Song of the South - JustAnswer



Song of the South.(Home Plate).

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The American Conservative 9.6 (June 2010): p.51(1). (764 words) 

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|Author(s): |Bill Kauffman.  |

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COPYRIGHT 2010 The American Conservative LLC

Collin Wilcox died last October, just as I was about to settle in for an annual viewing of "To Kill a Mockingbird." Wilcox was the North Carolina actress whose surly white-trash ejaculation Gregory Peckwards--"A chiffarobe!"--is one of several lines from the movie that have entered our family lexicon. (It's just ahead of "He's gone and drownded his dinner in sirrup" and behind "You wrong, man--you dade wrong.")

I don't think any American is permitted to exit teenagerhood without visiting the "tired old town" of Maycomb. My daughter's tenth-grade class has gotten around to Harper Lee's novel, though she and I read it together a couple of years ago, for in my own high-school days I dodged the Mockingbird draft, lighting out instead for the era's Kurt Vonnegut-Richard Brautigan territory.

An uprooted Southerner once told me that TKAM was the Southern novel for people who hate the South, but I don't think so. The racial injustice done Tom Robinson disfigures Maycomb, but it doesn't define Lee's town. Besides, the harshest criticisms of any place come from those who truly love and belong to it. For American examples, see Gore Vidal, Edmund Wilson, William Appleman Williams, Sinclair Lewis, and Edward Abbey.

Harper Lee, who turned 84 on April 28, still resides in her hometown of Monroeville, Alabama, an act that says everything that needs to be said about her loyalty to her place. A mutual friend tells me that she is a witty lady with a generous streak and a fondness for Christian charities.

What struck me about the novel was young Scout's love of her father, the noble lawyer Atticus, and that father's love of his town. In one of the book's loveliest lines--not uttered in the film, alas--Atticus asks Scout to "remember this, no matter how bitter things get, they're still our friends and this is still our home." There is a world of meaning in that sentence.

Lee told the story of Atticus Finch and Tom Robinson and the recluse Boo Radley not to damn her people but to commemorate them. She confessed her desire to "chronicle something that seems to be very quickly going down the drain. This is small-town middle-class southern life as opposed to the Gothic, as opposed to Tobacco Road, as opposed to plantation life."

"As you know," said Lee in the early 1960s, "the South is still made up of thousands of tiny towns. There is a very definite social pattern in these towns that fascinates me. I think it is a rich social pattern. I would simply like to put down all I know about this because I believe that there is something universal in this little world, something decent to be said for it, and something to lament in its passing."

Late as we are in the American derangement--or are we early in its salutary realignment?--this cherishing of the small-town South, even while acknowledging historic cruelties, is all to the good.

I must have seen the movie 20 times, and spare me your sneering about arrested middlebrowism. Was there ever a more startling film debut than Robert Duvall's turn as Boo Radley? Has there been a better children's ensemble than Alabama actors Philip Alford and Mary Badham and Connie Stevens's half-brother(!) John Megna as Dill, little Truman Capote? (Megna went on to chant "bonk bonk on the head" in a famous "Star Trek" episode.) Ever hear the word "chiffarobe" used in another film?

The occasional cringe-inducing moments of liberal fantasy--as when the black citizenry, packing the segregated courtroom balcony, stands as one when Atticus passes by--I chalk up, perhaps unfairly, to the vanity of Gregory Peck, who, as Charles J. Shields revealed in his 2006 Harper Lee biography Mockingbird, complained at divaish length that his character didn't have enough screen time. Peck's sanctimony works very well in the film, however; it infuses, rather than embalms, Atticus Finch. Thank the casting gods that Universal's first choice--Rock Hudson--didn't get the part.

I don't suppose I'll ever read the book again, but many elements of the movie repay repeated exposure, from Elmer Bernstein's superb score to Horton Foote's screenplay, a model of concision and concinnity from which extraneous characters in the novel (such as annoying Aunt Alexandra) are wisely excised. And the supporting performances are magnificent. James Anderson, who played the malevolent Bob Ewell, was a drunken Alabama-born method actor so lost inside his part that he came to hate Gregory Peck.

For all this we can thank the tomboy who worshipped her father and aspired to be "the Jane Austen of south Alabama." Happy birthday, Nelle Harper Lee.

Source Citation

Kauffman, Bill. "Song of the South." The American Conservative 9.6 (2010): 51. Academic OneFile. Web. 26 May 2010.

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Gale Document Number:A225249039

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.

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Columbia Journal of Gender and Law 18.3 (Fall 2009): p.743(64). (26112 words) 

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|Author(s): |Iris Halpern.  |

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COPYRIGHT 2009 Columbia Journal of Gender and Law

In 1960, To Kill a Mockingbird (1) 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--law (4)--that is defined by objective, rational perspectivalism and which is notorious for its 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 Education (9) 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 institutional mechanisms of racial hierarchy, (11) 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. (13) 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 Kimberle Crenshaw in her landmark essay Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics. (14) 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. (16)

Warning us, Crenshaw extends the following cautionary advice: It is incumbent on feminism to interrogate and take account of the ways in 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." (17)

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 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. (21)

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. (23) 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. (25) 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)

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. (27) 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 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 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. (36) 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. (38) 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,

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 anti-miscegenation mechanics of Jim Crow implicated in Lee's writing. (42) 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:

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 Boetician 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. (46)

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. (47) 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 "immutable rules of social conduct." (52) Based on these perceived rules of the natural social arrangement, Alabama law codified prohibitions against miscegenation. (53) "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.

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. (60) Their faces are "heavily powdered but unrouged," and wear masks of "Tangee Natural" lipstick accompanied by "Cutex Natural" nail polish. (61) This elaborate paradox between "natural" essence but fastidiously contrived aesthetics and mannerisms (62) also occurs in the same scene where the 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 'era yes you're as good as we are but stay away from US." (64) 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. Care was a dim organization on the north side of the square." (69) 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, Calpumia 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 (71)--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, (72) that the importance of the novel, at least in part, "arises from its challenge of the southerner's stereotype of African-Americans." (73) In defending the family's continuing relationship with Calpurnia, Atticus tells Alexandra that, in his wife's absence, Calpurnia 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 welcomes Jem and Scout into his church, and later into the area of the courtroom to which the African American community is restricted. (75) 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. (78)

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. (79)

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 intercourse that is evidenced by Maycomb's white society (81) 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, 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. (93) 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

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. (100) 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 from the courthouse. She is tearless, despite belonging to the sex considered too "frail" to serve on Alabama juries. (101) But Dill, in a visceral response to the racism of the trial, falls physically ill. (102) 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, (103) 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." (104) 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." (105) 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 (106)--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:

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." (109) 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. (110) 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." (111)

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, Tim Johnson--a feat so impressive that even the county sheriff defers to Atticus's skill. (112) As Miss Maudie tells it, "Atticus Finch was the deadest shot in Maycomb County in his time.... His nickname was Ol' One-Shot ... If he shot fifteen times and hit fourteen doves he'd complain about wasting ammunition." (113) 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. (114) 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." (115) 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." (117) The praise observes that femaleness is always about visage--it is about being a 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 flame 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." (119)

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. (120) 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 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; (125) 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 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. (129) 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 Tom Robinson is punished and murdered (131) is one in which "the kinds of justice administered by southern mobs and southern courts were often indistinguishable" (132) and "mobs and juries [were] indistinguishable." (133) 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. (134) 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" (136) 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. (139) 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).

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, (141) 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!" (143) 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. (146) Her 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, 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. (148) 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." (150) 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.

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. (151) 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 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 obsession was racial antagonism, rather than a concern for female sexual agency. In the words of one Maycomb citizen, "[t]hey 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. (157) 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, (158) shied away from scrutinizing fathers, and located blame with the victim herself. (159) 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 law's failings during the decades implicated by the novel: the 1930s, in which Mockingbird is set, through the late 1950s, when it was written. In the South's legal and societal efforts to construct the "bestial black man" (160) and passive, white, heteronormative woman, (161) 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 societal 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. (164)

At the same time, as Professors Angela Harris and Kimberle Crenshaw note, the intense forms of violence black women experienced were never understood to be an injury before law. (165) 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)

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. (167)

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 (168) as means of reasserting racial, gender, and class dominance. (169) 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. (171)

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. (172) Simultaneously, the construction of female sexuality as chaste, virtuous, passive, and white served as an instrument of racial domination. (173) 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. (176) 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.

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. (181) 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. (182) This imbalance speaks to the fact that 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." (184)

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, (188) was a known euphuism for harassing and even incarcerating gay men throughout the latter part of the twentieth 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. (191) It also detailed Georgia's long history of both legally and socially condemning gay sex. (192) 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. (195) 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." (196) 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." (197)

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 (198) until 1967, when bans on marital miscegenation were finally held unconstitutional in Loving v. Virginia, (199) 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

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." (202)

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. (204)

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. (205) In other states, the rape legislation expressly targeted black men. (206) 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. (207) Alabama, Mississippi, and Texas also eliminated the death penalty for white men convicted of rape prior to the Civil War. (208) 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. (210) In contrast, eighty-four black men were convicted of raping white women, with forty-five ultimately executed--a frequency of fifty-three percent. (211) What is imperative to note is that the race of both the defendant and victimized female were thus delineating elements. (212)

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 of the executions for rape in the nation took place in southern states. (213) Prior to the Civil War, Virginia provided for only five capital crimes for whites, 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; (217) carnal knowledge, or other such euphemistic variants, was subject to extremely light sentencing. (218) 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. (219) Meanwhile, rape of a black woman was penalized only through civil fines or, rarely, through imprisonment at discretion of the court. (220)

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. (221) 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. (222) 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 1960 (225) 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 white (226): a trend which persisted until 1977 when the imposition of the death penalty in cases of rape was held to be cruel and unusual punishment. (227)

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. (231) 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 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, (236) 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 contrast to the partial or at least nominal protection white women enjoyed under these statutes. (240) 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 both black and white bodies and their sexual agency, (245) 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)

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, 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 modern day statutory rape. (250) 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 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. (251) 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 claims (253)--death was imposed only twice by Alabama courts under this law. (254) The second subset of provisions prohibited "carnal knowledge" of a girl above the age of twelve but under the age of sixteen. (255) 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 age (257)--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 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." (258)

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 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." (262) 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. (263)

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. (265)

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 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)

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. (269)

Legislative histories of incest statutes likewise evince ulterior motives. Although by the mid-1800s most southern states had laws criminalizing incest, (270) 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. (273)

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 exemptions to rape were instrumental in maintaining a cloak around intrafamilial 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, (275) 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, (276) leaving only ten sexual assault-based cases before the two courts. (277) 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 consent (278)--several years younger than Mayella's nineteen years. (279)

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. (280) 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. (281) 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. (283) 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 corroborate the testimony of the woman, who alone testified to the facts constituting the crime with which defendant is charged." (286)

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, (287) 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, (289) 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 [sections] 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 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 alone in proving incest for the entire period. (294) 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)

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 [sections] 325, Title 14, Code of 1940;" (299) "convicted of incest;" (300) or "tried and convicted under an indictment charging incest." (301) 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 "[t]his appellant was indicted for incest or adultery with his daughter. His jury trial resulted in a verdict of guilty." (303)

Descriptions of the circumstances and crime were generally kept skeletal as well, barring a few exceptions. (304) For example: "[m]edical 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." (305) 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. (306)

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. (307)

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"; (308) 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." (309)

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, 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.

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. (312)

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 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 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.

Lee's To Kill a Mockingbird.(racism in Harper Lee's works)(Critical Essay).

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The Explicator 61.4 (Summer 2003): p.234(3). (1179 words) 

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COPYRIGHT 2003 Heldref Publications

Throughout Harper Lee's To Kill a Mockingbird, besides the ordinary connotations of "right" and "left" as opposing spatial directions, the terms also work on a subtler level: "right" suggesting virtue and "left" suggesting iniquity.

Connotations of "right" and "left" play a crucial role during the climactic trial scenes. Building evidence against Bob Ewell, Atticus asks Sheriff Tare which one of Mayella's eyes was bruised the night she was attacked, and Tate replies, "Her left." Atticus asks, "Was it her left facing you or her left looking the same way you were?" (179). Tate says, "Oh yes, that'd make it her right. It was her right eye, Mr. Finch. I remember now, she was bunged up on that side of her face" (179). Bob says that he agrees with Tate's testimony that Mayella's "right eye was blackened" (187). A reading of the transcript of Tate's testimony reminds the jury that Tate testified that Mayella's right eye was black: "[W]hich eye her left oh yes that'd make it her right it was her right eye. [...] [I]t was her right eye I said--" (187). Directional words "right" and "left" are repeated, emphasizing the dichotomy. Literally, Mayella could not see clearly from her right eye when it was bruised; symbolically, Mayella cannot act morally.

Whereas Mayella's right eye is bruised, Atticus is nearly blind in his left eye, both literally and figuratively: "Whenever he wanted to see something well, he turned his head and looked from his right eye" (98). Later, when Atticus scolds Scout, he pins her "to the wall with his good eye" (146). When Atticus questions Mayella on the witness stand, he "turned his good right eye to the witness" (199). Atticus uses his "right" eye, his "good" eye for wisdom. Both "good" and "right" express moral undertones, as in "the good," suggesting wisdom and insight are products of "good" eyes.

Portrayals of Mayella's bruised right eye also contrast portrayals of Tom's left arm, which was "fully twelve inches shorter than his right, and hung dead at his side" (197). Tom's left arm "hung dead," just as immorality is dead in him. While the court observes Tom's mangled left arm, Atticus asks Mayella, "He blackened your left eye with his right fist?" (198-99). Atticus's point is made, and with repeated use of various connotations of words such as "left," "right," and "side," implications of morality abound.

Atticus proves Bob is left-handed, providing circumstantial evidence that Bob attacked Mayella. Atticus says, "Mayella Ewell was beaten savagely by someone who led almost exclusively with his left" (216). Bob signs a warrant "with his left hand," whereas Tom takes "the oath with the only good hand he possesses--his right hand" (216). Bob is "led" by the immoral left, but Tom tells the truth, swearing with his "good" right hand. Tom's "good arm" parallels Atticus's "good eye," and in both cases "good" signifies proper function and virtue.

Before Tom's mangled left arm is exposed, Scout questions Tom's innocence. She says that if Mayella's "right eye was blacked and she was beaten mostly on the right side of the face, it would tend to show that a left-handed person did it. [...] But Tom Robinson could easily be left-handed, too. Like Mr. Heck Tate, I imagined a person facing me, went through a swift mental pantomime, and concluded that he might have held her with his right hand and pounded her with his left" (189). Again, the words "right" and "left" are repeated. Scout also uses the word "facing," a directional word that represents the jury Tom faces and the truth the jury refuses to face.

Lee introduces a right-left dichotomy in the opening scene of To Kill a Mockingbird, a scene narrated many years after the events of the narrative proper. Scout says that Jem's "left arm was somewhat shorter than his right; when he stood or walked, the back of his hand was at right angles to his body [...]" (9). Jem, like Tom, has an injured left arm and a healthy right arm. His hand turns at right angles, signifying his morally correct perspective. In the opening paragraph, Scout provides a framework for her story, disclosing that she will explain how Jem's accident occurred. As the plot unravels, readers are told how Jem hurt his arm. More important, readers come to understand Jem's moral development.

Immediately after Atticus shoots a rabid dog, Sheriff Tare runs to Atticus and taps "his finger on his forehead above his left eye" (105). He says, "You were a little to the right, Mr. Finch." Atticus answers, "Always was [...]" (105). Of course, Tate refers to the direction "right" as opposed to "center" or "left," but symbolically, Atticus looks to the "right," protects the neighborhood. The dog "walked erratically, as if his right legs were shorter than his left legs" (101). The dog's lame right legs symbolize malevolence, his danger to society.

As in instances where "right" opposes "left," the term "right" designates that a specific spatial locale also has ethical undertones. Atticus tells Calpurnia that Tom stood "[r]ight in front of" the guards who shoot him (248). Tom stands both directly in front of the guards and on his own symbolic ethical ground. Inquiring if during the trial the children sat in the balcony of the courthouse, Miss Stephanie asks, "Wasn't it right close up there with all those--?" (227). Symbolically, "right" refers to the truth, the section of the courthouse where people sit who support Tom, Atticus, and racial equity.

The term "left" also denotes what remains, what is "left" of something. Scout says that the dog "had made up what was left of his mind," turned around and began to walk toward the Finch's house (105). A few paragraphs later, Lee contrasts Atticus's mind with the dog's mind. After learning Atticus had once been called "01' One-Shot [...] the deadest shot in Maycomb County" (106), Jem asks Miss Maudie why he never brags about his marksmanship talents. She answers, "People in their right minds never take pride in their talents" (107). Here, the "right" mind literally refers to people who think straight, level-headed people--in this case, implying that Atticus is humble. Whereas the dog uses what is "left" of his mind to harm people, Atticus, in his "right" mind, exemplifies humility.

Atticus, Tom, and Jem represent moral virtue: Atticus uses his "right" mind and his "good, right" eye to defend Tom; Tom takes the oath with his "good, right" hand; and Jem, with his vigorous "right" arm, defends Tom. Contrarily, the rabid dog, Mayella, and Bob represent moral inequity. The dog's "left" legs are healthy; Mayella's "left" eye is healthy; and Bob is "left" handed. The rabid dog presents a physical threat to Maycomb County, but Mayella and Bob present a social threat--the perpetuation of racism. Atticus's virtue only enables him to eliminate the physical threat. That the jury convicts Tom in the end signals that Atticus loses his battle against racism.

WORK CITED

Lee, Harper. To Kill a Mockingbird. New York: J. B. Lippincott, 1960.

LAURIE CHAMPION, San Diego State, Imperial Valley

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

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Journal of Southern History 66.4 (Nov 2000): p.711. (17424 words) 

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COPYRIGHT 2000 Southern Historical Association

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(5) Ibid., 97.

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

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

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

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

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

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

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

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

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

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

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

(17) Ibid., 284.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Source Citation

DORR, LISA LINDQUIST. "Black-on-White Rape and Retribution in Twentieth-Century Virginia: 'Men, Even Negroes, Must Have Some Protection'." Journal of Southern History 66.4 (2000): 711. General OneFile. Web. 26 May 2010.

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The Strange Career of Atticus Finch.

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Southern Cultures 6.2 (Summer 2000): p.9. (7527 words) 

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|Author(s): |Joseph Crespino.  |

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COPYRIGHT 2000 University of North Carolina Press

Contemporary debates concerning race in America owe much to the 1960s when African Americans and other minority groups gained basic legal protections and rights of citizenship denied them in the century following Reconstruction. The current offspring of this movement is multiculturalism, a term that encompasses a range of progressive educational techniques, policy recommendations, and social movements that celebrate racial and ethnic differences and seek to empower people to pursue goals of personal and communal freedom. One of the basic questions raised in the 1960s that reverberates in multiculturalism today is who in our society is allowed to speak authoritatively on racial issues. Over the course of the twentieth century, but particularly with the flowering of African American studies, the era in which white intellectuals debated the "Negro problem" among themselves' has ended once and for all. In countless cultural productions and scholarly works from the civil rights era and more recent decades, African Americans are the subjects in the exploration of racial inequality in American history and life. And yet looming among the most popular and enduring works on racial matters since the 1960s is Harper Lee's To Kill a Mockingbird, the Depression-era account of Atticus Finch's legal defense of a black man wrongly accused of raping a white woman, told through the eyes of Finch's nine-year-old daughter, Scout.

In the twentieth century, To Kill a Mockingbird is probably the most widely read book dealing with race in America, and its protagonist, Atticus Finch, the most enduring fictional image of racial heroism. Published in the fall of 1960, the novel had already sold five hundred thousand copies and been translated into ten languages by the time it received the Pulitzer Prize in 1961. The story was almost immediately snatched up by Hollywood, and the Alan Pakula-directed film had the double distinction of landing Gregory Peck an Oscar for his portrayal of Finch and giving Robert Duvall, with a brief role as the mysterious Boo Radley, the first of his seemingly countless screen appearances. It is estimated that by 1982 To Kill a Mockingbird had sold over fifteen million copies, and a 1991 American "Survey of Lifetime Reading Habits" by the Book-of-the-Month Club and the Library of Congress revealed that next to the Bible the book was "most often cited in making a difference" in people's lives.(1)

The novel influenced a generation of Americans raised during the turbulent years of the 1960s and 1970s. Former Clinton adviser James Carville, who spent his formative years in the 1960s South, reflected on Harper Lee's achievement: "I just knew, the minute I read it, that she was right and I had been wrong. I don't want to make it noble, or anything. I was just bored with all the talk of race." Evidence of the novel's continuing influence on rising generations can be found on the internet, where dozens of high school and college chat groups discuss the adventures of the Finch children or debate the meaning of the Radley neighbors. Atticus Finch himself remains a touchstone figure of decency and respect. In the recent Democratic primary campaign in New Hampshire, Bill Bradley, in an effort to appear above ordinary political wrangling, posed in a rocking chair on the set of a theatrical production of To Kill a Mockingbird; one of his speech writers told reporters later that Bradley had been in his best "Atticus Finch" mode. Given this legacy, the dearth of critical commentary on the novel is surprising. Literary critic Eric Sundquist writes, "It is something of a mystery that the book has failed to arouse the antagonism now often prompted by another great novelistic depiction of the South ... Adventures of Huckkberry Finn, which arguably uses the word nigger with more conscious irony than does To Kill a Mockingbird and whose antebellum framework and moral complexity ought to be a far greater bulwark against revisionist denunciation."(2) A critique as basic as noting Atticus Finch's paternalism did not emerge until recently, and even then such a reading has been contested by Finch defenders.

The enduring career of To Kill a Mockingbird as a story of racial justice, and of Atticus Finch as a racial hero, reveals much about American racial politics in the second half of the twentieth century. From 1960s liberalism to 1990s multiculturalism, from the inchoate conservatism of Goldwater through that of the ReaganBush era, Atticus Finch has been both admired and scorned by liberals and conservatives alike. Tracing Atticus's place within the American imagination reveals some of the major fault lines in the struggle for racial equality over the past forty years and allows us to look again at how competing groups have framed racial issues in America.

ATTICUS FINCH AND THE LIBERAL CONSENSUS

The early success of To Kill a Mockingbird and Atticus Finch's warm reception can be explained in part by the way Finch embodies what historians have called the "liberal consensus" of mid-twentieth-century America. With the defeat of the Depression at home and fascism abroad, postwar Americans were confident that democracy and western capitalism could answer basic questions of material need and class inequality that plagued the nation in prior decades. Among American historians, the generational change away from the concerns of Progressive historians, who emphasized conflict and inequality in American history, to the new focus on the "liberal tradition" reflected this consensus. Consensus historians described an adventurous but fundamentally conservative America in which liberalism marked the continuity between past and present.(3)

By the time of To Kill a Mockingbird's publication, civil rights had become an important part of the liberal consensus. The decades stretching from 1935, the year in which the novel was set, to 1960, the year in which it was published, witnessed several important modernizing trends that shaped the world in which Harper Lee wrote her first and only novel. By 1935 industrial expansion in northern cities, along with reduction in foreign immigration, had attracted a significant number of African Americans from rural areas of the South. This migration would expand in the years following World War II so that by 1960 as many African Americans lived outside the South as within it. Liberated from southern disenfranchisement, progressive, urban African Americans demanded that America address questions of racial inequality. African American representatives elected from these urban areas drew Congressional attention to racial issues, and legal battles in the Supreme Court laid the groundwork for later, more far-reaching decisions such as Brown v. Board of Education. With northern African Americans focusing attention on the South, northern whites could not continue to ignore the transgressions of southern segregation. The Scottsboro trial of the 1930s and the murder of Emmett Till in 1955 became causes celebres that focused attention on southern discrimination. Undoubtedly, the Scottsboro trial's false accusations of rape influenced Harper Lee's depiction of Tom Robinson's trial.

Liberal trends within the American academy gave new attention to issues of race. In the 1930s and 1940s, southern racism was the focus of several prominent works echoed in Harper Lee's novel. Studies such as Charles Johnson's Shadow of the Plantation (1934), John Dollard's Caste and Class in a Southern Town (1937), and W.J. Cash's The Mind of the South (1941) exposed the indignities of southern racism. The most influential contribution to racial liberalism was Gunnar Myrdal's An American Dilemma (1944). An instant classic, Myrdal's 1,500-page study argued that the discrepancy between the egalitarian impulse of the "American Creed" and the oppressive treatment of African Americans presented a troubling dilemma for white America. Myrdal offered hope for an end to discrimination and predicted that the democratic rhetoric following World War II and the convergence of other social trends would force "fundamental changes in American race relations."(4)

The Cold War also held important implications for the rise of American racial liberalism. By the end of World War II, the United States emerged as capitalism's primary defender in the fight against Soviet Communism. As the two superpowers competed for influence in the decolonizing areas of the globe, the rhetoric of American democratic liberalism became an important ideological weapon in the battle against what Americans saw as a repressive totalitarian state. The continued presence of legalized racial discrimination in the South was, of course, the glaring contradiction to American egalitarian rhetoric. The geopolitical demands of international diplomacy necessitated that the country incorporate the South into the American ideal by eradicating all vestiges of southern segregation.(5)

Much of the American South was insulated from these liberal trends, yet there were a small number of southerners influenced by the dominant intellectual developments of the day. Harper Lee was among this tiny minority of southern liberals in the 1950s South. A native of Monroeville, Alabama, which became the inspiration for the novel's fictional town of Maycomb, Lee attended a small women's college in Montgomery, Alabama, and later transferred to the University of Alabama where she completed her undergraduate studies and, in 1947, enrolled in law school. In October 1946, she contributed a one-act play to a university humor magazine satirizing a fundamentalist, racist politician of the kind who came to dominate southern political rhetoric in the age of massive resistance: "Our very lives are being threatened by the hordes of evildoers flail of sin ... SIN, my friends ... who want to tear down all barriers of any kind between ourselves and our colored friends." In the February 1947 issue she parodied country newspapers by creating the fictional Jacksassonian Democrat, whose logo included two white-sheeted figures carrying burning crosses. Lee's budding liberalism undoubtedly grew after she moved to New York, where she was active in the city's literary circles along with fellow aspiring writer and childhood friend, Truman Capote.(6)

Lee's characters and choice of narrative strategies in To Kill a Mockingbird reflect the moral tensions that all liberals faced in the Jim Crow South. They combine the passion and ambivalence characteristic of southerners drawn to the South's agrarian tradition and heritage but frustrated by the South's ugly racial history. Lee places Atticus Finch within the tradition of southern progressivism by linking him with the turn-of-the-century New South booster Henry Grady. Atticus advises Jem to read the speeches of Grady, who, if not a believer in the absolute equality of the races, was enough of a racial progressive to be despised by many white southerners of his day. Lee's political consciousness was formed during a period when the Georgia novelist Lillian Smith emerged as the most acerbic and outspoken liberal southerner. Smith's nonfiction work Killers of the Dream (1949) explored the deleterious effects of segregation on children and, like antilynching reformer Jesse Daniel Ames, exposed the links between racial and gender inequality.

