Holger Hoock. Journal of Military Ethics. Volume 14, Issue 1, April 2015.
Introduction
By the eighteenth century, the prevailing customs and laws of war for conflicts between European armies and European-style warfare in the North American colonies prohibited the rape of civilian women as part of a set of rules designed to protect combatants, prisoners, and civilians from excessive violence. By way of a case study in the legal, political, and ethical dimensions of jus in bello in the American Revolutionary War, this essay examines British and American responses to sexual violence committed by the occuping British army and their Loyalist auxiliaries in America. It explores what the limited and fragmented surviving documentation can tell us about British and American attitudes towards the codes of war, the tensions and discrepancies between the formal law of rape and its implementation by the British army, and the politico-ethical uses to which the new American state put jus in bello and its violation by the enemy.
The historiography of rape in early modern warfare is slim. Although rape was most likely one of the most common forms of serious interpersonal violence during the Thirty Years’ War, very few official records exist, while diaries reference rape mostly based on hearsay (Wilson 2009: 790; Jansson 1999; Sandberg 2005: 171; Roberts 2012). In the context of the British Isles, historians have acknowledged that the late 1560s saw an escalation in violence in the Irish wars that included large-scale killings of women and children as well as mass rape (Canny 1976: 141; Edwards et al. 2007: 71–72; Lee 2011: 26, 254 n. 32). For the English Civil War, only very few instances of rape have been documented (Carlton 1991: 19; Donagan 2011: 189–191). A minority of histories of the 1745 Jacobite rebellion in the Scottish Highlands and of its brutal aftermath reference rape briefly (Plank 2006). Key works on the Seven Years’ War (French and Indian War) do not discuss rape by British soldiers in Europe or the American colonies (Anderson 2000; Ward 2003; Schumann & Schweizer 2009). By contrast, sexual coercion of Native American women, and the relative scarcity of alleged rapes by Native American men, has attracted somewhat greater attention (Booth 1973: 196; Axtell 1982; Abler 1992; Godbeer 1999; Nash 2001; Lee 2011: 148, 160, 162).
Most histories of the American Revolutionary War have given little if any consideration to the subject of sexual violence. Despite the widespread, permanent (if often latent) threat of physical and sexual violence against women in areas affected by the war, the very few scholars who at all consider the topic emphasize the dearth of rape proceedings in both armies, or observe that only where British troops were stationed over a period of time, such as in New York and New Jersey in 1776 and 1777, did they have an opportunity to exploit civilian women in a systematic way (Evans 1975: 29; Norton 1980: 202–205; Dann 1983: 130–131, 141, 187; Berkin 2005: 35; Gundersen 2006: 179; Lee 2007: 55). Contemporary concerns about these very instances, however, are dismissed by other scholars such as Henry Ward (1999: 84), who considers the raping of civilians an ‘extreme rarity’ and as largely a product of the ‘American propaganda mill’ (cf. Frey 1981: 78–79). Among the few studies of sexual coercion in early America that consider the Revolutionary period in detail, the most important body of work is Sharon Block’s (2006: esp. ch. 6, 2002, 2011) investigations into how sexual violence was implicated in the establishment of systems of power dependent upon racial, gender, and social categories.
Against this historiographical background, this article proceeds by putting the fragmentary evidence of instances of rape in the context of the contemporary legal and sociocultural practices of sexual violence in peacetime, as well as of the British army’s disciplinary regime. In order to explore the contexts and manner in which jus in bello was adjudicated in this conflict, we can draw on two main bodies of sources. In what follows, I shall first examine the limited number of British courts-martial of soldiers accused of rape. These suggest that at least some among the British military leadership considered rape impermissible in war, while highlighting the importance of choice and prosecutorial discretion on the part of individual British officers in explaining the discrepancy between the formal law of rape and its application in the theater of war. The inconsistency in British responses to rape in turn supported American allegations that the British violated jus in bello. As I shall show with reference to a second body of sources, namely, innovative Congressional investigations, the new American state invested in unprecedented legalistic efforts to expose enemy violations of the codes of war. In order to assert national difference and to claim the moral high ground vis-à-vis Britain, and to establish its place among the ‘civilized’ nations of the world, the Revolutionaries’ efforts both reflected existing notions of jus in bello and represented an attempt to define the codes further. The ethical dimension of jus in bello therefore resided in formal law, in the choices made by British officers concerned with force discipline and with military–civilian relations in an imperial civil war, and their responsibility to uphold the codes of war, as well as in the American state’s forensic exposure of the enemy’s illegitimate violence.
Codes and Practices of War
Early modern codes of war derived from the laws of nature and of nations, the laws of war, and military laws. The laws of war combined written treaties, recorded customs and practice, and the writing of leading public lawyers. After European thinkers had for centuries focused on the just causes of war, from the middle of the seventeenth century the emphasis shifted to the conduct of war and jus in bello. The laws of war focused particularly on an etiquette of belligerence for sieges, truces, and capitulation; safe conduct and passes; the treatment of prisoners of war; the permissible occasions for plunder; and the use of ‘unlawful’ or ‘unfair’ weapons. Jus in bello considers the essential nature of acts of war to establish a set of rules designed to protect enemy combatants, prisoners, and civilians.
