‘The attitude of the young girl leaves me to think that she is lying’, pronounced Commandant Laure, the president of the criminal tribunal of Abomey in the French colony of Dahomey, the modern-day Republic of Bénin in West Africa. In the 1937 indictment wherein Laure made this remark, he referred to Philomèle, the fourteen-year-old accuser, as the ‘supposed victim’ of rape.Footnote 1 This was perhaps the most explicit acknowledgement of the colonial legal system's skepticism of girls’ testimonies about their lived experiences, but it was not atypical or unusual for tribunals to attach disbelief to a girl in her capacity to act as a witness, a victim, or an accuser.Footnote 2 In colonial tribunals throughout Africa, girls encountered colonial officials who made no assumptions about their sexual innocence or childish naiveté regardless of their young ages. Admittedly, this disbelief was not always so egregiously evident, but it was there. Both the French and Dahomean men who staffed the colonial tribunals approached accusations of rape with a shared a priori doubt that could transform any word, action, or non-reaction of the girl during her deposition into suspicion that resulted in dismissal of the case or acquittal of the accused.Footnote 3 In Dahomey, the types of questions members of the tribunal asked, the judgements tribunals rendered, as well as the refusal of the tribunals to render any sort of judgement made these men's skepticism clear. In a preponderance of cases, accused perpetrators were neither condemned, nor acquitted. The complaints of rape languished with no action taken whatsoever.
In Dahomey, girl hawkers, or ambulant salesgirls who balanced goods on their heads to sell everyday items in the streets and marketplaces of West Africa, represented the largest identifiable group of victims of rape who took their cases to colonial tribunals to adjudicate. These girls needed an adult ally to formally lodge an oral or written complaint with the authorities. In the case of Philomèle, her mother supported her accusation, went to the colonial administrator, and conveyed an oral complaint. In relatively few instances these supporters were girls’ biological mothers. It was more common for the girls’ foster mothers to act as the plaintiff. Many Dahomean girls spent their childhood from the ages of approximately seven to fourteen entrusted to a foster mother, whom the girl's parents carefully selected to rear, nurture, and discipline their daughter. The entrusted girl lived with and worked for her foster mother.Footnote 4 By the 1930s, the entrusting of girls had become a fundamental part of the colonial household, economy, and society. Rape cases presented some of the most detailed information about the caretaking roles that these women took on as guardians.
The scholarship on sex crimes in colonial West Africa to date has concentrated on official and popular anxieties about rape rather than the real-life experiences of girls and women to this trauma. The stereotype that hawkers were actually sex workers trained to do so by the market women they apprenticed became the dominant and assumed narrative frame for accusations of rape. The sensationalized newspaper coverage in Lagos, Nigeria of select cases of sexual violence along with elite women's prominent activism in that colonial city has of late been the focus of innovative scholarship.Footnote 5 Lagos though was relatively unique in these regards. Newspapers remained silent about rape in Dahomey.Footnote 6 Elite female activism, such as that found in the British crown colony of Lagos, struggled to develop in French Dahomey.Footnote 7 In Porto-Novo, despite its proximity to Lagos, no highly influential group of Western-educated African female activists formed to campaign against illicit sexuality.Footnote 8 Female engagement in Dahomean social issues adopted different methods from their contemporaries in Lagos. Uneducated, market women in Dahomey expressed their activism through their support for individual girl's attempts to seek redress for sexual assaults in colonial legal venues. The agenda of these women differed from their more formally educated peers in Lagos, they did not want to modernize girlhood norms. Rather, they demanded the colonial state enforce traditional safeguards to ensure the security of girl hawkers in colonial streets and marketplaces.Footnote 9
This article examines hawkers’ narratives of sexual assault and their reception by both market women and the men of colonial tribunals from 1924 to 1940. It analyzes cases in the periods preceding and following the pivotal 3 December 1931 reorganization of the judicial system, which took effect in April 1932. It begins with the previous 22 March 1924 reorganization and ends when the 11 February 1941 reorganization took effect. The 1930s witnessed the most dramatic official shift in chiefly legal responsibilities in French West Africa since the establishment of colonial rule in the late nineteenth century. As late as 1930, Inspector Demaret remarked that chiefs had no ‘real’ power.Footnote 10 The 3 December 1931 decree institutionalized a reversal of official policy concerning chiefs’ place within the colonial legal structures. Article 3 of the decree emphatically stated this reorientation, ‘The European and indigenous members of jurisdiction have, always and in every matter a deliberative voice’.Footnote 11 This included a recognition of parity among French and indigenous assessors in the newly created criminal tribunals, which radically transformed a foundational element of the colonial legal system. Since the system's founding in 1903, the colonial legal system had not trusted traditional authorities with the responsibility of participating in the prosecution and judgement of felony crimes. The legal records show that after 1931 chiefs embraced their new responsibility and actively used their authority to transform juridical norms in Dahomey. The 1931 decree augmented the authority of indigenous personnel in the criminal tribunals that heard rape cases and changed the jurisdiction of the cases. These two procedural reforms had profound effects on the outcomes of rape cases. These changes increased the hostility women faced, but they continued to steadfastly demand the intervention of the colonial legal system. Through contrasting the period 1924 to 1931 and 1932 to 1940, the significance of the 3 December 1931 decree on both juridical thinking and penal practice becomes clear.
