v. State,
34 Ala. App. 225 (Ct. App. 1949) (assault with intent to rape; both races inferred from
victim's story and evidentiary attack regarding how difficult it is for white women to
properly identity black men; twenty year sentence); McCollum v. State, 34 Ala. App. 207
(Ct. App. 1949) (reversing and remanding intent to ravish conviction because defendant was
improperly denied new trial, and holding that words alone not are enough-he had never
attempted to touch victim. The race of the defendant is inferred from the story and
evidence-the defendant was called a dam negro and the race of the victim and family can
be inferred as white because the family had "always been good to" defendant's family; no
sentence stated); Gordon v. State, 32 Ala. App. 398 (Ct. App. 1946) (potentially two white
parties; vague reference to a negro causing a concussion to victim uncorroborated by police
officer. This is not a "rape" case in the classic sense of term as the narrative indicates that the
woman was having sex with a white (?) man "optionally" and even conversed with a police
man who found them but then fabricated a story afterwards that she was unconscious at the
time); Allford v. State, 31 Ala. App. 62 (Ct. App. 1943) (no racial identifications given; no
sentence stated); Wilkins v. State, 29 Ala. App. 349 (Ct. App. 1940) (sentence eighteen to
twenty years; assault with intent to rape); Roberts v. State, 28 Ala. App. 553 (Ct. App. 1939)
(both parties potentially white; no race given; phrases such as "working girl" and "marriage
talk" also insinuate both were white; reversed and remanded because trial judge had not
allowed evidence that man was married to another woman and had three children to enter the
trial; seven to eight years in prison); Stewart v. State, 27 Ala. App. 315 (Ct. App. 1936)
(black defendant and black victim case; sentence not mentioned); Thompson v. State, 27
Ala. App. 104 (Ct. App. 1936) (second case which is between two black parties; sentence not
mentioned); Stewart v. State, 26 Ala. App. 392 (Ct. App. 1935) (second of two claims;
sentence not mentioned). None of the cases before the state supreme court or court of



Columbia Journal of Gender and Law

trend which persisted until 1977 when the imposition of the death penalty in
227cases of rape was held to be cruel and unusual punishment.

Infamous among the Alabama rape cases are the prosecutions of the
Scottsboro Boys, 228 nine black youths charged with raping two white
women, one of whom later recanted her story; the second, Victoria Price,
was suspected of prostitution and is widely believed to have fabricated the
charges to avoid her own prosecution. 229 The Scottsboro trials elucidated
the ways in which black men's guilt was predetermined and how criminal
charges could function as a pretext for terrorizing black communities. This
pattern became so apparent that the United States Supreme Court reversed
the convictions for violations of the defendants' due process rights. In
Powell v. Alabama,230 the Court found that the state had violated the
defendants' Fourteenth Amendment rights by denying the illiterate,
isolated, and violently harassed youth meaningful counsel.23' They were
given no opportunity to prepare for the trial until opening day;232 the
hearing was expedited so cursorily that the Court analogized its operations
to that of a "mob"; 233 and the defendants faced such overwhelming violence

appeals involved a black victim and white perpetrator and all of the cases before the supreme
court involved a white victim. In my estimation, only four rape cases, excluding statutory
rape cases, involved two white parties-and in two of these, the defendant's sentence was
overturned on appeal. Other states in the South paralleled Alabama in legislative and
prosecutorial history by systematically providing for, or at the very least applying, extremely
disparate sentencing criteria based on the race of both the defendant and victim. For
example, Louisiana prosecuted charges of sexual assault as either rape or the lesser offense
of carnal knowledge depending on the race of the perpetrator and victim. See Pokorak, supra
note 205, at 33.

227 Coker v. Georgia, 433 U.S. 584 (1977) (holding that imposition of the death

penalty for rape cases is cruel and unusual in violation of the Eighth Amendment).

228 See, e.g., Patterson v. State, 234 Ala. 342 (1937); Norris v. State, 229 Ala. 226
(1934); Powell v. State, 224 Ala. 540 (1932); Weems v. State, 224 Ala. 524 (1932). Each of
the boys, when convicted, was assigned the death penalty.

229 JOHNSON, supra note 2, at 7-8; Sundquist, supra note 11, at 91-93.

230 287 U.S. 45 (1932).

231 Id. at 71.

232 Id. at 56-57.

233 Id. at 59.

786 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill d Mockingbird

and hostility from the community that a militia was necessary to protect
them at all times. 234

[T]he ignorance and illiteracy of the defendants, their youth, the
circumstances of public hostility ... the fact that their friends and
families were all in other states ... that they stood in deadly peril
of their lives-we think the failure of the trial court to give them
reasonable time and opportunity to secure counsel was a clear
denial of due process.235

Rape then, in one sense, was legible for bigoted reasons. The state's
and the public's primary concern was hardly the well-being or sexual
agency of the ostensible victim. While rape of black women by white men
served to entrench black subordination,23 6 claims of rape levied by white
women against black men were also a tactic for doing so. 237 Both served
specific functions in reinforcing a hierarchical society organized around
race and gender signification.

In the antebellum South, the rape of black women was perpetrated
more often by white slave holders than by strange black men.238 Sexual
violence was prevalent, both during slavery and following its official
demise. As Professor Harris notes, in a majority of instances, black
women's experiences with rape throughout history were illegible as legal
harms; the rape of a black woman by any man was not understood as a
criminal act.239 As Alabama's case law reflects, rape laws were infrequently
invoked to protect black women in the era following the Civil War, in

234 Id. at 51.
235 Id. at 71.

236 Cardyn, supra note 21, at 677.

237 By 1925, the death penalty was available for rape of adults in eighteen states

and under federal law. See Elizabeth Gray, Death Penalty and Child Rape: An Eighth
Amendment Analysis, 42 ST. Louis U. L.J. 1443, 1447 (1998). States that applied the death
penalty for rape were concentrated in the South: Alabama, Arkansas, Delaware, Florida,
Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, North Carolina,
Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. Id. Excluding
Nevada and Delaware, they were all in the Southeast United States. One prevailing
explanation is that such laws existed to punish black men who raped white women. Id. at
1448-49.

238 Harris, supra note 153, at 598.

239Id. at 599.