Critical of the "paternalism" of liberals and their confusion of "the public rights of men with their private right to control their own personal relationships," Smith was deeply committed to the liberal vision of racial change. She could well have been describing Atticus Finch when she wrote of liberals, "They are the carriers of the dream. They will make the future, or the human being will have none. For they and only they have held on to a belief that man is more than his institutions. It is they who refuse to let him become a slave to his own logic; who know that though he is his own end he never arrives there. And it is they who value his life." Smith believed that racism was a moral and logical aberration, the glaring contradiction to the American egalitarian spirit. Optimistic that the South "can change quickly if given convincing reasons," she was confident that liberalism would provide them.(7)

Smith and Lee shared similar visions of the southern racial landscape and its prospects for social change. Lee sardonically critiqued southern white womanhood through Scout's unwitting observations of the women's missionary circle, who discuss over tea the horrible plight of the Mruna tribe in Africa while remaining blind to the racial injustice in their own community. Similarly, Smith condemned southern white women who willingly participated in a society that glorified white womanhood at the expense of African Americans. Both writers shared similar limitations as well. Tom Robinson is sweetly innocent and naive; Atticus feels a moral responsibility to defend him, as the novel's title attests, because a black man accused in the Jim Crow South was as helpless as a mockingbird. In the same way, Smith saw African Americans as innocent and helpless victims of rabid racism. Smith wrote that African Americans "were brought into our backyards and left there for generations"; she never conceived an active role for African Americans either in the creation of the modern South or in the abolition of racial segregation.(8) Lee and Smith imagined a form of racial change that would occur through the leadership of people like Atticus Finch--in other words, through elite southern white liberals.

Though these limitations may seem obvious to readers today, if the northern press recognized To Kill a Mockingbird's paternalism they did not note it in their reviews. The book received widespread critical acclaim; reviewers praised the novel's liberal racial politics. The Nay York Times called the book a "level-headed plea for interracial understanding" and singled out Atticus Finch as "a highly esteemed lawyer and legislator and the embodiment of fearless integrity, magnanimity and common sense." Harper's called Atticus Finch "an old-fashioned `hero' if there ever was one," adding that "Miss Lee has written a first novel which will satisfy all those ... who are interested in the problems of the South to which there are no easy solutions." While reviews in the Saturday Review and the Atlantic Monthly noted Lee's evident difficulty in telling a complex story while maintaining the narrative voice of a child, they praised Atticus Finch's "determination as a lawyer, liberal, and honest man, to defend a Negro accused of raping a white girl." The Review wrote that Lee's "insight into Southern mores is impressive, and in Atticus she has done a notable portrait of a Southern liberal."(9)

Reviews of the 1962 film version of the novel were similarly laudatory. The New York Times, though disappointed that the film did not capture more fully the range of emotions experienced by Scout and Jem, praised the role of Atticus, "played superbly by Gregory Peck." Variety called the film "a significant, captivating and memorable picture that ranks with the best of recent years." Peck's performance stood out in particular, especially for the Variety reviewer who praised his powers of transformation: "For Peck, it is an especially challenging role, requiring him to conceal his natural physical attractiveness yet project through a veneer of civilized restraint and resigned, rational compromise the fires of social indignation and humanitarian concern that burn within the character." Clearly, the transition from page to film did not dim Atticus's liberal charm.(10)

The lone negative review appeared several months after the novel received the Pulitzer Prize. Elizabeth Lee Haselden remained unimpressed with the novel on the grounds that it failed to offer characters with which the reader could identify. She noted Atticus Finch's "Olympian wisdom and calm" and argued that the novel "depicts on the part of no one involved in the trial any inner struggle for an ethical answer to injustice, and is lacking in real compassion for people." Haselden believed the book presented "character types" rather than real people with real struggles and suggested this quality as an explanation for the novel's success. "Acclaiming the merits of the book's theme, keeping the book on the bestseller list, soothes the public conscience," wrote Haselden. "Thus the reader can witness to his concern about injustice-in-general, in some removed place, at a distant time, without feeling any personal sense of guilt or involvement in the extensions of injustice into our own time and place." Haselden reveals the curious manner in which the novel succeeded in reducing complicated matters of regional difference, racial inequality, and social justice to simple moral tales of right versus wrong. Furthermore, her review provides evidence that at least one of the more perspicacious commentators of the early 1960s recognized the novel's place within the contemporary political moment. The very qualities that stretched Haselden's belief, such as Atticus's "Olympian calm," were the characteristics that liberal America embraced. Liberalism held that southern racism was an obvious blight on the nation's conscience and should be fought with the level-headedness, moral equanimity, and common sense exemplified by Atticus Finch.(11)

Atticus's liberal pedigree comes through most clearly in his concern for his children. In a conversation with his brother, Atticus worries about the effect Tom Robinson's trial and Maycomb's racism will have on Jem and Scout. "You know what's going to happen as well as I do, Jack, and I hope and pray I can get Jem and Scout through it without bitterness, and most of all, without catching Maycomb's usual disease. Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don't pretend to understand.... I just hope that Jem and Scout come to me for their answers instead of listening to the town. I hope they trust me enough."(12) Atticus's puzzling over why people go "mad" and his concern with "Maycomb's usual disease" foreshadows the following scene in which Jem and Scout watch from the porch as their father shoots and kills a mad dog running loose on the street in front of the Finch home. The dog seems a likely symbol of white racism in the South. Up to this point, Scout and Jim think of their father as "feeble" because he was "nearly fifty" and did not play in the church football games. By shooting the dog, Atticus confirms his virility both as a father protecting his children and as a southern liberal dealing with white racism.

It is significant that Calpurnia, the Finch's domestic servant and the lone African American in the scene, is the one who alerts Atticus to the dog's presence and warns the all-white neighborhood to stay off the streets. In Calpurnia, Lee recognizes the role African Americans played in exposing white racism; through her Lee acknowledges the working-class African American civil rights protestors in the South who revealed the ugly face of Jim Crow to liberal America. While Lee does not entirely deny African Americans a place in the destruction of southern racism, in this scene their role is limited to that of warning the liberal white hero of the danger to come. As Finch bravely stops the mad dog in his tracks, Calpurnia watches on the porch with the children. It is also significant that Heck Tate, the Maycomb County sheriff, arrives with Atticus to stop the dog. Finch expects Sheriff Tate to shoot the dog, but the sheriff hesitates and then anxiously hands the gun to Finch: "For God's sake, Mr. Finch, look where he is! ... I can't shoot that well and you know it!"(13) Atticus, a crack shot as everyone in town but his children knows, finishes the responsibility. The figure of Heck Tate in this scene may well refer to the elected officials of the South, such as Arkansas governor Orville Faubus in Little Rock, who through fear, incompetence, or narrow-mindedness were unable to face down the mad dog of southern racism. Only Atticus possesses the skill and courage to put the rabid dog to rest.

Lee's vision of liberal racial change remained distinctly regional; Atticus Finch is not a wild-eyed reformer who rejects his southern heritage. Lee believed that racial change would come through liberalism refined by a certain understanding of how the world works--particularly how white southerners work when it comes to the explosive issue of race. When Jem, frustrated by Tom Robinson's conviction, suggests doing away with all juries, Atticus stops him. "Those are twelve reasonable men in everyday life, Tom's jury, but you saw something come between them and reason," Atticus tells Jem. "The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments fight into a jury box."(14) Atticus understands that America's historic claim to justice and equality could not be realized without racial justice in the South, but he recognizes as well the extreme difficulties involved, given the prejudices of his region.

Similarly, Scout's precocious literacy becomes a symbol of southern liberals' competence in dealing with racism. At Scout's first day of school she encounters a recent college graduate schooled in what Jem mistakenly calls "the Dewey Decimal system," Lee's reference it seems to pedagogical techniques developed by the northern, progressive educator John Dewey. In the first half of the twentieth century, Dewey had become one of the most prominent liberal members of the American academy. Lee's indirect reference to him here encapsulates her vision of the relationship between northern and southern liberalism. Scout does not need the new, "improved" pedagogical techniques of the young teacher; she knows how to read already. She was taught by her father, Atticus, the model of southern erudition. Scout's literacy here is a symbol of the South's ability to analyze its own problems, to deal with them in its own regionally specific way.

Part of Atticus Finch's heroic power lies in his ability to embrace the need and the moral imperative for racial change without rejecting his native South. He reminds Scout that though this time they were not fighting against "the Yankees, we're fighting our friends," she should hold no grudges because "no matter how bitter things get, they're still our friends and this is still our home." But in this scene Lee comforts white southerners fearful of the change that was imminent in the South. As Eric Sundquist writes, "Just as the South closed ranks against the nation at the outset of desegregation ... so To Kill a Mockingbird carefully narrows the terms on which changed race relations are going to be brought about in the South." Through Atticus Finch, Lee reassured anxious white southerners that civil rights change could come to the South peacefully, without bitterness, and without dividing the white southern community. After all, the southern liberals leading the change were longtime friends and neighbors; they were, first and foremost, southerners.(15)

At the same time, for readers North and South who admired the book's racial mores, Atticus represented the continuity of American values of justice and equality. The novel tells us that even in the Depression-era Jim Crow South, the era of Scottsboro and Bilbo, there existed within the South men like Atticus Finch who would be the seeds of the transformation to come. Atticus is a modern hero who, while embodying the most noble aspects of the southern tradition, also transcended the limits of that tradition and attained a liberal, morally rational racial viewpoint that was seen as quintessentially American.

Above all, Atticus's morality drives the novel, a morality that is as evident in To Kill a Mockingbird as it is in one of American liberalism's signature documents, the Supreme Court's majority decision in Brown v. Board of Education (1954). Earl Warren's decision resonated with moral authority: "Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." In To Kill a Mockingbird Lee's decision to report Atticus's heroics through the perspective of his nine-year-old daughter is crucial in reinforcing the moral impulse that it is children who ultimately have the most at risk in the nation's struggle to end racial segregation. The project was to be carried out by good liberals like Atticus, but even then it was most effective because it was backed by the moral weight of a child's voice. This is the meaning of one of the novel's most famous scenes, in which Scout faces down a lynch mob that is ready to lynch Tom Robinson. As Sundquist writes, scenes such as this "are calculated to substantiate the ethical authority driving Brown."(16)

ATTICUS FINCH IN THE AMERICAN RACIAL IMAGINATION

While To Kill a Mockingbird shows American racial liberalism in full flower, by the close of the 1960s the liberal assumptions of racial change had come under serious attack. With the signing of the 1964 Civil Rights Act and the 1965 Voting Rights Act, the last vestiges of southern segregation were legally destroyed and the Civil Rights movement moved north. Incidents of racial violence in Chicago suburbs and urban uprisings, like those in Los Angeles, Detroit, and Newark, exposed the fallacy that racism was the South's problem. At the 1964 Democratic National Convention, a committee headed by soon-to-be Vice-President Hubert Humphrey granted convention credentials to the traditional, all-white Mississippi state delegation over the racially integrated Mississippi Freedom Democratic Party. Leaders of the Black Power movement would later point to this incident as exposing the essential bankruptcy of American liberalism.

Social movements such as Black Power were the American version of a larger global moment in which the basic tenets of modernist development came under attack. Black Power advocates identified with decolonization movements around the globe, and throughout the 1960s they mounted a devastating attack on American racial liberalism. In the classic statement of the movement, Black Power: The Politics of Liberation in America (1967), Stokely Carmichael (who has since changed his name to Kwame Ture) and Charles V. Hamilton exposed the impotence of American racial liberalism in winning meaningful change for the vast majority of African Americans. They most likely had in mind as the object of their attack the most prominent southern liberal of their day, Lyndon Johnson, though their criticisms could be applied with equal force to Harper Lee's fictional southern lawyer. Black Power asked, "How fully can white people free themselves from the tug of the group position--free themselves not so much from overt racist attitudes in themselves as from a more subtle paternalism bred into them by the society, and perhaps more important, from the conditioned reaction of black people to their whiteness?"(17) To Kill a Mockingbird provided a classic scene of just this kind of black deference. The setting was the Maycomb County courtroom; as Atticus Finch passes below them, the segregated, all-black balcony stands in recognition of Atticus's efforts in defending Tom Robinson.

Black Power also questioned liberalism's assumption of American moral rectitude and its fundamentally bourgeois character. Invoking Myrdal, Carmichael and Hamilton wrote, "There is no `American dilemma,' no moral hang-up ... Black people should not base decisions on the assumption that a dilemma exists." The liberalism represented by Atticus Finch viewed integration as the ultimate goal for the races, yet Black Power questioned whether such a goal could ever provide equality for a black minority: "The goal of black people must not be to assimilate into middle-class America, for the values of the middle class permit the perpetuation of the ravages of the black community. That class mouths its preference for a free, competitive society, while at the same time forcefully and even viciously denying to black people as a group the opportunity to compete."(18)

Atticus's elite class position within the small southern town of Maycomb is an essential part of his heroism. Atticus is a paternal figure not only for blacks but poor whites as well. In a telling passage, Jem explains to his sister Maycomb's four different classes: "There's four kinds of folks in the world. There's the ordinary kind like us and the neighbors, there's the kind like the Cunninghams out in the woods, the kind like the Ewells down at the dump, and the Negroes." While Scout denies these distinctions, she lives in a world clearly divided along class lines. Atticus explains to Jem, "You and Jean Louise ... are not from run-of-the-mill people ... you are the product of several generations' gentle breeding ... and you should try to live up to your name." Though they are both members of the white working class, the novel distinguishes between the Cunninghams and the Ewells based on the degree to which they aspire to bourgeois values--the degree to which they accommodate themselves to the hegemony of the dominant class. The young Walter Cunningham goes hungry rather than borrow money from the teacher that he knows he cannot pay back. Mr. Cunningham diligently pays back his legal debt to Atticus Finch through subsistence crops from his farm. Although Mr. Cunningham is a member of Tom Robinson's potential lynch mob, he politely retreats when faced by Scout's authentic moral presence. In contrast, the Ewells place no value on education, showing up the first day and never coming to school again. Mr. Ewell breaks the law by hunting out of season, and Mayella Ewell breaks the fundamental code of middle-class southern womanhood by desiring the black body of Tom Robinson.(19)

In the context of Black Power politics, one of the book's peripheral characters--Lula, the black-separatist member of Calpurnia's church--becomes One of its most interesting. Lula challenges Calpurnia for bringing the Finch children to worship at the black church: "You ain't got no business bringin' white chillun here--they got their church, we got our'n. It is our church, ain't it, Miss Cal?" Lula reminds Cal that she is a servant to the Finches, not an equal: "Yeah, an' I reckon you's company at the Finch house durin' the week." Calpurnia verbally spars with Lula in front of the church, reverting to an African American dialect that the children had never heard from her before. Lula mysteriously disappears from the scene, and the rest of the church comforts the children, telling them they should ignore Lula: "She's a troublemaker from way back, got fancy ideas an' haughty ways--we're mighty glad to have you all." Lee uses this scene to reveal her expectations for what the proper African American response to the white presence should be. Lula objects to both the white children's freedom to enter the black world and the inordinate respect they receive once they are there. Lula's position in relation to Calpurnia reproduces Black Power's position toward African American liberals during the civil rights era. Lee removes all doubt as to which model white America prefers; as one critic observes, "Lee makes it clear that people like Lula are not what is expected in the Blacks who hope to be protected by the white law."(20)

Despite its cogent critique of liberalism, Black Power failed to mount an enduring political movement that could advance African American interests. Government repression, accusations of reverse racism, and internal conflicts over issues such as sexism undoubtedly played a part in this failure. The breakup of American liberalism in the late 1960s made room for the American right to maneuver into cultural and political dominance. One example of this in racial politics was the conservative shift in the Supreme Court that led to decisions that pulled back from earlier liberal mandates. In the Bakke case the Court limited the reach of affirmative-action programs, and, in combination with other decisions, the Justices greatly qualified liberal commitments made in the previous decade. By the time of Ronald Reagan's election in 1980, American racial liberalism could hardly be heard from in an American political and cultural arena dominated by conservative voices. In the 1990s, Bill Clinton's record remained mixed. While his presidential commission on race generated discussions of race in American life at the highest levels of government, his administration triangulated not so much between the right and left as the right and center; the welfare bill he signed into law stands as one of conservatism's greatest victories over 1960s liberalism.

Although To Kill a Mockingbird has maintained its popularity as a modern-day race tale, in the aftermath of Black Power and with conservative ascendancy, both liberals and conservatives have become markedly more ambivalent in their views of Atticus Finch as an American racial hero. Certain school districts across the country have censored the novel for its sexual content, and more recently some have banned it because of its depiction of societal racism.(21) To Kill a Mockingbird has increasingly become a battleground where cultural critics from the left and right debate their respective views of contemporary racial politics. For example, a 1992 debate among legal scholars amounted to a public trial of Atticus Finch. Monroe Freedman, a law professor at Hofstra University, wrote an article in Legal Times rifled "Atticus Finch, Esq., R.I.P." that questioned Finch's role as a model of humanity and morality for the legal profession. Freedman argued that as a state legislator and community leader in a segregated society, Finch was the "passive participant in that pervasive injustice." Freedman would extend his comments later in a symposium at the University of Alabama: "Throughout his relatively comfortable and pleasant life in Maycomb, Atticus Finch knows about the grinding, ever-present humiliation and degradation of the black people of Maycomb; he tolerates it; and sometimes he even trivializes and condones it."(22) Freedman de-emphasizes the personal heroism of Finch to focus on the larger structural racism of which he was a part and which, in Freedman's estimation, he did little to combat.

Freedman's critique appalled many of his colleagues. One legal commentator attacked Freedman personally, pointing out the violence, abuse, and crime of Freedman's own hometown of New York and asking why he wasn't "putting [his] butt on the line for these people instead of criticizing Atticus Finch, who did put his butt on the line for an innocent black man."(23) In his eagerness to challenge notions of legal ethics, Freedman does ignore Finch's more commendable character traits, but the public outcry against his article suggests that something more was involved.

Many who objected argued that Freedman ignored Finch's individual act of racial heroism and its power to inspire similar acts today. In an article revealingly rifled "Atticus Finch De Novo: In Defense of Gentlemen," Timothy J. Dunn charged that Freedman underestimated "the value to the human spirit of acts of heroic value." No less an authority than the president of the American Bar Association, Talbot D'Alemberte, rose in defense of Finch. "Sixty years after Judge Taylor appointed Atticus Finch to defend a poor black man in To Kill a Mockingbird, these ... fictional heroes still inspire us," wrote D'Alemberte. "Finch rose above racism and injustice to defend the principle that all men and women deserve their day in court.(24)

Dunn and D'Alemberte defended Atticus Finch not just as a man ahead of his times, but as a model of decorum in the very sensitive arena of race relations. Yet their defense did not take into account the many differences between Atticus's era and the present. As Freedman pointed out, Atticus Finch acted heroically in 1930s segregated Alabama, but to a modern reader the limits of his heroism should be fairly evident. Racism today does not always rear its head in such blatant and perverse forms as it did in Depression-era Alabama. Even unreconstructed liberals, however, would admit that the discrimination of the Jim Crow South that American liberalism defeated in the 1950s and early 1960s did not end racism in America. Carmichael and Hamilton warned of liberal blindness to institutional racism, which "is less overt, far more subtle, less identifiable in terms of specific individuals committing the acts. But it is no less destructive of human life."(25) At its core, the debate is over the nature of the racism at work in the post-civil rights era. If institutional racism survived the civil rights struggles of the mid-1960s, as the Black Power movement maintained, to what degree does holding up the model of Atticus Finch as racial hero obscure structural forms of racial discrimination?

Of course, one need not look in legal journals to find contemporary defenses of Atticus Finch. White lawyers who buck racial hostility and heroically defend African Americans have become one of Hollywood's stock figures. Films such as Mississippi Burning (1988), Ghosts of Mississippi (1996), and John Grisham's A Time to Kill (1996) present updated versions of Atticus Finch-style white racial heroism. Mindlessly following in the tradition of earlier courtroom racial blockbusters, Ghosts of Mississippi is largely about white assistant district attorney Bobby DeLaughter's fight to reopen the Medgar Evers's assassination case. The movie is based on a book of the same name by Maryanne Vollers that focuses much more clearly on Evers's life and work (DeLaughter is not mentioned until the twenty-second chapter). But Ghosts of Mississippi is more than another example in a long line of films that fail to do justice to a companion book. Its decision to place Bobby DeLaughter rather than Medgar Evers at the narrative center of the story is an affront to those who have struggled and continue to struggle to serve as the subject of their own narratives of liberation. As Variety reviewer Godfrey Cheshire wrote of Ghosts of Mississippi, "When future generations turn to this era's movies for an account of the struggles for racial justice in America, they'll learn the surprising lesson that such battles were fought by square-jawed white guys."(26)

This is the strangeness of Atticus Finch's career: once a tool of liberal racial politics, Atticus has now become the pawn of racial conservatism. The right, in its insistence on focusing on racial bias on the personal level, glorifies Atticus Finch-style racial heroism. If racism exists only on an individual basis, then racial reform can occur only through individual moral reform--not through social or structural change that might challenge the legal, economic, or political status quo. As conservatives beatify the racial heroism of Atticus Finch, they fight the symptoms of the disease and fail to look for a cure that might get at the issue of white privilege.

How is it in a multicultural America that Atticus Finch and his various cinematic progeny continue to be held up as racial heroes? One explanation is that having a white racial hero at the center of the story allows the public to conceptualize race issues within an individual, moralistic framework. Movies traffic in stereotypes: racist rednecks, innocent black victims, white liberal heroes. Unfortunately, so do American politicians. White people solving the "American Dilemma" was the fundamental assumption of postwar racial liberalism; today application of the same principle underlies claims of reverse racism and forms the basis for conservative opposition to affirmative action and declarations of "the end of racism." Ultimately, it is the belief that even though racism exists it cannot last because it is an aberration from American ideals of equality. Freedman's critique highlighted the structural racism of segregation-era Alabama but failed to link Finch to the obfuscation of white privilege that persists in America today. It should come as no surprise that when we place Atticus Finch under the lens of contemporary multicultural politics, we see the same symptoms that Black Power initially diagnosed in the sickness of American liberalism--a paternalistic and hopelessly moderated view of social change.

If multiculturalism is about racial and ethnic minority groups finding and using their own voices within American politics, there is also a segment of multiculturalism influenced by postmodern cultural critiques that objects to the idea of an essentialized, racial subject that is at the heart of minority group mobilization. Scholar and activist Comell West has prevailed upon Americans concerned with issues of race, whatever race they may be, to deconstruct traditional American narratives of individual advancement and racial emancipation, particularly those which to this day persist with white males as their heroic protagonists. As West writes, "The new cultural criticism exposes and explodes the exclusions, blindnesses and silences of this past, calling from it racial libertarian and democratic projects that will create a better present and future."(27) The difficulty lies in realizing the practical political manifestation the new "libertarian and democratic projects" should take. How do they differ from the freedom movements of the 1960s? In West's case, with a personal charisma rooted in the oratorical traditions of the African American church, his activism is often hard to distinguish from that of the 1960s Southern Christian Leadership Conference.

The question of where Atticus Finch fits into this movement remains. My initial reaction is that the American social commentators who still invoke Atticus Finch's image, and the secondary school teachers who assign To Kill a Mockingbird in their classes year after year, should let Atticus come down from his perch as an emblem of American racial heroism. Harper Lee described her novel as "a simple love story"; while this element of the book cannot be separated from the novel's racial politics, one should not necessarily swim against the tide of Atticus's continuing popularity. This is a difficult thing to do because what one person sees as Finch's gentlemanly demeanor towards women another might characterize as sexist patronizing; what is decorum and self-restraint in racial matters to some may well seem small-minded and compromising to others.

My suggestion is that we reassign To Kill a Mockingbird from English class to history class and that rather than dismissing Atticus we deconstruct him. Certainly, we can no longer simply hold him up as a racial hero, for in a multicultural society that honors the dignity and agency of all people it is not clear what one would actually look like. But we can place Atticus alongside other members of the white liberal establishment, fictional and real, such as Lyndon Johnson, Gavin Stevens, Lillian Smith, Ralph McGill, and Gunnar Myrdal to name just a few. Like any good historian, we should historicize this group, celebrating their courage and success, lamenting the limits of their vision. We should teach students that racial liberalism played a part in ending a system of Jim Crow discrimination that had developed in the aftermath of emancipation; it also helped provide for equal political participation for African Americans, a phenomenon that, aside from a brief period during Reconstruction, this nation had never known. For all of its successes, however, the assumptions of American racial liberalism do not function well in contemporary America. The job for us today is to reconceptualize the problems of race by recognizing the continuing presence of white racial privilege and devising means of addressing it.

NOTES

The author would like to thank Joel Beinin, Barton Bernstein, George Fredrickson, Ted Ownby, Amy Robinson, and Eric Sundquist for their help in preparing this paper.

(1.) Claudia D. Johnson, To Kill a Mockingbird' Threatening Boundaries (Twayne Publishers, 1994), xiii-xiv.

(2.) Louis Menard, "Opening Moves," New York Review of Books, 2 December 1999, 4; Garry Wills, "From the Campaign Trail: Clinton's Hell-Raiser," New Yorker, 12 October 1992, 93; Eric Sundquist, "Blues for Atticus Finch," in ed. Larry J. Griffin and Don H. Doyle, The South as an American Problem (University of Georgia Press, 1995), 181-209.

(3.) John Higham, "The Cult of the `American Consensus': Homogenizing Our History," Commentary, 27 (January 1959): 93-100. For a fuller definition of the liberal consensus, see Godfrey Hodgson, America in Our Time (Vintage Books, 1978), 67-98; for an opposing view, see Gary Gerstle, "Race and the Myth of the Liberal Consensus," Journal of American History, September 1995, 579-86.

(4.) Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (Harper & Brothers, 1944), xix.

(5.) See Harvard Sitkoff, The Struggle for Black Equality, 1954-1992 (Hill and Wang, 1993), 3-60, and Numan V. Bartley, The New South, 1945-1980 (Louisiana State University Press, 1995), 38-73.

(6.) Johnson, Threatening Boundaries, xii.

(7.) Lillian Smith, Killers of the Dream (W.W. Norton, 1949), 244, 240.

(8.) Harper Lee, To Kill a Mockingbird (Warner Books, 1960), 227-37, 112.

(9.) New York TimesBook Review, 10 July 1960, 5; Harper's, August 1960, 101; Atlantic Monthly, August 1960, 98; Saturday Review, 23 July 1960, 15.

(10.) New York Times Film Reviews, 15 February 1963, 3374; Variety, 12 December 1962, 6.

(11.) Christian Century, 24 May 1961, 655.

(12.) Lee, Mockingbird, 88.

(13.) Ibid, 96.

(14.) Ibid, 220.

(15.) Ibid, 76; Sundquist, "Blues for Atticus Finch," 194.

(16.) Brown v. Board of Education of Topeka et al., 347 U.S. 494; Sundquist, "Blues for Atticus Finch," 189.

(17.) Stokely Carmichael and Charles V. Hamilton, Black Power: The Politics of Liberation in America (Vintage, 1967), 28.

(18.) Ibid, 77, 40.

(19.) Lee, Mockingbird, 229, 135 -36.

(20.) Ibid, 119; Teresa Godwin Phelps, "The Margins of Maycomb: A Rereading of To Kill a Mockingbird, Alabama Law Review, 45 (1994): 529.

(21.) Johnson, Threatening Boundaries, 14 -17.

(22.) Monroe Freedman, "Atticus Finch, Esq., R.I.P.," Legal Times, 24 February 1992, 20; Monroe Freedman, "Atticus Finch: Right and Wrong," Alabama Law Review, 45 (1994): 479.

