Rape Narratives, Rape Silences - Sexual Violence and Judicial Testimony in Colonial Guatemala 31.3.komisaruk

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Biography, Volume 31, Number 3, Summer 2008, pp. 369-396 (Article)
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DOI: 10.1353/bio.0.0028
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RAPE NARRATIVES, RAPE SILENCES:

SEXUAL VIOLENCE AND JUDICIAL TESTIMONY
IN COLONIAL GUATEMALA
CATHERINE KOMISARUK
One of the challenges for historians studying Latin American societies is that
until recent generations, most of the population did not know how to write.
There were of course literate circles in Ibero-America in past centuries, including people who kept government records and business correspondence, as well
as those who wrote great works of ction, drama, and poetry. But beyond the
so-called chroniclers of the conquest era, few kept diaries or left memoirs.
Traditional histories about colonial Latin America emphasized elite political
concerns and nancial affairs, while literary studies have focused heavily on
the writings of European-born priests and travelers in what was, to them, a
new world. In the second half of the twentieth century, though, a new set of
historical concerns sent many researchers looking for alternative sources. The
rise of social history and the new cultural historythat is, history of nonelite cultural formshas changed the way Latin American history is studied
by scholars in the region as well as those in the anglophone context. In the
past generation, we have been seeking texts that would reveal the experiences
and consciousness of a largely illiterate population.
One type of source that has proven especially fruitful in this project is
judicial records. The Spanish colonial judicial system allowed people of all
social statuses access to litigation, providing attorneys to represent the poor.
The government employed notaries to serve as court reporters, transcribing
oral testimonies in both the ecclesiastic and secular courts. In effect, the courts
were collaborating with an otherwise somewhat disenfranchised population
in the production of these recorded narratives. The collaboration created a
form of experience-narrative by people who could not writeplaintiffs, defendants, and witnesses who told their stories before the colonial magistrates
Biography 31.3 (Summer 2008) Biographical Research Center
370
Biography 31.3 (Summer 2008)
and notaries. Because the purpose of judicial proceedings was essentially to

substantiate or negate a given accusation, the judicial testimonies were meant
to tell some specic experience or circumstances of the plaintiff, not to be an
arc of the whole life. Yet the records of these experience-narratives often reveal remarkable details about the lives of non-literate subjects.
Thousands of such court records have been preserved in public archives
in many parts of Spanish America. In recent years historians have begun to
tap this body of documents for the narratives of individuals who left nothing in their own writing. Research in court records has become an important
trend in current scholarship on colonial Spanish America.
Concurrently, the historiography on Latin America has seen a blossoming of studies on women, gender, and sexuality. Indeed, various kinds of judicial records have been a source of data for much of this scholarship, since
the detailed depositions recorded in the Hispanic judicial systems reveal numerous aspects of society and daily life.1 Given that court records inherently deal with conicts, they are particularly rich with information about
social transgressions. In contrast to legal codes and religious doctrinal writings, which convey ideologies and prescriptions for behavior, court records
disclose some of the realities of peoples actions. In fact, a growing body of
historiography has focused on crime and social transgressions specically.
Part of this trend has been a stream of books on riots and rebellionsevents
that typically generated a spate of trial records when the rebels were caught.2
A related stream has focused on gender and sexuality, using litigation records
to analyze expectations and behaviors within marriage and sexual life. Marital violence, illicit unions, witchcraft, disputed betrothals, and prenuptial
breakups have been highlighted in these studies.3
Despite these concurrent emphases on crime and sexuality, sexual violence has been very scarce in the scholarship on Latin American history.4 This
scarcity is especially paradoxical, since the new scholarship on womens history (and the closely related histories of gender and sexuality) grows out of
the same feminist movements of the late twentieth century that have also demanded increased recognition of sexual violence in modern societies.
This article examines testimonies about sexual violence that I have found
in the secular court records of late colonial Guatemala. It focuses on the period from 1773, when a ruinous earthquake prompted the crown to move its
regional capital to a new site (present-day Guatemala City), to 1821, which
marked independence from Spain. The cases are drawn from the archives of
the Audiencia (High Court) of colonial Spanish Central America, and from
the crowns local criminal courts in Guatemala City, which was the seat of
the Audiencia. Geographically, the Audiencias jurisdiction encompassed the
Komisaruk, Rape Narratives, Rape Silences
371
area that now comprises Central America, plus todays Mexican state of Chiapas. But most private appellants who came to the Audiencia were from areas
lying within todays Guatemala, with some occasional cases coming from areas
in todays El Salvador, Honduras, and Nicaragua.5
My analysis suggests that sexual violence tended to be disregarded or displaced by colonial-era attitudes and judicial practices. These mentalidades and
legal structures shaped peoples opportunities to tell their stories for the written record, and court procedures partly shaped the content of the testimonies
people gave. Sharon Block has shown that in early Anglo America, community beliefs about who was or was not capable of rape shaped the ultimate categorization of a sexual act (13). I argue that in Spanish America, community
attitudes determined what was or was not categorized as a criminal sexual offense. These attitudes, in turn, were molded not only by the nature of the act
itself, but also by the social positions of both aggressor and victim. Various
factorsethnicity, class, age, gender, employment, social connections, and
marital statusdetermined whether and how an act of sexual violence would
enter the record. These factors mattered at several stages: rst in the decision
by victims or their relatives to bring complaints to the authorities, then in the
courts willingness to try cases, and nally in the ways the jurists considered
the charges. Even the outcomes prescribed in legal codes varied according to
the social position of defendant and plaintiff.
Thus, even though colonial Spanish ideology and judicial practice facilitated the recording of thousands of narratives by a remarkable range of individuals, certain kinds of outcries were stied. The social contexts and legal
processes in which judicial testimonies were produced in effect limited their
content and, ultimately, their legal import. In their collaboration, the courts
and the individuals who testied were not equals. Through an examination
of the unequal contexts and processes of record production, I argue that
the judicial systems treatment of sexual offenses (and its failure to recognize
sexual offenses) has partly occluded our study of sexuality and of violence in
colonial society. These ndings raise several considerations about using court
recordsnot only trials for sexual violence, but judicial records more generallyas sources for understanding history.
Despite the variations in judgments, the production of Spanish colonial
court records followed certain general patterns. In the secular criminal court
system, the local alcalde was usually the rst ofcial to hear reports and complaints from the public, often in the moments immediately following a crime
or crisis. In Guatemala City, neighborhood alcaldes functioned essentially as
justices of the peace, circulating through their communities, often accompanied by a small group of patrolmenin approximate terms, the beat cops of
372
the colonial period. These urban patrols typically would report cases within a
matter of hours to the criminal court, having already taken into custody any
suspects who could be found. In small towns and in the countryside, it could
take longer for a complainant to get to the nearest alcalde or corregidor, and
it might be weeks before the case arrived in a formal court, if it arrived at all.