The judicial records of the National Archives of Benin contain more than two hundred cases of rape for this period.Footnote 12 This article considers in detail a subset of these cases involving victims raped while engaging in street hawking. It focuses on the investigative processes in rape cases in colonial Dahomey, rather than emphasizing the outcomes of the cases, in order to place girls’ narrations of sexual assault at the center of the analysis. The rituals of legal processes limited girls’ voices and obscured their testimonies.Footnote 13 The procès-verbal, or recorded statements produced during the district commandants’ investigations of written or oral statements of complaint, contained rare first-hand accounts of normal activities during girlhood, which the assault disrupted. The procès-verbal of market women revealed the caregiving side of the entrustment relationship. Their testimonies emphasized how guardians monitored the well-being of girls in their care. Market women, perhaps due to their own or their friends’ experiences hawking during girlhood, believed girls’ narratives of assault and aggressively sought the prosecution of their employees’ rapists.
Defining the crime of rape in French Colonial Dahomey
Early twentieth century traditions credited King Ouêgbadja, the founding monarch of the kingdom of Dahomey, with making rape a capital crime in the early to mid-seventeenth century.Footnote 14 Colonial Dahomeans widely believed that their ancestors had long recognized rape as a grave offense. How exactly seventeenth-century Dahomeans defined rape though remains unclear. Auguste Le Hérissé, a colonial administrator and amateur ethnographer stationed in Dahomey from 1903 to 1914, recorded the earliest Dahomean definition of rape. In his 1911 ethnography, he stated, ‘The Dahomeans do not distinguish from the point of view of wrongdoing, attempted rape from consummated rape, when the victim is a child. On the other hand, Dahomeans believed it impossible for a woman or a pubescent girl to be raped’.Footnote 15 This definition reflected a common understanding of rape shared by Dahomean and French societies. Historically in the seventeenth and eighteenth century, France recognized rape as having degrees of gravity based on the age of the assaulted girl or woman. Both cultures popularly agreed that adult women could only be raped in exceptional circumstances.Footnote 16
Viol is the French term commonly translated into English as the crime of rape. During the early twentieth century in the colony of Dahomey, this singular term encompassed a host of forms of sexual violence. Official and popular colonial understandings of sexual violence redefined viol and gradually distinguished it from other forms of sexual violence.Footnote 17 The 10 November 1903 decree created a native court system in French West Africa, but it did not give any guidance about the definition or jurisdiction of rape in colonial tribunals.Footnote 18 The judicial reorganizations of 1912 and 1924 reinscribed this reticence to specify policies and allowed tribunals of all levels great latitude in amorphously defining rape and other sex crimes. Individual personnel of the tribunals made decisions regarding the classification of sex crimes and their proper jurisdiction rather than any overarching judicial guidance coming from a central authority. This created an unpredictable, anarchic environment in which women and girls reported these assaults.
During the years between 1924 and 1931, colonial authorities debated the proper jurisdiction of rape cases within the colonial legal structure. At this time, both first- and second-degree criminal tribunals prosecuted rape cases. Judicial officials repeatedly opined the ambiguity of article 22 of the 1924 decree, which outlined what crimes remained the exclusive jurisdiction of the higher, European-dominated second-degree tribunal. Article 22 of the 1924 decree omitted rape and left it by default to lower-level African courts to prosecute. Individuals, such as the district commandant of Allada, a town in the plateau region of southern Dahomey, justified including rape in the second-degree tribunal's jurisdiction. Indigenous custom, he said, considered rape a serious enough crime to warrant including it within the second-degree tribunals’ purview despite the vagueness of article 22 of the 1924 decree on the subject. The commandant conceded that misdemeanor sexual assault was rightly a matter for the lower-level, indigenous-led courts. He believed that rape, however, along with felony-level indecent assault, should be handled by the French-controlled tribunals.Footnote 19 Neither French nor Dahomean staff of the native tribunals had any formal legal training and relied on popular and customary understandings of crimes unless the judicial decrees gave them further direction.
Colonial officials finally provided concrete jurisdictional and procedural norms for rape cases in article 46 of the 3 December 1931 judicial reorganization. Henceforth, rape was considered exclusively a felony charge. This classification made rape the only sex crime defined as beyond the capacity of first-degree tribunals.Footnote 20 Elevating rape to a felony charge forced authorities to articulate why rape warranted this more severe classification. After 1931, the increased role of indigenous assessors in the criminal tribunal allowed them to contribute opinions about what criteria should determine when a sexual assault was a felony, a lesser misdemeanor, or a non-prosecutable offense.