(23.) R. Mason Barge, "Fictional Characters, Fictional Ethics", Legal Times, 9 March 1992, 23.

(24.) Timothy J. Dunn, "Atticus Finch De Novo: In Defense of Gentlemen," New Jersey Law Journal, 27 April 1992, 24; Talbot D'Alemberte, "Remembering Atticus Finch's Pro Bono Legacy," Legal Times, 6 April 1992, 26.

(25.) Carmichael and Hamilton, Black Power, 4.

(26.) Variety, 16 December 1996, 78.

(27.) Cornell West, "The New Cultural Politics of Difference," in ed. Steven Seidman, The Postmodern Turn: New Perspectives on Social Theory (Cambridge University Press, 1994), 79.

Joseph Crespino is a doctoral student in American History at Stanford University. A native of Macon, Mississippi, his dissertation examines white resistance to racial change in post-World War II Mississippi.

Named Works: To Kill a Mockingbird (Novel) Criticism and interpretation

Source Citation

Crespino, Joseph. "The Strange Career of Atticus Finch." Southern Cultures 6.2 (2000): 9. General OneFile. Web. 26 May 2010.

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Reconstructing Atticus Finch.(response to book review by Steven Lubet in this issue, p. 1339)(Classics Revisited)(1999 Survey of Books Related to the Law)(Review).

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Michigan Law Review 97.6 (May 1999): p.1339-1362. (11621 words) 

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|Author(s): |Steven Lubet.  |

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COPYRIGHT 1999 Michigan Law Review Association

TO KILL A MOCKINGBIRD. First Edition. By Harper Lee. Philadelphia: J.B. Lippincott Company. 1960. Pp. 296.

I. INTRODUCTION

Atticus Finch.

No real-life lawyer has done more for the self-image or public perception of the legal profession than the hero of Harper Lee's novel, To Kill a Mockingbird.(1) For nearly four decades, the name of Atticus Finch has been invoked to defend and inspire lawyers, to rebut lawyer jokes, and to justify (and fine-tune) the adversary system. Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch.(2)

In the unreconstructed Maycomb, Alabama of the 1930s, Atticus was willing to risk his social standing, professional reputation, and even his physical safety in order to defend a poor, black laborer falsely accused of raping a white woman. Serving for no fee, Atticus heard the call of justice.(3) His defense was doomed to failure by the very nature of Southern life, but Atticus nonetheless succeeded in demonstrating both the innocence of his client and the peculiar sickness of Jim Crow society. Through his deft, courtly, and persistent cross examination, Atticus made it apparent to everyone that Tom Robinson was being scapegoated for a crime that had not even occurred. He even made Tom's innocence apparent to the all-white jury, which deliberated for an unprecedented several hours(4) even though the judgment of conviction was a foregone conclusion.

So Atticus Finch saves us by providing a moral archetype, by reflecting nobility upon us, and by having the courage to meet the standards that we set for ourselves but can seldom attain. And even though he is fictional, perhaps because he is fictional, Atticus serves as the ultimate lawyer.(5) His potential justifies all of our failings and imperfections.(6) Be not too hard on lawyers, for when we are at our best we can give you an Atticus Finch.(7)

But what if Atticus is not an icon? What if he was more a man of his time and place than we thought? What if he were not a beacon of enlightenment, but just another working lawyer playing out his narrow, determined role?

This review considers the possibility that Atticus Finch was not quite the heroic defender of an innocent man wrongly accused. What if Mayella Ewell was telling the truth? What if she really was raped (or nearly raped) by Tom Robinson? What do we think then of Atticus Finch? Is he still the lawyers' paragon? Were his defense tactics nonetheless acceptable? Does his virtue depend at all on Tom's innocence, or is it just as noble to use one's skills in aid of the guilty? And if we can answer those questions, what conclusions may we draw about contemporary law practice?

Part II sets out three differing narratives of the trial, each of which can be distilled from the pages of To Kill a Mockingbird: Scout's story, Tom's story, and Mayella's story. Confronted with conflicting facts, Part III discusses the ways that Atticus Finch might have resolved them, and how he might have shaped his advocacy to fit his understanding of the truth.

II. THREE NARRATIVES

The text of To Kill a Mockingbird contains three distinct narratives of the Atticus Finch story. Two of these stories, as told by Scout, Atticus's daughter, and Tom Robinson, his client, provide the time-honored saga of the virtuous lawyer. The third, barely audible, narrative is that of Mayella Ewell, Tom's accuser. Mayella's story, conveyed to us through Scout's eyes, is told only to be discredited. Though she is pitied as much as censured, the ultimate lesson about Mayella is, above all else, that she is not to be trusted.

A. Scout's Story

Jean Louise Finch, known to everyone as Scout, is Atticus Finch's seven-year-old daughter. We learn of Atticus's exploits only through the child's narration; indeed, Scout is our only source of knowledge of Maycomb, Alabama. Although others witnessed the key events, including Scout's brother, Jem, and their friend, Dill, it is Scout alone who tells the story. She is our witness to Atticus as he explains his initial reservations about being appointed to represent Tom Robinson. She sees him, and ultimately helps him, face down a lynch mob outside of Tom's jail cell. Most significantly, Scout chronicles the trial of Tom Robinson, providing her own assessment of the credibility of the witnesses.

Scout's narrative has been characterized, by none other than Harper Lee herself, as "a love story pure and simple."(8) And that is what it is. Atticus can do no wrong. All of his choices are brave and noble, which is why the community of Maycomb ultimately puts its faith in him. Whether saving the town from a rabid dog, representing the county in the state legislature, or exposing the people to their own juridic hypocrisy, Atticus, at least in Scout's eyes, can be counted on to do the right thing.

Thus, Scout's story of the trial is elegant and simple. Mayella and her father, Robert E. Lee Ewell, are simply lying about the rape. Mayella is lying out of shame, and to protect herself from scorn and humiliation, after having been caught aggressively embracing a black man. Bob, as the elder Ewell is known, is lying out of anger and racial hatred. In Bob's world view, no white woman could possibly consent to sexual contact with a black man. So when he saw his daughter kissing Tom, the only explanation had to be rape.

To Atticus, as Scout explains, Mayella and Bob "were absolute trash" (p. 134). In fact, Scout lets us know, she "never heard Atticus talk about folks the way he talked about the Ewells." Their lying nature was compounded by their general distastefulness. They were dirty, no-account, brutal, prolific, shiftless, diseased, and untrustworthy. Not at all the sort of "decent folks" whom Scout was reared to respect and honor.

And make no mistake, Scout had no respect at all for any of the Ewells, who lived behind the town garbage dump, competing with the "varmints" for refuse (p. 181). In Scout's words,

[e]very town the size of Maycomb had families like the Ewells. No economic fluctuations changed their status -- people like the Ewells lived as guests of the county in prosperity as well as in the depths of a depression. No tr[ua]nt officers could keep their numerous offspring in school; no public health officer could free them from congenital defects, various worms, and the diseases indigenous to filthy surroundings. [p. 181]

Bob Ewell's face was "as red as his neck" (p. 181), and only "if scrubbed with lye soap in very hot water" would his skin be white (p. 182).

Scout's assessment of Mayella is slightly more sympathetic, but not much. "A thick-bodied girl accustomed to strenuous labor," she managed to look "as if she tried to keep clean" (p. 190). Intimidated and in tears from the moment she took the witness stand, to Scout it was all a ploy, in aid of her soon-to-be-told false testimony -- "She's got enough sense to get the judge sorry for her" (p. 191). She had some sense of confidence, but "there was something stealthy about hers, like a steady-eyed cat" (p. 192). Mayella was a complete stranger to refinement or even manners. Said Scout, "I wondered if anybody had ever called her `ma'am' or `Miss Mayella' in her life; probably not, as she took offense to routine courtesy. What on earth was her life like?" (p. 194).

Scout soon found out the answer to that question, as Mayella's home life quickly became a theme in Atticus's cross examination. Mayella, the oldest of seven children (whom Scout derisively called "specimen" (p. 194)), had gone to school for only two or three years. Her family lacked money and almost all other necessities:

[T]he weather was seldom cold enough to require shoes, but when it was, you could make dandy ones from strips of old tires; the family hauled its water in buckets from a spring that ran out at one end of the dump -- they kept the surrounding area clear of trash -- and it was everybody for himself as far as keeping clean went: if you wanted to wash you hauled your own water; the younger children had perpetual colds and suffered from chronic ground-itch; there was a lady who came around sometimes and asked Mayella why she didn't stay in school -- she wrote down the answer; with two members of the family reading and writing, there was no need for the rest of them to learn. [pp. 194-95]

Perhaps worst of all, Mayella had no friends. To Scout, she seemed like "the loneliest person in the world."(9) She seemed "puzzled" at the very concept. "You makin' fun o'me agin?" she asked, when Atticus pressed her on the subject (p. 195). At the end of her testimony, Mayella "burst into real tears," and would not continue answering questions. Scout interpreted this as contempt on the part of the "poor and ignorant" witness (p. 200).

B. Tom's Story

Tom Robinson worked for Mr. Link Deas, which caused him to pass the Ewell shack every day on his way to and from the field. Mayella often called Tom to come "inside the fence" (p. 203) so that he could help her with chores. Tom refused payment, which caused Scout to think that he "was probably the only person who was ever decent to her" (p. 204). Tom echoed that thought: "[S]he didn't have nobody to help her.... I felt right sorry for her" (p. 209).

Tom never once "set foot on the Ewell property without an express invitation" (p. 204). On the day in question, Tom was returning from work when Mayella called him into the yard, and then asked him to do some work in the house. After Mayella herself shut the door, it occurred to Tom that the house was awfully quiet. He asked Mayella where the other children were. "She says -- she was laughin', sort of -- she says they all gone to town to get ice creams. She says, `Took me a slap year to save seb'm nickels, but I done it. They all gone to town'" (p. 205).

Tom started to leave, but Mayella asked him to take a box down from a high chifforobe. He reached for it, and the next thing he knew "she'd grabbed me round the legs, grabbed me round th' legs" (p. 206). Then she "sorta jumped" on Tom, hugging him around the waist. Tom found it difficult to testify to the next part, but he swallowed hard and continued:

She reached up an' kissed me `side of th' face. She says 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. She says, `Kiss me back, nigger.' I say Miss Mayella lemme outa here an' tried to run but she got her back to the door an' I'da had to push her. I didn't wanta harm her, Mr. Finch, an' I say lemme pass, but just when I say it Mr. Ewell yonder hollered through th' window. [p. 206]

Charging into the room, Bob Ewell shouted, "[Y]ou goddamn whore, I'll kill ya" (p. 206). Seizing the opportunity, Tom ran, not out of guilt, but because he was scared and had no choice.

Tom did not claim that Mayella was lying, but only that she was "mistaken in her mind" (p. 210). He never had his eye on her, never harmed her, and certainly never raped her. It was Tom who resisted Mayella's advances (p. 207).

C. Mayella's Story

No one really believes Mayella. Not Atticus, and certainly not Scout. Not Judge Taylor, not Sheriff Heck Tate, and not even Mr. Gilmer, the county attorney whom Scout observes to have been "prosecuting almost reluctantly" (p. 201). Nor does it seem that the jury believed Mayella, since it took them a full two hours to bring the trial to its foreordained conclusion. That, of course, is the point of the book. Mayella is a sexually frustrated, love-starved aggressor, who lies her way out of a dilemma and participates in a judicial lynching in order to avoid revealing the truth.

But that is not the way Mayella tells it. She says she was raped. She says that she just offered Tom Robinson a nickel to "bust up" a piece of furniture. She went into the house for the money and "'fore I knew it he was on me. Just run up behind me, he did. He got me round the neck, cussin' me an' sayin' dirt -- I fought'n'hollered, but he had me round the neck. He hit me agin an' agin" (p. 192).

Mayella fought tooth and nail, but she failed:

I don't remember too good, but next thing I knew Papa was in the room a'standin' over me hollerin' who done it, who done it? Then I sorta fainted an' the next thing I knew Mr. Tate was pullin' me up offa the floor and leadin' me to the water bucket. [p. 192]

She was positive that Tom had taken "full advantage" of her. "He done what he was after" (p. 192).

Mayella sparred with Atticus on cross examination. She denied his assertion that the beating was administered by her father. She denied that she had been the one to approach Tom. She insisted that she had never before asked Tom inside the fence. As to Atticus's main theory, that Tom's crippled left arm made him incapable of the crime she had described, Mayella raged "I don't know how he done it, but he done it -- I said it all happened so fast I --" (p. 198). She continued:

I got somethin' to say an' then I ain't gonna say no more. That nigger yonder took advantage of me an' if you fine fancy gentlemen don't wanta do nothin' about it then you're all yellow stinkin' cowards, stinkin' cowards, the lot of you. Your fancy airs don't come to nothin' your ma'amin' and Miss Mayellerin' don't come to nothin', Mr. Finch. [p. 200]

Whatever the truth of the rape charge, Mayella dearly understood that everyone else in the courtroom considered her trash, hardly worth protecting. Throughout her testimony, as though she herself was on trial, she was nervous and jumpy. She cried repeatedly and she reacted with "terror and fury" (p. 200). That is also part of her story.

III. THE DEFENSE OF TOM ROBINSON

The purpose of a trial is to resolve competing factual narratives.(10) Mayella (and her father) claimed that she had been raped by Tom Robinson. Tom denied the crime. Atticus was assigned to represent Tom. The stage was set for a trial.

In the mid-1930s (when the events took place) as in the early 1960s (when the book was published), one standard response to a rape charge was to plead consent. It is no surprise, then, that Atticus Finch defended Tom Robinson on that very ground; that is how rape prosecutions were defeated in those days.

Of course, Atticus did not merely raise consent. Rather, he used a specific form of the defense that can be particularly offensive, in both senses of the word. Let's call it the "she wanted it" defense. Mayella didn't merely agree to a little romance with Tom, she was the intense aggressor. She schemed and plotted for "a slap year" to get the children out of the house on an opportune day. She jumped on Tom, wrapped her arms around him, demanded that he kiss her, and blocked the door with her body when he tried to leave.

So Atticus Finch told a trial story(11) that was demeaning and stereotyped. True, he did it in a courteous and courtly manner, but Mayella easily realized what was being done to her. She and her family and her way of life were being placed on trial; she herself was being accused of a crime that could (and did) lead to a man's death. Did Atticus Finch have the right, or perhaps the duty, to treat Mayella in that fashion?

As a starting point, our evaluation of Atticus's conduct rests on an appraisal of Tom Robinson's guilt. There are three possibilities: (1) Tom Robinson was telling the truth, (2) Tom Robinson was lying, and (3) Atticus did not know and did not care about the truth of Tom Robinson's story.

A. If Tom Robinson Told the Truth

Generations of readers (and moviegoers) have accepted Tom Robinson's account of how he befriended Mayella and was then betrayed by her. Given what we know of then-contemporary Southern mores and justice, his narrative is credible and compelling. And should there be any doubt, the physical evidence supports his innocence.

First, there was no medical examination of Mayella and, therefore, no physical evidence that a rape had occurred. Atticus refers to this as "lack of corroboration" (p. 232). More importantly, Mayella's blackened right eye, bruises, and other injuries were inconsistent with Tom's crippled left arm. All of this gives credence to Tom's story. And if Tom was truthful, then Atticus simply had no choice but to attack Mayella as he did. Advocacy means nothing if it doesn't mean bringing out the truth, no matter how painful, on behalf of the innocent.

To Atticus's credit, he was generally polite to a young woman who was clearly despised by virtually everyone else in the courtroom. But politeness can be intimidating in its own way, as it was to Mayella. And Atticus left no doubt that he intended to do his job. "Miss Mayella," he began his cross examination, "I won't try to scare you for a while, not yet" (p. 193).

So here we have Atticus Finch, seasoned courtroom warrior, marshaling all of his considerable skills and talents on behalf of his innocent client. This is the Atticus Finch of legend, beyond reproach or even criticism.

B. If Tom Robinson Lied

The story becomes substantially more confusing if we consider the possibility that Tom Robinson may have been lying about some or all of his contact with Mayella Ewell. To be sure, the narrator makes it clear that she believes Tom, and that we should believe him too. Nor do I mean to suggest that I reject his innocence.

On the other hand, Scout merely told the story and Harper Lee merely wrote the book. Neither one can control our interpretation of the finished text. A responsible reading of the novel ought to consider the possibility that Scout, worshipfully devoted to her father, might have misapprehended either the facts or the credibility of the witnesses.(12) And, as it turns out, there is much in the text that supports Mayella's story.

Of course, the primary evidence against Tom came from Mayella and Bob Ewell. The father and daughter were reasonably consistent in their accounts of the alleged rape, and neither one could be made to retract anything on cross-examination. They were steadfast; Mayella's "eye was blacked and she was mighty beat up" (p. 187).

Atticus's effective cross-examinations established that Mayella's right eye was injured and that her father, Bob, was left-handed, while Tom had no use of his left arm. This is meant to establish that Tom could not have administered the beating, since it must have come from the left side. But it does not strain credulity to conclude that he could have used his right hand to hit her right eye -- either as her head was turned or perhaps with a backward slapping motion. Tom was a physical laborer, a powerful man who admitted that even with his damaged arm he was "strong enough to choke the breath out of a woman and sling her to the floor" (p. 209). For Mayella, the shock of being attacked might make it difficult for her to fight back effectively, or to remember the precise timing of the blows.(13)

There are other gaps in Tom's defense as well. He claimed that Mayella set out to seduce him, saving scarce nickels for "a slap year" so that she could send her siblings into town for ice cream. That story has its problems. It has Mayella lying in wait for an entire year, and then sending the children into town without even knowing whether Tom would show up on that particular day. Though Tom had to pass the Ewell cabin on his way to work for Link Deas, the attack occurred in November when there was no cotton to be picked. Tom still worked "pretty steady" for Mr. Deas in the fall and wintertime, but apparently not every day.

Tom's narrative requires us to believe that Mayella was cunning and predatory enough to hatch her plan, but she then doled out her year-long hoard of nickels without even knowing whether Tom would show up that day. If Mayella were truly as desperate as she is painted by Tom (and Scout), wouldn't she have made certain that her nickels would really be put to their intended use?(14)

Rape is often described as a crime of opportunism. A counter-narrative, then, would be that Mayella had saved her nickels for no other reason than to give her siblings an otherwise unobtainable treat. Tom, as Mayella describes it, was in fact asked to help with some chores in the yard. Learning of the children's absence, he attacked her.(15)

Let me be clear that I do not sponsor this version; I am not arguing that Tom Robinson was a rapist. My point, however, is that Mayella's story is also coherent and supported by the facts adduced at trial. Atticus Finch undermined her credibility, but he did not, Scout's prejudices aside, prove Mayella to be a liar. As a simple matter of narrative interpretation, it is possible that Mayella was basically telling the truth.

Once we consider the possibility of Tom's guilt, and that Atticus might have known about it, we have to take a very different view of the cross-examination of Mayella Ewell. Was it ethical, could it still be admirable, for Atticus to treat Mayella as he did? Let us not pull any punches. Atticus tortured Mayella. He held her up as a sexual aggressor at a time when such conduct was absolutely dishonorable and disgraceful. Already a near outcast, Atticus ensured that Mayella could have no hope whatsoever of any role in polite society.

The "she wanted it" defense in this case was particularly harsh. Here is what it said about Mayella: She was so starved for sex that she spent an entire year scheming for a way to make it happen. She was desperate for a man, any man. She repeatedly grabbed at Tom and wouldn't let him go, barring the door when he respectfully tried to disentangle himself. And in case Mayella had any dignity left after all that, it had to be insinuated that she had sex with her father.(16)

In short, the defense of Tom Robinson employed most, if not all, of the well-worn negative conventions historically used to debase and discourage rape victims. One writer calls these "the most insulting stereotypes of women victims,"(17) amounting to a judicial "requirement of humiliation."(18)

Does our view of Atticus change if it turns out that he dragged Mayella through the mud for the sole purpose of freeing the guilty?

C. If Atticus Didn't Care

The third possibility, in reality perhaps the most likely one, is that Atticus did not care about the relative truth of the charge and defense. He was appointed by the court to defend Tom Robinson, an obligation that he could not ethically decline or shirk. Atticus Finch was neither a firebrand nor a reformer. He had spent his career hoping to avoid a case like Tom's,(19) but having been given one, he was determined to do his best for his client. Not every Maycomb lawyer would have done as much.(20)

In the classic formulation, every person accused of a crime is entitled to a vigorous defense. Guilt or innocence do not figure into the equation; that is for the jury to decide, not the attorney. It is not uncommon for lawyers to avoid learning, or forming strong convictions, about their clients' guilt, since zealous advocacy is required in either case.(21)

Agnostic lawyers take their clients as they find them, assigning to themselves the task of assembling the most persuasive possible defense supported by the facts of the case. Their goal is to create a reasonable doubt in the mind of at least one juror, not to prove the innocence of the client. Innocence is irrelevant. Doubt is all that matters.

Doubt, in turn, may be found only in the mind of the beholder. A case is not tried in the abstract, but rather to a very specific audience. It is the lawyer's job -- the advocate's duty -- to identify and address the sensibilities, predispositions, insecurities, and thought patterns of the jury. Following this model, Atticus Finch defended Tom Robinson neither in the name of truth nor in disregard of it. He defended Tom Robinson in a way that he hoped might work.(22)

IV. RECONSIDERING THE RAPE DEFENSE

Modern feminist writers have shed much light on the "classic" trial of rape cases, exposing the manner in which accepted defenses were built upon layers of myth, prejudice, and oppression of women. In the once venerated but now much discredited words of English Chief Justice Lord Matthew Hale, rape was considered a charge "easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent."(23)

The general suspicion of rape victims was at times so great as to cause Dean John Henry Wigmore, the great expositor of the common law of evidence, to call for mandatory psychiatric evaluation before a complainant's testimony could be heard by a jury. "[Rape complainants'] psychic complexes are multifarious, distorted partly by inherent defects, partly by diseased derangements or abnormal instincts, partly by bad social environment, partly by temporary physiological or emotional conditions."(24)

There seems little doubt that Atticus Finch shared this mistrust of women, or at least those who claimed to have been sexually assaulted. He twice told the jury that Mayella's testimony was uncorroborated. Later, after the verdict, he told his children that he had "deep misgivings when the state asked for and the jury gave a death penalty on purely circumstantial evidence," adding that there should have been "one or two eyewitnesses" (p. 232). Of course, Mayella's testimony was corroborated and there were two eyewitnesses. But in Atticus Finch's view, Mayella and Bob Ewell were not simply inadequate witnesses; they apparently did not count at all.

As to the jury, Atticus understood that "people have a way of carrying their resentments right into a jury box" (p. 233). He had a low opinion of the veniremen, who "all come from out in the woods." He knew that the case had to be pitched to their prejudices, understanding that "we generally get the juries we deserve" (p. 234). Perhaps Atticus thought he was speaking only of race, but can there be any doubt that the all male jury was prejudiced against women as well? Atticus could not help smiling when he explained to Scout why Alabama prohibited women from serving on juries. "`I guess it's to protect our frail ladies from sordid cases like Tom's. Besides,' Atticus grinned, `I doubt if we'd ever get a complete case tried -- the ladies'd be interrupting to ask questions.'"(25)

It was against this backdrop of wariness and condescension that Atticus Finch, rightly or wrongly, designed his defense to exploit a virtual catalog of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant.(26)

Fantasy. It appears to be an age-old male fantasy that women dream about rape. According to the defense, Mayella obsessed over Tom for a "slap year," saving scarce money and contriving to have her siblings away so that she could lure him into an assignation. With no provocation or encouragement, she seems to have deluded herself into believing that her passion might be reciprocated. Perhaps she even succeeded in bringing herself to believe that she had been raped. Since it was widely held that "stories of rape are frequently lies or fantasies,"(27) it would seem natural to paint Mayella as suffering from one of the "psychic complexes" of "errant young girls,"(28) which can result in deliberately false charges born of "sexual neurosis."(29) After all, as every court knows, "[p]sychiatric experience tells us that [sexual] fantasies are far from uncommon."(30)

Spite. Another sad stereotype is that of the spurned woman who cries rape in revenge. Tom, though kind to Mayella when she needed help around the house, resisted her sexual advances and refused to fulfill her physical needs. In return, she branded him a rapist and "she looked at him as if he were dirt beneath her feet" (p. 204). In the 1950s, no less an authority than the Model Penal Code endorsed the concept that women lodged false rape charges out of anger or hostility, citing an ostensibly well-founded fear that "bitterness at a relationship gone sour might convert a willing participant in sexual relations into a vindictive complainant."(31)

Shame. It seems hardly to need saying that women lie out of shame. Atticus told the jury that Mayella lied "in an effort to get rid of her own guilt ... because it was guilt that motivated her.... She must destroy the evidence of her offense" (p. 216). This is a theme that is played over and over in the literature on rape. An article in the Stanford Law Review once referred to this alleged phenomenon as motivated by "moralistic afterthoughts."(32) One court believed that "sexual cases are particularly subject to the danger of deliberately false charges ... simply [because of] a girl's refusal to admit that she consented to an act of which she is now ashamed."(33) To another court, it was obvious that "even young girls, like older females, sometimes concoct an untruthful story to conceal a lapse from virtue."(34)

Sexuality. In the lexicon of rape defense, sexuality is closely related to shame and no less likely to cause a woman to lie about being the victim of a crime. Since women can barely control, and sometimes cannot even understand, their desires, they proceed to victimize the men whom they ensnare. As Atticus explained it,

She knew full well the enormity of her offense, but because her desires were stronger than the code she was breaking, she persisted in breaking it.... She was white, and she tempted a Negro.... No code mattered to her before she broke it, but it came crashing down on her afterwards. [p. 216]

According to a Note in the Yale Law Journal, "[a] woman's need for sexual satisfaction may lead to the unconscious desire for forceful penetration, the coercion serving neatly to avoid the guilt feelings which might arise after willing participation."(35) Not to be outdone, the Stanford Law Review wrote that "[i]t is always difficult in rape cases to determine whether the female really meant `no.' ... [A] woman may note a man's brutal nature and be attracted to him rather than repulsed."(36)

Confusion. Women may be so confused about sex that they do not even understand what they themselves have done. Mayella, who lived among pigs, whose family was unwashed and illiterate, was pitiable in her "cruel poverty and ignorance" (p. 216). And so the cross-examination proceeded to show her dazed unreliability. She could not keep her story straight and she could not provide a blow-by-blow description: "You're becoming suddenly clear on this point. A while ago you couldn't remember too well, could you? ... Why don't you tell the truth, child?" (pp. 198, 199). To one court, a victim's somewhat "inconsistent and confused" inability to recount a precise chronology of a gang rape was considered reason enough to reverse a conviction, though the defense version was that she had pushed a dirty stick into her own vagina until her cervix bled.(37) Ignorance and confusion are the rapist's friend. Professor Ann Althouse reports that a pornographic magazine once advised its readers that a man "doesn't have to worry if he rapes a retarded girl because nobody will believe the testimony of a `scrunch face.'"(38)

The advocate's job is to provide the jury with reasons for acquittal. Atticus Finch gave his jury at least five separate justifications for believing that Mayella "wanted it." She lied, he told them, perhaps in fantasy, or out of spite, or in shame, or as a result of sexual frustration, or maybe just because she was confused.