787



Columbia Journal of Gender and Law

contrast to the partial or at least nominal protection white women enjoyed
under these statutes.2 40 Instead, evolving rape laws were employed by the
white community to terrorize the newly emancipated black community. As
Lee makes visible through Mayella's charges, white women played a
central role in this regime of subordination.

This last aspect of rape is not restricted to the distant past. Between
1930 and 1967, eighty-nine percent of men executed for rape in the United
States were black. Along a similar vein, a 1968 study in Maryland
unearthed that in all of the state's history, of the fifty-five cases resulting in
the death penalty, all occurred where the victim had been white.241
Conversely, between 1960 and 1967 in that state, forty-seven percent of
black men convicted of assaults on black women were immediately released
on probation.242 These conviction patterns reflect power delineations drawn
along race and gender lines that influenced the perception of rape. At stake
in defining the crime, legal actors determined what modes of sexual access
men were entitled to based on their racial classification, as well as what
levels of protection women deserved, again by taxonomical race.243 As
Professor Roberts notes, "[i]n America, the hierarchies that determine
rape's meaning are based on race and class, as well as gender., 244 Within
this intricate web of power relationships, white society used the physical act
of rape as an enforcement mechanism for retaining a position of dominance.
The legal establishment's historic preoccupation with the rape of white
women by black men, in combination with its discounting of black victims'
worth, excluded black women from legal protections while legitimizing far
more frequent occurrences of intra-racial acquaintance rape of both white
and black women. Legal and cultural interpretations of rape served to police

245both black and white bodies and their sexual agency, and today,
heightened punishment for black-on-white crime lingers on-at least
partially the result of society's devaluation of black victims' human worth
and its racial stereotypes of black defendants.246

241 Id. at 599-600.

241 Id. at 600.

242 Id.

243 Roberts, supra note 166, at 364.

244 id.

245 Id. at 366.

246 Capital punishment remains embedded with norms of race, victimhood and
value. In McKlesky v. Kemp, 481 U.S. 279 (1987), a black defendant introduced statistical

788 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird

As previously noted, the struggle over female sexuality permitted
certain forms of sexual abuse against white women to go overlooked when
the perpetrator was a white man.247 These forms of violence largely
transpired within the inscrutable realms of marriage and family. Peter
Bardaglio details the complicated legal and cultural characteristics
prescribed to each white family member and the operation of relations in
the family unit as part of the overall racialized atmosphere of the South. In
Reconstructing the Household. Families, Sex, and the Law in the
Nineteenth-Century South, Bardaglio notes that domestic relations codes
enumerating legal rights and responsibilities of citizens were broken down
into chapters pertaining not only to husband and wife, parent and child, and
guardian and ward, but also to master and slave.248 Specifically, "Southern
lawmakers had organized statutes in this fashion because they did not
consider these sets of social relations as isolated categories but as
intrinsically connected. 249

Bardaglio demonstrates how the domestic sphere was carved and
severed from public life so as to facilitate white patriarchy's dominance in
society by giving white men absolute control within the domestic sphere.
This privatization injured many white women under legal regimes,

evidence that illustrated the extent to which racial considerations bias juries in application of
the death penalty. The statistical data, known as the "Baldus Study," analyzed 2000 murder
cases decided in Georgia in a ten year window, demonstrated that defendants received
the death penalty in eleven percent of cases when charged with killing white victims, but
only in one percent of cases when the victim was black. The study thus facilitated a new
racial bias argument that is the partial inverse of the more common prejudice-against-the-
black-defendant argument. Instead, defense counsel argued that the death penalty was
impermissibly imposed because bias against the victim, in addition to bias against the
defendant, affected the sentencing result. Id at 286. The study indicated that in homicide
cases, the death penalty was imposed twenty-two percent of the time when the defendant was
black and the victim white, but only eight percent of the time when the defendant and victim
were both white. Similarly, the death penalty was imposed in only one percent of cases when
the defendant and victim were both black, but in three percent of cases when the defendant
was white and the victim black. Further, the study reported that the state sought capital
punishment in: seventy percent of cases involving a black defendant and a white victim;
thirty-two percent of cases involving a white defendant and a white victim; fifteen percent of
cases where both defendant and victim were black; and nineteen percent of cases when the
defendant was white and the victim black. Id. at 286-87.

247 Supra notes 158-160, 175-76, 186 and accompanying text.

248 See PETER W. BARDAGLIO, RECONSTRUCTING THE HOUSEHOLD: FAMILIES, SEX,

AND THE LAW IN THE NINETEENTH CENTURY SOUTH xi (1998).

249 id.

789



790 Columbia Journal of Gender and Law [Vol. 18:3

especially those who had reached the age of maturity and were construed by
law to therefore have the powers of consent and complicity. Sexual injury
caused by family members was rarely recognized under normal conditions.
Additional criteria were often necessary in order for penal censure to be
imposed-the analogue of modem day statutory rape. ° Subdivided into
two offenses at that time, statutory rape laws were configured to minimize
punishment for sexual attacks of white women by white men, especially if