The judicial records of the National Archives of Benin contained two hundred and twenty-five cases of viol simple or cases where the exclusive charge was rape. The data presented in Table 1 does not include rape accompanied by other charges, such as murder or assault and battery. It also excludes sex crimes categorized as indecent assaults by colonial officials that might today be considered rape or attempted rape in many societies. Table 1 divides the available quantitative data on rape cases preserved in the colonial archives of Dahomey by the dates of the judicial reorganizations of 1912, 1924, and 1932.Footnote 21 The data for the period prior to 1924 seems to be haphazardly preserved and many of the documents that remain are in such a poor state that they are virtually impossible to read. The extremely small size of data for this era, only seventeen cases, also makes these records problematic. The main conclusion to be drawn from them is that the overburdened and overstretched colonial officials almost certainly had other concerns at this time that they deemed more pressing, such as pacifying the colony and forcing Dahomeans to submit to French authority. Cases of rape that neither resulted in murder nor serious injury caused by battery were largely disregarded or categorized as indecent assault and left to village chiefs to settle. Another notable limitation of the data from 1913 until 1924 was that colonial officials appeared to have only recorded, or perhaps even only prosecuted, cases that had irrefutable evidence to prove the crime of rape. The seventeen accusations of rape from this period resulted in fourteen convictions, no acquittals, and three that have unclear outcomes in the remaining documentation. Ostensibly, authorities anticipated the outcome before they even compiled the judicial dossiers. This form of censorship skewed the data and limits the information that it can tell historians.
Table 1. Cases of Rape as the Exclusive Charge
Source: Archives Nationales du Benin, series 1M and 2M, and Archives du Senegal, series 3M
The volume of court data increased after each of the next two reorganizations in 1924 and 1931. There was a dramatic rise in the number of cases where the charge of rape was the exclusive charge considered in colonial tribunals for the seven-year period from 1924 to 1931 and again for the eight-year period from 1932 to 1940. For the years 1924 to 1931, colonial tribunals judged 73 cases of rape. For the period from 1932 to 1940, a roughly similar length of time, cases of rape almost doubled with juridical authorities investigating 135 cases of rape. This exponential growth in the volume of cases did not necessarily indicate an increase in the frequency of sexual violence or its reporting; rather it might reflect changes in record keeping on the part of colonial judicial structures and their archives. Archives have not preserved many of the cases from the earlier period in which the tribunal never issued a definitive judgement. For the period 1924 to 1931, only 9.6 per cent or a total of 7 cases have an unclear outcome, a reduction to a lesser charge, or no charge at all, whereas, from 1932 to 1940, 61.5 per cent (or 83 cases) fall in these categories , which more than accounts for the increased volume between the two eras. From 1924 to 1931, judicial authorities seemingly waited to formally record their initial investigations until they felt confident the case had sufficient evidence to issue a judgment.
The most dramatic change between the period 1924–31 and 1932–40 was the decline in the conviction rate. Table 1 shows that the conviction rate declined from 71 per cent of rape cases to 21 per cent while the acquittal rate hovered just above 10 per cent. Despite the case total being twice as many in 1932–40 as the 1924–31 period, the absolute number of convictions declined from 57 to 38, a 33 per cent decline. Admittedly the outcomes of 48 cases remained unclear; however, the annual statistics submitted to the federation level tribunal charged with the oversight of native courts indicated that the vast majority of these were not convictions or acquittals. Most of these 48 cases remained undecided with no formal judgement issued. The 1931 decree's major procedural change that affected these outcomes was the granting of Dahomean assessors a deliberative voice in criminal tribunals. Transforming the crime of rape to a felony crime further intensified the effect that this change had on outcomes.
In their deliberations, French and Dahomean authorities drew upon popularly agreed upon and historically rooted criterion that their two cultures shared to distinguish felony rape from other forms of violence. The standards that they decided on had nothing to do with the degree of physical harm inflicted or the assessed heinousness of the sex crime itself. French and Dahomean men agreed that the perceived degree of immaturity of the victim, as exhibited in physiology and embodied evidence, determined the level of harm that sexual assault inflicted. Table 2 shows that the demographic profile of the victims of rape who went to colonial authorities for redress remained remarkably consistent during the colonial era with less than a year difference in the mean average of any period and a year and a half difference in the median average. The mode for the periods with sufficient volume of evidence remained consistently eight years of age. The vast majority of victims throughout the colonial era were aged less than fifteen years of age. The choice to seek recourse in colonial tribunals for rape was remarkably consistent in one particular regard: the average age of the victim.Footnote 22
Table 2. Average age of victims of rape
Source: Archives Nationales du Benin, series 1M and 2M, and Archives du Senegal, series 3M
Notes about customary punishments recorded in registers give further indication of indigenous elites’ views of how the age of the victim defined the gravity of a sexual assault. In August 1933, the criminal tribunal in Allada justified how it calculated sentences of imprisonment for those convicted of rape. The tribunal noted, ‘The local custom punishes rape committed on a young girl aged five to eight years old…with the beheading of the offender; but from above eight years of age until puberty [the punishment is] imprisonment in the royal jail for a time up to a life sentence depending on the circumstances and the state of the victim’.Footnote 23 This sheds light on why the mode age was eight. Birth registries did not exist in Dahomey and only a small percentage of the population had their birth years recorded in Catholic baptismal records. Judicial authorities assigned ages based on perceptions and rough estimates of age. Any Dahomean assessors who agreed with the Allada tribunals’ assessment of customary rape, meant that the designation of eight years of age was important as a reflection of the seriousness of the crime.