It would be easy to dismiss the defense strategy as archaic or outdated. As a man of his times, confronting a jury even less enlightened than most, what choice did Atticus Finch have other than to plead the consent defense as he did? But the "she wanted it" defense is hardly an anachronism. It continues to this day in cases involving sexual assault. A cursory sample of recent newspaper stories reveals that the defense is alive and enticing.

In one case, a young woman, described as "mildly retarded," was sexually penetrated with a baseball bat and a broom handle while thirteen teenage boys watched or participated. The defense lawyers argued that the victim was "an oversexed aggressor who welcomed and enjoyed all the sexual activities."(39) In the rape prosecution of a drill sergeant at the Army's Aberdeen Proving Ground, the defense asserted that the defendant's accusers were "habitual liars who openly yearned to have intimate relations with him."(40) In another Army sexual harassment case, defense counsel asked one of the complainants whether "she offered to have an abortion" to curry favor with the defendant;(41) another complainant was "depicted as someone who thought her husband was a wimp, who might have been interested in other men and who told coarse sex-oriented jokes to male co-workers."(42) In another widely publicized rape case, the victim identified herself and held a press conference because she felt sullied by the defense lawyer,

who accused her of using drugs that night and of agreeing to have sex with Mr. Kelly. [The lawyer] said she had concocted a tale of rape out of shame of losing her virginity in the back of a Jeep to an 18-year-old she had just met, a youth with whom she would have no future because he had a girlfriend.(43)

The above examples are from a few high-profile cases, the ones that were reported in the press during the weeks prior to this writing. It is a virtual certainty that there were many more cases -- dozens, perhaps hundreds -- that saw the same defenses used in similar, if not more aggravated, circumstances.

The "she wanted it" defense, in its several iterations, is ultimately an advocacy tool. It is a rhetorical device utilized in the hope that it will prevail. The lawyers who employ the defense are not pro-rape zealots. They are, instead, amoral technicians, doing their best to assemble and present the arguments and pleas most likely to result in an acquittal.

This does not soften the impact of the defense on the victims, however, nor does it justify the humiliating "second rape," the tradition of character assassination,(44) that seems to be the stock in trade of so many defense lawyers.

V. RECONSIDERING THE DEFENSE LAWYER

To Kill a Mockingbird was intended, above all, to be a story about race and racial oppression. In the America of 1960, the topic was daring and the points were probably best driven home through the use of didactic characters, almost stick-figures. Atticus is good and noble, Tom guiltless and pure of heart, Mayella low-born and conniving. We know, of course, what Harper Lee intended, and the flaws in Tom's defense are really just weaknesses in the author's storytelling. But the flaws go unnoticed because the readers, earnestly complicit in the story, are anxious for Tom's vindication.(45)

If Atticus Finch accurately gauged the jury that he faced, so too did Harper Lee understand hers. For Tom to be the most believable, Mayella must be the most disgraceful. We can no doubt all agree that in the fight against racism, a little class and gender bias can be an effective literary device. In formula fiction, the job of means is to bring us steadily to the end.

But how does that work in real life? When would a real Atticus Finch be justified in eviscerating a real Mayella Ewell in order to defend a real Tom Robinson? Always?(46) Never?(47) It depends?(48) The absolute positions have their adherents, and the arguments are compelling on both sides. But this is not the place to rehearse at length the considerable literature criticizing and defending the adversary system.

Suffice it to say that adversary system purists cannot allow themselves to care about the defendant's innocence or guilt, insisting instead on counsel's utmost efforts to obtain an acquittal in either circumstance. We have all heard it said that,

an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons ... is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.(49)

Other writers, perhaps we should call them communitarians or relationalists, are more distressed by the dangers that the adversary system poses to "human or emotional equities."(50) In this regard, they are concerned that full-bore advocacy, for either party, may do irreparable harm to all involved.

For the traditionalists, then, the "she wanted it" defense would always be permissible (and perhaps even required), so long as it could be raised within the applicable rules of evidence. Among postmodernists, or certain of them, the defense would always be suspect, since it represents an assault on human dignity. I would venture, however, that most lawyers (and most observers of lawyers) would try to steer a middle ground, giving restrained approval for such a defense when counsel was convinced of its truth, yet denouncing it if used simply as a ploy.

Consider another cross examination from another famous rape trial. On March 25, 1931, nine young African-American men were arrested in Paint Rock, Alabama, and charged with the forcible rape of two white women. The alleged crime was said to have occurred on a moving train. It was brought to the attention of the authorities by a number of white youths who had been thrown off that same train by several of the eventual defendants. The matter was brought to trial in Scottsboro, Alabama, and it therefore became known as the Scottsboro Case.(51)

The initial trial of the case was held only twelve days after the arrests. The entire county bar was appointed to represent the defendants, which, predictably, amounted to no defense at all. Eight of the nine defendants were found guilty and sentenced to death.(52) This outrage soon made the Scottsboro Case a national cause celebre, bringing the entire issue of lynch law and racial justice into the international spotlight.(53) One thing was clear: the Scottsboro boys, as they were then called, were plainly innocent, the targets of a racially motivated frame-up.(54)

Once the original convictions were vacated by the Supreme Court,(55) Samuel Leibowitz, one of the foremost trial lawyers in America, arrived from New York to lead the defense. His position was simple. There had been no rape. The two women brought the false charges in order to cover up their own misconduct on the train.(56)

The defense did not stop there, however. The alleged victims, Victoria Price and Ruby Bates, were portrayed as the last sort of people to be believed w promiscuous tramps at best, more likely prostitutes. Following the first convictions, affidavits were filed in court reporting that the two women were "notorious prostitutes and one of them ... was arrested in a disorderly house in flagrante delicto with a colored man."(57) Another source claimed that "it made no difference whether she slept with a white man or a negro to her and they would both get drunk and they danced with and embraced colored men, and would hug them and kiss them."(58) One of the women was said to have asked to "meet and have intercourse with three men [on one] afternoon." The other was described as "dressed in a lewd and almost nude fashion" and "drunk and in a fight with another woman and she had her clothes up around her body ... and exposed her private parts [in] a drunken, disgraceful spectacle in the presence of a number of colored people."(59)

At the first retrial, Victoria Price had to endure Samuel Leibowitz's ferocious cross examination, which was described by one reporter as "the shredding of her life with a patient scalpel."(60) Price had committed adultery and prostitution; she "treated" with black men; she traded "sex for liquor, favors, money, food, companionship, and love."(61) Following that tour-de-force, one headline read "Leibowitz Impales Price Girl as Prostitute."(62)

The assault on Victoria Price(63) was made all the more brutal by the fact that it was designed solely to degrade her, and not to develop any evidence actually relevant to the case. The defense, after all, was that the alleged intercourse had never occurred. There was no claim of consent, much less prostitution. Thus, the women's purported proclivities to have sex for hire and to "treat" with "negroes" had scant factual bearing on the case as it was tried.(64)

The Scottsboro case, then, sets the advocacy issue in severe relief. The cause was unquestionably just, yet the tactics were absolutely ruthless. Was it right or wrong to humiliate Victoria Price? Did Samuel Leibowitz have any choice, with the lives of his innocent clients on the line? Can any rule of legal ethics, however, depend upon the lawyer's faith in the particular client who, after all, must by law be presumed innocent in every case?(65)

The answer, I believe, is at once both stark and subtle. Advocates will use the tools they have. The adversary system all but ensures that every available argument will be employed.(66) Until prohibited or restricted or discredited or declared out of bounds, every line of defense will be exploited. Facts, character, bias, innuendo -- it is counsel's job to locate the fault lines in the prosecution's case. Faced with the alternative of a client's imprisonment or worse, the defense lawyer will fasten on vulnerability just as predictably as manure draws flies.

In practice, trial lawyers are the ultimate positivists; concerned mainly about what the law allows, they wonder little over the meaning of virtue. Thus, the "she wanted it" defense and others like it are sure to be bruited about whenever a case lacks an alibi.

To be sure, restraints on defense tactics in rape cases are justified, necessary, and long overdue, but they will have to come primarily from the courts and legislatures.(67) Judges can prohibit cross examinations when they are irrelevant and degrading; legislatures can fill the gaps in current "rape shield" provisions. Trial counsel, no doubt, will proceed to work the interstices, and the process of reform will continue where it can. While it is not too much to ask lawyers to reform themselves, it is unrealistic to suppose that they will.(68)

For proof of this proposition, we need only return to Atticus Finch. As Scout's "love story" to her father makes plain, Atticus was a man of decency, honor, compassion, and courage.(69) If he embraced the "she wanted it" defense, what ordinary lawyer could resist?(70) Atticus was able to recognize and rise above the race prejudices of his time, but he was not able to comprehend the class and gender prejudices that suffused his work. As he understood his obligations to his client, he was compelled to treat Mayella Ewell as he did. His disregard of even the slightest possibility that she might have been telling the truth evidences an ethical -- moral? social? -- failing, though not a professional one. In Atticus Finch, whose compensating virtues are universally respected, it is a failing that generations of admiring readers have readily forgiven or overlooked.

VI. RACE, CLASS, AND GENDER IN MAYCOMB, ALABAMA

Atticus Finch, a pillar of the Maycomb establishment, mistrusted Mayella Ewell and believed Tom Robinson. In the Alabama of 1935, or even 1960, that was no small achievement. The "code" of his time and place required that a white woman's word always be accepted and that a black man was never to be trusted. Atticus was not a civil rights crusader, but he was able to look past race in structuring his defense. He was even optimistic that the jurors might see the light and agree with him. Surely there had been other racial injustices in Maycomb, but we have no hint that any prior incident had ever stirred Atticus to action. He was, if anything, indulgent of the tendency to prejudice, and almost amused by the Ku Klux Klan.(71) What was special about the prosecution of Tom Robinson? What was it that enabled Atticus Finch to take his worthy stand?

Perhaps the time was right. Perhaps, upon appointment by the court, his duty was simply clear. And perhaps the social structure of Maycomb actually depended upon the humiliation of Mayella Ewell, even while it required the conviction of Tom Robinson. The Ewells, after all, were a disappointment to their race. Social outcasts, they were drunk, illiterate, filthy, welfare-dependent, and worse. Tom Robinson, on the other hand, was a "respectable Negro," polite, hard working, and not a trouble-maker. Did Tom ever once set foot on the Ewell property without an "express invitation from one of them?"

"No suh, Mr. Finch, I never did. I wouldn't do that, suh." [p. 204] Scout believed Tom, because he fulfilled his assigned part in the social structure, as she well understood.

"He seemed to be a respectable Negro, and a respectable Negro would never go up into somebody's yard of his own volition." [p. 204]

Tom was so respectable, that he did not even attempt to shoulder his way past Mayella, desperate as he was to escape from his awful dilemma.

"Mr. Finch, I tried. I tried 'thout bein' ugly to her. I didn't wanta be ugly, I didn't wanta push her or nothin'." [p. 207]

To be sure, Tom's propriety was so well regarded in Maycomb that Mr. Link Deas, his employer, interrupted the trial to shout from the spectators' gallery.

"I just want the whole lot of you to know one thing right now. That boy's worked for me eight years an' I ain't had a speck o'trouble outa him. Not a speck." [p. 207]

In other words, Tom knew his place.(72) He played his prescribed part, fitting into Maycomb society, presenting no challenge and no affront. He was the sort of "quiet, respectable, humble Negro" (p. 216) who would stand aside deferentially as white people passed.(73)

Mayella and her father, though, were just the opposite. They broke the mold, insulted the norms, violated the rules and the culture. They were the very contradiction of everything that the "fine folks" of Maycomb stood for. If Tom Robinson never caused a "speck o'trouble," the Ewells were pure trouble.(74)

Can there be any doubt that this unexpected role reversal -- the proper Negro versus the offensive whites -- allowed Atticus Finch, and to a lesser extent even the sheriff (and perhaps even the judge and the prosecutor), to see class, perhaps for the first time, as a more salient characteristic than race? Of course, in the Alabama of 1935, race could not be dismissed. Innocent or guilty, Tom Robinson had to pay the price for allowing himself to get into an unforgivable predicament. But neither could class or gender be overlooked. As surely as Tom had to be convicted, Mayella Ewell, again, innocent or guilty, had to be disgraced.

VII. CONCLUSION

Where does this leave us, and what do we think now of Atticus Finch? At the very least we must renew our respect for his skill as an advocate. It is a great accomplishment, of course, to compel a bigoted Alabama jury to hesitate before convicting an innocent black man. But it would take a monumental performance indeed to accomplish that same feat for a guilty defendant. On a purely technical level, it is safe to say that Atticus remains an icon, if not an idol.

The moral problem is more difficult, if not intractable. Whether Tom was innocent or guilty, Atticus no doubt fulfilled his obligations under the standard conception of professional ethics. But that only brings us directly to the hardest question of all: Is Atticus still a hero? Does his moral standing depend on Tom's innocence, or can we still idealize him if it turns out that Tom committed the crime? If Atticus knew, or ignored the possibility, of Tom's guilt, does that reduce him in our eyes to a talented, but, shall we say, morally neutral actor?

I confess that, as of this writing, I have not been able to arrive at a satisfactory answer. I am able to see the social value to vigorous defense and I can appreciate the principle that all -- even the guilty and especially the despised -- must be defended. But the willingness to rely upon cruel stereotypes, to play the "gender card," should be criticized not applauded.

Of course, a law review article must reach a conclusion (or at least the semblance of one). I am therefore grateful to the editors of the Michigan Law Review for soliciting the comments that follow. Lacking resolution from me, the editors have turned to a panel of experts for their wisdom on the question that I cannot manage to resolve unaided. Readers are urged to consider the insights of Ann Althouse, Robert E. Atkinson, Jr., Burnele V. Powell, William H. Simon, and Randolph N. Stone and decide for themselves whether Atticus Finch is a paragon of honor or an especially slick hired gun.

(1.) HARPER LEE, TO KILL A MOCKINGBIRD (1960). A word about footnotes: This review discusses one of the most widely read novels in all of American literature, having sold more than 10,000,000 copies worldwide. See Best Sellers: List of World's Best Selling Books, DAILY MIRROR, June 12, 1995, at 7. I assume that the outline of the story is well known. Consequently, I typically cite to the book only when quoting directly from the text and not when paraphrasing or engaging in general exposition. All references are to the First Edition (J.B. Lippincott, 1960).

(2.) To Professor Thomas Shaffer, for example, Atticus Finch was "a truthful person. He was truthful within his community and, more importantly, he was truthful to himself." Thomas L. Shaffer, On Lying For Clients, 71 NOTRE DAME L. REV. 195, 211 (1996); see also Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181, 188 (1981) (to the same effect). But see Monroe H. Freedman, Atticus Finch -- Right and Wrong, 45 ALA. L. REV. 473, 475-77 (1994) (arguing that Atticus was not so truthful after all). As to whether Atticus's defense of Tom Robinson was actually "true," see infra section III.

(3.) Monroe Freedman argues convincingly that Atticus did not risk his true social standing by taking up the defense of Tom Robinson. Indeed, the "better folks" in Maycomb silently supported his efforts. See Freedman, supra note 2, at 480-81. Freedman also points out that Atticus seemed to be blithely disinterested in the terrorism of the Ku Klux Klan. See id. at 473-75. But that's another story.

(4.) One juror, it seems, actually voted for acquittal on the first ballot. See p. 235.

(5.) See, e.g., Timothy Hoff, Influences on Harper Lee: An Introduction to the Symposium, 45 ALA. L. REV. 389, 398-99 (1994) (stating that Atticus is too good to be true); Teresa Godwin Phelps, The Margins of Maycomb: A Rereading of To Kill a Mockingbird, 45 ALA. L. REV. 511, 511 (1994) (stating that Atticus is revered as the model lawyer); Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 189 (1990) (stating that Atticus Finch is a fantasy role model for the legal academy); David B. Wilkins, Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030, 1037 (1995) (stating that Atticus Finch is celebrated in the professional lore).

(6.) Both Whitewater independent counsel Kenneth Start and President Clinton's personal attorney, David Kendall, have invoked Atticus Finch to justify their tactics in the contentious investigation. See David E. Kendall, To Distort a Mockingbird, N.Y. TIMES, June 3, 1998, at A25.

(7.) Not to mention the Pulitzer Prize in 1961 and several Academy Awards in 1962. For details, see Hoff, supra note 5, at 389-90. Most recently, the cinema version of To Kill a Mockingbird was voted number 34 on the American Film Institute's survey of the 100 best American movies of all time. See Voters Pick the 100 Best American Movies, N.Y. TIMES, June 17, 1998, at E3.

(8.) See Hoff, supra note 5, at 392; see also Sharon Bond, To Kill a Mockingbird Author Holds to Her Long Literary Silence, DALLAS MORNING NEWS, Sept. 24, 1995, at F6.

(9.) P. 204. "[W]hite people wouldn't have anything to do with her because she lived among pigs; Negroes wouldn't have anything to do with her because she was white." Id.

(10.) See STEVEN LUBET, MODERN TRIAL ADVOCACY 1 (2d ed. 1997).

(11.) See id. at 4-8.

(12.) Texts are always open to interpretation, but even more so in the case of a book such as To Kill a Mockingbird, which lacks an omniscient narrator and is recounted entirely from the perspective of a seven-year-old child.

(13.) There is yet another explanation for Mayella's injuries, one that shows the Ewells to be hiding something but that does not absolve Tom Robinson. Isn't it possible that Tom indeed raped Mayella, and that Bob Ewell beat up his daughter after discovering the rape? Rape victims are regularly blamed for what happened to them. It is easily imaginable that Bob Ewell, living in Maycomb, Alabama in the 1930s, might have taken out his anger on the victim of the crime. So the fact that Mayella protected her father does not mean that she lied about being raped.

(14.) Even if Mayella had seen Tom going to work at Mr. Deas's place that morning, she had no way of knowing when he would leave work for the afternoon at a time of the year when work was irregular. And though she managed to send her siblings off for ice cream, she obviously had no way of knowing, and could not control, when her father would return.

(15.) Tom denied having sex with Mayella, but recall that Tom testified to Bob Ewell's words upon entering the cabin: "[Y]ou goddamn whore, I'll kill ya." P. 206. What would cause Bob to react that way if all he had seen was Tom trying to push his way past Mayella? Wouldn't the scene, as Tom depicted it, be more likely to cause Bob Ewell to be enraged at the intruder? On the other hand, if Bob really did see Tom "ruttin' on my Mayella," he could easily have reacted with anger and fury at his daughter.

And we must also ask why Mayella would go so far as to claim having been raped. Given the events as Tom gave them, a charge of attempted rape would obviously have served her purposes just as well, and without imposing upon her the stigma of a rape victim. Why would Mayella increase the import of her lie when the only result would be to make herseff even more of a pariah in Maycomb? See JAMES GOODMAN, STORIES or SCOTTSBORO 19 (1994) (quoting the statement of alleged rape victim, a white woman: "Those Negroes have ruined me and Ruby forever"); MARTHA HODES, WHITE WOMEN, BLACK MEN 66 (1997) (noting that white woman's claim of rape by black man led to her "maligning and ostracizing" by other whites).

(16.) "She says 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." P. 206. In Mayella's case, the explosive charge of incest seemed to evoke no outrage. Contrast the case of Richard Allen Davis, convicted in 1996 for the kidnapping, rape, and murder of a 12-year-old girl. See Elaine Lafferty, Final Outrage, TIME, Oct. 7, 1996, at 64. At his sentencing, in an effort to save himself from execution, Davis testified that he had refrained from raping the child because she begged him, "Just don't do me like my Dad." Id. His slander of the victim and her family did not succeed. Judge Thomas C. Hastings said that Davis's defiant statement made it "very easy" to sentence him to death. See id. Moreover, incest victims tend to be characterized by fear and mistrust, not by aggressive promiscuity. Carol Lynn Mithers, Incest and the Law, N.Y. TIMES, Oct. 21, 1990, (Magazine), at 44; Jane Cornman, Female Adolescent Response to Childhood Sexual Abuse, JOURNAL OF CHILD & ADOLESCENT PSYCHIATRIC NURSING, Apr. 1997, at 17.

(17.) SUSAN ESTRICH, REAL RAPE 56 (1987).

(18.) Id. at 53.

(19.) See p. 97. For a further discussion of Atticus's pro bono practice, see Freedman, supra note 2, at 480.

(20.) Atticus's plans were discussed on the eve of trial by a group of court-house hangers on:

"Lemme tell you somethin' now, Billy," [one] said, "you know the court appointed him to defend this nigger." "Yeah, but Atticus aims to defend him. That's what I don't like about it."

P. 174.

(21.) Many lawyers and advocacy teachers, myself included, take the view that a lawyer should insist that clients tell counsel all about the events of the charged crime. Full disclosure is necessary to an adequate defense. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 61-69 (1975); MONROE H. FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 151-52 (1990) [hereinafter FREEDMAN, UNDERSTANDING]; LUBET, supra note 10, at 6.

(22.) Atticus no doubt was aware that his southern, Christian, Bible-reading jurors would be familiar with the basis for his defense. It parallels the biblical tale of Potiphar's wife. As the jurors surely knew, she attempted to seduce Joseph, who refused her advances. She spitefully accused him of rape, which led to his imprisonment by Pharaoh. See Genesis 39:7-20.

(23.) 1 MATTHEW HALE, THE HISTORY OF THE PLEAS OF THE CROWN *635, quoted in Ronet Bachman & Raymond Paternoster, A Contemporary Look at the Effects of Rape Law Reform: How Far Have We Really Come?, 84 J. CRIM. L. & CRIMINOLOGY 554, 558 (1993).

(24.) 3A JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW [sections] 924a (James H. Chadbourn rev. ed., 1970), quoted in ESTRICH, supra note 17, at 48.

(25.) P. 234. Questions indeed!

(26.) See generally Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. DAVIS L. REV. 1013 (1991).

(27.) Note, Corroborating Charges of Rape, 67 COLUM. L. REV. 1137, 1138 (1967), quoted in ESTRICH, supra note 17, at 43.

(28.) State v. Anderson, 137 N.W.2d 781, 783 (Minn. 1965); see also State v. Wulff, 260 N.W. 515, 516 (Minn. 1935). The Wulff case, it may be noted, was decided in 1935, the very year in which To Kill a Mockingbird was set.

(29.) Anderson, 137 N.W.2d at 783 n.2 (quoting Glanville Williams, Corroboration -- Sexual Cases, 1962 CRIM. L. REV. 662, 662).

(30.) People v. Scholl, 37 Cal. Rptr. 475, 478 (Ct. App. 1964), quoted in Ann Althouse, The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook, 88 NW. U. L. REV. 914, 955 (1994).

(31.) MODEL PENAL CODE AND COMMENTARIES [sections] 213.6 cmt. 5 (1980), quoted in ESTRICH, supra note 17, at 54.

(32.) Note, The Resistance Standard in Rape Legislation, 18 STAN. L. REV. 680, 685 (1966), quoted in ESTRICH, supra note 17, at 38.

(33.) Anderson, 137 N.W.2d at 783 n.2 (quoting Glanville Williams, Corroboration -- Sexual Cases, 1962 CRIM. L. REV. 662, 662).

(34.) State v. Connelley, 59 N.W. 479, 481 (1894).

(35.) Comment, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 YALE L.J. 55, 67 (1952).

(36.) Note, The Resistance Standard in Rape Legislation, 18 STAN. L. REV. 680, 682 (1966) (quoting Ralph Slovenko, A Panoramic Overview: Sexual Behavior and the Law, in SEXUAL BEHAVIOR AND THE LAW 5, 51, 54 (Ralph Slovenko ed., 1965)).

(37.) See Commonwealth v. Bohannon, 378 N.E.2d 987, 989 (Mass. 1978), cited in Althouse, supra note 30, at 917, 963-65.

(38.) Althouse, supra note 30, at 967 n.267 (citing Barry W. Lynn, `Civil Rights' Ordinances and the Attorney General's Commission: New Developments in Pornography Regulation, 21 HARV. C.R.-C.L.L. REV. 27, 89 n.205 (1986) (quoting from an unnamed publication)).

(39.) Robert Hanley, 3 Men are Jailed in Glen Ridge Sexual Assault Case, N.Y. TIMES, July 1, 1997, at B4.

(40.) See Neil A. Lewis, Sergeant's Lawyers Start Case by Accusing 2 of His Accusers, N.Y. TIMES, Apr. 22, 1997, at A12.

(41.) See Elaine Sciolino, Accuser of Army's Senior Soldier Says He Should Face More Serious Charges, N.Y. TIMES, June 27, 1997, at A15.

(42.) Neil A. Lewis, Accuser Is Criticized in Army Sex Case, N.Y. TIMES, July 2, 1997, at A18.

(43.) Monte Williams, Victim of Rape Goes Public After 11 Years of Nightmares, N.Y. TIMES, June 20, 1997, at A1.

(44.) See Althouse, supra note 30, at 949, 966; see also GREGORY MATOESIAN, REPRODUCING RAPE: DOMINATION THROUGH TALK IN THE COURTROOM (1993) (discussing the role of language in transforming a woman's experience of rape into consensual sex at trial); Torrey, supra note 26, at 1056.

(45.) I am grateful to Ann Althouse for this insight.

(46.) Professor Monroe Freedman writes, "the imperatives of the adversary system properly require that every available argument be exploited by the criminal defense lawyer, even if he knows the client is guilty." Letter from Monroe Freedman (July 20, 1997) (on file with author).

(47.) Professor Dorothy Roberts writes, "[w]e shouldn't use sexist, racist, or classist myths to defend innocent clients, either." Letter from Dorothy Roberts (Sept. 10, 1997) (on file with author).

(48.) Professor Mary Becker writes, "[h]ow could torturing Mayella possibly be justified morally if she is telling the truth, regardless of legal ethics?" Letter from Mary Becker (July 24, 1997) (on file with author).

(49.) TRIAL OF QUEEN CAROLINE 8 (1821), quoted in FREEDMAN, UNDERSTANDING, supra note 21, at 65-66.

(50.) See Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 WM. & MARX L. REV. 5, 6-7 (1996).

(51.) See GOODMAN, supra note 15.

(52.) The procedural history of the case is complex, involving seven separate retrials and two important decisions by the United States Supreme Court. See Powell v. Alabama, 287 U.S. 45 (1932) (requiring meaningful access to counsel in capital cases); Norris v. Alabama, 294 U.S. 587 (1935) (prohibiting systematic exclusion of minorities from jury rolls).

(53.) The NAACP and the International Labor Defense (a Communist Party affiliate) vied for control of the defense of the case, in which they were supported by the great weight of public opinion, at least in the North.

(54.) One of the alleged victims, Ruby Bates, subsequently recanted the charges. She testified for the defense at several of the retrials and toured the country raising support and funds for the defendants. Though it took over 40 years, even the State of Alabama eventually acknowledged the innocence of the Scottsboro defendants when Clarence Norris, the last survivor among them, was pardoned in 1976 on the basis of "innocence." That decree, signed by then-Governor George Wallace, marked the first time in its history that Alabama conferred a pardon on the basis of innocence rather than forgiveness. See William K. Rashbaum, Funeral Held for Last `Scottsboro Boy,' UPI, Jan. 31, 1989.

(55.) See Powell, 287 U.S. at 45.

(56.) The likelihood of a false rape charge was taken for granted at the time. Supporters of the Scottsboro defendants pointed out that this was "a common experience in the pathology of women," and that "nine out of ten charges of rape are false and are due to a peculiar psychological condition of the woman." These "rape fantasies" often misled even the most experienced judges, leading to the conviction of innocent men accused of rape by hysterical women. See GOODMAN, supra note 15, at 167-71, and sources cited therein.