In terms of the treatise literature, the most accessible and widely recognized expression of the laws of war on either side of the Atlantic was probably the Swiss jurist Emer de Vattel’s Le Droit des gens ou les principes de la loi naturelle (1758; English edn 1759). Vattelian rules encompassed the prohibition of unlawful acts, for example, the massacre of a surrendered enemy, as well as of acts that did not strengthen one’s own side nor weaken the enemy. For most categories of acts of war, the codes allowed for circumstances in which transgressions were permissible: a besieged city that refused to surrender, for instance, could be sacked.
Only the third set of codes, military laws, was widely published and strictly enforceable by the army’s legal officers and adjudicated by courts-martial or summary justice. Military laws are that:
special body of rules applicable to … the armed forces of a state, governing their terms of service, discipline, and the punishment of specifically “service” offences which are, in many cases, not criminal by the ordinary law of the land. (Donagan 1998: 82)
Grounded in customary laws of war that had evolved in interactions between English and Continental European forces throughout the early modern period, these codes were intended to protect civilians by prohibiting rape, murder, and unauthorized plunder and the destruction of property, and by laying down procedures for complaints by civilians against the military. By the eighteenth century, these notions formed the basis of the British army’s articles of war and were enforced through legislation in the form of the Mutiny Acts (Collins 2013; Gilbert 1978).
Both these distinct yet overlapping sources of the customs and laws of war – one governing military discipline and enforceable through the military justice system, the other appertaining to the conduct of war between armies – fed into what later was to become international law. Martial law and jus in bello were also connected in the broader politicoethical perceptions of participants, in whose discourse on civilized warfare the enemy’s forces were expected to adhere to the standards of customary law and to discipline their own forces. British army officers received no general ethical instruction, although they were supposed to be familiar with both sets of codes. They might study military treatises and they were read the articles of war and swore an oath. Notions of jus in bello served as guides to conduct and as social and cultural constraints on officers, whose code of honor, grounded in the aristocratic culture of war of the eighteenth century, demanded restraint (Donagan 1998: 80). A degree of knowledge of the broad conventions of soldierly conduct was also fairly widespread among the military at large, as well as among civilians. The officer code of honor was not, however, necessarily shared by the ranks, and by enforcing martial law and the codes of war, officers also reinforced distinctions of class and rank. How individual officers chose to apply and enforce the codes of war in the field varied widely.
European scholars and soldiers distinguished between those who were covered by the codes of war, primarily the regular, standing armies of the period, and those who were excluded: irregular troops like French chasseurs or partisan fighters, as well as ‘savages’ such as Native American adversaries. Legal authorities disagreed on whether rebels were entitled to protection under the rules of war, but most said they were not. However, in an important caveat a very substantial body of rebels, who in effect formed one party in a civil war, had to be treated as if they were legitimate combatants; Vattel argued that restraint was all the more important given the fact that civil wars evoked bitter passions. In addition, large-scale executions would have been impractical; there also was a risk of retaliation once the Revolutionaries captured British troops in upper New York and Canada. Nevertheless, some British officers, especially at the start of the war, questioned whether the protections of the laws of war ought to be granted to those whom they contemptuously regarded as military amateurs and accused of fighting an unfair, skulking kind of war.
In the eighteenth century, in both Britain and in colonial America, rape – an ancient felony punishable by death – was defined as the unlawful ‘carnal knowledge of a woman forcibly and against her will’ (Blackstone [1769] 1979: 210). In principle, the laws of war prevalent in eighteenth-century Europe, and in European-style warfare in the colonies, were meant to protect women from sexual violence. In terms of the treatise literature, in the early seventeenth century, Hugo Grotius (1919: 522) had conceded a degree of ambiguity in the laws of war: civilized nations generally did not allow rape, but in wartime some considered it permissible (cf. Wolfthal 1999: 97; Vigarello 2001:15). By the middle of the eighteenth century, international jurists such as Vattel clarified that invading and occupying armies had certain rights over women as enemies. Vattel applied a very wide definition of enemy status, whereby all subjects of the opposing nations were each others’ enemies. Enemies who did not offer any resistance, however, such as unarmed women, children, old men, sick people, or clerics and men of letters, could not rightfully be maltreated, violated, or killed (Best 1980: 54–55). As long as women offered no active resistance, the invader had:
no right to maltreat their persons, or use any violence against them … This is so plain a maxim of justice and humanity, that at present every nation, in the least degree civilised, acquiesces in it. If sometimes the furious and ungovernable soldier carries brutality so far as to violate female chastity … the officers lament those excesses: they exert their utmost efforts to put a stop to them; and a prudent and humane general even punishes them whenever he can. (Vattel 2008: 549, para. 145).
Vattel’s formulation, while declaring rape in war a widely recognized wrong, appears to acknowledge that a degree of abuse was seen to be virtually inevitable. Sexual violence violated jus in bello but might easily go unpunished. If, in the ideal of enlightened warfare, the officer codes of honor and civility, and the customary laws of war that had evolved in the practice of warfare over the previous centuries, supposedly imposed restraint, the reality of war was more complex and violent. Far from the humanitarian ideals of international jurists and the restraints codified in the customary laws of war and its legislative expressions, rape was for some soldiers an extension of war (Way 2004; Vigarello 2001: 39; Gundersen 2006: 143–144).