250 The results of my electronic LexisNexis search include two versions of the

crime: 1) for "carnal knowledge of a girl over 12 and under 16 years" and 2) for "carnal
knowledge of a girl under twelve years of age." Like with rape jurisprudence, the courts
stated the race of either the victim or perpetrator when one or both were black. As
periodically discussed in this Article, intimate, marital and familial rape was treated
differently both legislatively and as prosecuted, and it is these forms of sexual violence that
more frequently implicated white-on-white sexual abuse. See, e.g., supra notes 158-160,
175-76, 186 and accompanying text. Only one case involved a black victim and defendant,
and it was prosecuted as regular rape and thus I list it in that discussion. Thompson v. State,
27 Ala. App. 104 (Ct. App. 1936). The electronically available statutory rape cases from the
Alabama Supreme Court and Court of Appeals between 1930 and 1960 were: Hamm v.
State, 264 Ala. 366 (1956); Lawley v. State, 264 Ala. 283 (1956) (life in prison); Smith v.
State, 256 Ala. 444 (1951); Denham v. State, 255 Ala. 125 (1951); Noble v. State, 253 Ala.
519 (1950); James v. State, 246 Ala. 617 (1945) (death sentence); Pugh v. State, 243 Ala.
507 (1942); Gregory v. State, 235 Ala. 547 (1938) (ninety-nine years); Harrison v. State, 235
Ala. 1 (1937); Shanes v. State, 233 Ala. 418 (1937) (only potentially black victim with white
defendant but court assumes the child is white and affirms); Hull v. State, 232 Ala. 281
(1936) (death sentence); Petty v. State, 224 Ala. 451 (1932); Stewart v. State, 226 Ala. 15
(1932); Stewart v. State, 38 Ala. App. 365 (Ct. App. 1955); Houston v. State, 37 Ala. App.
359 (Ct. App. 1953); Malone v. State, 37 Ala. App. 432 (Ct. App. 1953); Ferguson v. State,
36 Ala. App. 358 (Ct. App. 1952); Gaut v. State, 36 Ala. App. 365 (Ct. App. 1952); Smith v.
State, 36 Ala. App. 209 (Ct. App. 1951); Kornegay v. State, 34 Ala. App. 274 (Ct. App.
1949); Eller v. State, 34 Ala. App. 157 (Ct. App. 1948); Free v. State, 33 Ala. App. 620 (Ct.
App. 1948); Walden v. State, 34 Ala. App. 29 (Ct. App. 1948); Brasher v. State, 33 Ala.
App. 13 (Ct. App. 1946); Brown v. State, 32 Ala. App. 131 (Ct. App. 1945); Morris v. State,
32 Ala. App. 52 (Ct. App. 1945); Wilkerson v. State, 32 Ala. App. 82 (Ct. App. 1945);
Young v. State, 32 Ala. App. 233 (Ct. App. 1945); Lee v. State, 246 Ala. 69 (1944) (set
punishment at fourteen years); Hacker v. State, 31 Ala. App. 249 (Ct. App. 1943); Lee v.
State, 244 Ala. 401 (1943); Marecheau v. State, 30 Ala. App. 610 (Ct. App. 1943); Pugh v.
State, 30 Ala. App. 572 (Ct. App. 1942), Van Hyde v. State, 30 Ala. App. 227 (Ct. App.
1941); Youngblood v. State, 30 Ala. App. 57 (Ct. App. 1941); Price v. State, 29 Ala. App.
263 (Ct. App. 1940); Blair v. State, 28 Ala. App. 430 (Ct. App. 1939); Tolbert v. State, 28
Ala. App. 209 (Ct. App. 1938); Bedsole v. State, 28 Ala. App. 27 (Ct. App. 1937); Harrison
v. State, 28 Ala. App. 17 (Ct. App. 1937); Baldwin v. State, 233 Ala. 138 (1936) (sentence
of ten years); Bradham v. State, 27 Ala. App. 225 (Ct. App. 1936); Thompson v. State, 27
Ala. App. 104 (Ct. App. 1936); Shores v. State, 25 Ala. App. 351 (Ct. App. 1933); Christian
v. State, 25 Ala. App. 218 (Ct. App. 1932); Stewart v. State, 25 Ala. App. 266 (1932); Black
v. State, 24 Ala. App. 433 (Ct. App. 1931); Alldredge v. State, 23 Ala. App. 577 (Ct. App.
1930); Brown v. State, 23 Ala. App. 424 (Ct. App. 1930); Love v. State, 23 Ala. App. 363
(Ct. App. 1930).Spencer v. State, 24 Ala. App. 140 (Ct. App. 1930).



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 791

the woman had reached the age of adulthood. One set of prohibitions
applied to "carnal knowledge" of a girl under the age of twelve, and the
death penalty was available for this substrate of claims.25 ' It was rarely
imposed on taxonomic white defendants, who were both close family
members and the products of a broader ideological investment in racial
purity which motivated false polarization between black and white.252

Although a capital offense, this crime rarely led to execution, and sentences
were more lenient than those levied against defendants in interracial rape
claims253-death was imposed only twice by Alabama courts under this
law.25 4 The second subset of provisions prohibited "carnal knowledge" of a

255girl above the age of twelve but under the age of sixteen. The penalty
here was restricted to two to ten years of imprisonment.256

The latter category of statutory rape crimes is particularly
illustrative. As far as a canvass of electronically published state court cases
indicates, the alleged assault of a white woman by a black man was
frequently prosecuted as rape regardless of her age257-a crime for which
the death penalty was available and frequently imposed. However, the
structure and substance of Alabama's penal code suggests that the state's
objectives in legislating and prosecuting rape were not to protect the female

251 Alabama permitted execution for both adult rape and statutory rape when the
victim was under the age of twelve. ALA. CODE § 395 (1958) (repealed 1973). "Any person
who is guilty of the crime of rape shall, on conviction, be punished, at the discretion of the
jury, by death or imprisonment in the penitentiary for not less than ten years." Id. "Any
person who has carnal knowledge of any girl under twelve years of age, or abuses such girl
in the attempt to have carnal knowledge of her, shall, on conviction, be punished, at the
discretion of the jury, either by death or imprisonment in the penitentiary for not less than ten
years." Id.

252 See id.

253 The sentence is not mentioned in most of the cases, but several list sentences of

seven years. The lesser sentences correlate with both the race of the defendants and the age
of the victims. See Lawley v. State, 264 Ala. 283 (1956) (imposing life sentence when victim
was under twelve; contrast with the death penalty applied in the Scottsboro cases); Flournoy
v. State, 251 Ala. 285 (1948); Caldwell v. State, 36 Ala. App. 612, 612 (Ct. App. 1952).

254 James v. State, 246 Ala. 617 (1945); Hull v. State, 232 Ala. 281 (1936).

255 Harrison v. State, 235 Ala. 1, 2 (1937) (citing ALA. CODE § 5411 (1923)).

256 Id.

257 This information is taken from the surveys of, and comparisons between, the

rape and incest cases electronically available for the time period which I have documented
herein this Article.



Columbia Journal of Gender and Law

from violence. Rather, the state aimed to delimit sexual privileges based on
a racially organized patriarchal structure. That is, because the substantive
crime and penalty attached to different types of rape changed according to
the white woman's relationship to her alleged attacker-whether they were
related through familial ties or not-race was the defining factor because of
cultural and legal histories of separation. The value of the white woman's
sexual agency changed according to the race of the person who sought
sexual access to or control over her.