Typically, rural authorities tried to resolve issues locally, apparently mainly through executive rule (with relatively little recorded processing), before
turning to the courts in the capital or nearest city. Thus, the judicial archives
of the Audiencia contain relatively few cases from rural areas.
Criminal trial records usually open with a notarys summary of the alcaldes oral report to the court. Civil lawsuits begin with a grievance led by
the plaintiff; for all but the most literate of appellants, these petitions were
written up by the courts notary on duty. The colonial state employed magistrates who acted as inquisitors or questioners, and the notaries penned the responses. Usually, rulings were issued by a presiding judge or board of judges
after they read the written case record. Occasionally, the parties to civil suits
were subpoenaed for a careo, a face-to-face hearing of both parties before the
judge, though their testimonies in these cases were not transcribed.
Although the notaries sometimes merely summarized the oral testimonies,
the deposition records tend to contain impressive amounts of detail. Statements led in civil lawsuits opened in a standard format, announcing the
complainants name, town or country of origin and residence, and the words
appear before Your Mercy and say, followed by a petition worded in the rst
person. Elite litigants often signed their names, and a few apparently wrote
their petitions in their own hands, but other petitions closed with the words
I dont know how to write, and were signed by the courts notary or the
Procurator for the Poor. In criminal cases, depositions were normally recorded in the third-person voice. Nevertheless, many appear to be blow-by-blow
descriptions of testimony, including (rendered in the third person) the verbal
hesitations, vacillations, and repetitions of the speakersboth questioners and
respondents. Deposition records were often written in diction specic to the
gender or social class of the deponent, suggesting that at least parts of the text
closely replicated the speakers words. In some passages, the notarys marks
indicate that the speaker was replicating a previous conversation. Visually, the
pages containing judicial testimony normally show signs of very hurried penmanship, and the notaries often-incomplete notations and scribbled emendations further give the documents a sense of raw immediacy.
How does sexual violence appear in the court records? In the archives
from colonial Guatemala, what is most striking about sexual violence is how
rarely it was reported. Although the majority of criminal trials were indeed
373
for violent crimes (notably stabbings, homicides, and muggings), there were
remarkably few trials for sexual violence. In a random sample of over three
hundred court cases from 1770 to 1821, only ve were for sexual assaults. In
two additional cases, the women successfully fought off their assailants. All of
the attacks were by men against girls or women. All were in the capitaleither Santiago (todays Antigua Guatemala, the city ruined by the 1773 earthquake, which remained the ofcial capital until 1778), or Guatemala City.6
In addition to the cases I consider in this article, several juridical records from
the same period document sexual violence against slave women, who appear
as the plaintiffs. However, these cases are quite distinct from those involving
assaults against free women, largely because the enslaved victims were demanding liberty or payment, rather than penal sentences against the aggressors. Signicantly, I found the slave womens suits not in my random sampling of court records, but rather in a separate search of records specically on
slaves. I have written about these instances elsewhere (Komisaruk, ch. 2).
Also notable in the criminal trial records for sexual violence is the absence
of the words violar (to rape) and violacin (rape). These words existed in
the eighteenth-century Spanish dictionaries, but the denitions dont quite
match todays meanings. Violar was glossed as to forcibly corrupt a woman,
especially a virgin (Real Academia).7 There was no word that conveyed todays sense of violacinforcible sexual intercourse with someone who has
not consented or is unwilling.8 Such a concept appears to have been absent
from colonial judicial thinking. Like their contemporary lexicographers, the
Guatemalan judges emphasized virginity in the victim and corruption as
necessary to constitute a punishable crime. While plaintiffs in the cases I have
identied sometimes charged that a man had forced them, the courts did
not give substantial consideration to questions about womens consent or will
in sexual acts. Instead, the judges tended to focus on other issues.
THE COURTS ON DEFLOWERING
In the trials for sexual assaults against young victims under marital age, the
judges concerns centered primarily on deowering, sometimes labeled by
contemporaries as estupro (from the Latin stuprum, literally disgrace or
delement). Estupro was understood specically as an act of sexual intercourse with a virgin, regardless of her willingness or lack of willingness in the
act. I have identied three such cases; in each, an adult male was tried for
sexual relations with a girl aged eleven or twelve. In all three trials, the court
focused on bodily evidence of deowering.
The criminal proceedings against Julin Vargas, age thirty-four, illustrate
this focus (AGCA Sig. A2.2/leg. 165/exp. 3271). The victim was twelve-year-
374
old Manuela Dorotea Valladares, an orphan who had been placed in the care of
Vargas and his wife. Valladaress brother, a sixteen-year-old apprentice weaver,
brought the charges to the authorities in the capital city in 1789. Manuela
Dorotea Valladares testied that she was awakened one night from sleep and
found herself with Julin on top of her . . . dispossessing her entirely of her
virginity with no possibility for her to impede him, nor to shout, because even
though she tried, he succeeded in mufing her mouth, threatening that if she
did resist he would punish her, or kill her. Valladares had been sharing a bed
with Vargass wifes niece, fourteen-year-old Mara Dolores Ubeda. Valladares
explained that because of her attackers threats, she had no other means than
to use her elbow to signal Mara Dolores, who was at her side, to go alert her
aunt to what was occurring, or to shout, but her signals were not understood,
and for this reason she could not avoid the damage that then happened to
her. Although Ubeda was an eyewitness, the court spent little time hearing
her testimony. The record merely says she conrmed that her uncle Julin
Vargas had been in the room that night without a shirt on.
Without further questioning about the assault itself, the judicial ofcials
focused on nding evidence of deowering. The court subjected the twelveyear-old Valladares to two examinations of her vagina, by a professor of surgery and midwife respectively. The idea was that their observations would
indicate the guilt or innocence of the accused man. This legal procedure apparently descended from the ancient fueros (laws) of Castile, which required
that a rape victim who had been a virgin must submit to an exam by bonas
mugeres (good women) to prove the commission of the crime (Asso del Ro
and Manuel y Rodrguez, Libro II, Titol II: 66-67; Burns 1426, n.1). In the
case of Manuela Dorotea Valladares, both of the expert witnesses declared
with certainty that the child suffered an injury to her virginity (padeci
lesion en su virgindadapparently the words of the notary). The surgeon
signed a declaration that there had been true estupro, and the midwife said
that she had found the person of Manuela Dorotea Valladares entirely corrupt according to her experience in the long time she has been in practice as
a midwife. (Presumably, though, the midwife had little, if any, experience
carrying out gynecologic exams of virginal women, since the women she had
attended were pregnant or giving birth.)