Many of the reported rapes committed by British soldiers in the Seven Years’ War as well as the Revolutionary War were of female army followers and of girls under the age of 10. However, by the middle of the eighteenth century, rape also seemed to be much more widely condoned (if not a formally authorized tool) in conflicts against certain enemies. In the aftermath of the 1745 Jacobite rebellion, British soldiers physically and sexually assaulted women and girls in the Scottish Highlands. Some English regiments deliberately used rape – including of girls and pregnant and elderly women – as reprisals for their earlier defeats at the hands of Jacobites. Stereotypes of Highlanders as ‘savages’ appeared to make such assaults seem at least tolerable to the British government and the army command, and palatable to large parts of the English public. Elements of the army that had defeated the Jacobites later fought in the Seven Years’ War. General James Wolfe, who had condoned the rape of Scottish Highland women, took French women and children in Quebec hostage and even threatened violence against French Canadian females. When the French considered delivering British prisoners to their Native American allies, Wolfe warned that female French prisoners might be ‘given up to the delicate embraces of the English tars’ (Plank 2006: 172). In at least one case, however, a court-martial sentenced a British soldier to 800 lashes for raping a local woman (Craig 1997: 107; Prebble 1961: 209–210; Forbes & Paton 1895: 107; Plank 2006: 54, 172). At no point does rape seem to have become an officially condoned let alone decreed policy of the British army in the American theater of the Revolutionary War. The extent to which the proscription of rape was enforced, and the extent to which rape allegations were prosecuted at military law, depended to a significant extent on the oversight and prosecutorial discretion exercised by local commanders.
British upper-class libertinism resonated in crude references to rape by British officers serving in America. Francis, Lord Rawdon, adjutant to General Sir Henry Clinton, the future commander-in-chief, expressed regret that New York women were not as compliant as those at Charleston:
The fair nymphs of this isle are in wonderful tribulation, as the fresh meat our men have got here has made them as riotous as satyrs. A girl cannot step into the bushes to pluck a rose without running the most imminent risk of being ravished, and they are so little accustomed to these vigorous methods that they don’t bear them with the proper resignation, and of consequence we have most entertaining courts-martial every day. To the southward they behave much better in these cases. (Booth 1973: 105–106)
Rawdon, for one, took it for granted that women were spoils of war. However, his mention of daily ‘entertaining courts-martial’–‘entertaining’, one presumes, in terms of the salacious detail aired in a semi-public setting – also suggests that at least some assaulted women found ways to complain and seek formal redress, although, crucially, Rawdon’s tone seems to leave open their chances of getting justice.
The sexually violent misogyny of popular culture echoed Rawdon’s officer-class libertinism. Notions of militarized masculinity with its casual attitudes toward the exploitation of women transcended divisions of rank and class. On the other hand, the military justice system enshrined in Mutiny Acts and articles of war reinforced hierarchies of class and rank. Officers prosecuting enlisted men for offenses such as rape or plundering reasserted such distinctions at court-martial; even though American Patriot newspapers and Revolutionary authorities occasionally referenced rapes by British officers, no cases of officers being prosecuted for rape have come to light.
British Army Justice
The British army in America prosecuted a number of rape cases in line with the prevailing codes of war. To understand the context in which such courts-martial occurred, it is helpful to remind ourselves that most British soldiers and American women likely had a basic understanding of the legal and cultural practices governing rape allegations. Even in peacetime, Anglo-American women who had been raped faced considerable challenges in seeking justice in civilian courts. Under the system of private prosecution, women needed to apprehend suspects and bring them to the magistrate. There were many additional disincentives: the cost of prosecution; the embarrassment of detailing a sexual assault in the public setting of a courtroom; the evidentiary standards requiring testimony to penile vaginal penetration, supported by other evidence; the unusual focus on the character and credibility of the assaulted woman who would be under suspicion of having countenanced if not encouraged the sexual encounter; her often scornful treatment by the judge; and the risk of her being charged with malicious prosecution. The courts asked probing questions to test a woman’s veracity. Had she been attacked by force, had she cried for help, and were there marks of violence and resistance on her body? When had she first complained and how soon after the attack had she contacted officials? (Simpson 1995; Edelstein 1998: 364–365, 371–375; Block 2006: 131–134; Durston 2007: 171; Walker 2013).
There was a great disparity between the text and the practice of law. In Britain and various parts of the British Empire, rape was viewed as a grave crime, but not often was it prosecuted successfully. The available statistics show conviction rates ranging from less than one-tenth to less than one-fifth and one-third in England and late colonial America, respectively (Clark 1987: 57–58; Hay 1989: 377–378; Simpson 1995: 104, 109; Mariette & Rowe 2001; Durston 2005, 2007: 142). This was due in part to the relatively high tolerance of sexual abuse amid generally high levels of physical violence in everyday life, and to the partial invisibility of the crime of rape. Scholars generally assume that underreporting of both attempted rape and rape was significant on both sides of the Atlantic (Teeters 1963: 62–65; Clark 1987: 6, 34, 38, 53, 57; Fischer 1989: 194, 304; Kelly 1995: 78; Edelstein 1998: 364–365, 371–375; Block 2006: 135–136, 145–146).