(57.) Id. at 184.

(58.) Id.

(59.) Id. at 184-86, and sources cited therein.

(60.) Id. at 192.

(61.) Id. at 192-93, and sources cited therein.

(62.) Id. at 193 (quoting Mary H. Vorse, The Scottsboro Trial, NEw REPUBLIC, April 19, 1933, at 277).

(63.) By the time Leibowitz entered the case Ruby Bates had become a defense witness.

(64.) The tactic of character assault is venerable if not respectable, dating back at least a century prior to the events in To Kill a Mockingbird. In 1829, a white woman in Virginia named Amy Baker accused a slave of rape. A witness for the defendant, a white man, gave testimony that he himself had "been to the house of Mrs. Baker for the purpose of unlawful intercourse with females." Another witness had "seen four negro men" at Amy's house on one occasion "and three negro men there at another time," as though this were proof of low character. See HODES, supra note 15, at 58.

(65.) The argument is familiar, though that makes it no less meaningful. If vigorous advocacy is allowed only on behalf of clients who protest their innocence, the nearly certain result is that clients will refrain from making candid admissions to their lawyers. The consequence would not be fewer nasty cross examinations, but rather fewer pleas of guilty.

(66.) Samuel Leibowitz no doubt saw himself as doing no more than fighting fire with fire He had to endure the anti-Semitic taunts of the prosecution and the constant reference to the defendants as "niggers." When Leibowitz objected, one prosecutor replied, "I ain't said nothin' wrong. Your Honor knows I always make the same speech in every nigger rape case." The defense objection was not sustained. See Eric J, Sundquist, Blues for Atticus Finch, in THE SOUTH AS AN AMERICAN PROBLEM 181 (Larry J. Griffin & Don H. Doyle eds. 1995).

(67.) See, e.g., FED. R. EVID. 412 (rape shield); Leigh Bienen, Rape Reform Legislation in the United States: A Look at Some Practical Effects, 8 VICTIMOLOGY 139 (1983) (reviewing protective measures enacted 1975-80); Dorothy Roberts, Rape, Violence, and Women's Autonomy, 69 CHI-KENT L. REV. 359 (1993) (discussing efforts to reform rape law).

(68.) Of course, it is not the defense alone that must be regulated. The abuses of prosecutors, though not the subject of this essay, have been well chronicled. See, e.g., Batson v. Kentucky, 476 U.S. 79 (1986) (using peremptory challenges to exclude jurors on the basis of race).

(69.) "Atticus Finch has been studied by attorneys for the quality of his moral character, and his cinematic portrayal by Gregory Peck as a man of great tenderness and justice is so ingrained in American consciousness as to make him nearly impossible to imagine otherwise." Sundquist, supra note 66, at 192.

(70.) Nor could Atticus resist indulging in some creative exaggeration when he argued to the jury. During the cross examinations of Bob Ewell, Sheriff Tate, and Mayella Ewell, Atticus had taken pains to imply that Mayella's blackened right eye was injured by a left-handed blow. There was no evidence about the angle of impact that might have caused her other bruises. By final argument, however, Atticus had it that "Mayella Ewell was beaten savagely by someone who led almost exclusively with his left." P. 216. Apparently, even the most honest lawyers can fall prey to the temptation of embellishment.

(71.) See p. 157; Freedman, supra note 2, at 475-76 (observing that Atticus referred to the Klan as a "political" organization, Professor Freedman asks, "David Duke, can you use a campaign manager who looks like Gregory Peck?").

(72.) Indeed, it may be that Tom's death, ostensibly as he attempted to escape from prison, could have been avoided if only he had remained passive and stoic. Perhaps Atticus's appeal would have succeeded. See Phelps, supra note 5, at 527.

(73.) See id. at 528 (describing how Maycomb's black citizens deferred to whites, even in their own church).

(74.) Atticus defined the social structure for his children: "There's nothing more sickening to me than a low-grade white man who'll take advantage of a Negro's ignorance." P. 233. Tom, ignorant but upright, merited Atticus's approval. Mayella, a low-grade white woman if ever there was one, brought down his contempt.

Worthlessness seems to have been a genetic trait among the Ewells. Ten-year-old Burris Ewell, beginning first grade for at least the third time, succeeded in bringing tears to his teacher's eyes when he shouted "[a]in't no snot-nosed slut of a schoolteacher ever born c'n make me do nothin'!" P. 34.

Steven Lubet, Professor of Law, Northwestern University. J.D. 1973, Boalt Hall. -- Ed. I am grateful for helpful comments from Kathy Abrams, Frank Adams, Ann Althouse, Mary Becket, Monroe Freedman, Timothy Hoff, Wythe Holt, Jane Larson, Dorothy Roberts, and faculty workshop participants at the University of Alabama. Many thanks to Alex Rose, Northwestern University School of Law class of 1999, for thoughtful and creative research assistance.3

Named Works: To Kill a Mockingbird (Novel)

Source Citation

Lubet, Steven. "Reconstructing Atticus Finch." Michigan Law Review 97.6 (1999): 1339-1362. General OneFile. Web. 26 May 2010.

Document URL



Gale Document Number:A55882682

Abstract:

The first-person narration of Scout in Harper Lee's 'To Kill a Mockingbird' is largely lost in Horton Foote's screenplay for the filmed version. In the novel, Scout's voice emphasizes how she is gradually separating from the racist, segregated society into which she was born. This allows Scout to understand the book's "mockingbirds," the marginalized Tom Robinson and Boo Radley. Foote's screenplay focused largely on Atticus Finch, the children's father, and his struggle against racial prejudice.

Full Text :

COPYRIGHT 1996 Mississippi State University

Aunt Alexandra was fanatical on the subject of my attire. I could not

possibly hope to be a lady if I wore breeches; when I said I could do nothing

in a dress, she said I wasn't supposed to be doing anything that required

pants. Aunt Alexandra's vision of my deportment involved playing with small

stoves, tea sets, and wearing the Add-A-Pearl necklace she gave me when I was

born; furthermore, I should be a ray of sunshine in my fathers lonely life. I

suggested that one could be a ray of sunshine in pants just as well, but

Aunty said that one had to behave like a sunbeam, that I was born good but

had grown progressively worse every year. She hurt my feelings and set my

teeth permanently on edge, but when I asked Atticus about it, he said there

were already enough sunbeams in the family and to go about my business, he

didn't mind me much the way I was.(1)

This passage reveals the importance of female voice and gender in Harper Lee's popular Pulitzer Prize-winning novel, To Kill a Mockingbird, first published in 1960. The novel portrays a young girl's love for her father and brother and the experience of childhood during the Great Depression in a racist, segregated society which uses superficial and materialistic values to judge outsiders, including the powerful character Boo Radley.

In 1962, a successful screen version of the novel (starring Gregory Peck) appeared. However, the screenplay, written by Horton Foote, an accomplished Southern writer, abandons, for the most part, the novel's first-person narration by Scout (in the motion picture, a first-person angle of vision functions primarily to provide transitions and shifts in time and place). As a result, the film is centered more on the children's father, Atticus Finch, and the adult world in which Scout and Jem feel alien. As several commentators have noted, the film seems centered on the racial issue much more than on other, equally successful dimensions of the novel. Clearly, part of the novel's success has to do with the adult-as-child perspective. Lee, recalling her own childhood, projects the image of an adult reflecting on her past and attempting to recreate the experience through a female child's point of view.

That the film shifts perspectives from the book's primary concern with the female protagonist and her perceptions to the male father figure and the adult male world is noteworthy. While trying to remain faithful to the importance of childhood and children in the novel, Foote's objective narration is interrupted only occasionally with the first-person narration of a woman, who is presumably the older, now adult Scout. However, the novel is very much about the experience of growing up as a female in a South with very narrow definitions of gender roles and acceptable behavior. Because this dimension of the novel is largely missing from the film's narrative, the film version of To Kill a Mockingbird may be seen as a betrayal of the novel's full feminist implications -- a compromise of the novel's full power.

Granted, when a film adaptation is made, the screenwriter need not be faithful to the original text. As Robert Giddings, Keith Selby, and Chris Wensley note in their important book Screening the Novel, a filmmaker's approaches to adapting a literary work may range from one of almost complete faithfulness to the story to one which uses the original as an outline for a totally different work on film.(2) Foote's adaptation seems to fall somewhere in between these extremes, with the film decidedly faithful to certain aspects of the novel. His story clearly conveys the novel's general mood; it is obvious he wishes to remain close to the general subject matter of life in the South during the Great Depression and its atmosphere of racial prejudice and Jim Crow. Reflecting on the film, Harper Lee herself states, "For me, Maycomb is there, its people are there: in two short hours one lives a childhood and lives it with Atticus Finch, whose view of life was the heart of the novel."(3)

Though admittedly Atticus Finch is at the heart of the film and novel, there are some clear and notable discrepancies between the two versions that alter the unique perspective of the novel considerably -- despite what Lee herself has commented. Only about 15% of the novel is devoted to Tom Robinson's rape trial, whereas in the film, the running time is more than 30% of a two-hour film. Unlike the book, the film is primarily centered on the rape trial and the racism of Maycomb which has made it possible -- not surprising considering it was made during what was to become the turbulent period of the 1960s when racial issues were of interest to Hollywood and the country as a whole. Significant, though, are the reviewers and critics who believe this issue, rather than the female child's perspectives on an adult male world, is the novel's main concern and as a result admire the film for its faithfulness to the original.

Many teachers of the novel and film also emphasize this issue to the neglect of other equally important issues. In 1963 and again in the year of the film's twenty-fifth anniversary, the Education Department of Warner Books issued Joseph Mersand's study guide on the novel, one section of which is an essay subtitled "A Sociological Study in Black and White." Turning the novel into sociology, many readers miss other aspects of Lee's vision. In an early critical article, Edgar Schuster notes that the racial dimensions of the novel have been overemphasized, especially by high school students who read it, and he offers possible strategies for teaching students the novel's other central issues, which he lists as "Jem's physiological and psychological growth" (mentioning Scout's growth in this regard only briefly as if it is a side issue), the caste system of Maycomb, the title motif, education, and superstition.(5) What is so striking about Schuster's interpretation is his failure to acknowledge that the issue of Scout's gender is crucial to an understanding not only of the novel but also of Scout's identification with her father.(6) As feminists often note, male readers sometimes take female perspectives and turn them into commentaries from a male point of view. Because the novel and film center so much on Atticus, he, rather than Scout, becomes the focus.

With regard to the film, I do not mean to suggest that Foote has not attempted to make some references to Scout's problems with gender identity. When he does, however, the audience is very likely unable to make the connections as adequately as careful readers of the novel might. Of particular interest are two scenes from the film which also appear in the novel. During one of their summers with Dill, Jem insults Scout as the three of them approach the Radley home and Scout whines, fearful of what may happen. As in the novel, he tells her she is getting to be more like a girl every day, the implication being that boys are courageous and non-fearful and girls are weak and afraid (a point which is refuted when Jem's fears of Boo Radley and the dark are demonstrated). Nevertheless, what is most important in the scene is Scout's reaction. Knowing that being called a girl is an insult and that being female is valued less than being male in her small Southern town, she suddenly becomes brave in order to remain acceptable to her brother.

In another scene, as Scout passes by Mrs. Dubose's house and says "hey," she is reprimanded for poor manners unbecoming of a Southern lady. This scene occurs in both film and novel. However, in the novel Lee clarifies that the presumed insult to Mrs. Dubose originates with Mi's. Dubose's assumptions as a Southern lady, a role which Scout, in the novel especially, is reluctant to assume. The film's lack of a consistent female voice makes this scene as well as others seem unnecessary and extraneous. This is only one example of the way in which the superior narrative strategy of the novel points out the weakness of the objective, male-centered narration of the film.

One scene from the film concerning girlhood does not appear, in the novel. Careful not to suggest that the Finches are churchgoers (for what reason?), as they are in the novel, Foote creates a scene which attempts to demonstrate Scout's ambivalence about being female. As Scout becomes old enough to enter school, she despises the thought of wearing a dress. When she appears from her room to cat breakfast before attending school for the first time, Jem ridicules her while Atticus, Miss Maudie, and Calpurnia admire her. Scout comments: "I still don't see why I have to wear a darn old dress."(7) A weakness of the film in this regard is that until this scene, there has been little indication that Scout strongly dislikes wearing dresses, let alone has fears of growing up as a female. The novel makes it clear that Scout prefers her overalls to wearing dresses, which is perhaps why Foote found it necessary to create this particular scene. However, the previous two crucial scenes, while faithful to the novel's general concerns with gender, create loose ends in the film which do not contribute to the success of the narration and which compromise the novel's feminist center.

The intermittent efforts to focus on the female narrator's perspective prove unsuccessful in revealing the work's feminist dimensions. As the film opens, the audience sees the hands of a small girl, presumably Scout, coloring.(8) After the credits, a woman's voice, described by Amy Lawrence as a "disembodied voice exiled from the image," is heard reflecting on her perceptions of Maycomb."(9) By introducing the audience to the social and spatial context, this first-person narrator provides a frame for the whole. The audience at this point, without having read the novel first, may not, however, recognize who the speaker is. As Scout appears playing in the yard, the viewer is left to assume that the voice-over opening the film is the female character speaking as a grown woman. The camera zooms down to reveal Scout and soon thereafter shifts to the standard objective narration of most films.

When the disembodied narrator is heard again, she reflects on Scout's views of Atticus after he insists she will have to return to school; yet, despite what her teacher says, father and daughter will continue reading each night the way they always have. Here the voice-over is designed to emphasize the heroic stature of Atticus and perhaps even to suggest that one reason for Scout's identification with him is his freedom of thought and action: "There just didn't seem to be anyone or thing Atticus couldn't explain. Though it wasn't a talent that would arouse the admiration of any of our friends. Jem and I had to admit he was very good at that but that was all he was good at, we thought" (Foote, P. 35). This intrusion becomes little more than a transition into the next scene, in which Atticus shoots the mad dog.

In the next intrusion the female voice interrupts the objective narration when, at school, Scout fights Cecil Jacobs for calling Atticus a "nigger lover." She states: "Atticus had promised me he would wear me out if he ever heard of me fightin' any more. I was far too old and too big for such childish things, and the sooner I learned to hold in, the better off everybody would be. I soon forgot... Cecil Jacobs made me forget" (Foote, p. 42). Here again, the first-person narration provides coherence, allowing the scene of Scout's fight with Cecil Jacobs to be shortened and placing emphasis on the relationship between Atticus and Scout. The subtext of their conversation could perhaps be viewed as a reflection of traditional views that women should not be too aggressive or physical, but this scene, coupled with earlier scenes reflecting social values, is not couched in terms of Scout's transgressive behavior as a woman-to-be. The female voice in the film is not used to demonstrate the book's concern with female identity; rather, it reinforces the male-centered society which Atticus represents and which the film is gradually moving toward in focusing on the trial of Tom Robinson.

Another instance during which the female narrator intrudes on the objective, male-centered gaze of the camera occurs when jem and Scout discuss the presents Boo Radley leaves for them in the knot-hole. AL this point in the film, the attempt to convey the book's female narrative center falls completely apart. Not until after the very long trial scene does the camera emphasize the children's perceptions or the female narrator's angle of vision again. Instead, the audience is in the adult male world of the courtroom, with mature male authority as the center of attention. Immediately after the trial, the film seems most concerned with Jem's reactions to the trial, jem's recognition of the injustice of the verdict in the Tom Robinson case, and Jem's desire to accompany his father when he tells Helen Robinson that Tom has been killed. Scout is unable to observe directly the last event, and, as a result, the narration is inconsistent -- by and large from the rape trial to the end of the film.

The film does, however make use of voice-over narration twice more. In the first instance, the female narrator again provides the transition in time and place to move from the previous scene, the revelation of Tom Robinson's death to his wife, into the confrontation between Atticus and Bob Ewell. As the camera focuses on an autumn scene with Scout dressed in a white dress, Jean Louise prepares the audience for the climax, which soon follows: "By October things had settled down again. I still looked for Boo every time I went by the Radley place. This night my mind was filled with Halloween. There was to be a pageant representing our county's agricultural products. I was to be a ham. jem said he would escort me to the school auditorium. Thus began our longest journey together" (Foote, p. 72). Following this passage is the climactic scene, when Bob Ewell attacks Scout and Jem and Boo Radley successfully rescues them.

Shortly thereafter, the camera focuses on Scout's recognition of Boo as the protector and savior of jem and her, and for the remainder of the film, the narration, arguably for the first time, is centered entirely on Scout's perception of the adult male world. She hears Heck Tate and Atticus debate over what to do about exposing the truth that Boo has killed Ewell while defending the children. The movement of the camera and her facial expression clearly indicate that Scout sees the meaning behind the adult's desires to protect Boo from the provincial Maycomb community which has marginalized him -- and this scene signifies Scout's initiation into the world of adulthood.

As the film draws to a close, Scout, still in her overalls which will not be tolerated much longer in this society, walks Boo home. For the last time the audience hears the female voice:

Neighbors bring food with death, and flowers with sickness, and little

things in between. Boo was our neighbor. He gave us two soap dolls, a

broken watch, and chain a knife, and our lives. One time Atticus said you

never really knew a man until you stood in his shoes and walked around in

them. Just standin' on the Radley porch was enough .... The summer that

had begun so long ago ended, another summer had taken its place, and a

fall, and Boo Radley had come out.... I was to think of these days many

times; -- of Jem, and Dill and Boo Radley, and Tom Robinson ... and

Atticus. He would be in Jem's room all night. And he would be there when,

Jem waked up in the morning. (Foote, pp. 79-80)

The film ends, when, through a window, Scout is seen climbing into Atticus's lap while he sits near Jem. The camera gradually moves leftward away from the two characters in the window to a long shot of the house. By the end, then, the film has shifted perspective back to the female voice, fully identified the narrator as the older Scout (Jean Louise), and focused on the center of Scout's existence, her father (a patriarchal focus). The inconsistent emphasis on Scout and her perceptions makes the film seem disjointed.

Noting the patriarchal center of the film, Amy Lawrence suggests the possibility for a feminist reading. She argues that the disembodied narrator -- as well as the author, Harper Lee, and the characters of Scout and Mayella Ewell -- provides a "disjointed subjectivity" on film which is characteristic of "the experience of women in patriarchy" (p.184). Such "dis-jointed subjectivity" is, however, missing from the novel, which centers on Scout's perceptions of being female in a male-dominated South. The novel's female-centered narration provides an opportunity for Lee to comment on her own childlike perceptions as well as her recognition of the problems of growing up female in the South. The feminine voice, while present in the film, receives far too little emphasis.

In the novel the narrative voice allows readers to comprehend what the film does not explain. Though some critics have attacked Lee's narration as weak and suggested that the use of first person creates problems with perspective because the major participant, first-person narrator must appear almost in all scenes, the novel's consistent use of first person makes it much clearer than the film that the reader is seeing all the events through a female child's eyes. Once the children enter the courtroom in the film, the center of attention is the adult world of Atticus Finch and the rape trial -- not, as the book is able to suggest, the children's perceptions of the events which unravel before them.

Although it is clear in the film that Scout is a tomboy and that she will probably grow out of this stage in her life (witness the very feminine and Southern drawl of the female narrator, who, though not seen, conveys the image of a conventional Southern lady), the film, which does not openly challenge the perspective of white heterosexuals (male or female) nearly to the degree the novel does, does not make Scout's ambivalence about being a female in an adult male world clear enough. Because the novel's narrative vision is consistently first person throughout and as a result focused on the older Scout's perceptions of her growing-up years, the female voice is unquestionably heard and the narration is focused on the world of Maycomb which she must inevitably enter as she matures.

Furthermore, a number of significant questions about gender are raised in the novel: Is Scout (and, by implication, all females) an outsider looking on an adult male world which she knows she will be unable to enter as she grows into womanhood? Is her identification with Atticus due not only to her love and devotion for a father but also to his maleness, a power and freedom she suspects she will not be allowed to possess within the confines of provincial Southern society? Or is her identification with Atticus due to his androgynous nature (playing the role of mother and father to her and demonstrating stereotypically feminine traits: being conciliatory, passive, tolerant, and partially rejecting the traditional masculine admiration for violence, guns, and honor)? All three of these questions may lead to possible, even complementary readings which would explain Scout's extreme identification with her father.

As in the passage quoted at the beginning of this essays, the novel focuses on Scout's tomboyishness as it relates to her developing sense of a female self. Also evident throughout the novel is Scout's devotion to her father's opinions. Atticus seems content with her the way she is; only when others force him to do so does he concern himself with traditional stereo-types of the Southern female. Especially significant with regard to Scout's growing sense of womanhood is the novel's very important character, Aunt Alexandra, Atticus's sister, who is left out of the film entirely. Early in the novel, readers are made aware of Scout's antipathy for her aunt, who wishes to mold her into a Southern lady. Other female authority figures with whom Scout has difficulty agreeing are her first-grade teacher, Miss Fisher, and Calpurnia, the family cook, babysitter, and surrogate mother figure. When the females in authority interfere with Scout's perceptions concerning her father and their relationship, she immediately rebels, a rebellion which Atticus does not usually discourage -- signifying her strong identification with male authority and her recognition that the female authority figures threaten the unique relationship which she has with her father and which empowers her as an individual.

Exactly why Scout identifies with Atticus so much may have as much to do with his own individuality and inner strength as the fact that he is a single parent and father. Since the mother of Scout and Jem is dead, Atticus has assumed the full responsibility of playing mother and father whenever possible -- though admittedly he employs Calpurnia and allows Alexandra to move in with them to give the children, particularly Scout, a female role model. However, Atticus is far from a stereotypical Southern male. Despite his position as a respected male authority figure in Maycomb, he seems oblivious to traditional expectations concerning masculinity (for himself) and femininity (for Scout). The children in fact see him as rather unmanly: "When Jem and I asked him why he was so old, he said he got started late, which we felt reflected on his abilities and his masculinity" (p.93). Jem is also upset because Atticus will not play tackle football. Mrs. Dubose criticizes Atticus for not remarrying, which is very possibly a subtle comment on his lack of virility. Later the children learn of his abilities at marksmanship, at bravery in watching the lynch mob ready to attack Tom Robinson, and at the defense of the same man. Perhaps this is Lee's way of suggesting that individuals must be allowed to develop their own sense of self without regard to rigid definitions of gender and social roles.

Scout's identification with Atticus may also be rooted in her recognition of the superficiality and limitations of being a Southern female. Mrs. Ditbose once tells her: "`You should be in a dress and camisole, young lady! You'll grow up waiting on tables if somebody doesn't change your ways ...'" (p. 106). This is one of many instances in the novel through which the first-person narrator reveals Lee's criticism of Southern women and their narrowmindedness concerning gender roles. Even Atticus ridicules the women's attitudes. In one instance he infot-ms Alexandra that he favors "`Southern womanhood as much as anybody, but not for preserving polite fiction at the expense of human life'" (p.149). When Scout is "indignant" that women cannot serve onjuries, Atticus jokingly says, "I guess it's to protect our frail ladies from sordid cases like Tom's. Besides ... I doubt if we'd ever get a complete case tried -- the ladies'd be interrupting to ask questions'" (p.224). This seemingly sexist passage may in fact be the opposite; having established clearly that Atticus does not take many Southern codes seriously, Lee recognizes the irony in Atticus's statement that women, including his own independent-minded daughter, are "frail."

Admittedly, few women characters in the novel are very pleasant, with the exceptions of Miss Maudie Atkinson, the Finches' neighbor, and Calpurnia. Through the first-person female voice, Southern women are ridiculed as gossips, provincials, weaklings, extremists, even racists -- calling to mind the criticism of Southern manners in the fiction of Flannery O'Connor. Of Scout's superficial Aunt Alexandra, Lee writes: "... Aunt Alexandra was one of the last of her kind: she has river-boat, boarding-school manners; let any moral come along and she would uphold it; she was born in the objective case; she was an incurable gossip" (p.131). Scout's feelings for Alexandra, who is concerned with family heritage, position, and conformity to traditional gender roles, do alter somewhat as she begins to see Alexandra as a woman who means well and loves her and her father, and as she begins to accept certain aspects of being a Southern female. As Jem and Dill exclude her from their games, Scout gradually learns more about the alien world of being a female through sitting on the porch with Miss Maudic and observing Calpurnia work in the kitchen, which makes her begin "to think there was more skill involved in being a girl" than she has previously thought (p.118). Nevertheless, the book makes it clear that the adult Scout, who narrates the novel and who has presumably now assumed the feminine name Jean Louise for good, is still ambivalent at best concerning the traditional Southern lady.

Of special importance with regard to Scout's growing perceptions of herself as a female is the meeting of the missionary society women, a scene which, like Aunt Alexandra's character, is completely omitted from the film. Alexandra sees herself as a grand host. Through observing the missionary women, Scout, in Austenian fashion, is able to satirize the superficialities and prejudices of Southern women with whom she is unwilling to identify in order to become that alien being called woman. Dressed in "my pink Sunday dress, shoes, and a petticoat," Scout attends a meeting shortly after Tom Robinson's death, knowing that her aunt makes her participate as "part of ... her campaign to teach me to be a lady" (p.232). Commenting on the women, Scout says, "Rather nervous, I took a seat beside Miss Maudie and wondered why ladies put on their hats to go across the street. Ladies in bunches always filled me with vague apprehension and a firm desire to be elsewhere ..." (p.232).

As the meeting begins, the ladies ridicule Scout for frequently wearing pants and inform her that she cannot become a member of the elite, genteel group of Southern ladyhood unless she mends her ways. Miss Stephanie Crawford, the town gossip, mocks Scout by asking her if she wants to grow up to be a lawyer, a comment to which Scout, coached by Aunt Alexandra, says, "Nome, just a lady" (p,233) -- with the obvious social satire evident. Scout clearly does not want to become a lady. Suspicious, Miss Stephanie replies, "`Well, you won't get very far until you start wearing dresses more often'" (p.233). Immediately thereafter, Lee exposes even further the provincialism and superficiality of the group's appearance of gentility, piety, and morality. Mrs. Grace Meriwether's comments on "`those poor Mruna'" who live "`in that jungle'" and need Christian salvation reflect a smug, colonialist attitude toward other races. When the women begin conversing about blacks in America, their bigotry -- and Scout's disgust with it -- becomes obvious.

Rather than the community of gentility and racism represented in the women of Maycomb, Scout clearly prefers the world of her father, as this passage reveals: "... I wondered at the world of women .... There was no doubt about it, I must soon enter this world, where on its surface fragrant ladies rocked slowly, fanned gently, and drank cool water" (p.236). The female role is far too frivolous and unimportant for Scout to identify with. Furthermore, she says, "But I was more at home in my father's world. People like Mr. Heck Tate did not trap you with innocent questions to make fun of you .... Ladies seemed to live in faint horror of men, seemed unwilling to approve wholeheartedly of them. But I liked them .... [N]o matter how undelectable they were, ... they weren't `hypocrites'" (p.236). This obviously idealized and childlike portrayal of men nevertheless gets at the core of Scout's conflict. In a world in which men seem to have the advantages and seem to be more fairminded and less intolerant than women with their petty concerns and superficial dress codes, why should she conform to the notion of Southern ladyhood? Ironically, Scout, unlike the reader, is unable to recognize the effects of female powerlessness which may be largely responsible for the attitudes of Southern ladies. If they cannot control the everyday business and legal affairs of their society, they can at least impose their code of manners and morality.