Consent was completely absent from these colonial debates. There is no evidence that Dahomean authorities in either the precolonial or colonial era ever conceived of rape as non-consensual sex. Rape, according to them, was a sexual act that vodun taboos deemed as illicit, such as when the victim was too young or was an adult woman who was pregnant.Footnote 24 French judicial norms attached the consent criterion to rape in the mid-nineteenth century, but it remained largely disregarded due to the a priori doubt attached to women's testimonies.Footnote 25 Consent or non-consent did not define the crime of rape in French colonial tribunals in Dahomey.
Colonial Dahomey was part of the global history that fiercely condemned rape, but little punished this pervasive crime.Footnote 26 Dahomeans and French societies attached special significance to the crime of rape when perpetrated against an immature victim. Dahomean men could act with greater impunity when in the years following the 1931 decree, convictions for rape plummeted. The ways in which tribunals enacted the 1931 decree in Dahomey sanctioned men's use of extreme, violent forms of sexual coercion, nullifying girls or women's resistance and consent.Footnote 27
Dahomeans and colonial legal pluralism
Cases heard within colonial courts contained limited information regarding why individuals opted to go to the district commandant and lodge a complaint when they did.Footnote 28 Dahomeans chose when they preferred to engage, or alternatively to avoid, the colonial legal system. It was a complex decision that included a calculation of the anticipated outcome based on the substantive and procedural norms of each possible venue as well as known precedents.Footnote 29 Dahomeans frequently sought alternatives to the colonial courts because they perceived these substitutes as advantageous or more convenient. Witnesses’ comments in colonial courts suggested that households turned to these officially sanctioned legal forums only after other means of dispute resolution failed or produced unsatisfactory results. Colonial courts documented that male Dahomean guardians tried to privately settle sexual assaults out of court.
In the cases that included information concerning Dahomeans’ venue shopping among legal forums, overwhelmingly they involved male relatives of girls, generally a father of a rape victim. Some families acknowledged that they had tried to reconcile matters privately before seeking redress in colonial tribunals.Footnote 30 For example, ten-year-old Kinhodé walked around her neighborhood on 18 November 1932, selling oranges for one sou each.Footnote 31 Between one and two p.m. she entered her neighbor's house, where one of the sons, Awandjinou Sogbossi, bought an orange from her. While there, Sogbossi threw her on his bed and raped her. When she returned home a few hours later, she was still bleeding and told her older sister what had happened.Footnote 32 A week elapsed before Kinhodé's father Dossou approached the chief of police in Ouidah. During this week, the two sets of parents took charge of the affair. Sogbossi's mother pleaded with Dossou to settle the matter out of court. The two sets of parents agreed that no formal complaint would be lodged if Sogbossi came before Kinhodé's entire lineage and admitted his crime. Sogbossi refused to do so.Footnote 33 Only after this failed negotiation did Kinhodé's family go to the colonial authorities. Kinhodé's residence in the paternal home made this private settlement between lineages possible. Likely, Dossou feared the long-term repercussions of taking his neighbors to the colonial tribunal before other venues of negotiation had been exhausted. When the families of the sexually assaulted girl and the rapist had long-standing and close ties to one another, they were more motivated to reach an agreed upon settlement out of court in order to preserve the existing relationship with minimal disruption.
Accused men tried to dissuade girls, their guardians, or their parents from formally lodging complaints with colonial administrators. Some of the plaintiffs and victims frankly mentioned attempts by the accused to bribe village authorities, guardians, and the girls themselves. One accused rapist named Jean offered a six-year-old girl's father fifteen francs to keep him quiet after a doctor's examination confirmed the girl's rape. Further compounding matters in this case, the examination also revealed that through the rape the girl had contracted a sexually transmitted disease.Footnote 34 The extreme youthfulness of the victim and the infection prompted the family to reject a private settlement and seek harsher penalties along with a public condemnation of Jean. The publicness of the condemnation may have been important because Jean was a mason who had been invited by the girl's father into the house to complete some repairs. Jean took advantage of his access to the household and raped the girl during a break in the course of his work.Footnote 35 All of these factors — the girl's age, the sexually transmitted disease, and the location of the rape — contributed to the father's decision to go to the colonial tribunal.
The dynamics of the decision-making process for a rape victim living in her father's home followed a different path than that of a girl entrusted to a market woman. Girls' fathers sought out local political leaders for advice on how to denounce their daughters' rapists; rarely do female guardians mention their attempts at alternative venues of dispute resolution. Seemingly, extralegal private resolutions were a male domain. Women and girls in Dahomean society were resource poor and time-constrained, but they still regularly chose to accuse rapists within tribunals. Formal litigation consumed time, energy, and, indirectly, money from those who chose to plead their cases in colonial legal forums.Footnote 36 These barriers make it even more surprising that market women seemed to frequently prefer to adjudicate these matters in colonial tribunals. The pronounced overrepresentation of girl hawkers and their female guardians in cases of sexual assault indicated that these women had less access to other avenues of redress or perceived these alternatives as less advantageous. The household dynamics of colonial-era entrustment arrangements made negotiations with male lineage heads unattractive to market women. If a woman asked her male household head, normally a husband or son, to negotiate the redress for a young, female dependent's sexual assault, she would have ceded some of her authority over the girl to this male figure. Women justified their access to entrusted girls’ labor because they accepted responsibility for their care, including prosecuting those who abused the girls entrusted to them. Through asserting their exclusive responsibility for entrusted girls, they reified their independent power over junior female dependents. Some groups of Dahomeans, namely girls’ fathers, seemed to have preferred to at least attempt to resolve the matter in a sub-juridical setting. Despite the limitations of colonial legal records, the prevalence of women as plaintiffs for girl hawkers in rape cases from colonial Dahomey suggests that female guardians of hawkers believed other mediational domains were unavailable or hostile to them.