In any case, Julin Vargas was nally then imprisoned. Giving his deposition in the jail, he admitted that he had found Valladares asleep and had proceeded to have intercourse with her. He denied having threatened Valladares,
saying she resisted him at rst but then gave in as he persisted. In the written
record, Vargas told of his misdeeds with alacrity. He described arriving home
around 10:00 p.m.,
375
drunk on aguardiente . . . and went to sit on the dais where Dorotea and another
girl named Dolores were sleeping, and seeing that Dorotea was completely uncovered, he was excited by the view he had of her . . . and went over to her and he
touched her carnally. She resisted at rst but it didnt matter because he continued,
and overwhelmed her, and when he was nished he got up and went out to the patio to pee, and heard his wife calling him because he was taking so long.
Notably, Vargas contended that estupro did not occur, since he found her
corrupted. This statement (which Vargas made without the presence of legal
counsel) suggests that popular understanding paralleled the law and its emphasis on deowering.
Indeed, the depositions of Vargass wife and a neighbor woman echo the
concern with evidence of deoration to substantiate a wrongdoing. The wife
had been awake in bed that night waiting for her husband, and she grew suspicious when he seemed to dally before coming to join her. When he nally
got into bed, she later said, there were signs that she noticed in his underwear. She told the court that she had called the following day on her neighbor, an elderly widow who examined the girl with all prudence, and even
took note of her nightclothes and the place where she had been sleeping, to
see if there was any sign to show damage to her honesty [i.e., virginity]. The
neighbor herself testied that she hadnt found the slightest indication that
would afrm what was feared could have happened. That is, she didnt see
any blood on the childs body or nightclothes, which would have been evidence of deowering. The neighbor was implying either that Vargas had not
had sex with Mara Dorotea Valladares, or perhaps that Valladares had not
been virginal beforehand.
The court determined that Vargas should be released from jail, based on
the judges opinion that the prisoner had already served enough time. On the
one hand, this ruling was typical of the colonial courts, which usually did not
issue explicitly denitive verdicts of guilt or innocence, but rather tended to
weigh the various factors and to formulate sentences seeking some balance of
justice. On the other hand, though, the judges estimation of sufcient prison
time seems remarkably short. It had been only ve months since the crime
was reportednot an especially long period by standards of the era, in which
suspects normally remained jailed during their trials.
However, the judge also sentenced Vargas to pay the legal costs and twenty-ve pesos in damages, presumably for the benet of Valladares. If he ever
made the payment, though, it was not registered in the record. The twentyve pesos would have been a signicant but not impossible sum for Vargas,
who identied his occupation as barber and his calidad (race or ethnicity) as
mestizo. His wife, whose ethnicity is not identied in the record, was known
376
by the moniker Cohete (literally, Firecracker), suggesting that she or her

relatives may have been in the business of making or selling reworks. This
couple, like the victim and her brother the apprentice weaver, appears as part
of Guatemala Citys large stratum of economically middling artisans.
The sentence for Vargas to make this payment reects aspects of both religious and secular legal theory. Canon law required a man convicted of estupro either to marry his victim, or to provide a dowry for her according to
his circumstances and faculties and to be subjected to banishment or prison
(Enciclopedia 23940). The thought of having to marry ones rapist is difcult to ponder from our modern standpoint, but a key point here is that estupro was not necessarily rapei.e., it was not necessarily forcible. Rather, the
concept of estupro included any sexual intercourse with a virginal woman,
whether or not she was willing. Probably in the majority of cases, estupro
simply amounted to pre-marital sex between two willing partners. Church
doctrine in effect allowed pre-marital sex, provided that there had been a
promise of marriage (palabra de casamiento); it was the carnal knowledge
itself that the church held to be binding (Lavrin, Introduction 46). Thus,
the law provided a recourse for women whose ancs had sex with them and
then refused to marry them. As historiography on several other regions in colonial Spanish America has shown, women used this legal feature to bring suit
for dowries against men who had impregnated and then jilted them.9 At least
in theory, the option of marriage that religious law gave to the man convicted
of estupro would take into account the womans wishes, since clerics were
supposed to establish each persons free will before performing a marriage.
Secular law had been a bit tougher on men who committed estupro, particularly those who had used force. We can see this in the Siete Partidas, the
massive seven-part compendium of laws compiled in the thirteenth century by
King Alfonso X. Alfonsos code continued to provide a major foundation for
judicial thinking throughout the colonial period in Spanish America; jurists
in Guatemala sometimes cited it in their decisions. Regarding estupro, the
Siete Partidas stipulated that a man who had used force should lose his life,
and the woman should get his property. If he had not used force, half of his
property was to be forfeited to the crown; if he had no property, he was to be
scourged and banished, or if he was a servant or slave, to be burned (Alfonso
X, 7a Partida, Ttulo XX, Ley II: 47273). In practice, however, the colonial
courts were less harsh in their sentencing. Their inclination not to punish men
for estupro was codied in an edict in 1796, when the crown decreed that the
accused men in cases of estupro should not be harassed with imprisonment.
However, the text of the decree itself noted that it was made in response to
repeated appealsevidence that men were in fact being imprisoned for
377
estupro (Novsima Recopilacin, Tomo V, Libro XX, Ley IV: 427). These may
have been the boyfriends in consensual premarital sex cases reported by disapproving parents. The case against Julin Vargas was different, and the Guatemalan court at least recognized that complete leniency should not apply.
As in the trial of Vargas, in the other two cases I have identied of men
accused of having sex with adolescent girls, the court also emphasized deowering rather than force, even though the victims testimonies indicated
that they had been unwilling. In a 1775 case, twenty-two-year-old Francisco
Paula Guerra was tried in Santiago (now Antigua Guatemala) for incest,
apparently having raped the eleven-year-old niece of his late wife (AGCA Sig.
A2.2/exp. 154/leg. 2976). The childs mother had brought the charges. She
had learned of the event when she found her daughter, Ciriaca (no surname
recorded), with blood on her clothes.10 Ciriaca testied that while her mother
had been out doing errands in the plaza, her uncle Francisco grabbed her
alone in the kitchen and laid her out, and forced her, without her being able
to prevent it. Francisco seemed to blame Ciriaca, contending that the girl
offered herself to him, although when the court asked Ciriaca if she had consented voluntarily, she said no. The defense attorney assigned to Francisco
sought to cast doubt upon Ciriacas testimony, and called for a surgeon to
examine the girl. For reasons that are not stated in the record, no surgeon or
midwife testied. It may have been because the trial had been delayed, and
Franciscos attorney was urging the court to release him. The defendant had
apparently been in jail for over a yearan exceptional waiting time, perhaps
resulting from the disorder following the 1773 earthquake.