The majority of rapes in England, and a substantial minority of rapes in colonial America, where the relationship between attacker and attacked is known, were committed by the masters of servants or the master’s relatives, by women’s fellow workers or lodgers, and by relatives and intimates. Planned rapes were more likely to be committed indoors; opportunistic assaults often occurred outdoors (Clark 1987: 40; Block 2006: 55–80). When stranger rapes were prosecuted in England or early America, they had often occurred in the context of burglaries or in the form of gang rapes; sometimes women had been coerced with weapons. Stranger rapes, and particularly rapes committed by cultural outsiders and by transients, including sailors and soldiers, were seen as particularly disruptive to the social order and the community. The circumstances of sudden-attack stranger rape, where physical violence was threatened or used, also raised the least concerns about a woman’s chastity and credibility. Such situations were perhaps closest to rape in wartime, especially if the alleged assailant belonged to the enemy. Rape by (armed) enemy soldiers, then, represents an extreme case of stranger rape by disruptive outsiders (Clark 1987: 38; Kelly 1995: 81–93; Jansson 1999: 207, 223; Foster 2006: 59–61; Durston 2007: 147).
An American woman wishing to see a British soldier prosecuted during the war faced even greater challenges than during peacetime, starting with the question of where and how to bring charges. On the other hand, the credibility of women claiming rape by enemy soldiers was perhaps less likely to be challenged. The incentive and scope for malicious proceedings against enemy soldiers probably was also less than in peacetime civilian courts. Only a very small number of general courts-martial concerning rape of American civilian women are recorded. Soldiers were charged with rape under the articles of war, which in turn referenced the ‘Custom of War’. Officers sometimes warned soldiers in general orders that any man caught committing certain offenses, including rape, was to be summarily executed by the Provost Marshal, but the Provost Marshal records have not survived. It has been noted that conviction rates and punishment levels within the small number of rape cases tried at British general courts-martial were higher compared to rape cases tried in criminal courts across the eighteenth century, but the sample of Revolutionary-era courts-martial seems too small to draw any definitive conclusions (Block 2011: 31–33, 37–38).
Indeed, very little is known about the specific contexts in which courts-martial for rape were started. In several of the few cases for which we have some documentation, an assault immediately happened to come to the attention of an officer who, instead of looking the other way, had the alleged offender arrested and brought before a courtmartial. Alternatively, a woman, subsequent to being raped, might by happenstance identify her attacker(s) in a public setting, or courageously visit the headquarters of the occupying forces to demand an identification and trial, and officers chose to follow up. Officers prosecuting soldiers for rape were formally enforcing the articles of war, which in turn were part of the wider codes of war in the context of an imperial civil war that divided the officer corps on questions of the appropriate ways and means of war and permissible levels of violence. The surviving records vary widely, from fairly brief summary notations to much more detailed transcriptions of extensive sets of questions and the complainants’ and witnesses’ answers.
Officers’ responses to rape and rape allegations appeared to vary, then, from collusion and tacit toleration to the imposition of discipline and, perhaps, an assertion of difference from the rank and file through courts-martial. In eighteenth-century military law generally, officers possessed considerable discretion in defining crimes; soldiers could be indicted in various ways for the same offense. Officer discretion – analogous also to the significance of prosecutorial discretion at civil law – helps explain the divergence between the formal law of rape and its application in the theater of war.
To get a sense of the nature of courts-martial for rape, and their various possible outcomes, we can focus in on the areas around the permanent garrison city of New York. Soldiers here perhaps had greater opportunities for the abuse of local women; they also, however, stood a greater chance of prosecution, in part for contingent reasons, such as that the British army had the time and space to convene courts. In September 1776, the widow Elizabeth Johnstone gave evidence to a British military court at New Town, Long Island. She alleged that two British soldiers had raped her at her home. John Dunn and John Lusty had entered her house, held her down, and – threatening to kill her – took turns raping her in front of her four-year-old daughter, who lay on the same bed and who at one stage was nursed to stop her crying. Johnstone testified that each man raped her twice in a quarter hour. In response to specific questions by members of the court-martial, Johnstone confirmed that she had cried out and that both men had penetrated her and ejaculated. Two British officers, Donald McIntire, surgeon to the 43rd regiment, and Kevin Terrence, who happened to be nearby, shortly after encountered the visibly distressed Johnstone and apprehended the alleged offenders, who appeared to be ‘very much in liquor’. When challenged, the accused deflected the allegations; trying to undermine Johnstone’s credibility, they referred to her as ‘a yankee whore, or a yankee bitch, and it was no great matter or words to that purpose’. A promptly held court-martial, however, found Dunn and Lusty guilty of rape; they were both sentenced to be executed by hanging.
Several other British soldiers were executed for rape during the war. In June 1779, a court-martial at camp at Stoney Point, New York, tried Sergeant Boswell of Lord Rawdon’s regiment for rape. Inhabitant Elizabeth Loundberry testified that on the day the regiment marched out, Boswell and another man came to her house asking who lived there. Loundberry answered ‘subjects’, and denied that there were any arms in the house. Boswell searched all floors, expelled the children, locked the house, and threw Loundberry on the bed and ‘ravished her’. He then swapped places with another man outside the house who also raped Loundberry. Shortly afterwards, she mentioned the assault to an officer who had the men arrested. In response to specific questions during the courtmartial, Loundberry confirmed that both penetration and ejaculation had occurred and that she had shown all possible resistance. She had kept a child in her arms throughout, hoping to elicit the assailant’s compassion, although the court challenged her ability to resist with a child. By mentioning that the assailant had locked the door, with a second man standing guard outside, Loundberry implied that there was no complicity on her part. Boswell did not mention a search for rebels or weapons as a reason or pretense for his visit; instead he told a story about going to the house to borrow a frying pan. The court, which might have wanted to be seen to be protective of American Loyalists, condemned Boswell to death and had him executed.