This tension manifests most starkly in the crime of incest, the form
of sexual assault that Mayella Ewell experiences. Mayella's sexual
subjectivity and relations are bounded by the ways law and society
conceptualize both sexually intimate and familial relationships, as well as
the different methods law employs for demarcating and regulating the
public and private spheres of white citizens as well as those between races.
Although it is clear that Tom did not rape Mayella, it is equally apparent
that someone did: "Tom Robinson may not have inflicted the bruises on
Mayella, but someone did. As they do with Burris's truancy, the citizens of
Maycomb . . . choose to look the other way. Among the extralegal
'privileges' they afford Bob Ewell are the privileges of beating and raping
his daughter.

2 58

Incest, then, serves a special function in Lee's novel and in the
book's contemporaneous setting, though its role is less initially obvious
than that of interracial rape. Mockingbird introduces the ways in which law
shaped sexuality both through techniques such as explicit prohibition of
miscegenation or sham rape trials, and also by regulating relations between
whites. Cultural behaviors are similarly implicated. Incest falls along a fault
line at the very core of the private sphere: control of the family and home,
the space that law staunchly carved out as the domain of the white
patriarch.259

Throughout the century preceding desegregation, the Alabama
judiciary oscillated between the sentiment that, on the one hand, incest
conflicted with southern mores and, on the other hand, the rigidly
patriarchal structure of the white family ought to be sacrosanct. 260 Courts

258 Phelps, supra note 125.

259 See Ex parte Boaz, 31 Ala. 425, 427 (1858) (denying a writ of mandamus for
probate court to grant habeas petition for custody of a child in the father's control: "The law
regards the father as the head of the family").

260 See BARDAGLIO, supra note 248, at 39-40 (tracing how Southern states

diverged from Northern notions of family and were steeped in certain forms of patriarchy).

792 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 793

evinced a marked desire to distance themselves from the problem of incest,
following the tradition of centuries of judicial emphasis on the impenetrable
boundaries of the domestic sphere. This reticence to disturb the private-
public divide, combined with the construction of gender norms leading up
to desegregation-the focus on a particular formulation of benign white
femininity-cultivated a climate in which incest was increasingly
prevalent.261 As Bardaglio notes, the psychodynamics of the white southern
family had a "distinctly incestuous character."2 62 Emphasis on the
sentimental and affectionate qualities of familial relations, combined with
concern over controlling white female sexuality and purity, produced an
emotional landscape that often resulted in incestuous feelings within the
household. 63

Southern courts grappling with incest exhibited anxiety and
ambivalence as to how to confront this form of sexual violence. As the
problem burgeoned, judges recognized the ways incest threatened the
integrity of the family and, by extension, white patriarchy in society as a
whole.264 Incest destabilized the relationships and obligations attributed to
family members and eroded the unit's stability, enervating its potency as an
institution of power distribution. Electronically published state law suggests
that, although incest was periodically occurring, the crime was rarely
prosecuted and generally resulted in punishment disproportionately minimal
to those for rape as courts sought to reinforce the importance of white male
authority in the household. 65

Treatment of incest illuminates a second theme that materializes in
the investigation of Jim Crow era gender relations: while the essentialized
female was formed within the rape complex as a direct response to
blackness, the ontological construction of the female was also important for
maintaining the social and political order by empowering white men. For
white men, normative framings of white female sexuality adopted a
presumptively heterosexual and patriarchal form that justified continuing
male hegemony in the private sphere of the home. Alabama's disparate
enforcement and penalization for incest and statutory rape laws, in tandem

261 Id.

262 Id. at 39.

263 Id.

264 Id. at 39-40.

265 See infra note 278 listing all of the electronically available cases; BARDAGLIO,

supra note 248, at 39-40.



Columbia Journal of Gender and Law

with prohibitions on gay intimacy and interracial marriage, takes on added
significance under this analysis. Female sexuality was constituted so as to
render the white female both dependent upon and available to white men,
with the "white" and the "male" being distinct but overlapping. At the same
time, it served as a vehicle for reviving prohibitions on interracial intimacy
that were no longer permitted facially by law; while bans in several states
against marriage continued, no limitations effectively remained on sex or
procreation at the time desegregation was ordered.

In policing the sexuality of both white and black women, the law
facilitated intense sexual violence by white men in order to maintain race
and gender stratification. The white patriarch required control of the private
sphere in order to retain his social and political authority in the broader
visible public arena; he controlled white female sexuality on the one hand
and defined black women's and men's sexuality on the other in order to
retain his elevated racial and gendered status.266

After desegregation, incest was the least scrutinized form of sexual
violence against white women, because of the other interests the behavior
implicated. Father-daughter incest, in particular, elicited the most volatile
response from southern communities because calling attention to it
undermined white moral superiority.267 Courts therefore took great pains to
depict incest between white fathers and daughters as an anomalous act that
destroyed the father's otherwise superior social position as a white male.
The act was

so shocking to the moral sense of every civilized being, so
degrading and humiliating to human nature, reducing man from
his boastful superiority of a moral, rational being to a level with
the brutal creation, that our pride and respect for our species
would not allow us to believe it possible to have been committed
in this age and country, unless constrained to yield conviction on
the most indisputable proof.268

266 See Adrienne D. Davis, The Private Law of Race and Sex: An Antebellum

Perspective, 51 STAN. L. Rrv. 221, 282 (1999) (citing Marcy Frances Berry, Judging
Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South,
78 J. AM. HIST. 835, 854 (1991) (noting that everyone in the antebellum South had a role to
play, including the authoritarian role of white men)).

267 BARDAGLIO, supra note 248, at 39.

268 Tuberville v. State, 4 Tex. 128, 130 (1849); see BARDAGLIO, supra note 248, at

794 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 795

Any paternal propensity for incest posed a danger to the legitimacy
of white patriarchal dominance in the family, and of white preeminence
generally. Thus, although courts comprehended the abuse of male power
inherent in the act of incest, the insight did little to weaken their
overarching investment in preserving patriarchal organization of the home.
In the few instances when incest was prosecuted and penalized, courts
declined to locate incest within the broader landscape of gendered
relationships governing the model southern white family, shielding the
domicile from scrutiny. Consequently, the narrative of white male
superiority could be maintained. 69

