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.

• Author: Halpern, Iris

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)

1. 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...