Other trials resulted in corporal punishment and demotion. During the British occupation of Philadelphia in winter 1778, Catherine Stone and Isabel Mitchell, identified in British records as a ‘Negro woman’ or ‘girl’, were walking in the streets one night. A man in uniform approached, accompanied by two others. According to Stone’s later testimony at a British court-martial, the men had claimed to be on patrol and forced the women to accompany them to the guardshouse. Both Stone and Mitchell testified that they were beaten. Catherine Stone was raped by one of the men in the doorway of the Southwark Theater; Isabel Mitchell escaped, although it is unclear how far her prior physical abuse had gone. Several days later, Stone by chance recognized two of her assailants on the street and succeeded in having the men, now identified as Robert Brown and John Dillon from the quartermaster’s division, arrested and tried. They were found guilty of ‘ill using’ both women, convicted to 1000 lashes each, and subsequently turned out of the lines, their parading with a rope around their necks signaling to the dual audience of occuping army and occupied city how narrowly they had escaped the noose.
Other soldiers accused of rape were acquitted. At one court-martial held on Long Island in late July 1778, Sarah Willis accused the British mariner Thomas Gormon of visiting her house at night three months previously, pretending to be leading a press gang in search of her husband who was away. Willis asserted that Gormon raped her twice; penetration had occurred, but she could not remember whether he had ejaculated. Previous to the rape, Gormon had offered her money, which she had declined. Two labourers sleeping under the same roof were called as witnesses and denied hearing Willis either scream or call for help that night other than telling one of them to take Gorman away, but the labourer was too afraid of the press gang that he assumed was surrounding the house. The accused testified that Willis had willingly had sex with him on several occasions, once taking money for it, and reassuring him that she was not married. As in other cases, the accusing woman, not the alleged culprit, referred to a military or political rationale for the man’s visit to her house. (Gorman testified that Willis had told him to pretend to be leading a press gang to scare away her husband should he present upon the mariner’s arrival.) With no clear evidence of violence, no witnesses corroborating Willis’s story, and contradictory accounts of the roles of consent, coercion, and commerce in Sarah and Thomas’s sexual encounter(s), the mariner was acquitted.
In addition to the prosecution of rape cases at courts-martial, there is some evidence that British officers occasionally intervened to stop rapes as they threatened to happen. In July 1779, British troops under General Sir William Tryon raided several Connecticut towns. Amid a frenetic atmosphere of alcohol-fueled looting and burning, soldiers insulted and threatened men, women, and children; casually harmed and killed men; and sexually abused women. Several women afterwards testified to the troops’ apparent hurry and lack of discipline and of officer oversight. In New Haven, British soldiers first robbed and then attempted to rape Rose Luke in what appears to have been a random assault while she was out in town. Returning home, she was overwhelmed by other soldiers, although a brief respite was gained when an officer entered. Such references to officers changing the situation, even temporarily, are rare in accounts of sexual assaults, suggesting that officers more typically failed to restrain their troops or silently condoned their conduct.
Beyond relatively well-documented clusters of sexual assaults in New York and New Jersey in 1776, and Connecticut in 1779, there is evidence that sexual violence by British soldiers against women was a more widespread occurrence. Research has so far brought to light additional cases in Maryland, Virginia, Pennsylvania, and Rhode Island. When confronted with American Patriot allegations of the frequent rape of women by British soldiers, General Sir William Howe told a House of Commons inquiry in 1779 that he had only ever been aware of a single instance of rape during his entire command. In fact, however, there had even been more general courts-martial of soldiers accused of rape than their commander-in-chief cared to recollect; no doubt for every rape that resulted in a court-martial, there were several that were not detected or prosecuted. Indeed, evidence from across the 13 colonies-cum-states suggests that sexual assault was probably more frequent, and that British troops found opportunities to rape women in more diverse circumstances, than has generally been assumed.
Not only British soldiers but also American Loyalist soldiers were repeatedly the subject of rape allegations and of courts-martial. In America’s first civil war, some 19,000 American Loyalists enlisted in Loyalist corps to support the British army. The number of documented rape cases is, again, too small to permit meaningful statistical analysis or comparisons of conviction rates between British and Loyalist soldiers, although impressionistically the evidence could be read to suggest that British officers prosecuted Loyalist soldiers more rigorously and more harshly than their British counterparts.
After an engagement in April 1780 at Moncks’ Corner, 20 miles from Charleston, South Carolina, dragoons belonging to Lieutenant-Colonel Banastre Tarleton’s (Loyalist) British Legion robbed, physically assaulted, and attempted to rape several women on a plantation. It is not clear just how far the abuse of these women had gone, although the fact that one high-ranking officer advocated the instant execution of several dragoons might suggest that they had not stopped at attempted rape. But the assailants escaped summary execution and were instead sent to HQ where they were tried on unidentified charges, convicted, and whipped. Several British officers in this case explicitly deplored the conduct of the dragoons; some commentators anxiously emphasized their own chivalrous credentials. These military leaders were highly conscious of their need to retain the loyalty of the Loyalist population, especially after British strategy had pivoted to the Southern theater and greater reliance on armed Loyalist support.
Yet, Moncks’ Corner was not the only occasion on which Tarleton failed to enforce discipline, at least once prompting his superior commander to intervene directly. In spring 1781, Tarleton was leading the British Legion as an advanced guard into Virginia when he was overtaken by General Charles Cornwallis, his personal guard and a group of civilians. On Cornwallis’s orders, two of Tarleton’s soldiers were brought before a court-martial, which found both guilty of rape and robbery; both were executed (Scotti 2002: 155).