‘Until she bathed in the light of day’: market women's discoveries of the sexual assault of hawkers during the 1920s
Sexual assaults occurred in the course of normal days for hawkers in southern Dahomey. Details varied from case to case, but narratives submitted to courts consistently started with a hawker recounting a typical transaction. Girls searched the streets for buyers with their mistresses’ wares balanced on their heads. As they walked, they cried out the price and quality of their goods. When a girl encountered an interested party, she lowered the tray from atop her head so that her customers could better examine the product she offered them. Then, after a price negotiation between the hawker and her customer ensued, she measured the product and collected the agreed upon payment. As long as hawkers remained in groups or on busy streets during these exchanges, they were relatively safe. The danger increased when prospective customers asked girls to enter private compounds in order to inspect the merchandise more leisurely, find a container to hold it, or search for money.Footnote 37 Girls worked until they sold all of their allotted goods, which motivated them to pursue every interested buyer. They feared punishment if they returned home to their mistresses without the anticipated profit. Given the highly competitive nature of hawking, girls either ignored concerns about their own personal safety in order to make a sale or did not anticipate the danger.Footnote 38
Some Dahomean girls testified that they had refused to enter the residences of their attackers. These girls were painfully aware of the danger, yet in the end, their attackers overpowered them, forced them inside, and assaulted them. In one such instance on 1 June 1929, Stanislas Amoussouvi invited eight-year-old Akouéle into his house in Athiémé, a town along the Mono River in southwestern Dahomey. He told her that he needed to find a plate for the meal he had purchased from her. Akouéle declined to enter the residence. Amoussovi then shoved a handkerchief in her mouth, dragged her inside, held her down, and raped her. After threatening her, he paid her for his meal and allowed her to leave. Akouéle, like many other hawkers who were sexually assaulted, returned directly to the street to finish selling the remaining food prior to returning to her mistress's home. The next morning, she woke up with abdominal pain, yet she remained silent about the attack for several weeks.Footnote 39
Girl hawkers often chose not to speak about sexual assaults that occurred in the course of their work, but the intimate proximity in which they lived with other members of the household commonly prevented them from concealing the assault entirely. In the days following sexual assaults, women detected the trauma on girls’ bodies. When women in the compound observed bruises, abrasions, inflammation of the labia, abnormal genital secretions, symptoms of sexually transmitted diseases, or other signs of discomfort on the bodies of girl hawkers, they could no longer remain silent about their traumatic experiences. Girls revealed, intentionally or not, these sorts of symptoms on their most intimate body parts to women when they bathed together. When Akouéle ‘bathed in the light of day’ with Alougba, a sixteen-year-old friend and coworker, her friend saw the physical evidence of the sexual assault on Akouéle's young body in the form of purulent secretions on her sexual organs. The older girl then proceeded to notify Ahoussi, the two girls’ mistress. Ahoussi instructed Alougba to take Akouéle to a nurse. Akouéle refused to explain the cause of her maladies to the nurse. Only when Ahoussi questioned her after the visit to the nurse did Akouéle reveal that a customer had assaulted her. Footnote 40 Ahoussi then took Akouéle to the district commandant and filed the complaint of rape on her behalf on 19 June 1929, eighteen days after the crime.Footnote 41 Market women, such as Ahoussi, transformed sexual assaults into grievances that they formally articulated to the colonial administration. They assigned meaning to girls’ experiences and in the process named the crime, blamed the assailant, and then claimed wrongdoing on behalf of the girl.Footnote 42
Women and elder girls monitored younger girls’ bodies.Footnote 43 In Akouéle's case, communal bathing provided Alougba the opportunity to observe bodily trauma. In other cases, the aftereffects of the assault were evident to household members even without the girls disrobing and bathing. Elder women cared for girls’ symptoms, such as vomiting, bleeding, pain in the lower abdomen, and their inability to sleep or eat.Footnote 44 When, in November 1924, sixty-year-old Natala observed that ten-year-old Saba was sick, she questioned her, but the girl offered no explanation. Natala treated Saba's symptoms for six days with no improvement in the girl's condition. Natala, not Saba, described the girl's ongoing suffering for the tribunal, ‘[W]hen she would eat, she would vomit; in examining her I observed that her sexual organs were inflamed, so I cleaned them with water. I kept soothing them, but she was always sick’.Footnote 45 Natala's testimony revealed that Saba, like Akouéle, was reticent to explain the cause of what ailed her to her mistress. Natala, like Ahoussi, cared for the girl regardless of the source of her sickness.