To Scout, Atticus and his world represent freedom and power. Atticus is the key representative of the male power which Scout wishes to obtain even though she is growing up as a Southern female. More important, Lee demonstrates that Scout is gradually becoming a feminist in the South, for, with the use of first-person narration, she indicates that Scout/Jean Louise still maintains the ambivalence about being a Southern lady she possessed as a child. She seeks to become empowered with the freedoms the men in her society seem to possess without question and without resorting to trivial and superficial concerns such as wearing a dress and appearing genteel.

Harper Lee's fundamental criticism of gender roles for women (and to a lesser extent for men) may be evident especially in her novel's identification with outsider figures such as Tom Robinson, Mayella Ewell, and Boo Radley. Curiously enough, the outsider figures with whom the novelist identifies most are also males. Tom Robinson, the male African American who has been disempowered and annihilated by a fundamentally racist, white male society, and Boo Radley, the reclusive and eccentric neighbor about whom legends of his danger to the fragile Southern society circulate regularly, are the two "mockingbirds" of the title. Ironically, they are unable to mock society's roles for them and as a result take the consequences of living on the margins -- Tom, through his death; Boo, through his return to the protection of a desolate isolated existence.

Throughout the novel, however, the female voice has emphasized Scout's growing distance from her provincial Southern society and her identification with her father, a symbol of the empowered. Like her father, Atticus, Scout, too, is unable to be a "mockingbird" of society and as a result, in coming to know Boo Radley as a real human being at novel's end, she recognizes the empowerment of being the other as she consents to remain an outsider unable to accept society's unwillingness to seek and know before it judges. And it is perhaps this element of the female voice in Harper Lee's To Kill a Mockingbird which most makes Horton Foote's screen adaptation largely a compromise of the novel's full power.

(1) Harper Lee, To Kill a Mockingbird (New York: Popular Library, 1962), pp. 85-86.

(2) Screening the Novel: The Theory and Practice of Literary Dramatization (New York: St. Martin's Press, 1990), pp. 10-12.

(3) Joseph Mersand, Studies in the Mass Media: To Kill a Mockingbird: 25th Anniversary Brochure and Study Guide (Urbana, Illinois: NCTE, 1963, 1988), p. 18.

(5) Edgar H. Schuster, "Discovering Theme and Structure in the Novel," English Journal, 52 (1963), p. 507.

(6) The earliest reviewers generally bypass the novel's concerns about being a young female in the South -- even when they mention the work's autobiographical dimensions. Recent critics, most notably Harold Bloom and Claudia Durst Johnson, still fail to acknowledge the heavily fiminist dimensions of the novel. See Harold Bloom, ed., Harper Lee's To Kill a Mockingbird: A Contemporary Literary Views Book (Broomall, Pennsylvania: Chelsea House, 1996). In her useful casebook on and introductory critical study of the novel, Johnson includes the gender issue but still focuses primarily on the novel's concerns about race relations in the South. See Claudia Durst Johnson, ed. Understanding To Kill a Mockingbird: A Student Casebook to Issues, Sources, and Historic Documents (Westport, Connecticut; Greenwood Press, 1994); and Claudia Durst Johnson, To Kill a Mockingbird: Threatening Boundaries (New York: Twayne, 1994). The appearance of the Bloom and Johnson books may indicate a growing interest in the novel as a serious work of literature rather than merely a canonical novel for high school students.

(7) Horton Foote, To Kill a Mockingbirg, in Three Screenplays: To Kill a Mockingbird, Tender Mercies, and The Trip to Bountiful (New York; Grove Press, 1989), p. 30.

(8) Universal Studios, To Kill a Mockingbird. Directed by Robert Mulligan; produced by Alan Pakula; screenplay by Horton Foote.

(9) Amy Lawrence, Echo and Narcissus: Women's Voices in Classical Hollywood Cinema (Berkeley: University of California Press, 1991), p.170.

Named Works: To Kill a Mockingbird (Novel) Criticism and interpretation; To Kill a Mockingbird (Motion picture) Criticism and interpretation

Source Citation

Shackelford, Dean. "The female voice in 'To Kill a Mockingbird': narrative strategies in film and novel." The Mississippi Quarterly 50.1 (1996): 101+. General OneFile. Web. 23 May 2010.

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Gale Document Number:A19898481

Prolepsis and Anachronism: Emmet Till and the Historicity of To Kill a Mockingbird.(Critical Essay).

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The Southern Literary Journal 32.2 (Spring 2000): p.1. (11764 words) 

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COPYRIGHT 2000 University of North Carolina Press

Though there is a strong consensus that To Kill a Mockingbird is deeply oriented within the history of the Depression era, no analysis has attempted to separate the historical conditions of the moment of the text's production in the mid 1950s from the historical present of the novel, the mid 1930s. Such analysis is revealing, first because under scrutiny the novel's 1930s history is exposed as at times quite flawed in its presentation of facts. The WPA, for example, did not exist until 1935, but it is mentioned in the novel's fourth chapter, which is set in 1933. Eleanor Roosevelt did not violate segregation law by sitting with black audience members at the Southern Conference on Human Welfare in Birmingham until 1938, but this event is mentioned by Mrs. Merriweather during the fall of 1935. More important than these several occasional chronological lapses, however, is the novel's participation in racial and social ideology that characterized not the Depression era but the early civil rights era. Because the text's 1930s history is superficial, the novel is best understood as an amalgam or cross-historical montage, its "historical present" diluted by the influence of events and ideology concurrent with its period of production. The 1954 Brown v. Board of Education decision, for example, stimulated a national debate in which Lee's novel participates and upon which it offers forceful commentary. As fundamental a presence in To Kill a Mockingbird is the structural and ideological detail of the Emmett Till trial of 1955,(1) which upon close consideration seems unquestionably to have provided a workable model for aspects of Lee's fictional Tom Robinson trial. In other words, racial events and ideology of the 1950s--the period concurrent with the novel's production--leach into the depiction of Lee's 1930s history, orienting large sections the text not to the Depression era but to social conditions of the civil rights era. The mid 1950s/early civil rights era is therefore the context from which the novel is best understood as the intersection of cultural and literary ideology.

Lee herself hints at the contradictions contained within conflicting historical periodicity when she informs the reader early in the novel that its events are depicted from a somewhat distant perspective, "when enough years had gone by to enable us to look back on them" (3). Simply because neither the author nor even Scout, her first person narrator and authorial surrogate, can experience the 1930s within the 1930s but must interpret from a later moment invested with its own discrete historical perspective, historical prolepsis--the representation or assumption of a future act or development as if presently existing or accomplished--is inevitable, and it is an indication that Lee's 1930s historical background, though developed in some detail, should not be allowed to obscure the real conditions which governed the text's production in the years from roughly 1955 to 1959.

Central issues of Harper Lee's fictional Tom Robinson case, along with cultural tensions ascendant in the aftermath of the May 17, 1954 Brown v. Board of Education decision, are located in the story of Emmett Till, a 14-year-old boy from Chicago who was brutally murdered by two white men in the Mississippi Delta on August 28, 1955 for allegedly whistling at a white woman in a store in Money, Mississippi. There is a long list of similarities both circumstantial and deeply ideological between the 1955 lynching of Emmett Till and Lee's account of the conviction and murder of Tom Robinson, similarities which point to the common origin of both texts in a particularly troubled period in the southern history of race.

During the mid to late 1950s, race relations in the Deep South were of course defined and dominated by the Brown decision, which negated the doctrine of "separate but equal" that had since Plessy v. Ferguson been the basis of the South's segregated way of life. Prior to the 1954 decision, what Benjamin Muse has called an "unwholesome stability" (1) had prevailed in the South, depriving nearly all blacks of the right to vote and adhering to strict and inviolable de facto and de jure segregation of the races in all areas of social life in which mixing of any kind could result in the suggestion of social equality.

The business of "keeping the negro in his place" (Muse 39) had for centuries been a major concern in the South, but Brown v. Board of Education greatly exacerbated the southern fears relating to racial mixing, amalgamation, and expectations of social equality for blacks, creating what Newby terms a "a new racism" (10) that directly responded to the Supreme Court's authority by "recasting old ideas to meet a new national mood" (10). In the immediate aftermath of decision, the Deep South exhibited the paranoia of a closed society that could not distinguish the defense of a "`few social areas' from the entire structure of white supremacy" (Whitfield 11). The preservation of white patriarchy "seemed to require the suppression of even the most insignificant challenges to authority" (11). The rising influence and activism of the NAACP resulted not only in the: formation of the White Citizens Councils but production and dissemination of inflammatory anti-integration literature, organization of anti-integration rallies, intimidation of the small number of blacks who had registered to vote, condemnation of the "liberals and do-gooders" in the both the South and in Washington, and the implicit call for violent resistance to the idea of school integration.

Foremost among all latent and overtly expressed fears that were directly intensified by the Brown decision was that surrounding interracial sex. Gunnar Myrdal's exhaustive 1947 study of southern culture had asked white southerners to choose among six categories in gauging what they believed blacks most desired by asserting their civil rights. First in ranking came "intermarriage and sex intercourse with whites" (Myrdal 58). It is indisputable that the Brown decision, ostensibly about school desegregation, was actually understood by many in the South as a dangerous amelioration of deadly serious taboos regarding sexual relations between black males and white females. According to Whitaker, "Nowhere does the fear based on sex show up more clearly than in the disputes surrounding the 1954 Supreme Court decision" (12). Myrdal states emphatically, "Sex was the principle around which the whole structure of segregation ... was organized. And it was because of sex that racial segregation ... was intended to permeate every aspect of society" (589). Whitaker concurs in explaining that the "main worry" notably heightened and reified by the Brown decision was "the mixed relations between the races, especially relations that might lead to sex affairs or marriage" (13). As the rhetoric of the Citizens Councils clearly indicates(2), the twin fears of amalgamation and miscegenation resulting from "mixed relations" between blacks and whites rested ultimately on the idea that "marriage or sexual intimacy with blacks would degrade and eventually extinguish Anglo-Saxon civilization itself" (Whitfield 1-2).

In the context of the Brown decision, mixed schooling therefore meant much more than the implication of social equality. President Eisenhower may have inadvertently verbalized some of the deepest fears of southerners when he explained in 1954 that segregationists "were not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in schools along side some big overgrown negroes" (qtd. in Whitfield 72). Based as it is on what was in the South at this time an exceptionally offensive concept--that of sexually mature black men in close proximity to white females--this sentiment surfaces frequently in ideology of the post-Brow, era. In his research into the period, Whitfield encountered these representative Southern views: "A negro of 14 may be in the fourth grade with a white girl of 10 or 11, and the negro is a fully developed man, sexually" (9). "You make a negro believe he is equal ... and the first thing he wants is a white woman" (9). Not surprisingly in this atmosphere, the lurid and provocative image of the "black rapist" though it had existed in southern code and southern white mythology as early as the 1880s,(3) was now resurrected in the southern consciousness and rhetoric (Whitfield 3).

The September 1955 trial of Roy Bryant and J.W. Milam for the murder of Emmett Till in retribution for allegedly whistling at and talking in a suggestive way to Carolyn Bryant was front page news throughout the country. When Bryant and Milam were found not guilty by an all-white, all-male jury that deliberated only 67 minutes--"it would have been a quicker decision, said the foreman, if we hadn't stopped to drink a bottle of pop" (Halberstam 441)--Milam and Bryant "stood acquitted in Mississippi and convicted by most of the nation" (441).

Graciously responding to my queries, Harper Lee has indicated that she was not in Mississippi in 1955 and was not present at the Emmett Till trial. But in order to be cognizant of the Till case and its meaning, she did not have to be. The Emmett Till trial, now forgotten by many, surprisingly absent from some recent histories, often ignored as one of the galvanizing events of the early civil rights movement, was in 1955 "probably the most widely publicized trial of the century" (Whitaker 148). Halberstam has termed it "an international incident" (432), " ... the first great media event of the civil rights movement" (437). As the daughter of a well known Southern attorney and a one-time law student from a family with a considerable legal background,(4) Harper Lee may be presumed to have taken an interest in the Till case, which was immediately identified as a monumental legal benchmark.(5) In 1975, for example, the founder of the Citizens Councils attempted to identify the moment when the civil rights movement began: "It all started probably with a case of a young Negro boy named Emmett Till getting killed for offending some white woman ... that made every newspaper on the face of the earth ... " (Whitaker 148). Largely due to what most historians refer to as a decline of "faith in legalism" at the unconscionable verdict of the Till trial, blacks in the South were moved to attempt more concrete forms of protest. Within four months after Till's death, Alabama blacks were staging the Montgomery bus boycott--the first major battle in the civil rights era war against racial injustice.

Commonalities in the Emmett Till trial and the trial of Tom Robinson in To Kill a Mockingbird have been suggested but nowhere investigated. It was, for example, at a 1995 celebration of the thirty-fifth anniversary of the publication of To Kill a Mockingbird that journalist Charlayne Hunter-Gault (the first black student to enroll at the University of Georgia), perhaps unaware that, inexplicably, no constructive connection between the story of Tom Robinson and that of Emmett Till had ever even been investigated anywhere, described the Emmett Till story as "perhaps the closest my generation had come to the experience of Tom Robinson" (TKM: Then and Now).

The two cases are linked by numerous similarities of circumstance. Both cases combine the dual icons of the "black rapist" and concomitant fear of black male sexuality with mythologized "vulnerable and sacred" Southern womanhood. Both cases involve alleged transgressions of the strict inviolable mores barring social and sexual contact between black males and white females of any social class, for which, in both cases, the penalty is death for the black offender. Both cases are heard by all-white, all-male juries consisting primarily of Southern farmers. Both cases result in verdicts that preserve tenaciously held racial doctrine of the white power structure at the expense of justice and in the face of overwhelming contradictory evidence. In both cases a community of potentially fair-minded middle class whites is required, against its initial leanings and for reasons perceived as the lesser of two evils, to support the obviously false testimony of a pair of otherwise-despised poor whites. In both cases, a courageous attorney and a fair-minded judge tacitly cooperate in a futile attempt to ensure justice. In both cases, the black victim is a diminished physical specimen of a fully grown man. In both cases, the press or media emerge as a force for racial justice. In both cases, the concept of child murder figures prominently in the calculus of revenge for the racial and social shame of a class of poor Southern whites.

The list of similarities could go on, eventually extending even into relatively minor surface details, such as the fact that Emmett Till was killed on August 28, 1955 and that his body was found on August 31, dates which turn out to be practically identical to the date of Tom Robinson's death, which took place when "August was on the brink of September" (228).

Moreover, deeper connections are likewise discernible in a study of the cases as symbolic texts. Described by numerous historians as having a "muscular build," fourteen-year old eighth-grader Emmett Till is not only comparable to the "muscular" but crippled Tom Robinson, but as an out-of-place, culturally displaced child, he fits well into Harper Lee's symbolic "mockingbird" category which encompasses the concepts of innocence, victimization, and wrongful persecution. Emmett Till's murderers, the half-brothers Roy Bryant and J. W. "Big" Milam, are described by Whitaker as a "tightly knit family" (107) that resembles the Ewells, whose joint testimony condemns Tom Robinson. Also like the Ewells, Bryant and Milam were "poor whites" or "rednecks" who provoked reactions of fear and disgust among both blacks and other whites in the local community. To the Ewells and Bryant-Milam, the term "white trash" (144) used by Whitaker is equally applicable. "People who knew Milam and Bryant" Whitaker notes "disliked them and were afraid of them" (144). In interviews conducted by Whitaker in the early 1960s, Milam and Bryant were "invariably referred to as `peckerwoods,' `white trash' and other terms of similar disapprobation" (144). Like both Milam and Bryant, Bob Ewell had served in the military and is described by Lee as "the veteran of an obscure war" (217), whose inclination to violence is at one point in the novel explained by Lee's narrator as a vestige of his war experience. Commissioned in battle in Europe during World War II, Milam, thirty-six years old, was "especially proud of his war record" (Whitaker 108) and has been described by all primary sources as having learned to relish violence through his military service.

Tom Robinson's physical handicap of a crippled left arm--the arm having been "caught in a cotton gin" at the age of twelve--is emphasized in Lee's novel as a factor which should have resulted in acquittal or at least serious doubt not only concerning Tom Robinson's ability to choke and rape Mayella Ewell but to produce the kind of injuries she suffers on the right side of her face. In the circumstances surrounding the Till case, another kind of handicap, this time a "speech defect ... a stutter, the result of nonparalytic polio at the age of three" (Whitfield 15) is raised as a possible exonerating factor for the kind of transgression Till is alleged to have committed. Both in the immediate frenzy of press reports surrounding the murder and in interviews as recent as 1987, Mrs. Bradley claimed that her son's alleged "wolf whistle" was actually a manifestation of his stuttering problem:

He had particular trouble with b's and m's ... He was trying to say "bubble

gum," but he got stuck. So he whistled.... I taught him, whenever he had

trouble stuttering, to blow it out ... I can see him try to say "bubble

gum" and blowing or whistling in Mrs. Bryant's presence.(6)

Immediately after Till's body was found, Till's uncle, Moses Wright, had also explained that Till "had polio when he was three and he couldn't talk plain. You could hardly understand him."(7) Till's speech defect as an extenuating factor in the case was accepted by parties other than Mrs. Bradley as late as 1962, when NAACP Regional Secretary Ruby Hurley, asked for clarification of the issue by Hugh Whitaker during his research into the case, gave what Whitaker terms the "official NAACP version" of the event. Ms. Hurley explained that Till's "only crime was the alleged `whistling' at a woman. The `whistling' was a defect in his speech as a result of a polio attack" (Whitaker 133).

Though these explanations may strain credulity, they were and are a part of the still unresolved confusion over what actually took place at the Bryant store that August evening in 1955. The term by which the Till case came to be known--the "wolf whistle" case--emphasizes the centrality of the possible speech defect as an exculpatory detail that clearly resembles Tom Robinson's similarly exonerating physical defect.

The bodies of both Emmett Till and Tom Robinson were horribly mutilated by excessive racially provoked violence intended to send a message about the seriousness of the alleged transgression and the tenacity with which existing social codes; would be defended by the white power structure. Till's swollen decomposed body could be identified only by the ring he wore and was "badly mutilated.... The body had apparently been beaten severely, and there was a hole the size of a bullet above the right ear" (Whitaker 118). Tom Robinson is shot seventeen times by prison guards--his death ostensibly the result of an attempt to flee from the Enfield Prison during an outdoor exercise period. Though Tom Robinson is said to have run toward the fence "in a blind raving charge" (235) and failed to stop after the guards had "fired a few shots into the air" (235), the killing, referred to later in the novel by Mr. Underwood as a "senseless slaughter" (241) is almost certainly racially motivated. Atticus is told that the guards shot Tom "just as he went over the fence" (235), but Scout's response of uncontrollable shaking when she hears the news is caused by her knowledge that the exercise yard at Enfield is "the size of a football field" (236) together with the fact that Tom had "seventeen bullet holes in him" and that, as Atticus explains, "they didn't have to shoot him that much" (235). Though it would have been futile and perhaps impossible in the racial climate of the era to legally challenge or investigate the cause and motives of Tom Robinson's killing, beginning with the question of the number of shots used to kill him, the death as described from the guards' account appears dubious and not entirely logical. Scout's shaking results probably from the visual image of the killing she is able to create for herself from having earlier had the Enfield Prison exercise yard "pointed out" to her by Atticus. The size of the yard, the picture of a man with the use of only one arm attempting to climb the fence, the claim by the guards that Tom had nearly escaped, the seventeen shots used to stop him--all suggest a killing with a motive other than simply preventing Tom from fleeing. Lee's text unquestionably permits if not compels a reading of the event as a cold-blooded, racially motivated murder quite similar to the murder of Emmett Till.

A number of the leading figures in the Till case have obvious counterparts in To Kill a Mockingbird. Attorney Gerald Chatham, the prosecutor in the Till case, resembles Atticus Finch, and his efforts throughout the case are by several historical accounts described as "a valiant but futile effort to see justice done" (Whitaker 153). The circumstances in which Chatham and Atticus Finch found themselves, as attorneys fighting a losing battle against communal racist feelings and a verdict that is a foregone conclusion, are of course strikingly similar. Though according to Whitfield much of the transcript of the trial has been lost, several sources extol the "stirring oratory" (Whitaker 153) of Chatham and assistant Robert B. Smith's closing arguments. What little survives of the actual text of the arguments includes Smith's allusion to the "guarantees of life, liberty and the pursuit of happiness" (Whitfield 41) from the same sentence of the Declaration of Independence to which Atticus alludes in his closing argument in the Robinson case when he reminds the jury that "all men are created equal" (205). Whitaker compares Chatham to William Jennings Bryan and notes that after Chatham's closing argument, "all other summations were an `anti-climax"' (153). After the trial and its verdict, the Southern black press praised the work of Chatham and, as Whitaker explains, "wrote encouragingly" (162) of his and his assistant prosecutor's performance in a way that recalls the respectful tributes paid to Atticus by the local black community after the Tom Robinson trail. All accounts of the trial agree that Chatham and Smith had made their case "ably and diligently" (Whitaker 162), and they are repeatedly described as having "done their utmost ... despite having no assistance from the sheriff or police investigators in obtaining evidence" (162).

The fact that Gerald Chatham died of a heart attack at the age of 50, only one year after the Emmett Till trial, and that Chatham's relatives, when interviewed by Whitaker, felt "that the exertion in this trail hastened his death" (162) recalls several comments made in To Kill a Mockingbird about Atticus by Aunt Alexandra. At the news of Tom Robinson's -killing, Alexandra reacts with anger to the town's seeming disregard for the health of her brother: "I just want to know when this will ever end ... It tears him to pieces ... it tears him to pieces ... They're perfectly willing to let him wreck his health doing what they're afraid to do" (236). For Chatham as for Atticus, one momentous case became a self-defining moment; though Chatham had had a long career in law, his obituary referred only to "the Emmett Till case" in summarizing his public life (Whitaker 163).

Chatham and presiding judge in the Till case Curtis Swango seemed to work toward a common purpose in much the same way Harper Lee's Atticus Finch and Judge Taylor tacitly cooperate. As in the Robinson case, there is in the language surrounding the Till case the suggestion of collusion or at least mutual support between the justice-seeking lawyer and the sympathetic judge. To all observers of the Till trial, including Halberstam, it appeared that Chatham and Judge Curtis Swango, like Atticus Finch and Judge Taylor, "were set to do all they could in the hope that, by some miracle" a just verdict could be rendered (Whitaker 147). Describing Judge Taylor's way of looking at Bob Ewell during the latter's testimony "as if he were a three-legged chicken or a square egg" (250), Atticus remarks "Don't tell me judges don't try to prejudice juries" (250). Asked by Jem "who in this town did one thing to help Tom Robinson?" (215), Miss Maudie replies "People like Judge Taylor" (215). In a similar way, defense attorneys Kellum and Breland described Judge Curtis Swango as "bending over backward" to aid the case against Milam and Bryant.(8) And the fact that Atticus had been selected by Judge Taylor as Tom Robinson's defender is clearly linked to his desire to ensure the case is given a chance. When Scout suddenly realizes that "Maxwell Green should have had Tom Robinson's case" (215) and that the appointment of Atticus was meant to ensure a vigorous defense and is therefore, as Miss Maudie explains, "no accident" (216), the extent of Judge Taylor's own "bending over backward" for Tom Robinson is apparent.

Judge Swango's determination to keep the proceedings as fair as possible was obvious at several key moments and "won the respect of all (presumably all non-racist observers) who attended the trial" (Whitaker 163 my parenthesis). Aware of the damaging effect that testimony by Carolyn Bryant might have on the all-white jury in the case, for example, Swango ruled the testimony of Mrs. Roy Bryant unrelated to the murder and thus inadmissible. Whitfield quotes black congressman Charles Diggs, who attended the Till trial, as being impressed with the "fairness of Judge Swango" (45). The Nation praised Swango and Chatham for their "devotion throughout this occasion ... to justice" (Whitaker 45). That Judge Swango was reelected in the year after the Till trial is a fact curiously reminiscent of Atticus' own reelection to the Alabama state legislature in the term following his efforts on behalf of Tom Robinson.

The story of the determined rejection of Roy Bryant and J.W. Milam by their community in the aftermath of the Till trial closely parallels community attitudes toward Bob Ewell after the Robinson trial. After the Robinson case, having had "his brief burst of fame" (248), Bob Ewell not only "acquired and lost a job in a matter of days ... fired from the WPA for laziness" (248)--a fact which is acknowledged by the narrator as "unique in the annals of the nineteen-thirties" (248), but he is ostracized by the same community that had felt the need to support him in his accusations against Tom Robinson. When Aunt Alexandra wonders why Ewell, having "had his way in court" (250) continues to harbor a grudge, Atticus explains: "I think I understand ... It might be because he knows in his heart that few people in Maycomb really believed his and Mayella's yarns. He thought he'd be a hero, but all he got for his pain was ... was, okay, we'll convict this Negro but get back to your dump" (250). "I destroyed his last shred of credibility in that trial" (218) Atticus asserts. The strong aversion among Maycomb citizens for Ewell is shown most directly by Link Deas who defends Helen Robinson from Ewell's harassment and aggressively humiliates Ewell to keep him from trying it again.

In much the same way, Roy Bryant and J.W. Milam were rejected by both white and black elements of their community after the Till trail. The Milam-Bryant family had owned a chain of small country stores which catered almost exclusively to blacks. Immediately after the Till incident, these stores were boycotted, and all had to be closed or sold within fifteen months. Attempting then to make a living as a farmer, Milam tried but was unable to rent land for the 1956 crop year (Whitaker 160). Bryant also "had trouble finding work" (160), and "finding themselves not accepted in the Mississippi Delta" (160) Bryant and his family moved to Texas in 1957. Like Bob Ewell, both Milam and Bryant were feared, distrusted and shunned by the citizens who had stood up for them and "swarmed to [their] defense" (160) in the Till case. The underlying feelings in Southern society toward men like Ewell, Milam and Bryant is thus a subject of some interest and complexity. They are seen at various times and by various observers both as defenders of the race, "keeping the niggers in line" and "protecting women from the lust of negro men" (Whitfield 30), but outside this role they are scorned and ostracized for reasons of class. Initially denounced in the press and unable to find lawyers who would defend them, Milam and Bryant were eventually represented pro bono when opinion swung in their favor and the community of the Delta, in a strongly self-defensive reaction to what it perceived as Northern press bias against Mississippi, decided to rally around two of "its own."

Till's mother, Mrs. Mamie Bradley, is linked in an intriguing way to Helen Robinson, the wife of Tom Robinson. Though Sheriff Clarence Strider had ordered the immediate burial of Till's body in Mississippi, Mrs. Bradley had requested that the body be sent back to Chicago, where she received it in the Illinois Central terminal from which her son had left for his vacation two weeks earlier (Whitfield xiii). The scene was witnessed by a crowd of family friends and media, and there is a famous UPI photo that was taken in Chicago upon the arrival of the casket bearing Emmett Till's body. As the casket was unloaded and presented to her, Mrs. Bradley cried "Lord, Take my soul" and collapsed (Whitfield xiii). The expression of horror and pain on her face, the crate containing the casket in the foreground, and the three clergymen pressing near Mrs. Bradley to raise her limp, paralyzed body appeared in newspapers across the country in early September 1955. In To Kill a Mockingbird, a strongly analogous scene, in which Helen Robinson is informed by Atticus that her husband has been killed, is witnessed and described by Dill: "Scout ... she just fell down in the dirt. Just fell down in the dirt, like a giant with a big foot just came along and stepped on her ... Like you'd step on an ant" (240). The near match of the two scenes, strongly suggestive of a possible influence in terms of both situation and the emotional context, has been previously overlooked.