Perhaps less well known than incidents in the particularly bitterly fought partisan war in the South, sexual assaults by American Loyalists on American women are also documented for the Northern theater. In Staten Island in 1778, John Barnet and Thomas Hagertie, privates in Brigadier-General DeLancey’s Loyalist units, were hanged on the site of the murder of Nehemia Lescomb and the rape of Constantia Fowler. Bartholomew McDonough, also with DeLancey’s Loyalists, was executed for the rape of the widow Phoebe Coe and her disabled daughter in Long Island.
Other British courts-martial records reveal moments of mild restraint even in the context of extreme abuse. In 1779, William Green, a private in the Queens Rangers, and Thomas Salem, a private in the Bucks County dragoons, were charged with robbing three houses on Long Island and ‘grossly insulting their Inhabitants’. Both were sentenced to death by hanging, but Green was recommended to the commander-in-chief for a pardon on account of his youth and for protecting a young woman from rape. Mrs Hannah Dray testified to the violent robbery in the course of which several men and women were beaten and struck with swords by three soldiers. A woman aged 70 was raped by two of the intruders. A young woman was tied up and gagged with a handkerchief in an attempted rape, when one soldier intervened to prevent it. Private John Williams, Queens Rangers, offered himself as a witness for the Crown, testifying as the apparent third man. Williams admitted to the assault on the old woman together with Salem, but stated that he had desisted from raping the younger woman when she struggled and Green interfered. Williams admitted, however, that all three of them had ‘abused and ill treated every Person in the House in the grossest manner’. Clearly, the army was striking a delicate balance between enforcing discipline and the laws of war on the one hand, and preserving its manpower on the other, if the interruption of an attempted rape of one woman by the man convicted of raping another woman was sufficient to earn him a reprieve.
The British army, then, prosecuted a fairly small number of rape cases against both British and Loyalist soldiers through the military justice system. By not turning the other way when being made aware of soldiers raping American women, individual British officers may have been asserting a self-image characterized by honor and enlightened civility in the face of abuse and the often overt misogyny among fellow officers and troops. Bringing court cases against men accused of rape among its own soldiers, officers gestured toward the importance of maintaining military discipline – albeit less insistently and consistently so than in the context, for instance, of plundering. In the case of rape, there was perhaps also an implicit acknowledgement that proscribing and being seen to punish rape was in the army’s enlightened self-interest as it sought to defuse tensions in military–civilian relations, especially in the areas around the main garrison city, New York, and in temporarily occupied cities such as Philadelphia. Showing a degree of responsiveness to civilian complaints, and demonstrating that, in principle, rape would not be tolerated, made political and strategic sense for the imperial power seeking to retain or win back the loyalty or at least toleration of the majority of the population. From their degree of supervision around campsites, on marches, and during raids, to their decisions on whether or not to prosecute soldiers accused of sexual abuse, individual British officers possessed a considerable degree of discretion and latitude; their choices variously aided or militated against an assaulted woman’s chances of obtaining justice. This very inconsistency in the British responses to accusations and instances of rape provided ammunition for the American Patriots’ case against their allegedly brutal oppressors.
American Investigations
Whereas the British army prosecuted a small number of rape cases through the military justice system, the new American state concerned itself in novel and systematic ways with British breaches of the codes of war. Since no mechanisms were available to bring enemy soldiers accused of rape to justice in a court of law and thus seek legal redress, the leaders in Congress and the Continental army instead focused on investigating, documenting, and publishing their findings about British offenses against the rules of jus in bello. For one of the belligerent’s state authorities to ground its partisan narrative in fact-oriented practices to lend it plausibility and credibility was, as far as I can see, an unprecedented effort to set new evidentiary standards in exposing wartime atrocity. Congress, with the active support of military and other civilian leaders, developed this legalistic and forensic exposure of enemity atrocity with regard also to battlefield atrocity, prisoner abuse, and plundering.
In the winter of 1776–1777, a Congressional committee investigated the ‘lust and brutality of the soldiers in abusing of women’ especially in New Jersey. Asserting the applicability of jus in bello, the committee uncovered ‘authentic information of many instances of the most indecent treatment, and actual ravishment of married and single women; but, such is the nature of that most irreparable injury, that the persons suffering it, and their relations, though perfectly innocent, look upon it as a kind of reproach to have the facts related, and their names known. They have, however, procured some affidavits, which will be published in the appendix’.
George Washington’s general orders for the new year (1777) had foreshadowed the contrast between American soldiers and their enemies: ‘It is expected that humanity and tenderness to women and children will distinguish brave Americans, contending for liberty, from mercenary ravagers, whether British or Hessians.’ In responding to atrocity, the Congressional committee not only developed a discourse of barbarity and savagery versus humanity and civility adapted from a century-old discourse of frontier violence; it also reflected a distinctive forensic culture. Chaired by the lawyer Samuel Chase, the committee conducted its investigation in line with the era’s fact-oriented legal and scientific culture and its techniques of autopsy and credible witness testimony. The committee relocated to Princeton, New Jersey, to maximize access to local knowledge and witnesses. It engaged credible professionals such as justices of the peace, clerics, and medical experts to administer recognized technologies of witnessing (Hamlin 2013; Rudolph 2008; Shapiro 1994, 2000).