In addition to physical suffering, elder women observed the psychological trauma hawkers experienced after a sexual assault. Girls could not always maintain their normal activities after the assault. Despite her youthfulness, Saba had always been responsible with the money she earned selling soap in the market. The trauma of the assault left her in a mental state where she was incapable of conducting business as normal. When Saba returned home without the anticipated profit for her products, Natala became frustrated. Saba's abrupt change in demeanor prompted Natala to investigate. Eventually Saba disclosed that Adamon, one of her regular customers, had assaulted her.Footnote 46 Natala observed both physical and psychological changes in Saba after the assault.
Dahomean girls’ female guardians were concerned about the well-being and safety of entrusted girls while hawking. Once women were made aware of a sexual assault, they promptly approached the commandant and filed oral complaints against the men who assaulted the girl hawkers. While not all cases of assault provided information on the decision-making process prior to reporting the crime to colonial officials, many cases described girls’ hesitance to report sexual assaults to anyone. Elder women, such as Ahoussi and Natala, often uncovered the assault, and then reported both what they had observed and what the girls had told them to French administrators. Men more rarely witnessed the effects of rape on girls. Those who did were often not part of the households where the girls lived.Footnote 47 This pattern does not necessarily reflect a lack of concern on the part of male co-residents, but rather the reality that men had much more limited contact with girls. Women, in general, took their responsibilities for caring for entrusted girls seriously. On the one hand their daily interactions with these girls made them sensitive to changes in the girls’ bodies and behaviors. On the other hand, they chose to investigate and report the physical symptoms as well as changes in the girls’ demeanors that they observed. During the 1920s, market women vigilantly reported the sexual assaults of girl hawkers to authorities. In doing so, women tried to create a safe environment in streets and marketplaces for girls to work.
Eliding female testimony in rape cases, 1932–40
Despite a decline in convictions after 1931, women continued to bring forth rape complaints on behalf of girls. Women steadfastly supported girls’ accusations of rape. Their persistence in taking girls’ rape cases to colonial tribunals demonstrated that they believed that the state should protect girls in the markets and streets of colonial Dahomey. After the 3 December 1931 decree took effect, indigenous and French men evaluated the evidence women and girls presented to tribunals differently. Male legal authorities increasingly ignored elder women's appraisals of girls’ bodies and minds. Colonial legal processes elided the rape victim's own testimony as the decision-making process inexorably progressed to a masculine, colonial authority issuing a judgement.Footnote 48 If historians emphasize the judgements of colonial tribunals, the distrust of girls and women becomes a historic actor. This distrust allowed powerful men's observations to replace girls’ and women's testimonies.Footnote 49 When tribunals issued judgements these men's opinions about women and girls were transformed into legal facts.Footnote 50 Admittedly, Dahomean and European men controlling the legal process had different reasons for agreeing to transform unfounded suppositions about hawkers’ ages and reputations into legal facts regarding sex crimes. Despite their differing motivations, the collusion of the two groups resulted in the discrediting of girls’ experiences of rape and the disregarding of women's reports of girls’ physical and mental suffering in the aftermath of these sexual assaults.
Male tribunal members diminished these elder women's authority as witnesses in rape cases through their decision to favor physical, certified medical evidence provided by colonial doctors. Across Africa, the recognized expertise of African women was displaced by the pseudo-techno-scientific witness of the district surgeon. These surgeons had no formal training in forensic medicine or gynecology.Footnote 51 The scant physical evidence that these physicians found after days or weeks had elapsed between the assault and the medical exam was interpreted through racist and stereotypical lenses that had long posited the alleged libidinous and supposed deceitful nature of African females.Footnote 52 A French doctor's racism in an early twentieth century colonial setting was unsurprising. More alarming for Dahomean women was the development of a cross-cultural misogynoir, or anti-Black misogyny, based on the collusion among indigenous assessors and French officials.Footnote 53 European and African patriarchal agendas were not always aligned with one another, but on their hostility to claims of rape after 1931 they reached an agreement.Footnote 54 Both groups treated girls’ and women's accusations of rape with suspicion based on the assumption that most cases of sexual assault were not actually the colonial felony of rape.
Colonial officials feared that hawkers’ apprenticeship to market women introduced these girls to transactional sex alongside market trading in goods.Footnote 55 While indigenous assessors understood that this was in fact not the case, the shifts in the tribunals’ debates, the decline in convictions for rape, and the dismissal or pleading down of rape cases after 1931 showed that with their new deliberative voice, indigenous assessors favored a very narrow definition of rape. The conflation of street hawking with street walking helped construct a picture of the majority of victims as at fault for their assaults.Footnote 56 The rape cases heard in the criminal tribunals in the year immediately following the judicial reorganization transparently discuss the perceived blameworthiness of hawkers. One such example was the 1932 rape case of nine-year-old Ahoudjo. On 29 April 1932, Ahoudjo walked the streets of Cotonou, the economic capital of the French colony of Dahomey, selling beans. On the day in question, all parties agreed that Ahoudjo entered Comlan Gaudens's house, where the two had sex. The criminal tribunal investigated whether or not the sexual act constituted rape, as Ahoudjo claimed. Ahoudjo stated that Gaudens had raped her on two different occasions in April 1932.Footnote 57 Gaudens, on the other hand, asserted that she had consented to having sex the first time on the condition that he pay her. He stressed to the tribunal that Ahoudjo had come to his residence of her own accord the second time.Footnote 58 Gaudens's account of transactional sex with a street hawker on multiple occasions confirmed French authorities’ fears that hawkers actually sold their bodies along with the merchandise they balanced on their heads. The presumption that girl hawkers were in fact profiting from sexual encounters as a side hustle to selling goods cast doubt on the veracity of their claims of rape. This doubt extended to the market women who supposedly trained them in matters of transactional sex. Tribunals presumed that both the girls and the women who supported them lied about the circumstances of the sexual encounters that transpired with their customers. This gendered and sexualized stereotype transformed the types of evidence that tribunals found admissible. If women and girls could not be trusted to be honest about sexual experiences or even understand what sex acts would be considered rape, the previously recognized expertise of women no longer mattered.