The press became a catalyst in the growth of the civil rights movement, and one of its major roles became that of a defender and chronicler of injustice, clearly taking the side of social progress and arguing powerfully the case of the oppressed. Covering the Till trial in 1955, Halberstam had reflected "This was something different ... for the first time there was a national agenda on civil rights (437) ... Something new was being created, the civil rights beat it was called, for this new and aggressive young press corps" (441). Under the gaze of these progress-minded reporters primarily from the North but including some southerners, it would be impossible to hide crimes like the Till murder in remote corners of the South. After the Till verdict, "newspapers around the world reacted with editorials of condemnation" (Whitaker 157). The Till case was unique not only for the extent and the energy of the press coverage, but also for the slow sea changes it exposed in the southern media. Though the Scottsboro trials in the 1930s had excited considerable media interest, the lurid details of alleged gang rape and the provocative testimony of two alleged white prostitutes that were part of that of that case are cited by Whitaker as obvious factors. The Till case for the first time saw a noticeable majority of media take a strongly progressive stance on issues of civil rights. Many Mississippi and Alabama newspapers would eventually support the verdict exonerating Bryant and Milam, but this is readable as a gesture of self-defense against the strength of the condemnation leveled against Mississippi by the rest of the world after the verdict. The equal applicability to the Till case of Atticus' discernment of "the shadow of a beginning" (221) of racial progress is here clearly reflected.

In Lee's novel, the role of the press as a determined advocate of civil rights appears symbolically in the form of Mr. B. B. Underwood, owner, publisher, and editor of the Maycomb Tribune. It is Mr. Underwood, for example, "leaning out his window above the Maycomb Tribune office" with "a double barreled shotgun" (155), who backs up Atticus in his confrontation with the lynch mob in Chapter 15. "Had you covered all the time, Atticus" shouts Mr. Underwood as the mob disperses. Described as "a profane little man, whose father ... had christened Braxton Bragg, a name he had done his best to live down" (156), Mr. Underwood is a figure of the New South who puts aside risks to himself to write and publish a passionate denunciation of Tom Robinson's murder. In his editorial, referred to by the narrator in Chapter 25, "Mr. Underwood was at his most bitter, and he couldn't have cared less who canceled advertising subscriptions ... He likened Tom's death to the senseless slaughter of songbirds by hunters and children, and Maycomb thought he was trying to write an editorial poetical enough to be reprinted in The Montgomery Adviser" (241).

Among the most profound examples of mutually illuminating influence between the Till story and Lee's novel is the central presence in both of the concept of child murder. Not surprisingly, "child murder" was an immediate and persistent theme of outrage in the Till case. NAACP Executive Secretary Roy Wilkins, for example, gave what came to be a frequently repeated synopsis of the Till incident: "It would appear that the state of Mississippi has decided to maintain white supremacy by murdering children."(9) In a well known statement of September 1955, William Faulkner called Emmett Till "an afflicted Northern child" and then used the case to indict American society in general: " ... if we in America have reached the point in our desperate culture when we must murder children, no matter for what reason or what color, we don't deserve to survive, and probably won't" (qtd. in Wexler 63). The climactic scene of To Kill a Mockingbird, in which Scout and Jem are attacked by Bob Ewell in revenge for their father's role in the Robinson trial, replicates the motive and pattern of the crime against Emmett Till. After the attack, Sheriff Heck Tate's caustic description of Bob Ewell as "brave enough to kill children" (269) applies equally to Emmett Till's murderers, who are likewise compelled to retaliate for public humiliation by a deviant sense of Southern honor. That Bob Ewell meant to kill Scout and Jem is unequivocally established by Sheriff Tate, who finds Scout's chicken wire Halloween costume "crushed to a pulp" (269) with a gash where Ewell's knife had struck at her. The costume "probably saved her life ... Bob Ewell meant business" (269) Tate concludes.

In accordance with a vestigial remnant of the Southern social code made applicable in post bellum culture to poor whites, if Roy Bryant had failed to act after Till's alleged remarks to his wife, "the shame would be his" (Whitaker 77). Furthermore, as Whitfield and others have asserted, Bryant's sense of honor was threatened in large part by the fact that the matter had inevitably become public--that local blacks and other whites were talking about the incident in the Bryant store. There were therefore two distinct motives compelling Bryant and Milam to act. One was obviously racial, but the other has more to do with public familial shame and loss of honor. Once this is acknowledged, Bob Ewell's violent retaliation, sensed by Jem and Scout but not by Atticus, who inexplicably discounts the threat Ewell poses, is more easily explained. Had Ewell stood still after Tom Robinson's death, he would have satisfied only the racial half of the revenge equation. His need to strike out at the source of his public disgrace is as compelling. For Bryant-Milam the locus of racial and public humiliation was black child Emmett Till. For Bob Ewell, the death of Tom Robinson satisfied a racial vendetta, but Ewell's public humiliation also called for retaliation of some form against Atticus, even if the victims were children. Such exegesis also throws light on the entire novel's indisputable thematic preoccupation with ideas of child-centered innocence profoundly applicable to the Emmett Till story. The novel's motto, for example, reads "Lawyers, I suppose, were children once" and Mr. Underwood's Chapter 25 editorial is written "so children could understand" (241). When the Robinson verdict is announced, Atticus remarks, "seems that only the children weep" (213).

Considered together, the actual and intended child murders located respectively in the Till case and Lee's novel emphasize the degradation of a deeply insecure segment of Southern society that could produce such perverse malice, whose poverty-corrupted antebellum social code of gentlemanly honor had become horrifically deviant in response of the fundamental challenge to its identificatory foundational principles presented by racial integration. The stark terms of Lee's representation of child murder during a period when a readership would almost certainly have been cognizant of the central issues of the Till case justifies a view of Lee's text as not only reflective of but engaged with and responsive to a civil rights era ideological agenda.

It is surprising that deeper connections between the Till case and Lee's Tom Robinson case have not previously been pursued. It may be that the issue never grew into a full-fledged study simply because as a murder trial Till's case could not on the surface be easily classified with Tom Robinson's. But the extremely psychologically charged and polarizing issues in both cases are identical: sexual relations of black males and white females, the stereotype of the black rapist, and the weight of such ideology in Southern society. Mrs. Farrow's remark in the aftermath of the Robinson trial in To Kill a Mockingbird that "there's no lady safe in her bed these nights" (232) is an uncannily accurate version of the tensions dominating both cases. And the comment made by Scout's teacher Miss Gates as she leaves the courthouse after the Robinson verdict replicates with remarkable precision a typical fear-driven response to concerns over black social progress from the post-Brown era in a way that actually seems more descriptive of Emmett Till than of Tom Robinson: " ... it's time somebody taught 'em a lesson. They were gettin' way above themselves, an' the next thing they think they can do is marry us" (247). It was Emmett Till, after all, who is alleged to have suggested that he had already "been with white girls" (Whitfield 17) and asked Carolyn Bryant for a date, and who is reported to have shown both whites and blacks the wallet photo of his white girlfriend. Among the "traditions and customs of the South" that were involved in these cases, Whitaker correctly cites "Southern feelings with respect to the relationship of sex to the caste system of segregation" (ix) as most important, but the general ideology of segregation is also put forth in anger by Mrs. Merriweather in Chapter 24 of Lee's text: "People up there set 'em free, but you don't see 'em settin' at the table with 'em. At least we don't have the deceit to say to 'em yes you're as good as we are but stay away from us. Down here we just say you live your way and we'll live ours" (234). These views are inarguably the most accurate description of the social context in which both the Till and Robinson cases were deeply embedded. Charlayne Hunter-Gault's seemingly casual analogy linking the fictional Tom Robinson trial to the Emmett Till story is therefore amply justified.

It was in this atmosphere of provocative racial tension and salient race-sex anxiety concurrent with frequent trips in the mid 1950s between New York and her home in Monroeville, Alabama that Harper Lee worked at the manuscript that was to become To Kill a Mockingbird. The conflict over the Brown decision, the nearby Emmett Till case, the racist literature distributed by the Citizens Councils, the first black bus boycott and the beginning of the civil rights movement in Montgomery in 1956 were conspicuous features of a state of near fixation by national and regional media on Southern racial issues. The result is a novel that seems unquestionably to have passed through the transforming alembic of such powerful ideology.

That Lee's text wages explicit battles over meaning and sends liminal signals with which a readership immersed in conditions concurrent with the novel's 1960 publication could be expected to passionately respond is not surprising. But perhaps because, as Stephen Greenblatt has noted, a work's reception is "located in an intermediate zone of social transaction, a betwixt and between" (Learning to Curse II), the transaction between author and reader is never certain. Interestingly, most immediate responses to Lee's novel chose either to acknowledge the text's serious participation in its social milieu or to completely discount the text as historically uninvolved and almost frivolous. In its period of initial reception, the novel is described as "in no way a sociological novel. It underlines no cause" (R. Sullivan), a "humorous book ... wholesome as a dozen fresh eggs" and "an absolutely accurate picture of small town southern life in the 30s" (Waller) while simultaneously being touted as "a novel of strong contemporary national significance that deserves serious attention" (R. Sullivan). One interpretive key to the novel therefore lies in an identification of its periodicity, which has been, I would argue, the source of an ambiguity in a critical reception described by one of the novel's primary researchers as "baffling" (Johnson 24). Though Lee herself hinted in a 1961 interview that her setting "could have been the Mississippi Delta ... " (Deitch) a locale with implicit significance within the novel's period of reception as the spark that ignited the civil rights movement, most critics have chosen to develop in the novel a set of concerns particular to the 1930s and the Depression era. In this way, the text itself seems to have a acquired a type of "mobility" described by Greenblatt as characteristic of enduring works of art that problematize the distinction between literary and non-literary texts while presenting mixed strains of ideology, and which are thus able to be reevaluated within the social context of each historical frame of reference by which they are touched (Learning to Curse II).

The range of responses elicited by To Kill a Mockingbird also reflects a lingering uncertainty about whether Lee's text is essentially subversive or orthodox in its central insights--a confusion that is only partially explicable as a function of the novel's publication during a period when definitions of subversive and orthodox racial views were in flux. Explaining the dialectic between Shakespeare's art and an Elizabethan state authority censorial of subversive ideas regarding religious and political power, Greenblatt has described a process by which "subversive insights are generated in the midst of apparently orthodox texts and simultaneously contained by those texts, contained so efficiently that the society's licensing and policing apparatus is not directly engaged" ("Invisible Bullets" 40. Though Greenblatt views this condition as "an historical phenomenon, the particular mode of this particular (Elizabethan) culture" (57), I would argue that something very much like this "submissive subversiveness" in which "a disturbing vista ... is glimpsed only to be immediately closed off" (52) occurs as well in Lee's novel.

The novel's denouement, for example, presents and endorses a conspiracy between Atticus and Sheriff Heck Tate that contradicts both characters' earlier strict adherence to legal procedure in the Tom Robinson case. By the terms of an improvised, legally subversive(10) agreement, Arthur Radley's intervention on behalf of the Finch children and the killing of Bob Ewell in defense of the children are concealed with the false explanation that "Bob Ewell fell on his knife." A deus ex machina personified in Boo Radley is thus allowed not only to intervene, to intervene anonymously, to intervene with impunity, but also to render compensatory justice, his actions sanctioned by both the sheriff and Maycomb's leading attorney. Not only will there be no investigation, legal charges or trial relating to Bob Ewell's death, but the circumstances of the death, including even the identity of the Arthur Radley as the salvific intercessor, will be suppressed. "There's a black boy dead for no reason, and the man responsible for it's dead" Heck Tate argues, "Let the dead the bury the dead this time, Mr. Finch. Let the dead bury the dead" (276). Atticus and Sheriff Tate then both acknowledge the killing of Bob Ewell not simply as a rescue of the Finch children but as symbolic retribution for the death of Tom Robinson.

Greenblatt's paradigm for Renaissance authority and its subversion--subversion created in order to be contained--is here re-presented with perhaps the one notable caveat that the subversion here "contained" by mutual agreement of Atticus, Heck Tate and later Scout is also implicitly sanctioned by the text as a viable situational response. That Arthur Radley killed Bob Ewell will not become public knowledge, and so the conspiracy to circumvent the ideological apparatus of the justice system is contained by and within a value system that judges not on the basis of legal syntax, but on an individualized concept of guilt or innocence that repudiates considerations of race or class. Thus the subversion presented by Lee departs from Greenblatt's Renaissance from only in that the "disturbing vista" that is "glimpsed only to be immediately closed off" presented in the former is orthodox and conservative (obedience to legal code over a personal value system), while that contained or closed off in the latter is liberal and heterodox. Such exegesis speaks volumes about the essential leanings of the era in which Lee wrote and published--an era in which forms of racial orthodoxy were constantly elided as the legal process either advanced the cause of civil rights--as in the Brown decision--or denied racial justice--as in the Emmett Till case. The Emmett Till case is often cited as a major factor in a collective erosion of faith in legalism--a disillusionment that called for nonviolent extralegal subversion--the source and eventual modus vivendi of the civil rights movement. In their commerce with both Emmett Till and Tom Robinson, legal remedies fail and are therefore elided into extralegal solutions. The substitute version of justice endorsed in To Kill a Mockingbird therefore implies the viability of a form of retribution for racial violence while exposing the limitations of legal redress for such violence, suggesting the efficacy of a particular kind of conscience-driven extralegal solution to extant racial conditions. Not without first creating and containing subversion, the plot strands involving Boo Radley and Tom Robinson are woven together in a way that constructs a form of moral consensus concerning the dividing line between law-bound adherence and individual subversive behavior.

Of importance also is the fact that the suppression of truth regarding Bob Ewell's death is accepted by Atticus in clear contradiction to the legal code by which his whole professional and personal life has been structured. The change of heart--in which his whole sense of himself is at stake--constitutes significant growth in Atticus, who is now able to see the inefficacy of legalism. Atticus had earlier publicly affirmed his faith that "our courts are our great levelers" and that equal justice was "no ideal to me, it is a living, working reality" (205)--but the law that had failed Tom Robinson here attains a sudden protean flexibility, the logic of which amounts to a demystification of the legal system and its predictable machinations. In the falsity that hovers around the declaration of Atticus to Scout that "Mr. Ewell fell on his knife" the reader is invited to suspend judgment and implicated in the rationalization. When Atticus asks his daughter, "Can you possibly understand?" Scout's "Yes sir, I understand" (276) is offered with her passionate reassurance that a greater good is contained in the version of events that is not literally but symbolically true: "Mr. Tare was right ... it's be sort of like shootin' a mockingbird, wouldn't it?" (276). The private withdrawal of Atticus into this acknowledgment is intertwined with the great public crisis into which the period had been led by the Brown decision and the murder of Emmett Till, a crisis that gave rise to serious national questions about the efficacy of court sponsored racial justice.

By the end of Lee's novel then, the limitations of a particular and highly historically relevant ideological apparatus have been exposed, and the law is, even for Atticus, reduced to a ritual in which absolute faith is no longer possible. Through this process we perceive the potential instability of the structure of legal order in the South on the verge of the violent convulsions that attended the civil rights era. If the text here compels a consideration of the validity of subversive intervention, as it seems to have for at least some of Lee's contemporaries in the wake of the Emmett Till case, it is because, as Greenblatt explains, "power ... is not perfectly monolithic and hence may encounter and record in one of its functions materials that can threaten another of its functions" ("Invisible Bullets" 50) ... the simple operation of any systematic order ... will inevitably run the risk of exposing its own limitations" (52). Because power "defines itself in relation to threats or simply to that which is not identical to it" (50) the full awareness of its effect requires what Greenblatt terms a collective "vigilance," the kind of vigilance, I would suggest, that is practiced by Sheriff Tate and Atticus, who sanction the personal subversion of an institutional power to which both men had earlier expressed and enacted allegiance. This transference contains a radical questioning that insists passionately on the efficacy of action in obedience to the private commands of conscience instead of reliance on more orthodox forms of redress.(11) In the "secret courts of men's hearts" (Lee 241) tainted as they are with virulent racial prejudice, neither Tom Robinson nor Emmett Till had any chance, but Lee's novel ends with the verdict of a secret court that, though it cannot restore the status quo ante by returning Tom Robinson to his family, does destroy the complicity between racism and a legal system that had been required to serve it--negating the very arrangement that had thwarted justice in the Robinson and Till cases.

Lee's novel therefore ends where the civil rights movement begins, with a resolve born of disillusionment to improvise ways and means of justice both within and outside a system that could convict Tom Robinson and acquit Emmett Till's murderers. In the presentation, discussion, containment and suppression of a court case pitting the state against Arthur Radley--a case that could have been but will not be--there is a conscious attempt to compensate for the disastrous effects of its antecedents in Tom Robinson and Emmett Till--court cases that could not have been but were. The text may be read as Lee's method of working out complex issues of conscience and subjectivity suggested by the Till case and the civil rights movement in general. Harper Lee's version of history, like the version of events agreed upon as the real story of Bob Ewell's death, is therefore not literally but symbolically "true" retold in a way that liberates the essential symbolic precepts from the less; significant details of place, time and circumstance while remaining passionately faithful to allegorical truth.

Seeking a paradigm within the purely fictional narrative of the novel for this transformation of historical detail to conform to a thematically unified but chronologically and spatially detached "text" we need look no further than to the first-person narrator. Scout's inability to compartmentalize her own history is a good model for the way historical events or texts mesh synergistically into a kind of combination meaning which neither text comprises alone. Her most profound interpretations of the novel's events are not derived through conscious analysis, verbal instruction or logic. Instead, they seem enabled by a prelingual or prediscursive state of sleep-induced semi-consciousness in which events from different time periods come together to create a version of reality that is as individual as it is anachronistic in the sense of the word that literally means "outside of time." Here she is subject to discourses or texts that are "of" both her past and present but which operate simultaneously and across time barriers. Scout's habit of falling asleep at various times and places in the novel often leaves her midway between conscious and unconscious thought and at a point where a previous and an immediate event or text intersect, and it is in this state that Scout discovers the profound truths that constitute her "maturation" in the story. This state, in which Scout tends to think not in words but in visual images, coincides precisely with Scout's moments of deepest insight and enables her to form conclusions which are, though sparsely articulated, central to our understanding of the novel.

For example, having witnessed and experienced profound confusion over the confrontation between Atticus and the lynch mob outside Tom Robinson's jail cell in chapter 16, Scout is "drifting into sleep" (156) when the "full meaning" of the night's events materializes before her. "The memory of Atticus calmly folding his newspaper and pushing back his hat became Atticus standing in the middle of an empty street, pushing back his glasses" (156). Establishing the link between Atticus defending the town from the "mad dog" and Atticus defending Tom Robinson from the lynch mob, Scout's visual metaphorical thought process, enabled by her semi-conscious state, is the nucleus of the novel's quite deep symbolic structure, a structure which continually stresses the role of Atticus as "defender" of Maycomb and Southern society from its own self-destructive urges.

Scout is again wavering between conscious and semi-conscious perception in Chapter 21, when she develops her previous metaphor by substituting the scene outside the Maycomb jail for that of the courtroom. She is "too tired to argue" (210) with Jem when he questions her understanding of the racial complexity of the Robinson case, but she discovers another and more profound concept. As she drifts into sleep, she describes, "an impression that was creeping into [her]" (210). Mentally transported in her dream-like state she "shivered, though the night was hot" (210). "A steaming summer night was no different from a winter morning" she understands, and in her semiconsciousness the street scene appears and the sensory impressions of the "mad dog" and courtroom dramas are merged. Accordingly, Heck Tate saying "take him, Mr. Finch" becomes Heck Tate saying "This court will come to order" (210).

Finally, as the novel comes to a close, Scout makes yet another thematically crucial connection, this time between an outside-of-text fictional narrative (and therefore an element of Lee's historical background) and the fictional events of the novel itself. Here Scout's sleep results from the soporific effect of the rain, the room's warmth and the deep voice of Atticus as he reads from "The Gray Ghost, by Seckatary Hawkins" (280). As she has throughout the novel, she awakes having internalized the sensed rather than perceived monologue, having made a text to text analogy, having responded deeply but not necessarily consciously to the hegemonic discourse surrounding her. Her interpretation of Stoner's Boy in The Gray Ghost, its meaning clearly shaped by the experiences she has recently had and is still in the process of retelling, illustrates an influence that is mutual, simultaneous, and only unified in the unconscious. Speaking of Stoner's Boy but using words that describe both Boo Radley and Tom Robinson, she declares, " ... when they finally saw him, he hadn't done any those things ... Atticus, he was real nice" (281).

Lacan has been given credit for a restructured and reformulated "presentation of Freud's unconscious as symbolic and relational" (Ragland-Sullivan 70). Scout's semi-conscious merging of texts across barriers of time and place presents a symbolic and relational translation of unconscious truth. Especially because in this novel they are so clearly rendered as the intersection of conscious and unconscious, these several examples of what I have called "text to text merging" provide a particularly apt metaphor for the relationship between historical text and imaginative literature in general as defined in the postructuralist era. The only difference may be that while the historical mergings in the novel tend to be proleptic through their anticipation of later events and ideology from the fictionalized mid 1930s context, Scout's merging is anachronistic, reaching back in time to connect a past event to present meaning.

Lacan's description of the dream as "a way of remembering one's relationship to objects; a sign of exhaustion of regressions, and thus a threshold to the Real; a sign, therefore, of restructuring one's relationship to objects" (44) is the process Scout enacts, which is accurately "to know the moi" (a composite of Freud's ego), a process in which "one must read backward in spatial sense, but in the immediacy of present time" (Ragland-Sullivan 44). The dream is then "a temporal rewriting of history" (44) and the subject (in this case the narrator and authorial alter ego Scout) is "an unbridgeable gap between perceptions and alienation in relation to an external gestalt, an internal discourse, and Desire" (67). Our own "Western cultural bias--mistrust of image/object in favor of the word" (56) may predispose a skepticism toward both viewing events as texts and trusting the unconscious text of images over conscious, time-ordered and word-ordered "reality." But Lacan's assertion that the "The je (the speaking or socially constructed subject) stabilizes the moi through naming and labeling" and "gives shape and form to the symbolic" (Ragland-Sullivan 59) also describes the interpretive enterprise with which Scout is frequently engaged. That the semi-conscious intrusions by the unconscious moi into the conscious je function in To Kill a Mockingbird in a way which deepens and broadens textual meaning does not conflict with their essential role as "disrupters of spoken or socially structured reality" (Ragland-Sullivan 61) or the constructed symbolic order. Furthermore, Lacan has suggested that "The task of learning who one is" is "preverbal" because "language slowly cuts the subject off from its prespeech fusions and naturalness (jouissance) and imprints the cultural myths which adults later assume they have consciously deduced or understood through a process of education" (61). This position not only describes the relation between the verbal and prediscursive reality as it exists in Lee's imaginative narrative, but also accurately depicts the author's own relation to the external gestalt of history, the internal discourse of fictional narrative, and Desire, which in this case may be described as Lee's attempt to locate the ideology of a narrative in one historical period while existing and therefore "always already" in a subject position in another. Lacanian critics have used the term "introjection" to describe "the process of acquiring identity in reference to objects, symbols, and effects of the outside world" (Sullivan 13), a process which takes place "prior to any awareness" (Ragland-Sullivan 22) and involves an "ambiguity of boundary distinctions" (36) including those of time and place, of which Lacan "emphasized the crucial importance" (35). A proleptic cross-historical merging of ideology is then the operant form of "introjection" that influences the composition process of the novel. It is worthwhile to note that Scout's revelations are rendered in the language of state of being, using linking rather than action verbs--the memory "became"--as would most properly present the kind of direct "equivocation" that here takes place and is replicated in the arrangement of the novel's historical ideology, which similarly equivocates meaning from the distinct historical periods, mixing as it does clearly identifiable elements of the novel's historical past and its period of production. Aptly then, unconscious, prediscursive processes are rendered in visual images and metaphors--as in the unconscious or dream state--rather than in words, as when we are awake and conscious. Through the metaphorical language of state of being, for example, Atticus in one scene or role "becomes" Atticus in another context which is physically different but ideologically identical. The effect, like the effect created by Lee's merging of historical texts, is synergistic.

Because it merges ideology from the 1930s and 1950s, author Harper Lee's presentation of the novel's historical "texts" works in the same way. The 1930s and the 1950s are in fact the contradictory discourses bringing to bear what Catherine Belsey refers to as "intolerable pressures" which inhibit the formation of a single and coherent subject position and a single and coherent position within historical ideology. Based on the given that texts are composed within what Stanley Fish refers to as a "material reality" or what Judith Lowder Newton calls "material conditions" which "alter the representation of representation itself" (Newton 162), it follows that the historical event or "text" as it appears in fiction necessarily presents a highly subjectivized version of history, governed as that presentation unavoidably is by principles of selection and interpretation either consciously or unconsciously at work in the author, but never completely absent. From an outline of a process of historical introjection in To Kill a Mockingbird, we are able to make generalizations that are paradigmatic about how a merging of historical discourses can operate within a form of representation (the novel structured within history) which is never completely imaginative or completely faithful to historical fact, never completely "one or the other" never predictable in terms of its "zone of social transaction" and therefore always presenting a history that is partial, incomplete, and incapable of being accurately descriptive of any single historical period. Necessarily then, imaginative literature that is historically structured tells us as much about the relationship of ideology to material conditions and hegemony as it does about either its period of production or its historical present. I have attempted here to separate aspects of distinct discursive fields--those of the novel's historical present and its period of production--on the assumption that the clearly established discourse and material conditions of each contain revelations about both power and the relationship between historical and imaginative truth.

What requires recognition, however, is that because of its conflicting "material conditions" and the interplay of the two resultant and opposite processes of prolepsis and anachronism, the novel cannot actually be understood within or tied to any single or particular historical period. This would seem, of course, to be a "general truth" that would apply to all literature with any substantial internal historical structure, which is necessarily prejudiced in the most essential of ways by its moment of production, therefore presenting only a diluted version of its own ideology. The implied tasks for historicist readings then would seem to be to continue to work with texts in ways which acknowledge always that literary works are the product of more than one discourse or set of material conditions, and to search for concrete terms or strategies for answering the kind of historical questions that arise so frequently in literature as a result of this phenomenon.

NOTES

(1.) In August of 1955, fourteen-year-old Chicago native Emmett Till arrived in the Mississippi Delta to visit relative,; in Tallahatchie County. On the evening of August 24, 1955, Till and his cousin Curtis Jones drove to a small grocery store run by Roy and Carolyn Bryant in the hamlet of Money. The initial incident is still the subject of debate. According to some accounts, he whistled at Carolyn Bryant. According to the testimony of Mrs. Bryant, Till grabbed her wrist and made a lewd suggestion before leaving the store.

Early on the morning of Sunday, August 28, Roy Bryant and his half-brother J.W. Milam drove to the house of Till's uncle Preacher Moses Wright. There they demanded that Wright give up "the boy from Chicago:" As the men later admitted in a post-trial interview, they drove to a secluded spot, shot Emmet Till in the head, wired Till's body to a cotton gin fan, and threw the body in the Tallahatchie River.