Still, the judge highlighted his concern with bodily evidence of deowering as substantiation of the crime. In the absence of the appropriate verication from the body, he wrote, and without any other proof besides the deposition of the girl herself [who is] of such tender age, and that of her mother,
the defendant was to be sentenced to time served and one month of service on
public works projects, and the court costs. The month in public works may indicate that Francisco, a widowed mestizo hat maker, was judged unable to pay
a settlement to the victim. It is also possible that the court was unconcerned
with reparations to the victim because she was from a family of middling social status at best. Ciriacas mother was described by the alcalde as a negrita
(black woman); the mother was married but her husbands ethnicity was not
recorded, nor were their occupations. In contrast, in the trial of Julin Vargas
that we have seen above, the victim Manuela Dorotea Valladares was identied as espaolaSpanish, i.e., of European descent. The laws of the Siete
Partidas did specify a lesser punishment for a man who violated a woman who
was not of good reputation, although the greater punishment was supposed
378
to apply if the woman were a widow or virgin, regardless of her social rank
(Alfonso X, Ttulo XX, Ley III: 47475).
The third case was tried in 1803 in Guatemala City (AGCA Sig. A1/leg.
4400/exp. 36140). Gaspar de los Reyes, a man about forty or fty years old,
was charged with rapto of eleven-year-old Mara Ignacia Telles. (Rapto
from the Latin raptus, literally meaning tearing away, or carrying offreferred
to the abduction of a girl or woman from her proper guardians, presumably
with the intent of having sex with her.11) The childs mother, Petrona Telles,
had come to the neighborhood alcalde, saying that an Indian man who is
one of those who hauls [wheat in the city] named Gaspar . . . had taken her
daughter by trickery off into the [wooded] part of her house-lot, and that
when she realized the girl was missing, they looked for her, and they found
her all muddied, and the Indian lying under a tree. Gaspar de los Reyes was
known to the household, as Petrona Telles had been giving him lodging to
sleep in the kitchen. When the alcalde questioned the child, she told him the
Indian told me to say that I had to go answer a bodily call, and under a tree he
threw me down, covered my mouth, and did dirty things to me.
Again, the court focused on deowering. A midwife was called to do an
examination, and declared that the child has a torn membrane. But the
authorities worried about the fallibility of the midwifes conjecture as to
the injury to the girls integrity. They subjected the child to examination by
a doctor. The doctors report, recorded in his own handwriting, is a verbal
monument to the obsession with bodily details of deowering. Among other
errors, the doctor was looking for a hemorrhage or at least some bloodshed
proportionate to the degree of violence, even though he was examining the
child more than a month after the alleged assault! His nal opinion was admittedly equivocal: I cannot say with assurance whether she is or is not a
virgin, but I can say that on the present occasion, Mara Ignacia de Telles has
not suffered a deowering or estupro, that is what it seems to me.
Besides this eeting allusion to uncertainty by the doctor, the various trial
proceedings never seemed to acknowledge that a physical examination was
not a reliable indicator of virginity. Rather than dening virginity as chastity
in ones sexual history, the court effectively viewed virginity as a (uniquely female) physical state, one in which the hymen was intact. (The note in the trial
of Julin Vargasthat Manuela Dorotea Valladares suffered injury to her
virginityeven suggests the equation of virginity with the hymen itself.) The
judicial process seems to have been unable to address the range of realistic possible scenariossuch as the tearing of the hymen in a non-sexual activity like
horseback riding, which was an important form of transportation. The jurists
also apparently ignored the possibility that there would be no visible bleeding
379
even in case of estupro, or that a victim of rape would clean her body or clothing to rid herself of residue of the attack.
The defendant Gaspar de los Reyes vehemently denied having had sex
with Mara Ignacia Telles, either by force or seduction. Nevertheless, the
court sentenced him to twenty-ve lashes at the public whipping post in addition to the prison time already servedjust under two months. The judge
gave little explanation. Apparently the punishment was meant to cover all
bases in a case with no clear verdict.
The condemnation to whipping was almost certainly linked to de los
Reyess low social and ethnic status as a tributary Indian. For all sorts of crimes,
ancient and medieval legal codes prescribed distinct punishments for convicts
of distinct social ranks, and the Guatemalan colonial courts also made such
social distinctions in sentencing, although they did not closely follow codied laws. Recall that the Siete Partidas stipulated that a man of means convicted of having intercourse with a virgin without using force should lose half
of his property to the crown; a poor man should be whipped publicly, and
exiled on some island for ve years. Slaves (sieruos) and household servants
(sirvientes de casa) fared even worse in this law, as they were to be burned (Alfonso X, Ttulo XX, Ley II: 47273). The trend in the early modern period
was away from the death penalty, as codied in the Novsima recopilacin de
las leyes de Espaa (Newer Compilation of Spanish Law) of 1805, which substituted prison time for capital punishment even for rapists who had used
force (Castaeda 4647). In late colonial Guatemala, judges acted with a
measure of benevolence, as they shied away from capital punishments for any
crime, although sentences of whippings do appear with some frequency, and
there are occasional banishments. Corporal punishments were pronounced
for both men and women, but only for people of low and medium-low social
status.
OBLITERATING FEMALE WILL, OBLITERATING FEMALE NARRATIVES
At a more basic level, the colonial Guatemalan jurists departed from early
modern Iberian legal ideology not only in determining punishment, but also
in dening crimes. Whereas early modern law had made a clear distinction
between consensual and non-consensual sex, eighteenth-century law and the
colonial courts did not always do so. Title XIX of Alfonsos Seventh Partida
deals specically with men who had sex with women by deceit or by trickery, without using force. Title XX, on the other hand, is a separate treatment
of those who force, or abduct women. (Notably, Title XX limits the scope
of victims of force to include only virgins, or nuns, or widows who live decently, and married women who are added in Title XX, Law I.) In contrast,
380
the 1796 royal decree relieving men charged with estupro from imprisonment
makes no distinction between consensual and forcible sex. And indeed, the
Guatemalan courts tended to blur this distinction.
In all three of the trials described above, the victims articulated that the
assaults had been unwanted, and that they had tried to resist. But the court
focused instead on deowering, in effect obliterating the juridical role of the
victims consciousness or will. Girls bodiesthe appearance of their hymensthus had greater evidentiary and legal status than did the narratives
of their experiences. This may have been because the victims were children.
(Indeed, modern laws recognize the inability of a young person to give a valid
consent to have sex.12) Perhaps it seemed easier to the court to prove deowering than to prove the use of force, given the popular belief that there would
be physical evidence of deowering; a judgment about force or consent, in
contrast, would have involved weighing one persons word against anothers.
In cases of young victims, the focus on deowering was perhaps logical for
substantiating the crime of estupro. But the colonial courts essentially limited
their prosecutions for sexual violence to cases where the victims had been very
young and presumably virginal. In effect, judicial practice treated sexual assaults as criminal only if the victim had been a virgin.