Stressing their concern with the authenticity and credibility of their information, the committeemen were aware that gathering evidence of specific instances of rape was more challenging than for plundering, battlefield atrocities, or prisoner abuse. Those seeking to document rape, including George Washington, Governor William Livingston, and the Congressional committee, realized that rape would be ‘more difficult to prove than any of the rest, as the person abused, as well as the Relations are generally reluctant against bringing matters of this kind into public Notice’. In acknowledging these very challenges, and the tension between their forensic and empiricist aspirations on the one hand and the actual conditions of fact-finding on the other, the committee highlighted its concern with evidential standards.
It was General Washington who helped the Congressional investigation to a breakthrough in early March. He apparently recovered a memorandum on rape that had been composed when his troops had been on the Pennsylvania side of the Delaware river earlier that winter, but that had subsequently been mislaid. Washington now passed on hints about particular locals who might be able to provide information about specific rape cases. These references eventually allowed the Hunterdon County Justice of the Peace Jared Saxton to depose six rape victims; via the appendix of the Congressional report, their harrowing testimony would soon reach a wide audience.
Among these six women was 13-year-old Abigail Palmer, who remembered how the previous December several British soldiers had come to the house of her grandfather, Edmund Palmer, near Pennington, New Jersey. The men took control of the premises and raped Abigail for ‘three Days successively’, as more soldiers came and left. They also assaulted Edmund Palmer’s married and pregnant daughter Mary Phillips, and Elizabeth and Sarah Cain, teenagers aged 15 and 18 who happened to be visiting the Palmer family. On one occasion, several soldiers seized Abigail and Elizabeth, ‘pull’d them both into a Room together’ and – ignoring their screams – ‘Ravishd them both’. The teenagers were eventually dragged to a nearby camp to sexually service more of their tormentors’ comrades. Only after further assaults did an officer put a stop to this abuse and arranged for the girls’ return to their families.
There is no indication that the British soldiers had picked the Palmer house for any specific political or military reasons. Instead, once soldiers roaming the environs of camp, possibly searching for vulnerable women, had discovered that several girls and women were at that house, they abused them systematically in individual and gang rapes. The girls’ references to weapons and the emphasis on the threat of brute force – poison, stabbing, shooting – are mirrored in other descriptions of wartime rape. Soldiers were able to move freely between their nearby camp and the private residence before abducting the two teenage girls. Only at this stage does the victims’ testimony refer to any officers exercising oversight and eventually putting an end to the sexualized violence that they had endured.
When the four females abused at the Palmer house and two others from the same region shared their traumatic experiences with the local official deputized by the Congressional committee to take their depositions, these women all signed with their mark. The printed versions of their recorded testimony, edited by the Congressional committee, redacted all names and locations; they gave the age of each woman, and the substance of her testimony in full, merely editing grammar and length slightly. If the need for public action trumped private shame, anonymizing the evidence accommodated both impulses. Like Abigail, Mary, Elizabeth, and Sarah, most American women who were raped by British soldiers had no opportunity to formally charge their assailants or seek justice in a court: it was in the court of American and international public opinion that their attackers – and the character of the British army – were held up to scrutiny, with jus in bello as the implied or expressly stated standard.
The American Patriots’ novel legalistic and forensic approach to exposing enemy infractions of jus in bello reflected the empirical turn in eighteenth-century culture more broadly, particularly in science and law, including the role of medical evidence and witness testimony. Unlike with soldiers’ mangled bodies, where medical experts examined and testified to the precise nature of wounds, and where the physical evidence of the alleged war crime took center stage in American investigations, neither in American inquiries and propagandistic publications, nor in those instances where the British held a court-martial of an alleged rapist, does physical evidence appear to have played a major role in rape cases, although Sarah Willis did refer to bruises she had shown to her husband (by the time of the court-martial they were no longer visible). In British and colonial American civilian courts, third-party women who had examined unmarried rape victims typically testified to bruises, cuts, and other signs of resistance, as well as to indications of recent sexual intercourse. The difference might in part be explained with reference to the fact that many of the surviving depositions before American authorities (and in British courts-martial, too) are of married or widowed women who were supposed to know about their own bodies, as opposed to unmarried and supposedly sexually inactive women to whose violation other women usually testified in the civilian courts. (Only in a few British courts-martial concerning child rape did physicians testify to a girl’s infection with venereal disease or to particularly brutal genital injuries.) As far as the Congressional report was concerned, however, at a political and polemical level, in rapes by armed enemy soldiers the personal interests of the American woman in sovereignty over her own body were well aligned with the interests of her male compatriots and that of the new American body politic. When girls like Abigail Palmer told their story and signed their testimony with their mark, the private trauma of particular individuals was rendered into anonymized strands in the larger Patriot atrocity narrative, as was also the case with reference to battlefield atrocities, prisoner abuse, and plundering.
There are further documented instances of individual and gang rapes in New Jersey that winter. The Palmer house incident was an extreme version of the more general observation that during wartime there was a higher incidence of both multiple attackers and multiple victims of rape than in peacetime colonial America (Block 2011: 26–27). Overall, British soldiers appeared to be able to sexually abuse local women with a low risk of disciplinary sanctions. Patriot newspapers highlighted incidents of officers roaming town and countryside as voracious sexual predators: rape was deplored when committed by the rank and file, but when officers were imagined as potential assailants, it seemed to signify the breakdown of (the fiction of) enlightened, limited warfare, if not of civilization itself.