Legislative histories of incest statutes likewise evince ulterior
motives. Although by the mid-1800s most southern states had laws
criminalizing incest,2 70 the interventions were primarily aimed not at
protecting women from sexual violence, but rather at preventing matrimony
between close relatives and inbreeding. Laws thus punished only sexual
intercourse and left unregulated other forms of sexual assault.271 At the
same time, southern courts, although noticeably hesitant to punish incest,
zealously enforced measures penalizing interracial sex and marriage, 272 out
of fear that sexual relations between blacks and whites would undermine
existing legal, and later cultural, race-based caste systems.27 3

The politics of segregation mandated that white men command the
many aspects of sexual identity formation-political, moral, and
practical.274 Therefore, courts reinforced the notion that white male
behavior was beyond reprobation while cultural treatment of incest, in
tandem with legal practices, effectively erased the act from public
discourse. Incest was just one of several crimes through which legal actors
attempted to sustain racial and gender frameworks. Other techniques were
also implemented. For example, the common law and statutory marital

269 
BARDAGLIO, supra note 248, at 40.

170 Id. at 44.

271 Id. at 45.

272 Id. at 48.

273 See id at 49.

274 This pattern traces back to slavery when slavemasters policed racial purity by

controlling the sexual behavior of white women rather than their own. This also partially
explains the (de)segregation era rape complex and invisibility of sexual violence against
black women. See A. LEON HIGGINBOTHAM, IN THE MATTER OF COLOR: RACE AND THE

AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 40-47 (1978).



796 Columbia Journal of Gender and Law [Vol. 18:3

exemptions to rape were instrumental in maintaining a cloak around intra-
familial relationships. Lee illustrates this process of erasure and obfuscation
through the impunity Bob Ewell enjoys in both Maycomb's social circles
and before the courts for his incestuous attacks on Mayella. Lee's narrative
elucidates the hidden reasoning behind Alabama's incest jurisprudence and
the underwhelming societal response to incest in the white family.

Between 1930 and 1960 the Alabama Supreme Court and Court of
Appeals heard seventeen incest cases-all white-on-white. Four of these
addressed marriage to close relatives, 75 the proscription of which was the
primary objective behind the adoption of many of the early versions of
incest statutes. Of the remaining thirteen, three separate cases arose from an
incident between two parties, 2 76 leaving only ten sexual assault-based cases
before the two courts.2 77 Perhaps more illustrative even than the rarity of
incest prosecution is Alabama's decision to presumptively deem the
daughter an accomplice to incest upon passage of her sixteenth year, the age
of consent278-several years younger than Mayella's nineteen years. 279

275 See Brand v. State, 242 Ala. 15 (1941); Osoinach v. Watkins, 235 Ala. 564

(1938); Smith v. Goldsmith, 223 Ala. 155 (1931); Henderson v. State, 26 Ala. App. 263 (Ct.
App. 1934).

276 See Flournoy v. State, 251 Ala. 285 (1948); Caldwell v. State, 36 Ala. App. 612

(Ct. App. 1952); Caldwell v. State, 36 Ala. App. 229 (Ct. App. 1951); Flournoy v. State, 34
Ala. App. 23 (Ct. App. 1948); Newton v. State, 33 Ala. App. 621 (Ct. App. 1948); Newton
v. State, 32 Ala. App. 640 (Ct. App. 1947).

277 The remaining cases are: Noble v. State, 253 Ala. 519 (1950); Brasher v. State,

249 Ala. 96 (1947); Skinner v. State, 36 Ala. App. 434 (Ct. App. 1952); Anderson v. State,
35 Ala. App. 557 (Ct. App. 1951); Allen v. State, 35 Ala. App. 170 (Ct. App. 1950); Wyatt
v. State, 35 Ala. App. 147 (Ct. App. 1950); Kelley v. State, 32 Ala. App. 408 (Ct. App.
1946).

278 Newton, 32 Ala. App. at 641 (finding that the lower court erred in refusing

defendant's instruction that "his daughter [is] what is known in law as an accomplice and
you cannot convict the defendant solely on her testimony that he did have such intercourse."
The charge: "that the defendant in this case is charged with having an illegal sexual
intercourse with his daughter. This makes his daughter what is known in law as an
accomplice and you cannot convict the defendant solely on her testimony that he did have
such intercourse."); see Skinner, 36 Ala. App. at 435 (age of consent is sixteen;
corroborating testimony is necessary if over the age of consent, although the four month
lapse in this case did not create the necessity); see also Duncan v. State, 20 Ala. App. 209,
211 (Ct. App. 1920) (age of consent is sixteen); Noble, 253 Ala. at 520 (accomplice defense
only applies to daughters above the age of consent).

279 MOCKINGBIRD, supra note 1, at 206.



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird

Alabama courts made young women complicit in incest by
accepting the "accomplice defense" argument to charges of incest made by
adult daughters. In doing so, courts shielded familial sexual violence from
censure and made the harms visited upon women like Mayella virtually
invisible. The accomplice defense arises from the tenet in criminal law that
a felony conviction cannot be sustained solely on the testimony of an
accomplice, but instead requires corroborating evidence.28 ° Judges imposed
the evidentiary rule on incest prosecutions by conceptualizing the daughter
as consenting to the illegal sexual act upon reaching the age of consent.28

Her "acquiescence" to the sexual conduct rendered her a co-conspirator to
the crime, thus limiting the use of her testimony against her father.282 The
requirement of independent corroborating evidence for such a
prototypically private crime made proving incest in such cases nearly
impossible. 83 The contorted application of the principle consequently
minimized incest prosecution and functionally denied the existence of this
particular method of sexual violence.284

As such, the state's legal apparatus, under the influence of
patriarchal forces, operated the accomplice and corroborating testimony
rules in a manner that disparately impacted violence transpiring in the
domestic sphere while continuously invoking the rhetoric of an abstract and
neutral process, a source of interpretive authority, and a just, impartial
enforcer.

The Alabama Supreme Court first voiced the determination that the
accomplice rule applied to incest in Denton v. State.285 There, the court
reversed the defendant's conviction for incest because it could not find
corroborating evidence; there was no proof other than the daughter's
complaint and detailing of the incidents. The court stated: "After carefully
considering the evidence in this record, we fail to find facts sufficient to

280 See Denton v. State, 17 Ala. App. 309 (Ct. App. 1920).

281 Id.

282 See Leigh B. Bienen, Defining Incest, 92 Nw. U.L. REV. 1501, 1539 (1998).

283 Id.

284 Id. at 1538-45 (noting that Texas law appears to have been similarly structured
to Alabama's, including the way in which accomplice theories played out and their
evidentiary repercussions, although Texas defined the age of consent at seventeen rather than
the sixteen years Alabama adopted. Bienen also notes that underage women were considered
accomplices as well).

