[TW: rape] Raping a Black woman was not a crime under most slave codes. This reflected the reality that slave women were sexual as well as economic property. If a slave master wanted to force sex on his human chattel, this was perfectly legal. The number of mulatto children born to slave women was tangible evidence of this practice. Some codes, though, did punish White men for having sex with Black slaves. In Re Sweatt, a 1640 Virginia case, the court determined that a White man had impregnated a Black slave who was owned by another White man. For this race-mixing crime, the White man was sentenced to do “public penance” at a church. This was a slap on the wrist compared with the punishment the slave woman received. She was tied to a whipping post and beaten.
In addition to the ever present threat of being raped by White men, Black women slaves had an additional burden to bear. It was also not a crime for a Black slave to rape another slave. The formal legal system might be invoked, however, if a rape caused an injury to the slave that affected her ability to work—since this amounted to economic interference. Eighteenth-century Virginia law reports few cases involving a Black male slave charged with raping a Black female slave. In the one case that did result in a criminal conviction, the male slave was removed from the county. Several rationales have been offered to explain why most slave codes neither acknowledged nor sanctioned the rape of Black women.
One reason is that slaves were viewed as naturally promiscuous, making forced sex a legal impossibility. Another reason is that the rape of a slave woman did not typically threaten the maintenance of slavery. In fact, if the rape resulted in offspring, this meant one more child was available for slave labor. Finally, there was little awareness or concern about the physical and emotional trauma caused by rape.
In addition to the heavy emphasis on prohibitions against interracial sex, the slave codes were replete with laws that punished Blackness. These laws made certain activities criminal only when committed by someone Black. For instance, a slave who “lifted his hand against” a White Christian or used “provoking or menacing language” against a White person faced a punishment of thirty-nine lashes. It was also an offense for seven or more Black men to congregate, unless accompanied by a White person. Under many slave codes, a free Black person who married a slave became a slave. Some states made an exception if the free person was a mulatto who had a White mother.