Tribunals disregarded the testimonies of women and girls and allowed rape victims’ bodies to ‘speak’ in their stead. In a July 1932 report submitted to the chambre d'accusation, the five-person criminal tribunal of Cotonou weighed the merit of the criminal charges against Gaudens. The court recorder summarized the evidence against Gaudens. The synopsis started with the proof Ahoudjo's body offered. The tribunal argued, ‘Considering that the medical certificate concluded that the disappearance of the hymen seemed old,… one could suppose that the girl had already had sexual encounters before the act executed by Gaudens’.Footnote 59 Girls’ bodies gave visual clues about their sexual experience and the stage of development of their sexuality, but these clues were reworked so as to fit within the dominant narrative framework that hawkers were blameworthy for their own rapes.
The embodied proof influenced the interpretation of the remaining three pieces of relevant evidence. The presupposition that Ahoudjo had a history of sexual experience prejudiced the remainder of the deliberation and skewed the tribunal's opinion in favor of Gaudens’ claim that the sex act had been transactional. The indictment continued, ‘Considering that in this case there is doubt about the actual age of the victim – and it does seem that the already deflowered girl consented for a fee to have sexual relations – [Ahoudjo] must be pubescent and older than nine years of age’. The tribunal reasoned that non-virginal girls older than nine would conceivably agree to transactional sex. Since statutory rape, or sexual relations with someone under the legal age of consent, did not exist in the French colonial legal system as a charge distinct from rape, age or maturity should not have factored into the decision-making process. However, age and concomitantly maturity became the evidentiary crux in rape cases in colonial Dahomey. The conspicuous absence of any reference to age in deliberations before the 1931 decree contrasted with the chambre d'accusation's obsession with discerning the ‘real [chronological] age’ of the claimants after the 3 December 1931 decree took effect.Footnote 60 The tribunal concluded, ‘Considering [all of the above] it is important before ruling on this matter to know the real age of the victim [Ahoudjo]’.Footnote 61 The tribunal refused to issue a verdict until investigators had verified Ahoudjo's age and suggested an age that supported the other embodied evidence.
As girls aged and approached womanhood in their teenage years, these stereotypes allowed for less debate. The tribunal crudely reasoned that girl hawkers, who were widely considered adults at fourteen years of age in Dahomey, engaged in sexual encounters with their customers and then accused them of rape after disputing the terms of the transaction. A loquacious scribe expressed in the strongest terms the stereotypes of teenaged ‘working girls’. According to his translation of her narrative, Akpoto, a fifteen-year-old street hawker, exited a house entirely nude and claimed that three young ‘guys’ had had relations with her against her will. The recorder used the term ‘jeunes gens’ to describe the three teenage rapists. The recorder mockingly asked a rhetorical question: ‘Is this exactly what happened? Did they lure her into their residence on the pretext of buying lokapo [a prepared food dish] and each take a turn? That seems highly doubtful!’ The tribunal dismissed the case when one of the three accused ‘guys’, Ogoudélé Bancole, admitted to having sex with her and provided, according to the tribunal, a very ‘plausible’ reason for Akpoto's accusation. The chambre d'accusation stated that Ogoudélé knew of Akpoto's ‘rather wild virtue’ and propositioned her. He suggested paying 2,50 francs ‘to have connection with her’. Ogoudélé claimed that after having sex they disagreed about the payment. In his account of events, Akpoto threw down her own clothes and the money he had paid.Footnote 62 The tribunal believed that Akpoto had staged her rape and lied about the circumstances of the sexual encounter with three customers.