285 Denton, 17 Ala. App. at 309.

797



Columbia Journal of Gender and Law

corroborate the testimony of the woman, who alone testified to the facts
constituting the crime with which defendant is charged., 21

6

The progeny of Denton clarified the rule's applicability and hinted
at the explicit and implicit ramifications of applying the rule to incest.
Carving out an exemption to the evidentiary requirement for daughters
"under the age of consent," the Alabama Court of Appeals ossified the
notion that daughters over the selected age were both capable of consenting
and in fact did consent to incestuous relationships with their fathers. This, in
turn, further entrenched the perception that incest victims over the age of
consent were "accomplices" and not victims. In Duncan v. State,28 7 the
court of appeals upheld a father's conviction of incest with his thirteen-
year-old daughter. The original conviction had relied solely upon his minor
daughter's testimony, with no independent corroboration of the offense.288

The court rejected the appellant's attempt to invoke Denton,8 9 stating,
"[t]he important question therefore is: Was the girl in question an
accomplice? 290 Denton, it explained, was distinguishable because of the
victims' relative ages. The daughter in Duncan, being but thirteen, was too
young to bestow legal consent and thus could not be complicit in the crime:

[T]his case must be differentiated from the Denton Case.... It is
true [that under Code 1907 § 7127] it is provided if any man and
woman, being within the degrees of consanguinity or relationship
... have sexual intercourse together ... each of them would be
guilty. But certainly this statute implies that each of the parties
must be capable of committing the offense and under the law able
to give legal assent thereto.291

The seemingly non-substantive evidentiary maneuvers adopted by
the Alabama court not only penalized older daughters who clearly fell
outside of the temporal marker, but also set the stage for reasoning across
the judiciary that punished daughters subject to sexual abuse over time.
Ultimately, courts often viewed the longevity of sexual abuse as indicative

286 id.

287 20 Ala. App. 209 (Ct. App. 1924).

288 id.

2891d. at 211-13.

291 ld. at 211.

291 id.

798 [Vol. 18:3



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 799

of the daughter's consent. Rather than situating the relationship in sustained
familial power dynamics, the court of appeals purported to recognize where
the daughter was incapable of legal consent and by implication, when she
was. In the dicta of the Denton case, the court stated:

It is true, the woman testified that at each recurrent act the
defendant used threats and intimidations, and that she yielded to
him through fear, but the rape was too often repeated and
continued too long without outcry for full credence to be given to
the statement. 

292

In Brown v. State, for example, the daughter's testimony required
independent corroboration because the young woman had been one month
over the age of seventeen when trial commenced.293 Violations had
occurred before she reached sixteen and continued thereafter, but according
to the Alabama Supreme Court, the state could not rely on her evidence

294alone in proving incest for the entire period. Because the girl had become
an accomplice at sixteen, additional proof was required for all incest that
occurred after that date.295

The court's legal reimagining of familial rape as an act where the
daughter "willfully or willingly joined in the incestuous act, ' '296 and
"became particeps criminis,"297 influenced white female sexuality and
strengthened white male dominance. The unwillingness to confront this
substrate of incest materialized in case law even where the female was a
minor. Protracted sexual activity was viewed skeptically by the courts
regardless of the daughter's age; it was often utilized, not as evidence of a
crime, but as proof of complicity and consent.298

292 Denton v. State, 17 Ala. App. 309 (Ct. App. 1920) (emphasis added).

293 Brown v. State, 21 Ala. App. 371 (Ct. App. 1926). But see Newton v. State, 33

Ala. App. 621, 622-23 (Ct. App. 1948) (noting daughter's age as immaterial because even if
she was over sixteen at the time of incest, father's threats of violence rendered her unable to
legally consent).

294 Brown, 21 Ala. App. at 371.

295 Id. The court ultimately did find that enough corroborating evidence was given
to establish the fact and uphold the jury's verdict.

296 Duncan, 20 Ala. App. at 211.

297 Brown, 21 Ala. App. at 371.

298 Bienen, supra note 282, at 1543-44; Smith v. State, 108 Ala. 1 (1895) (citing

Freeman v. State, II Tex. Ct. App. 92 (Ct. App. 1881)).



800 Columbia Journal of Gender and Law [Vol. 18:3

The statutory definition of incest, and the prescribed punishments
and evidentiary treatment associated with it, illustrate the ways white
female sexuality was molded by courts, largely as a response to racial
considerations. Courts' decisions to enforce laws governing gendered and
sexual relationships were permeated by ideas of race, and vice versa. The
rhetoric courts employed also evinces overt and subtle-as well as
unconscious-attempts to influence sexual norms. As compared to
interracial rape claims, the violence faced by white female victims of incest
received very little judicial language.

In incest cases between 1930 and 1960, defendants were often
concisely or minimally described. Appellants were, quite tersely,
"convicted of incest, the offense denounced by § 325, Title 14, Code of
1940; "299 "convicted of incest;, 3 °0 0  or "tried and convicted under an
indictment charging incest.",30 1 More condemnatory linguistic diatribe
included: "This appellant has been convicted of the crime of incest growing
out of his alleged sexual relations with his young daughter," 302 and "[tihis
appellant was indicted for incest or adultery with his daughter. His jury trial
resulted in a verdict of guilty. 30 3

Descriptions of the circumstances and crime were generally kept
skeletal as well, barring a few exceptions.30 4 For example: "[m]edical

299 Flournoy v. State, 251 Ala. 285, 285 (1948).

300 Caldwell v. State, 36 Ala. App. 229, 229 (Ct. App. 1951).

301 Newton v. State, 32 Ala. App. 640, 641 (Ct. App. 1947).

302 Skinner v. State, 36 Ala. App. 434, 435 (Ct. App. 1952).

303 Allen v. State, 35 Ala. App. 170, 171 (Ct. App. 1950).

304 The one instance where the court included a more detailed accounting of the
crime was in Newton v. State, 33 Ala. App. 621, 622-23 (Ct. App. 1948):

The stepmother and her son left home to visit another member of the
stepmother's family in a nearby community; that the appellant, father of
the prosecutrix, directed all the other children to do certain chores on the
farm and sent them from the house; that when only the prosecutrix and
her father remained in the house, her father called to her to come
upstairs; that she refused to do so and that her father threatened to beat
her with a lead rein; that upon his insistence and threats, she went
upstairs in the home where her father proposed to have illicit relations
with her; that upon her refusal, after certain promises, he further
threatened her and that she then submitted to his desires and engaged in
sexual intercourse with him; that twice more upon this same day, while
all other members of the family were away from the house, the defendant
forced her to submit to him ....