Sexual assaults against other women were not viewed in the same criminal
light, if they were viewed as assaults at all. Other than estupro, rape seems
not to have existed in the judicial system. In the hundreds of court records I
sampled, not one named violacin (the closest Spanish equivalent to rape)
as the crime. Only two trials appear based on charges that seem essentially
equivalent to rape, although they used words other than violacin. Signicantly, in both cases the court ultimately dismissed the charges.
The rst instance, occurring in 1798, was labeled by court personnel as a
trial for charges against don Josef Melchor de Ugalde for having forced Micaela de los Santos (AGCA Sig. A2/leg. 188/exp. 3798). Both plaintiff and
jurists used the term force, which seems to evoke the Siete Partidass cataloguing of punishable offenses. But in dismissing the charges, the court in effect negated that the act constituted a crime. The plaintiff, Mara Micaela de
los Santos, was an Indian widow in her early twenties from the community of
Ciudad Vieja, just outside the capital.13 Santos had been serving as a wet nurse
in one of the citys Spanish households. The accused assailant was the mistresss young brother. The day after the alleged attack, Santos sent word to her
parents, who came to take her home. Her father brought the charges, in a petition made the day they picked her up and penned in the telltale style of native notaries. (Presumably, the father had appealed to the Indian government
of Ciudad Vieja, which then forwarded the petition to the Spanish court.)
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A few days later, Micaela de los Santos returned to the capital to testify.
She charged that the injuries she had suffered during the assault were so severe
that she had been unable to walk home with her parents, and they had to hire
a horse. Indeed, the notary made the point that her father had brought her to
the judicial ofces on a litter (silla de manos). She described how a drunken
Ugalde had grabbed her while her employers were napping one Sunday afternoon. Two other servants saw what was happening, and Santos tried to
get them to alert the employers, but to no avail. She charged that Ugalde had
pulled her through the house into a room removed from view of the other servants and hurled her onto the oorboards, bruising her and splitting open
her hip; and then he made use of her person carnally, even as she pleaded
with him and tried to resist physically. She said that after he nished he told
her that if she wanted fruit, or bread, she should go ask him for it.
When the magistrates asked her why she had not complained of the assault to her employers, Santos answered that her master had been very illtempered, and she feared that he would kick her. Further, Ugalde was known
among the servants in the house for coercing or forcing girls and women into
sex. Santos noted that a child servant named Cayetana
had told her that the boy [Ugalde] had done the same thing with another wet nurse
. . . and he had given her four pesos. And even the mute girl [another servant in the
house] asked [Santos], in her half-words, if [Ugalde] had embraced her, and [Santos] said yes, and then [the mute girl] told her that he had done it to her four times
and then slept with her, and hadnt given her even a quarter-real [i.e., not even a
penny].
Santoss deposition suggests a grim environment of sexual abuse, fear, and

disenfranchisement for the households workers. The servants were apparently afraid to complain to the employers, or at least powerless even if they
had complained, since the young mans rampage of coercion and rape had not
been stopped. Ugaldes alleged sex acts with these women appear as part of an
insidiously hierarchical social fabric. If rape was a perversion of patriarchy and
colonialismof mens power over women, and of Spaniards power over people of conquered ethnic groupsthen Ugaldes alleged offers of triing gifts
appear a perversion of paternalism, as if he intended to pay or provide for the
people he was exploiting. And aside from sexual abuse, these girls and women
were being exploited in the household (and in colonial society more generally)
for their labor and milk. The few recorded details about the servants underscore their low social status within colonial society. Cayetana was working at
the tender age of nine. Though she knew her surname (she identied herself
as Cayetana Obregn), she was presumably either an orphan or the child of
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an impoverished family. She was likely receiving only a small wage beyond
her food and a place to sleep, and if she was an orphan she probably was paid
no wages at all beyond her sustenance. Santos referred to her as la china,
signaling that she was of Indian or partly Indian ethnicity. The other servant
was identied by Santos as being mute. She was questioned as a witness and
gave her name as Paula, but the authorities had difculty understanding her;
apparently she suffered a speech impediment or similar handicap.
Micaela de los Santos herself was spared some of these degradations; she
was an adult, unimpeded in speech, with parents willing to help her, and as a
wet nurse she was probably being paid a relatively high salary.14 But the other
aspects of her situation are bleaker: she had been widowed at a young age,
presumably during pregnancy or shortly after her babys birth. The fact that
there is no mention of her baby in the record gives the impression that either
the child had died, or she had to leave her/him behind in someone elses care
while she went to nurse an elite baby for wages (both scenarios were common
among Indian wet nurses in Guatemala City). Wet nursing was an undesirable task in this society; while the practice was widespread and women of any
ethnic group might hire a wet nurse, it was only Indians, blacks, and mulatas
who took the jobs. Wet nurses lost the ability to nurse their own babies exclusively, or to grieve unmolested if their babies had died. And they invariably lived as servantsdependentsin the homes of their employers. The
difference in social status between the servants and employers in the particular household where Micaela de los Santos was serving was especially marked;
the employers, doa Ignacia Zabaljauregui and her husband don Salvador
Barrios, as well as the accused rapist don Josef Melchor Ugalde, belonged to
Guatemala Citys most elite Spanish circle.
In light of these circumstances, it is not really surprising that both Cayetana Obregn and Paula (the mute servant) kept mum when questioned
by the authorities about misdeeds in their employers household. They were
both still living there, after all. Cayetana denied knowing anything; in the record she said merely that its untrue that she is a witness since she hasnt seen
or heard anything, and if such a thing had happened, she would have told her
master [i.e., employer]. Paula said that it was all a lie, and that the boy
Pepe [Josef Ugalde] didnt do anything. Of course, it is possible that Santoss accusations against Ugalde were false, or that the part of her deposition
was false in which she told of Cayetanas and Paulas stories of his other sexual
exploits among the servants. But if her claims were true, the social circumstances made it reasonableeven strategicfor the servants to keep quiet.
The defendant, don Josef Melchor de Ugaldeevidently a youth, though
his age was not recordeddenied the charges. He claimed that he had not
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beaten or forced Santos, alleging rather that her injuries resulted from having fallen off the horse, drunk, on her way to Ciudad Vieja. He argued that
because the house was small, it would have been impossible for him to have
forced lewdness upon her without alerting the other servants.
The court evidently made no effort to question either the servants or
Ugalde further. The brevity of the recorded depositions of defendant and
witnesses is especially glaring in comparison with other trials from the same
period in Guatemala, in which magistrates often harangued deponents whose
stories didnt add up, reprimanding them and pressuring them to confess or
change their story. No such scolding appears in the testimonies of Cayetana
Obregn, Paula, or the defendant don Josef Melchor Ugalde. Rather, the
court moved quickly to a decision. Only one day after Micaela de los Santos
had testied, a judgment was issued by the asesorthe jurist charged with
advising the alcalde. (While colonial law charged the alcalde with both judicial and executive authority, the alcaldes in Guatemala City usually simply
followed the judgments of the asesores who were, unlike many alcaldes, typically trained as lawyers.) There is no evidence against don Melchor Ugalde,
the asesor wrote, beyond the declaration of the woman who says she was
forced. She surely is not married and because she is a wet nurse, it presumably is the case that it wouldnt be necessary [i.e., difcult] to force her, and
therefore it seems to me, that you should absolve the litigation and inform
the plaintiff, who says he is the father of the one who was forced, that there is
no merit for the prosecution.