The doctor who examined Akpoto supported Ogoudélé's assertion of Akpoto's ‘wild virtue’ through his inclusion of irrelevant personal information in his medico-legal report. The doctor observed that Akpoto's labia exhibited signs that she had stretched and scarred her outer genitalia.Footnote 63 Europeans had long viewed such practices with both fascination and disgust.Footnote 64 The medical evidence of Akpoto's prior experimentation with her genitalia cast critical doubt on her claim, in the view of the tribunal's members. Her manipulation of her labia over an extended period of time proved to them that she was ready for sex and that nothing sexually taboo had occurred. This point of view, along with the fact that the alleged perpetrators were roughly the girl's peers, led the authorities to redefine the sexual act into youthful ‘messing around’, despite the violence Akpoto had described. Perhaps these three men did ‘go too far’, but this sort of nonconsensual sexual encounter did not, in the minds of the tribunal members, necessarily translate into the felony of rape. The criminal tribunal dismissed Akpoto's case. The authorities assumed an older girl with a reputation for being ‘wild’, like Akpoto, would habitually trade sexual favors for profit with multiple clients.Footnote 65
After the 3 December 1931 decree took effect, legal decisions and debates in tribunals suggested that French and Dahomean men agreed to condemn a very small proportion of sexual assault cases as felony rape. From 1932 onward, the majority of rape cases in Dahomey either resulted in a reduced charge or in a dismissal with no verdict issued. In order to effect this change, legal authorities built on existing European stereotypes of the lasciviousness of African femininity. The tribunals portrayed girl hawkers as promiscuous liars, and by extension the women who supported them in tribunals as dubious characters as well. The alleged tendency of girls and women to invent falsehoods about sexual encounters called into question even the most basic statements female plaintiffs, witnesses, and victims made in these cases. The eliding of girls’ experiences of sexual assault and women's presentation of these girls’ suffering led to no judicial sanctions being imposed in all but a few cases of rape each year. The rhetoric of victim blaming negated criminal culpability in official colonial legal forums. But this hostility did not deter market women from continuing to seek redress for the harm done to their young employees.
Conclusion
Teenage or younger girls engaged in street hawking were the most common victims who reported sexual assault to colonial tribunals in Dahomey. This overrepresentation was due, firstly, to the girls’ mobility: movement facilitated their success as entry-level apprentices to market traders and gave them a unique value in West African economies, but it also exposed girls to greater risk of sexual assault by male customers.Footnote 66 Secondly, these girls’ female guardians had fewer options for seeking redress for crimes perpetrated against their dependents than male familial guardians did. Thirdly, market women recognized the regulation of the marketplace and streets as a governmental responsibility. They held the colonial state responsible for the safety of hawkers in the expanding economic centers in the southern region of the colony.Footnote 67 In the cases studied here, women made their claims for recompense through colonial courts. Without a doubt, these cases represent only a small fraction of the experiences of sexual assault that occurred. While alternative mediational domains existed in Dahomey, many women determined that the preferable, or perhaps only, place to adjudicate and punish the rape of girl hawkers in their care was the colonial tribunal.
Girl hawkers’ narratives of assault revealed that sexual violence was an everyday possibility for them. Their profession rendered them uniquely vulnerable to the unwanted sexual advances of their prospective customers. When girls who were assaulted returned to the households where they resided, elder girls and women witnessed their suffering. Commonly, an intergenerational act of witnessing the physical aftereffects prompted elder women to question hawkers. Mistresses showed their concern for the girls in their employ through treating the girls’ symptoms, questioning them for explanations, and seeking recourse. The girls’ guardians acted upon what they saw and took hawkers to colonial officials. The elder, female guardians of hawkers attempted to hold the girls’ customers responsible for sexual assaults. Through focusing on the investigative processes in cases of sexual assault, rather than emphasizing the outcomes of the cases, two gendered histories emerge: firstly, a history of elder female caregiving to girls suffering the aftereffects of sexual assaults and, secondly, a history of the vulnerability of hawkers to sexual violence in the course of their daily activities.
Girls’ accusations of rape faced greater skepticism and mounting evidentiary requirements from 1931 onward. In the following decade, Dahomean assessors played a crucial role in manipulating French definitions of the crime of viol to create a colonial definition of rape based on presumptions about youthful hawkers’ sexuality and promiscuity. Simultaneous with the increasing voice given to male Dahomean assessors, Dahomean market women's role in the judicial process declined. Across Africa, colonial expert medical reports authored by European men which summarized specific forms of physical evidence in rape cases superseded women's narratives of observing the consequences of rape.Footnote 68 Particularly after the 1931 judicial reorganization, women's testimony regarding their observations of the effects that rape had on girls’ bodies, minds, and behaviors were eclipsed by the technoscientific witnessing of male colonial medical officers who searched girls’ bodies for ‘evidence’. Dahomean women documented girls’ physical suffering and mental anguish in the days and weeks following sexual assaults in a much more comprehensive manner than the European doctors tasked with making observations about physical force and the state of the hymen. The colonial courtroom became increasingly distrustful of girls’ narrations of assaults after the 1931 judicial reorganization. Despite this hostile environment, girl hawkers and their female guardians continued to pursue redress for sexual assault in colonial courtrooms because of their dissatisfaction with and marginalization from other venues. The 1931 decree empowered ‘traditional’ Dahomean chiefs with greater judicial authority. These elite African men enacted their authority within the colonial regime in ways that denied market women the ability to prosecute these men's peers for acts of sexual exploitation against the girl hawkers. In doing so, indigenous assessors prevented market women from upholding their responsibility to the girls in their employ.
Acknowledgements
I would like to thank Pamela Scully, Kristin Mann, Clifton Crais, Susan Elizabeth Gagliardi, and the participants at the African Legal History Symposium of the ASLH and ASA meetings in 2019 for reading and commenting on earlier drafts of this article. I want also to thank the editors and the anonymous reviewers of The Journal of African History for their constructive feedback, which further improved the article. The research that this article relied upon was generously funded by the Joseph J. Mathews Prize for International Research from the Department of History at Emory University and Professional Development Research Support Funds from Laney Graduate School at Emory University with additional support in 2018 from the ASPiRE Start-Up Grant Award at Ball State University.