The murder trial took place in September of 1955. Though Moses Wright named in court the two white men who had taken Till from his shack, the all-white, all-male jury acquitted Milam and Bryant after deliberating 67 minutes. (For detailed accounts of the trial, see Whitfield, Halberstam, Whitaker).

(2.) Beyond the scope of this study but fascinating as an aspect of Lee's apparent response to Citizens Council racial theory and literature are the author's repeated allusions to Egypt and Egyptian civilization, including Jem's Chapter Seven "Egyptian phase," references to the Rosetta Stone in chapter eight and the pyramids in Chapter One, several speculative passages about the Finch family's possible origins "back in Egypt" (227), and Jem's assertion that Egyptian civilization "accomplished more than the Americans ever did" (59). In the race language around the Brown decision, Egypt plays a role that is conclusively established by the widely distributed Bible of Citizens Council literature, "A Manual for Southerners," which was written for schoolchildren in grades three and four and used in some Southern schools in 1957 and after. The text revives earlier discredited theories of "scientific racism," including a preoccupation with Egyptian civilization as a distorted model for the effects of racial mixing or amalgamation:

The first civilized nation in the world that we know about was Egypt.

The Egyptian people of that time were pure white people. So you see that

the white people built the first civilization on earth. These Egyptian

people were careful to build a strong nation that they could be proud of.

Even today we are surprised at some of the wonderful things they did.

But about the time the Egyptians had built a wonderful country, they

brought Negro slaves among them. It was not long before the Race-Mixers of

those days began saying the slaves should be set free among the white

Egyptians. And final[y the Egyptians set the Negro free, cleaned him up,

and taught him in their schools.

Now you can already guess what happened to the Egyptian nation. Since

the races were mixed, the people began marrying one another. Then the

Egyptian race was no longer pure, and their nation was no longer strong. A

mixed race is weak and all confused, and this makes the country weak, as we

have already learned. (qtd. in Muse 174-175)

That such ideology had made its way into the everyday racial lexicon of the post-Brown deep South is extremely likely. one interview from Robert Penn Warren's 1956 text, Segregation seems irrefutably to establish the presence of Citizens Council doctrine in the ready vocabulary of the typical Southerner. Modeling his argument almost verbatim on that contained in the Citizens Council "Manual" the Southerner states, "Negro blood destroyed the civilization of Egypt, India, Phoenicia, Carthage, Greece, and it will destroy America!" (Warren 25).

The degree of demonstrable concern in Lee's novel with questions not only of human origin but of breeding, social status and the maintenance of racial segregation is in itself a significant measure of the text's ideological orientation in the post-Brown decision era. But Lee's use of a strong pattern of allusion to Egypt seems a direct response to the propaganda of' the Citizens Councils, and its presence in the novel again exemplifies the process of prolepsis at work in Lee's historical present.

(3.) Jonathan M. Wiener, "The Black Beast Rapist: White Racial Attitudes in the Postwar South," Reviews in American History 13 (June 1985): 224; George M. Frederickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914 (New York: Harper & Row, 1971), 272-282.

(4.) Claudia Durst Johnson has investigated connections between Lee's Robinson trial and the 1932-36 Scottsboro trials, which took place in Northern Alabama and involved allegations of gang rape of two white women by nine black men. "The central parallels between the novel and Scottsboro trials" Johnson argues, "are three: the threat of lynching; the issue of a Southern jury's composition; and the intricate symbolic complications arising from the interweave of race and class when a lower-class white woman wrongfully accuses a black man or men" (5). Though the similarities Johnson notes are intriguing, they are also, I would argue, superficial in comparison to those herein noted and less compelling in terms of historical relevance. Born in 1926, Harper Lee was five years old at the time of the Scottsboro incident. As I have here suggested, the novel's most definitive historical milieu is the 1950s, and the Emmett Till case a more powerful register of the racial ideology of that period.

(5.) Lee enrolled at the University of Alabama School of Law in 1947. She dedicated the novel to her father, Amasa Coleman Lee, a Monroeville attorney who served in the Alabama State Legislature from 1927-1939, and to her sister, Alice Lee, also a practicing attorney. The novel's motto, "Lawyers, I suppose, were children once" (Charles Lamb), and the astute courtroom observations of its narrator also indicate a high level of legal knowledge and concern. Claudia Durst Johnson has noted that "the largest volume of criticism on the novel has been done by legal rather than literary scholars" (25).

(6.) Jackson Clarion-Ledger, August 25, 1985, sec. H, p. 1; Huntsville Times, July 19, 1987, sec. B. p. 1.

(7.) Whitfield notes that this statement appeared in several Southern newspapers on or about Sep. 1-2, 1955 (18).

(8.) See Whitaker's thesis.

(9.) New York Times, September 18, 1955, P. 10; Wilkins quoted in Memphis Commercial Appeal, September 1, 1955, p. 1,4; Jackson Daily News, September 2, 1955, p. 8.

(10.) That the decision may be termed subversive has also been argued by Thomas Shaffer, a legal scholar who has published the most detailed research on the codification of legal ethics in the novel. In "Christian Lawyer Stories and American Legal Ethics" (Mercer Law Review, Spring 1982, 877-901), Shaffer concludes that Atticus' handling of the Radley intervention is wrong because he does not have Radley arrested.

(11.) Claudia Carter details the development of Atticus' legal outlook into "a compassionate activism ... a model we can emulate" (13).

WORKS CITED

Belsey, Catherine. Critical Practice. London: Methuen, 1980.

Carter, Claudia A. "Lawyers as Heroes: The Compassionate Activism of a Fictional Attorney is a Model We Can Emulate." Los Angeles Lawyer, July-August 1988, 13.

Dietch, Joseph. "Harper Lee: Novelist of the South." The Christian Science Monitor 3 October 1961: C6.

Fish, Stanley. "Commentary: The Young and the Restless" H. Aram Veeser, ed., The New Historicism. New York: Routledge, 1989. 303-16.

Greenblatt, Stephen Jay. "Invisible Bullets: Renaissance Authority and its Subversion" in Glyph 8 (1981).

--. Learning to Curse: Essays in Early Modern Culture. New York and London: Routledge, Chapman and Hall, Inc., 1990.

Halberstam, David. The Fifties. New York: Fawcett Columbine, 1993.

Johnson, Claudia Durst. To Kill a Mockingbird: Threatening Boundaries. New York: Twayne Publishers, 1994.

Lee, Harper. To Kill a Mockingbird. Philadelphia: J. B. Lippincott Company, 1960.

Lowder Newton, Judith. "History as Usual? Feminism and the New Historicism" in H. Aram Veeser, ed., The New Historicism, New York: Routledge, 1989. 152-76.

Muse, Benjamin. Ten Years of Prelude. New York: Viking P, 1964.

Myrdal, Gunnar. An American Dilemma: The Negro Problem and Modern Democracy. New York: Harper & Brothers, 1947.

Newby, I. A. "Introduction: Segregationist Thought Since 1890." The Development of Segregationist Thought. I.A. Newby. Homewood, IL: Dorsey P, 1968.

Ragland-Sullivan, Ellie. Jacques Lacan and the Philosophy of Psychoanalysis. Urbana and Chicago: U of Illinois P, 1986.

Shaffer, Thomas L. "Christian Lawyer Stories and American Legal Ethics." Mercer Law Review, Spring 1982, 877-901.

Sullivan, Richard. "Engrossing Novel of Rare Excellence" Chicago Tribune 17 July 1960, 15.

To Kill a Mockingbird Then and Now: A Thirty-fifth Anniversary Celebration. Host Charlayne Hunter-Gault. Sponsored by National Endowment for the Arts, 1995.

Waller, Ruth. "To Kill a Mockingbird" Montgomery Adviser 14 July 1960.

Warren, Robert Penn. Segregation: The Inner Conflict of the South. New York: Random House, 1956.

Wexler, Sanford. The Civil Rights Movement: An Eyewitness History. New York: Facts on File, Inc., 1993.

Whitaker, Hugh Stephen: A Case Study in Southern Justice: The Emmett Till Case. Unpublished thesis, Florida State University, 1963.

Whitfield, Stephen J. A Death in the Delta. Baltimore: Johns Hopkins UP, 1988.

Named Works: To Kill a Mockingbird (Novel) Criticism and interpretation

Source Citation

Chura, Patrick. "Prolepsis and Anachronism: Emmet Till and the Historicity of To Kill a Mockingbird." The Southern Literary Journal 32.2 (2000): 1. General OneFile. Web. 26 May 2010.

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Gale Document Number:A63188055

GLADWELL, MALCOLM. The Courthouse Ring.

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COPYRIGHT 2009 All rights reserved. Reproduced by permission of The Condé Nast Publications Inc.

In 1954, when James (Big Jim) Folsom was running for a second term as governor of Alabama, he drove to Clayton, in Barbour County, to meet a powerful local probate judge. This was in the heart of the Deep South, at a time when Jim Crow was in full effect. In Barbour County, the races did not mix, and white men were expected to uphold the privileges of their gender and color. But when his car pulled up to the curb, where the judge was waiting, Folsom spotted two black men on the sidewalk. He jumped out, shook their hands heartily, and only then turned to the stunned judge. "All men are just alike," Folsom liked to say.

Big Jim Folsom was six feet eight inches tall, and had the looks of a movie star. He was a prodigious drinker, and a brilliant campaigner, who travelled around the state with a hillbilly string band called the Strawberry Pickers. The press referred to him (not always affectionately) as Kissin' Jim, for his habit of grabbing the prettiest woman at hand. Folsom was far and away the dominant figure in postwar Alabama politics--and he was a prime example of that now rare species of progressive Southern populist.

Folsom would end his speeches by brandishing a corn-shuck mop and promising a spring cleaning of the state capitol. He was against the Big Mules, as the entrenched corporate interests were known. He worked to extend the vote to disenfranchised blacks. He wanted to equalize salaries between white and black schoolteachers. He routinely commuted the death sentences of blacks convicted in what he believed were less than fair trials. He made no attempt to segregate the crowd at his inaugural address. "Ya'll come," he would say to one and all, making a proud and lonely stand for racial justice.

Big Jim Folsom left office in 1959. The next year, a young Southern woman published a novel set in mid-century Alabama about one man's proud and lonely stand for racial justice. The woman was Harper Lee and the novel was "To Kill a Mockingbird," and one way to make sense of Lee's classic--and of a controversy that is swirling around the book on the eve of its fiftieth anniversary--is to start with Big Jim Folsom.

The Alabama of Folsom--and Lee--was marked by a profound localism. Political scientists call it the "friends and neighbors" effect. "Alabama voters rarely identified with candidates on the basis of issues," George Sims writes in his biography of Folsom, "The Little Man's Best Friend." "Instead, they tended to give greatest support to the candidate whose home was nearest their own." Alabama was made up of "island communities," each dominated by a small clique of power brokers, known as a "courthouse ring." There were no Republicans to speak of in the Alabama of that era, only Democrats. Politics was not ideological. It was personal. What it meant to be a racial moderate, in that context, was to push for an informal accommodation between black and white.

"Big Jim did not seek a fundamental shift of political power or a revolution in social mores," Sims says. Folsom operated out of a sense of noblesse oblige: privileged whites, he believed, ought to "adopt a more humanitarian attitude" toward blacks. When the black Harlem congressman Adam Clayton Powell, Jr., came to Montgomery, on a voter-registration drive, Folsom invited him to the Governor's Mansion for a Scotch-and-soda. That was simply good manners. Whenever he was accused of being too friendly to black people, Folsom shrugged. His assumption was that Negroes were citizens, just like anyone else. "I just never did get all excited about our colored brothers," he once said. "We have had them here for three hundred years and we will have them for another three hundred years."

Folsom was not a civil-rights activist. Activists were interested in using the full, impersonal force of the law to compel equality. In fact, the Supreme Court's landmark desegregation ruling in Brown v. Board of Education ended Folsom's career, because the racial backlash that it created drove moderates off the political stage. The historian Michael Klarman writes, "Virtually no southern politician could survive in this political environment without toeing the massive resistance line, and in most states politicians competed to occupy the most extreme position on the racial spectrum." Folsom lost his job to the segregationist John Patterson, who then gave way to the radical George Wallace. In Birmingham, which was quietly liberalizing through the early nineteen-fifties, Bull Connor (who notoriously set police dogs on civil-rights marchers in the nineteen-sixties) had been in political exile. It was the Brown decision that brought him back. Old-style Southern liberalism--gradual and paternalistic--crumbled in the face of liberalism in the form of an urgent demand for formal equality. Activism proved incompatible with Folsomism.

On what side was Harper Lee's Atticus Finch? Finch defended Tom Robinson, the black man falsely accused of what in nineteen-thirties Alabama was the gravest of sins, the rape of a white woman. In the years since, he has become a role model for the legal profession. But he's much closer to Folsom's side of the race question than he is to the civil-rights activists who were arriving in the South as Lee wrote her novel.

Think about the scene that serves as the book's centerpiece. Finch is at the front of the courtroom with Robinson. The jury files in. In the balcony, the book's narrator--Finch's daughter, Jean Louise, or Scout, as she's known--shuts her eyes. "Guilty," the first of the jurors says. "Guilty," the second says, and down the line: "guilty, guilty, guilty." Finch gathers his papers into his briefcase. He says a quiet word to his client, gathers his coat off the back of his chair, and walks, head bowed, out of the courtroom.

"Someone was punching me, but I was reluctant to take my eyes from the people below us, and from the image of Atticus's lonely walk down the aisle," Scout relates, in one of American literature's most moving passages:

"Miss Jean Louise?", I looked around. They were standing. All around us and in the balcony on the opposite wall, the Negroes were getting to their feet. Reverend Sykes's voice was as distant as Judge Taylor's:, "Miss Jean Louise, stand up. Your father's passin'."

If Finch were a civil-rights hero, he would be brimming with rage at the unjust verdict. But he isn't. He's not Thurgood Marshall looking for racial salvation through the law. He's Jim Folsom, looking for racial salvation through hearts and minds.

"If you can learn a simple trick, Scout, you'll get along a lot better with all kinds of folks," Finch tells his daughter. "You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it." He is never anything but gracious to his neighbor Mrs. Dubose, even though she considers him a "nigger-lover." He forgives the townsfolk of Maycomb for the same reason. They are suffering from a "sickness," he tells Scout--the inability to see a black man as a real person. All men, he believes, are just alike.

Here is where the criticism of Finch begins, because the hearts-and-minds approach is about accommodation, not reform. At one point, Scout asks him if it is O.K. to hate Hitler. Finch answers, firmly, that it is not O.K. to hate anyone. Really? Not even Hitler? When his children bring up the subject of the Ku Klux Klan's presence in Maycomb, he shrugs: "Way back about nineteen-twenty there was a Klan, but it was a political organization more than anything. Besides, they couldn't find anyone to scare. They paraded by Mr. Sam Levy's house one night, but Sam just stood on his porch and told 'em things had come to a pretty pass. . . . Sam made 'em so ashamed of themselves they went away." Someone in Finch's historical position would surely have been aware of the lynching of Leo Frank in Marietta, Georgia, in 1915. Frank was convicted, on dubious evidence, of murdering a thirteen-year-old girl, Mary Phagan. The prosecutor in the case compared Frank to Judas Iscariot, and the crowd outside the courthouse shouted, "Hang the Jew!" Anti-Semitism of the most virulent kind was embedded in the social fabric of the Old South. But Finch does not want to deal with the existence of anti-Semitism. He wants to believe in the fantasy of Sam Levy, down the street, giving the Klan a good scolding.

In the middle of the novel, after Tom Robinson's arrest, Finch spends the night in front of the Maycomb jail, concerned that a mob might come down and try to take matters into its own hands. Sure enough, one does, led by a poor white farmer, Walter Cunningham. The mob eventually scatters, and the next morning Finch tries to explain the night's events to Scout. Here again is a test for Finch's high-minded equanimity. He likes Walter Cunningham. Cunningham is, to his mind, the right sort of poor white farmer: a man who refuses a W.P.A. handout and who scrupulously repays Finch for legal work with a load of stove wood, a sack of hickory nuts, and a crate of smilax and holly. Against this, Finch must weigh the fact that Cunningham also leads lynch mobs against black people. So what does he do? Once again, he puts personal ties first. Cunningham, Finch tells his daughter, is "basically a good man," who "just has his blind spots along with the rest of us." Blind spots? As the legal scholar Monroe Freedman has written, "It just happens that Cunningham's blind spot (along with the rest of us?) is a homicidal hatred of black people."

Finch will stand up to racists. He'll use his moral authority to shame them into silence. He will leave the judge standing on the sidewalk while he shakes hands with Negroes. What he will not do is look at the problem of racism outside the immediate context of Mr. Cunningham, Mr. Levy, and the island community of Maycomb, Alabama.

Folsom was the same way. He knew the frailties of his fellow-Alabamians when it came to race. But he could not grasp that those frailties were more than personal--that racism had a structural dimension. After he was elected governor a second time, in 1955, Folsom organized the first inaugural ball for blacks in Alabama's history. That's a very nice gesture. Yet it doesn't undermine segregation to give Negroes their own party. It makes it more palatable. Folsom's focus on the personal was also the reason that he was blindsided by Brown. He simply didn't have an answer to the Court's blunt and principled conclusion that separate was not equal. For a long time, Folsom simply ducked questions about integration. When he could no longer duck, he wriggled. And the wriggling wasn't attractive. Sims writes:

In the spring of 1955, he repeated portions of his campaign program that touched the issue of desegregation tangentially and claimed that he had already made his position "plain, simple, and clear." He frequently repeated his pledge that he would not force black children to go to school with white children. It was an ambiguous promise that sounded like the words of a segregationist without specifically opposing segregation. Speaking to the Alabama Education Association in 1955, the governor recommended a school construction bond issue and implied that the money would help prolong segregation by improving the physical facilities of Negro schools.

One of Atticus Finch's strongest critics has been the legal scholar Steven Lubet, and Lubet's arguments are a good example of how badly the brand of Southern populism Finch represents has aged over the past fifty years. Lubet's focus is the main event of "To Kill a Mockingbird"--Finch's defense of Tom Robinson. In "Reconstructing Atticus Finch," in the Michigan Law Review, Lubet points out that Finch does not have a strong case. The putative rape victim, Mayella Ewell, has bruises on her face, and the supporting testimony of her father, Robert E. Lee Ewell. Robinson concedes that he was inside the Ewell house, and that some kind of sexual activity took place. The only potentially exculpatory evidence Finch can come up with is that Mayella's bruises are on the right side of her face while Robinson's left arm, owing to a childhood injury, is useless. Finch presents this fact with great fanfare. But, as Lubet argues, it's not exactly clear why a strong right-handed man can't hit a much smaller woman on the right side of her face. Couldn't she have turned her head? Couldn't he have hit her with a backhanded motion? Given the situation, Finch designs his defense, Lubet says, "to exploit a virtual catalog of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant."

Here is the crucial moment of Robinson's testimony. Under Finch's patient prodding, he has described how he was walking by the Ewell property when Mayella asked him to come inside, to help her dismantle a piece of furniture. The house, usually crowded with Mayella's numerous sisters and brothers, was empty. "I say where the chillun?" Robinson testifies, "an' she says--she was laughin', sort of--she says they all gone to town to get ice creams. She says, 'Took me a slap year to save seb'm nickels, but I done it. They all gone to town.' " She then asked him to stand on a chair and get a box down from the chifforobe. She "hugged him" around the waist. Robinson goes on:

"She reached up an' kissed me 'side of th' face. She says 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. She says, 'Kiss me back nigger.' I say Miss Mayella lemme outa here an' tried to run but she got her back to the door an' I'da had to push her. I didn't wanta harm her, Mr. Finch, an' I say lemme pass, but just when I say it Mr. Ewell yonder hollered through th' window.", "What did he say?", . . . Tom Robinson shut his eyes tight. "He says you goddam whore, I'll kill ya."

Mayella plotted for a year, saving her pennies so she could clear the house of her siblings. Then she lay in wait for Robinson, in the fervent hope that he would come by that morning. "She knew full well the enormity of her offense," Finch tells the jury, in his summation, "but because her desires were stronger than the code she was breaking, she persisted in breaking it." For a woman to be portrayed as a sexual aggressor in the Jim Crow South was a devastating charge. Lubet writes:

The "she wanted it" defense in this case was particularly harsh. Here is what it said about Mayella: She was so starved for sex that she spent an entire year scheming for a way to make it happen. She was desperate for a man, any man. She repeatedly grabbed at Tom and wouldn't let him go, barring the door when he respectfully tried to disentangle himself. And in case Mayella had any dignity left after all that, it had to be insinuated that she had sex with her father.

It is useful, once again, to consider Finch's conduct in the light of the historical South of his time. The scholar Lisa Lindquist Dorr has examined two hundred and eighty-eight cases of black-on-white rape that occurred in Virginia between 1900 and 1960. Seventeen of the accused were killed through "extra legal violence"--that is to say, lynched. Fifty were executed. Forty-eight were given the maximum sentence. Fifty-two were sentenced to prison terms of five years or less, on charges ranging from rape and murder to robbery, assault and battery, or "annoying a white woman." Thirty-five either were acquitted or had their charges dismissed. A not inconsiderable number had their sentences commuted by the governor.

Justice was administered unequally in the South: Dorr points out that of the dozens of rapists in Virginia who were sentenced to death between 1908 and 1963 (Virginia being one of the few states where both rape and attempted rape were capital crimes) none were white. Nonetheless, those statistics suggest that race was not always the overriding consideration in rape trials. "White men did not always automatically leap to the defense of white women," Dorr writes. "Some white men reluctantly sided with black men against white women whose class or sexual history they found suspect. Sometimes whites trusted the word of black men whose families they had known for generations over the sworn testimony of white women whose backgrounds were unknown or (even worse) known and despised. White women retained their status as innocent victim only as long as they followed the dictates of middle-class morality."

One of Dorr's examples is John Mays, Jr., a black juvenile sentenced in 1923 to an eighteen-year prison term for the attempted rape of a white girl. His employer, A. A. Sizer, petitioned the Virginia governor for clemency, arguing that Mays, who was religious and educated, "comes of our best negro stock." His victim, meanwhile, "comes from our lowest breed of poor whites. . . . Her mother is utterly immoral and without principle; and this child has been accustomed from her very babyhood to behold scenes of the grossest immorality. None of our welfare work affects her, she is brazenly immoral."

The reference to the mother was important. "Though Sizer did not directly impugn the victim herself, direct evidence was unnecessary during the heyday of eugenic family studies," Dorr writes. "The victim, coming from the same inferior 'stock,' would likely share her mother's moral character." The argument worked: Mays was released from prison in 1930.

This is essentially the defense that Atticus Finch fashions for his client. Robinson is the churchgoer, the "good Negro." Mayella, by contrast, comes from the town's lowest breed of poor whites. "Every town the size of Maycomb had families like the Ewells," Scout tells us. "No truant officers could keep their numerous offspring in school; no public health officer could free them from congenital defects, various worms, and the diseases indigenous to filthy surroundings." They live in a shack behind the town dump, with windows that "were merely open spaces in the walls, which in the summertime were covered with greasy strips of cheesecloth to keep out the varmints that feasted on Maycomb's refuse." Bob Ewell is described as a "little bantam cock of a man" with a face as red as his neck, so unaccustomed to polite society that cleaning up for the trial leaves him with a "scalded look; as if an overnight soaking had deprived him of protective layers of dirt." His daughter, the complainant, is a "thick-bodied girl accustomed to strenuous labor." The Ewells are trash. When the defense insinuates that Mayella is the victim of incest at the hands of her father, it is not to make her a sympathetic figure. It is, in the eugenicist spirit of the times, to impugn her credibility--to do what A. A. Sizer did in the John Mays case: The victim, coming from the same inferior stock, would likely share her father's moral character. "I won't try to scare you for a while," Finch says, when he begins his cross-examination of Mayella. Then he adds, with polite menace, "Not yet."

We are back in the embrace of Folsomism. Finch wants his white, male jurors to do the right thing. But as a good Jim Crow liberal he dare not challenge the foundations of their privilege. Instead, Finch does what lawyers for black men did in those days. He encourages them to swap one of their prejudices for another.

One of George Orwell's finest essays takes Charles Dickens to task for his lack of "constructive suggestions." Dickens was a powerful critic of Victorian England, a proud and lonely voice in the campaign for social reform. But, as Orwell points out, there was little substance to Dickens's complaints. "He attacks the law, parliamentary government, the educational system and so forth, without ever clearly suggesting what he would put in their places," Orwell writes. "There is no clear sign that he wants the existing order to be overthrown, or that he believes it would make very much difference if it were overthrown. For in reality his target is not so much society as 'human nature.' " Dickens sought "a change of spirit rather than a change in structure."

Orwell didn't think that Dickens should have written different novels; he loved Dickens. But he understood that Dickens bore the ideological marks of his time and place. His class did not see the English social order as tyrannical, worthy of being overthrown. Dickens thought that large contradictions could be tamed through small moments of justice. He believed in the power of changing hearts, and that's what you believe in, Orwell says, if you "do not wish to endanger the status quo."

But in cases where the status quo involves systemic injustice this is no more than a temporary strategy. Eventually, such injustice requires more than a change of heart. "What in the world am I ever going to do with the Niggers?" Jim Folsom once muttered, when the backlash against Brown began to engulf his political career. The argument over race had risen to such a pitch that it could no longer be alleviated by gesture and symbolism--by separate but equal inaugural balls and hearty handshakes--and he was lost.

Finch's moral test comes at the end of "To Kill a Mockingbird." Bob Ewell has been humiliated by the Robinson trial. In revenge, he attacks Scout and her brother on Halloween night. Boo Radley, the reclusive neighbor of the Finches, comes to the children's defense, and in the scuffle Radley kills Ewell. Sheriff Tate brings the news to Finch, and persuades him to lie about what actually happened; the story will be that Ewell inadvertently stabbed himself in the scuffle. As the Sheriff explains:

Maybe you'll say it's my duty to tell the town all about it and not hush it up. Know what'd happen then? All the ladies in Maycomb includin' my wife'd be knocking on his door bringing angel food cakes. To my way of thinkin', Mr. Finch, taking the one man who's done you and this town a great service an' draggin' him with his shy ways into the limelight--to me, that's a sin. It's a sin and I'm not about to have it on my head. If it was any other man it'd be different. But not this man, Mr. Finch.

The courthouse ring had spoken. Maycomb would go back to the way it had always been.

"Scout," Finch says to his daughter, after he and Sheriff Tate have cut their little side deal. "Mr. Ewell fell on his knife. Can you possibly understand?"

Understand what? That her father and the Sheriff have decided to obstruct justice in the name of saving their beloved neighbor the burden of angel-food cake? Atticus Finch is faced with jurors who have one set of standards for white people like the Ewells and another set for black folk like Tom Robinson. His response is to adopt one set of standards for respectable whites like Boo Radley and another for white trash like Bob Ewell. A book that we thought instructed us about the world tells us, instead, about the limitations of Jim Crow liberalism in Maycomb, Alabama.

Named Works: To Kill a Mockingbird (Novel) Appreciation

Source Citation

Gladwell, Malcolm. "The Courthouse Ring." The New Yorker 10 Aug. 2009: 26. General OneFile. Web. 26 May 2010.

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