The judgment is troubling on multiple levels. The asesor was assuming
(apparently not having read the statement of her marital status in the record)
that Santos was not married; that she had become a wet nurse by having extramarital sex; that therefore she was essentially available sexually to anyone;
and thus Ugalde could have sex with her without forcing her. Implicit here is
the asesors idea that a woman who had previously had extramarital sex was
willing, indenitely, to have sex with any man at any time, and therefore by
denition she could not be forced. This notion seems to have been endemic
among the societys judicial personnel; we will see it again below.
At least someone involved in Santoss case was attuned to the fact that
the asesor had ignored her civil status as a widow. It took over three weeks,
but the alcalde nally came back to the record and jotted down a quibble
about the asesors oversight. Likely Santos or her father or their attorney
(the public prosecutor) had noticed the error and brought it to the alcaldes
attention. The case was sent to one of the courts other asesores, but he upheld the earlier ruling. Regardless of Micaela de los Santoss state of widowhood, he wrote, in a small house, in which there are at least four other
384
residents besides Ugalde and Santos, it would have been very easy for her to
avoid the violence, if she had wanted. This asesor was following Ugaldes
own line of self-defense, implying that either Santos herself had been willing,
or that she was to blame for the rape. Further, he cautioned the alcalde to discourage similar complaints in the future: because similar suits should not be
fomented, or given a place, you should rule as [the previous asesor] has suggested. And indeed this was the nal ruling recorded in the case.
Thus, in the end, the magistrates held Micaela de los Santos responsible
for the sexual assault. In the wording of their statements, the jurists recognized that there was violence and that Santos was forced. Yet they marshaled tautological arguments to insist on her culpability; the rst asesor assumed that women who had previously had illicit sex were necessarily always
willing to have sex with anyone, and the second asesor contended that the
sexual act would not have happened if she had wanted to avoid it. The facts
that she had gone through the difcult process of ling charges, and that
there was no apparent motive for her to have done so untruthfully, did not
gure in the courts disposition.
A second trial for charges that amounted to rapea double rape, in
factwas documented in 1808 (AGCA Sig. A1/leg. 4435/exp. 36958).15
As in Santoss case against Ugalde, in the double rape case the court rather
quickly closed the trial, ruling in favor of the defendant based on hearsay
that the alleged victims were married and/or living in informal unions with
other men. The trial began in Guatemala City, when Mara de Guadalupe
Alvarez reported to the neighborhood alcalde that Pedro Advncula Bolaos
had attacked her violently and consummated a carnal act. And she said he
had then done the same thing to another woman in the same house, Mara
Beltrn. Apparently, both Alvarez and Beltrn had been living in the kitchen,
presumably working in exchange for their lodging. The alcalde then questioned Beltrn, who told him the same thing.
Interrogated in the jail, Pedro Advncula claimed that Alvarezs charges
were false, calling her a vulgar woman. As for Mara Beltrn, Advncula
admitted to having amistad (a euphemism for illicit sexual relations) with
her, but insinuated that it was by mutual consent, and said it had ended. The
court examined three other witnesses. Two of these were a married couple,
both hog-raisers from a nearby village who had been in town that day on
business and had called at the house. (The head of the household was Nicolasa de Lara, known in the barrio as Chuchito. Though she did not state her
occupation in the record, it is tempting to think she was a maker of chuchitosa Guatemalan variation on tamalesand hence would have been in the
market for pork.) The hog-dealers conrmed that Pedro Advncula had been
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at the house, somewhat tipsy but not drunk, but they did not know about
the alleged attacks. They said they thought Mara Beltrn was married, but
they werent sure.
The household head, Nicolasa de Lara, told the court that Mara de Guadalupe Alvarezs testimony should not be believed. Apparently, Lara was annoyed because Alvarez had received a male visitor at the house (not Pedro Advncula). Lara believed the visitor was the father of Alvarezs small son. He
didnt stay long, Lara said, and Alvarez assured her that there was no immorality; and that she would live alone, and she even said that she was married. Despite these assurances, Lara apparently thought Alvarez was in illicit
amour with the visitor. Lara insisted that Alvarezs testimony does not merit credit because she had been living in this illicit relationship for about
twenty years. Though she seems to have been eager to disparage Alvarez for
her love life, when the magistrates inquired, Lara was unable to identify the
paramour (or husband).
Immediately after Lara testied, some of the ofcials decided not to hear
testimony from either Mara Guadalupe Alvarez or Mara Beltrn. The notary explained that it was not known where Alvarez was living. He asserted
that it is not suitable to examine her [i.e., hear her testimony] now, and the
same applies with respect to Mara Beltrn, who, it has been stated, is married. This is a remarkable dismissalof both Alvarezs charges and Beltrns.
Apparently, the household head Nicolasa de Lara had swayed the ofcials.
Laras assertion that Alvarez was not credible because she had been living in
an informal union suggests an underlying idea that the womans honesty, literally, was at stake in her sex life. Late colonial subjects sometimes spoke of
honestidad (literally: honesty, purity) or honra (honor, chastity) being
damaged in estupro or pre-martial sex, apparently using these terms to refer
to virginity; but Laras testimony suggests a notion that a womans verbal
truthfulnessthe integrity of her statementswas destroyed if she had sex
outside of marriage.
Or perhaps what Nicolasa de Lara meant (or what the court ofcials believed) was that a woman who had an unsanctioned sexual relationship was
then necessarily responsible for any sexual act in which she had engaged,
regardless of whether she had consented or was forced. This thinking in effect would permit men to rape, since their victims would be blamed. There
would be no criminal trials for rape of women who were thought to have
previously had illicit sex, since the rape would not be viewed as a crime. Indeed, this seems to have been the case in the period under study. Recall that
in the case that we saw against don Josef Melchor de Ugalde, the rst asesor
had erroneously assumed that Micaela de los Santos had previously engaged
386
in illicit sex. On that basis, he dismissed her charges with the statement that
it wouldnt be necessary to force herthat she was excluded as a potential
victim in the courts denition of criminal force. Similarly, the trial against
Pedro Advncula was dropped when the court heard (and as we have seen,
it was merely hearsay) that the plaintiff had previously had an unsanctioned
sexual relationship.