2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 801

testimony established that at the time of the trial this unfortunate girl was
about six months pregnant. . . . No necessity arises for any detailed
discussion of much of the sordid testimony presented during this trial. We
therefore refrain from such detailing. 30 5 Similarly:

The testimony by the girl tends abundantly to establish that her
father carnally knew her on repeated occasions from the time she
was thirteen years of age. These offenses were well within the
statutory limit as to time, and also during the period when she
was under the age of consent, and when no corroboration of her
testimony is required.30 6

On the more descriptive end of the spectrum:

we copy the following: And on several occasions that he had
played with her and fondled her, and on several occasions while
he would go to the pasture that she and the other children would
go with him and they would play hiding and that he and Janie
Frances would get off and that he would play with her then, and
he said on two or three occasions that he penetrated her just a
little bit but either she resisted or his conscience would get to
hurting him and he never did complete it.30 7

The controverted question as to the age of the daughter appears to be
wholly immaterial, and as the State's evidence tends to show that the
crime was committed under duress and refutes conclusively that the
unfortunate daughter was an accomplice; to the contrary, it tends to show
she was but the victim of her father's lust.

Id.

In one other case, Wyatt v. State, 35 Ala. App. 147 (Ct. App. 1950), much detail is
given, id. at 6-10, but equal time is devoted to the defendant's interpretation of the events,
id at 11-14, because the debate centered around not the incest so much as a violent fight
which arose between the defendant and his father (the victim's grandfather). The former said
the fight arose out of his desire to instill discipline in his lazy wife and daughter (the victim)
because they would not cook dinner and he was going to beat them, to which the grandfather
protested; the latter argued that the two women fled to his house because of violence and
incest and from there the fight arose.

305 Flournoy v. State, 34 Ala. App. 23, 26 (Ct. App. 1948).

306 Skinner v. State, 36 Ala. App. 434, 436 (Ct. App. 1952).

307 Anderson v. State, 35 Ala. App. 557, 559 (Ct. App. 1951).



Columbia Journal of Gender and Law

In contrast to these more descriptive accountings, many incest cases
simply noted that the act had transpired and focused on the appeals of the
defendant, which were commonly based on the grounds that the daughter
was an accomplice or that the crime had not taken place at all. For example:
"Three witnesses for the State testified that they had, on the same occasion,
seen appellant and his daughter engaged in sexual intercourse. We omit the
sordid details"; 30 8 or "[t]he prosecutrix was fourteen years of age at the time
of the alleged offense. She testified that her father, the appellant, had sexual
intercourse with her on several occasions. The defendant denied the
accusation.

'" 30 9

In contrast, electronically published opinions from interracial rape
cases during those years were elaborate in recounting the events,
emphasizing the victim's positive virtues and eradicating any potential
incongruities in her story or motivations. A representative example:

Before reaching the bed, [the victim, a single widow,] turned out
the light .... The evidence is to the effect that these street lights
furnish sufficient light by means of which Mrs. Rice could
identify some one.... After getting in the bed she started to turn
off the radio.., and discovered a Negro man, whom she judged
to be some two or three inches taller than herself, between 25 and
30 years of age, and weighing some 170 or 175 pounds. He was
dressed only in one undergarment, known as a BVD type. Mrs.
Rice ... evidently was a woman of poise and courage. Defendant
is 29 years of age.. . 179 pounds.

The Negro told her he came there for the purpose of raping her.
He put his right hand on her throat, with a knife in his left hand
threatening to kill her if she made any outcry. She put up what
might be well described as a game fight-trying to scratch his
face, succeeding one time in pushing him away from her, and all
the while insisting that he let her alone. He repeated that he
intended to rape her. She was struggling as best she could with
his arms around her, and at one time he bit her on the cheek. He
also struck her in the eye, and her hand was slightly cut. Finally,
however, he overpowered her and threw her back on the bed with
her gown up and his body in contact with her person. In a manner
not proper to be detailed in an opinion (though clearly set out in
the record) this contact evidently gratified his passion, and after
throwing the bedspread over her body and pillow over her head,

308 Allen v. State, 35 Ala. App. 170 (Ct. App. 1950).

309 Kelley v. State, 32 Ala. App. 408, 410 (Ct. App. 1946).

802 [Vol. 18:3



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with the admonition that she make no outcry, he left her without a
full accomplishment of his original purpose.310

Though employing graphic depictions of the crime in their written
decisions, courts simultaneously discounted the alibis of defendants, often
cursorily. Their rhetorical strategies drew attention to the ways that the
alleged behavior of the black defendant reflected prevailing racist
stereotypes, fueling the discourse of their innate animalism and brutality
and simultaneously reinforcing conceptions of the endangered southern
belle. The trivialization of defendants' alibis impress that their fates were
predetermined; once the cry of rape was proffered, guilt and punishment at
the hands of white judges and juries was inevitable:

There is no occasion to here set out the details of the crime....
[The victim] was a girl fourteen years of age and in the fifth
grade at school. The alleged attack occurred between 8 and 9
o'clock at night when the victim went with a girl friend to the
schoolhouse to attend a dance. She went out alone to the back of
the building in the schoolyard .... While there she discovered the
defendant approaching. She immediately began to make her way,
running, to the schoolhouse and was intercepted. . . . [The]
defendant caught her as she was between the two buildings, that
she screamed for help twice; that he had a knife with which her
hand was slightly cut, and drew it on her and threatened if she
screamed again he would kill her. After that she made no further
outcry, though she begged him to let her alone. Her testimony is
further to the effect that he then pushed her out into the weeds,
which was some distance from the building; placed her on the
ground and though she tried to push him back was unable to do
so and defendant accomplished his purpose. She also testified
that he still had the knife with him. It is her recollection that
when he 'took her down' on the ground that she kicked off her
shoes, and he either removed or made her remove some of her
undergarments. She had never seen the defendant before and,
from this record, the jury could reasonably infer her fearful
reaction to having thus been so suddenly caught unawares....