Within weeks, the 1777 Congressional report, including much of its documentary apparatus, was disseminated very widely by Patriot newspapers. Congress also ordered 4000 English and 2000 German copies of the report to be published to maximize its impact across America, Europe, and the West Indies, yet none have so far surfaced. However, the substance of the report circulated not only in America but in the public spheres of Britain and Continental Europe. In Britain, the accusations helped opposition politicians criticize the government’s conduct of the war. More broadly, the dissemination of empirically documented allegations of illegitimate violence helped the Revolutionaries assert national difference from the British and claim moral authority over the interpretation of jus in bello, and thereby their place among the ‘civilized’ nations of the world (Gould 2012).
Just occasionally, the Congressional documentation reveals glimpses of restraint, if not compassion. It is difficult, or perhaps in the last analysis, impossible, to ascertain whether officers let alone soldiers thought about the conduct of war in terms of jus in bello, and whether that affected their conduct in a war zone (Best 1979: 24). In the context of a Congressionally mandated investigation into British-led raids on several Connecticut coastal towns in 1779, Ruana Robinson of Fairfield, Connecticut, testified that a British general and other officers quartered at a house where an American woman was lying in labor, treated her and her assistants with decency. Lucretia Radfield had been alone at her Fairfield home with a child and her aged mother when British soldiers came to ask for her husband. She told them that he had gone away and that she did not know whether he was in arms, her story carefully balancing the assertion of belonging and the need to downplay a potentially rebellious posture. The British soldiers, with no apparent restraint from their officers, plundered the house, appear to have partially stripped her mother, verbally abused Lucretia, and threatened to rape her. Lucretia was rescued by the timely arrival of two other soldiers. One recollected that he had been kindly treated when previously he had been a prisoner of war in that same locality. Considering the people ‘worthy’ and kind, the two newly arrived men protected Lucretia during the night. Unlike her Roman namesake, Lucretia appears to have escaped rape, whether because her assailants felt restrained by the laws of war, or feared arrest and punishment, or because one soldier, arriving by chance, followed a humane impulse.
Conclusion
Sexual assault on civilian women in the American Revolutionary War occurred in more than isolated instances. British and Loyalist soldiers in particular found opportunities to rape women in diverse circumstances: in the vicinity of campsides, in the context of raids, in garrisoned cities; assailing one or several women either individually, with one other soldier, or in larger groups. The British army disciplined some of its soldiers for sexual offenses and it executed a few of them at a time when even their home society featured very low prosecution and conviction rates for the capital crime of rape. In addition to army discipline, a concern for military–civilian relations in the context of an imperial civil war may have been an incentive to make examples of at least some sexual offenders. But if the British army or individual officers were indeed paying attention to military–civilian relations in America, and to their country’s international reputation, their disciplinary efforts appear to have had little, if any, impact on American Patriot perceptions and certainly not on their polemics. In the Patriot atrocity narrative, the rape of America’s women – not unlike the mangling of the bodies of surrendering American soldiers and the physical and psychological abuse of prisoners of war – presented incontrovertible evidence of Britain’s cruel ways of war.
In rebellion and in civil war, military assaults on civilians can take on complex politicized connotations. Several American women asserted that their British assailants used politico-military pretexts to force their way into dwellings and lure women to remote spots. References to the harboring of rebels, the labeling of some attacked women’s husbands as rebels, and Dunn and Lusty’s dismissal of Elizabeth Johnstone as a ‘yankee whore’, appeared to explain and justify, if not legitimate, sexual assault with reference to colonial rebellion. Yet, in at least as many documented instances, rape was clearly a crime of opportunity; the overall evidence for politically targeted assaults remains inconclusive. The families of raped American women sometimes pointed out that their British assailants had sought to maximize the humiliating and demoralizing impact of their attacks by raping women in front of their fathers, husbands, other close relatives, and friends. Assaults on the honor of American men who failed to protect their women seemed as critical as defeat on the battlefield. When Loyalist soldiers assaulted American women, a general sense of revenge for earlier ordeals suffered at the hands of Patriot persecutors may have been a motive for some. Loyalist soldiers raping American women complicated but did not necessarily undermine the anti-imperial atrocity narrative; the rape of America, by Britons and their Loyalist auxiliaries, was taken as a manifestation of illegitimate imperial power and helped legitimate independence.
When the Continental Congress and Continental army documented and disseminated the results of investigations into rape by enemy soldiers, the new state’s authorities reflected existing notions of jus in bello and engaged in an effort at further definition. Asserting the applicability of European-style jus in bello by highlighting its breaches by the enemy, the Revolutionaries mounted innovative empirical efforts to buttress their allegations. They might thus compensate for their legitimacy deficit in a war that had started as a colonial insurgency. Jus in bello was a useful tool that allowed the Revolutionaries to claim the moral high ground in the ethico-polemical war that shadowed the war on America’s battlefields. In turn, through its efforts at fact-finding, documenting, and publicizing, the new American state took an important step toward asserting norms that would later constitute a more formally codified international law of war. The Revolutionary authorities engaged in analogous efforts with regard to protections for combatants and for prisoners of war. The ethical dimensions of the law of war, then, resided not only in the formal law of rape as laid down in treatise and customary law, but also in the choices of British officers as legal actors, and in the political uses to which representatives of the new American state deployed jus in bello as they strove for international recognition.