The magistrates did make at least a gesture of seeking testimony from
Mara Guadalupe Alvarez. Overruling the notary, the jurists ordered the
neighborhood alcalde to locate Alvarez and give her three days to justify her
complaint. But when the courts messenger went to look for Alvarez at the
home of Nicolasa de Lara, she wasnt there. Lara told him that Alvarez had
left with her lover for Quezaltenango, where she always goes. . . . She has
been gone since she pressed charges against Pedro Advncula. Hardly surprising that Alvarez would have left Laras house. Lara and Advncula were
apparently friends, and Lara had backed him when Alvarez reported that he
had raped her in Laras kitchen.
The authorities made no further effort to nd Mara Guadalupe Alvarez.
Instead, the judge ruled that Pedro Advncula should be freed, and Alvarez,
the plaintiff, should be sentenced to pay the legal costs, because of not having justied her complaint. Thus, the punishment was given to the plaintiff. Having led the charge of rape, Mara Guadalupe Alvarez was blamed
based on the courts assumption that her accusation was false, and/or that she
herself was responsible for the event. The displacement of responsibility onto
the rape victim reects the popular notion that unchaste women and those of
bad reputation cannot (or are not allowed to) resist or refuse to have sex, and
therefore by denition cannot be raped. They have no free will in the matter.
Indeed, both secular and canon law had codied this notion, as they dened
male sexual offenses as criminal specically (only) if they were made against
virgins, nuns, married women, and widows who lived decently (Alfonso X,
7a Partida, Ttulos XIX and XX: 472, 474; Brundage 14445).
As for Mara Beltrn, the jurists also summarily dropped her complaint
against Pedro Advncula. They decided not even to hear Beltrns testimony,
the notary said, since it has been stated that she is married. (Recall that this
statement had been made by the hog-raisers, but they specically added that
they were uncertain. The record gives the impression that they didnt know
Beltrn well.) Thus, ofcially the court dismissed the offense because the victim was said to be married. Yet the laws did in fact prescribe punishment for
men who forcibly raped married women. Perhaps in practice, popular understandings viewed the rape of a married woman as a private offense and left
the remedy in the hands of the husband. Indeed, both the Siete Partidas and
387
the Novsima recopilacin allowed a womans male relatives to kill her rapist
(Arrom 63, 303 n. 28). Or perhaps something in the public view had obliterated Mara Beltrns right to refuse to have sex with someone who stopped
by the kitchen where she was sleeping. Possibly the ofcials were convinced
by Pedro Advnculas contention that he had previously been in concubinage
with her; for reasons we have seen, this would have put her outside the protection of the laws on rape. Or it may have been Beltrns low social status as
a servant or tenant in the house of Nicolasa de Lara.
Indeed, the social class of the victims shaped the disposition of the law
towards them. The section of the Siete Partidas dealing with men who had
sex with women by deceit, or by trickery specically noted, further if the
woman that a man corrupts is not a nun, or virgin, or of good reputation, or
if she is any other vile woman, then we say, that the man should not be given punishment (Alfonso X, 7a Partida, Ttulo XIX, Ley II: 473). Note that
the term vile as used in the same law described the man who did not have
property to be taken in punishmenti.e., a poor man (Alfonso X, 7a Partida,
Ttulo XIX, Ley II: 473). If the offense was committed against a vile womanpresumably meaning a poor womanthe offender should not be punished. If the woman was not of good reputation, the offender should not be
punished. As the historiography on sexuality and honor in Spanish America
has repeatedly shown, in colonial society a womans reputation was based
not only on her sexual behavior but also on her familys socioeconomic status. Female honor, in the sense of respectable reputation, was ascribed only
to women of high social class who were perceived as being sexually chaste in
their lives outside of marriage. Interpreted in the context of colonial notions
of honor and respectability, then, the law gave little protection to poor women. This narrowness of circumstances in which women would be protected
may have shaped the outcome not only in Alvarez and Beltrns cases, but
also in the case we have seen of Micaela de los Santos. Although widows who
lived decently were protected in the Siete Partidas, Santoss Indian identity,
her poverty, and her status as a wet nurse did not likely match the colonial
magistrates image of decent or honorable women.
Thus, paradoxically, women who were less protected by the law also faced
less protection in the structure of daily life. Mara de Guadalupe Alvarez and
Mara Beltrn are examples. Because of their poverty they had to sleep in a
kitchen in someone elses house. There they were more subject to malicious
intrusion than if they had been in a private bedroom, where the man could
not have entered without alerting the other people in the house to his inappropriate actions. Micaela de los Santos is also an example. Santos and other
women whose low socioeconomic status positioned them as servants were
388
subject to their masters powers (and that of their masters friends and relatives). As Sharon Block has shown for early Anglo America, masters power
could be used to create situations to force servants into sex (74).
The courts dismissal of all counts of rape reported by these three adult
victimsSantos, Alvarez, and Beltrnextends the same pattern that we
have seen in the trials for sexual offenses against children: the court denied
the importance of female free will. The jurists handling of the cases gave
no role to womens right to refuse sex. Instead, the court congured sexual
crimes as deowering. The womans consent or non-consent did not play
a role in this conguration. Rather, the courts dened the mans deed as
criminal if he deowered the woman; otherwise, he was off the hook. Further, Spanish code law in effect gave women of Spanish ethnicity and high
economic status greater protection from sexual violence than it gave poor
and non-Spanish women. In practice, the judicial system in late colonial
Guatemala followed this differentiation. And the courts evidently afforded
poor and non-Spanish women even less protection if they were married or
had engaged previously in sexual relations. Thus, in cases of both child and
adult victimsthat is, whether or not the society presumed that deowering
had occurredthe legal system in effect undercut rape survivors narratives.
The role of girls and womens depositions about their rapes was obliterated
in the judicial process.
RETHINKING THE RECORD
In light of this legal climate, it would not be surprising that women chose not
to report sexual assaults. Victims had little, if anything, to gain by reporting such attacks, and they would pay a high personal price in the litigation
process. The girls we have seen were subjected to further degradationrst
in the physical examinations, and then in the semi-public discussion among
witnesses and court personnel about whether or not they were virginal before
being assaulted. Only one of the three was awarded anything, and it is unclear whether the settlement was ever paid. The families of unmarried girls
and women may have feared that reporting a rape would bring public humiliation, perhaps damaging the victims prospects for marriage.16 The adult
plaintiffs we have seenMicaela de los Santos, Mara de Guadalupe Alvarez, and Mara Beltrnwere themselves put on trial, as their sexual histories and reliability (rather than the attackers) were discussed and maligned.
In effect, the colonial judicial process saddled rape survivors with a displaced
blame for the assaults against them. For the three adult complainants in particular, the trial amounted to a public denial, without real evidence, of their
violation.