It appears that after this crime was committed another colored
man by the name of Brooks was arrested and given a preliminary
hearing.... Much stress is laid upon the fact that the prosecutrix
had identified Brooks as her assailant. The evidence is now to the
effect that this was a mistake and that this defendant was the man.

310 See Underwood v. State, 248 Ala. 308 (1946).



Columbia Journal of Gender and Law

One of the differences between the two that prosecutrix now
discovers was that Brooks' teeth were rather wide apart and a
difference in their height. . . . The fact that the prosecutrix had
mistakenly identified another man (Brooks) previously, would
perhaps be of some consequence if there were proof offered by
the defendant which would tend to establish his innocence. 311

Perhaps the most instructive exemplar of the divergent rhetorical
treatment interracial rape and incest claims received comes from the
Scottsboro trials. Throughout the trials, evidence of Price's potential
ulterior motives, prostitution, and untruths were uniformly denied
admittance. The graphic details of the case were repeatedly enumerated.
The young men meanwhile were described as physically virile adults,
armed with knives and guns, doing battle.

The evidence of the state's witness Victoria Price, to state its
substance, goes to show that on the 25th day of March, 1931, she
was riding on a freight train through Jackson county with her girl
companion, Ruby Bates; that they were riding in a "gondola car"
loaded with chert or gravel; that just after the train passed
Stevenson in Jackson county, Ala., the appellants, Charlie
Weems and Clarence Norris, with the aid of other negroes,
forcibly stripped off her outer garment, a pair of overalls, tore off
her under garments, and forcibly ravished her; that there were
twelve in the party of negroes who came upon the car and forced
six of seven white boys to leave the train while it was in fast
motion, by assaulting said white boys; that, after said white boys
were forced to leave the train, some of the negroes raped her
companion, Ruby Bates, and the others raped her-six in
number-and that some of them held the girls while the others
accomplished their purpose; that Weems held a knife against the
throat of [the] witness, while some of the others, including
Norris, forcibly had sexual intercourse with her.3 12

The Alabama Supreme Court denied introduction of statements
elicited on cross-examination regarding Price's turbulent relationship with
her husband, whom she arguably had just left, and her potential prison

311 Taylor v. State, 249 Ala. 130, 135 (1947).

312 Weems v. State, 224 Ala. 524, 527 (1932). The description in Weems is actually

quite restrained in comparison to several of the other descriptions found in concurrent trials.
However, it demonstrates the ways in which cross-examination of Price was systematically
stymied. See, e.g., Powell v. State, 224 Ala. 540, 543-44 (1932).

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2009] Rape, Incest, and Harper Lee's To Kill a Mockingbird 805

record. It permitted the testifying medical examiner to report, and
consequently emphasized, that the two women sported mild bruising and
several small scratches, and that the presence of semen in their vaginas
proved penetration. But the court omitted the examiner's doubt that a
violent gang-rape by six men on a gravelly surface would produce such
minor injuries. There were "no lacerations or tears of the sexual organs...
six men, one right after the other, could have had intercourse with her
(Victoria Price) without lacerations. That is possible., 313 When the defense
counsel sought to explore the examiner's suspicions and introduce
alternative explanations for the presence of semen in the two women on
cross-examination, they were again stymied. Statements made to the
medical examiner by the two women that they had participated in
consensual sexual intercourse just before the alleged rapes were excluded
because there was, "no evidence showing or tending to show that the
defendants had sexual intercourse by and with the consent of the state's
witnesses. The evidence sought was not material. 314

How these familial and sexual relationships operated in both legal
and cultural media was not incidental to the overarching history of racism in
the South. From incest to rape, control and authority over the sexual
relationships and experiences of women both white and black supported a
system of patriarchy that molded both race and gender relations. Although
race, gender, and sexuality incessantly influenced each other, how law
produced southern sexual norms in response to the racial politics of the era
has largely been overlooked. Normative sexuality's role in creating and
maintaining racial hierarchy is inseparable from analysis of the roles gender
and race played in systems of racial subordination.315

IV. CONCLUSION

As Professor Crenshaw warns, United States history, fraught with
racial violence, heavily influences our prevailing understandings of gender
and sexual identity. Harper Lee's To Kill a Mockingbird is important for
two reasons in thinking about the workings of law and its relationship to the
structuring of society and identity within the context of our troubling racist
past and continuing problems with racism. First, Lee's turn towards fiction
as a means for inspiring change where law had previously failed allows her

313 Weems, 224 Ala. 524 at 527-528.

314id.

315 BARDAGLIO, supra note 248, at xii.



Columbia Journal of Gender and Law

to link cultural behaviors to the technicalities of law, demonstrating how
law operates within larger social currents rather than hermetically in a
vacuum. Secondly, through literature, Lee is able to explore the numerous
distinct layers comprising racism and comment upon the complex legal and
cultural forces required to maintain a structure of black subordination.
Within the model, she captures the functions of gender and sexuality in
facilitating, responding to, and incorporating perceptions of race. Both
community and courts respond to these phenomena: legal actors create
regulations and enforce them within this cultural landscape while society,
consciously and, more often, unconsciously, promulgates a framework of
gender, race, and sexuality that has historically perpetuated white,
heterosexual male hierarchy.

Mockingbird has long elicited a poignant and strong emotional
response from the legal community for its stirring portrayals of an era of
racial inequality. The injustices visited upon blacks included
disenfranchisement, regular legal and extrajudicial lynching, and imposition
of other forms of extreme violence as tools for prolonging black
subordination. The law was implicated in facilitating systemic and
pervasive dehumanization. Lee evokes this response by emphasizing the
agency of her protagonists. She highlights a hope in the individual capacity
of the human condition to overcome institutional injustice. Thus, in
providing her interpretation, Lee vests her characters with a choice,
providing a vision where racism in its then-current incarnation is only
sustainable through the manipulation of other communal organizing
principles such as gender and sexuality. Understanding their
interconnectedness, Lee depicts race, gender and sexuality as responding to
each other, evolving over time according to the agendas and geography of
the era, and demonstrates how the three mutually constitute each other and
interact with cultural norms and legal regulation.

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