389
We also dont know how many women may have reported assaults, only
to be dismissed by the legal ofcials even before a written record was generated. Nor do we know how many rape survivors dared not to report the
crime, for fear of punishment by their employers, their family members, or
their rapists. Micaela de los Santos said she was afraid her ill-tempered master
would beat her if she told him his young brother-in-law had raped her. Recall
Ciriacas mother, who brought charges that eleven-year-old Ciriaca had been
raped by an uncle. The alcalde who received the mothers complaint noted
that she was afraid of her husbands response: she begged me by God, that
her husband shouldnt learn of this, because if he nds out hell want to kill
her, casting the blame on her. (It is unclear to me whether the mother feared
he would blame her or her daughter.) The child herself, when asked by the
authorities why she had not told her mother immediately of the assault, answered, out of fearshe was greatly afraid that [the attacker] would punish
her (AGCA Sig. A2.2/leg. 154/exp. 2976). Twelve-year-old Manuela Dorotea Valladares testied that her rapist Julin Vargas had warned her that if
she shouted, he would punish her, or kill her (AGCA Sig. A2.2/leg. 165/
exp. 3271). Even in modern legal systems, sexual violence, especially within
households, often goes unreported.
Our view of history is necessarily shaped by the records we have, and
necessarily limited where we do not have records. We can gain a clearer understanding of both the extant record and its omissions by considering the
ways in which the documents themselves were generated in a particular intellectual and political context. Colonial court documents on sexual offenders
are products of contemporary mentalidades about sexual assaulthow it was
dened, who was seen as responsibleand of the judicial system, both legal
theory and actual practice.
Examples include the two remaining cases I have identiedboth suggestive of sexual assaults, though less conclusive than those seen above. The
point here is that these two assaults surface obliquely in the records, in trials
generated by other charges. We can detect the assaults only by reading the
record carefully. In one case, a Santiago woman named Petrona Peralta had
repeatedly tried to end an informal union with Pedro Nolasco Dvalos. She
said that she had even moved residences several times to try to escape him,
but he persisted in nding her. When he showed up at her new lodgings one
night in 1777, she refused him: she said what did he want, and hadnt she
told him to leave her in peace? Unwilling to accept no for an answer, Dvalos grabbed her and pulled her down, tearing her shawl, skirts, and blouse
to pieces. Peralta got away and went to seek help from the alcalde. Dvalos
was tried not for assault per se, but for relapsing concubinage. In the courts
390
view, his attack on Peralta was displaced by his history of illicit (if not violent) relations with her (AGCA Sig. A2.2/leg. 154/exp. 2997).
In an 1808 case in Guatemala City, a woman known as Mara Guito
successfully defended herself from an apparent assault by Jos Matas Leyva,
a thirty-eight-year-old baker of calidad pardo librea free man of dark
complexion. Evidently they too had previously had a consensual sexual relationship, but had broken it off. Then one day, Leyva got drunk and broke
into Guitos house. He himself later confessed that burning with sensuality
. . . he had some pretensions to make ill steps toward her. But as he recalled
it, she took for her defense or vengeance a stick with which she beat him,
and he admitted that he was so incapacitated with his intoxication that he
couldnt succeed in anything. Leyva retreated to his sisters house, bleeding
with his head broken. The case comes to light because the sister called the
neighborhood alcalde and Leyva was taken to the hospital. The record was
generated as the beginning of a criminal trial, as it was ofcially documented in the record, against Mara Guito, for wounding Jos Matas Leyva.
(Though the authorities ordered her apprehension, the record then ended.
Leyva had recovered quickly, apparently more embarrassed than injured, and
told the court that he pardoned Guito. Apparently the charges against her
were dropped. She never testied in the record.) The ill steps that Leyva
had made were not addressed by the court (AGCA Sig. A1.15/leg. 4440/exp.
37101).
In these two casesof Pedro Dvalos and Jos Matas Leyvacontemporary attitudes and the legal system identied an infraction other than sexual assault, and congured the story accordingly in the record. The trials
were labeled and archived as relapsing concubinage and injury against
Jos Matas Leyva, respectively. Both assaults are suggestive about circumstances of sexual violence that would not ordinarily have entered the historical recordthat is, cases where there would have been no collaboration by
the courts to document the case.
The Spanish American colonial courts presumably did not address most
sexual violence that occurred, and the archival record does not at rst seem
to yield much information. But it would be a mistake for historians to disregard or deny sexual violence just because the courts (and popular thinking)
did so. Along with previous work on Guadalajara (Castaeda) and Costa Rica
(Rodrguez Senz, Tiyita), my sampling of court records helps identify a
generalized shortage of Spanish American court records on sexual violence.
Moreover, it suggests that sexual violence is under-represented in the colonial
judicial archives, and that the documenting of sexual assaults was probably
disproportionately weighted toward cases where victims were of premarital
391
age. Further research is needed for us to better understand the role of sexual violence in colonial society, not only in Guatemala but also in Spanish
America more generally. A comparative study over a wider region of the empire might be one strategy to tackle the problem of scarce recording; another
strategy would be to survey a longer chronological period. Other promising
approaches are the study of additional kinds of records, beyond those of the
secular courts. Records of the Inquisition and ecclesiastical courts may also
prove fruitful.17
My analysis here has also shown that colonial social structure and legal
thinking fundamentally framed those narratives of sexual violence that were
recorded. In terms of social order, perhaps the most signicant factor was the
enormous inequality of power between most plaintiffs and the judicial ofcials who interrogated them and processed their cases. As for the role of legal
culture, we have seen that the court depositions archived in Guatemala (and
in Spanish America as a whole) contain only those details that the judicial
personnel chose to recordonly what those colonial ofcers believed was relevant to the cases they were processing. Thus, in the production of written
rape narratives, the legal system compelled womens collaboration in certain
understandings of sexual violence. Either the victims social status and body
conformed to the narrow colonial notions of what constituted sexual assault,
or her narrative would be unheard, unrecorded, or discarded. For those victims who did not even come forward to report their rapes, and for those who
may have come forward but were then dismissed by local ofcials before a
complaint was recorded, the absence of judicial collaboration foreclosed the
production and archiving of a narrative.
These ndings point to new considerations about the ways that colonialera thought, law, and record-keeping have structured our perceptions of the
past. As dominant colonial views effectively erased womens free will from the
contemporary concept of sexual assault, rape was largely omitted from colonial archives. Analysis of this pattern in the production of written records (or
rather, in the failure to produce written records) reveals an aspect of colonial
Spanish American life that has been occluded in historical understandings.
In the realm of the courts, the production and preservation of records were
contingent on a degree of collaboration between the judicial system and the
complainanton agreement, at least, that there was cause for a hearing. But
the courts were largely unwilling to collaborate with victims of sexual violence, even if these victims were willing to press charges and testify. In cases of
sexual violence where dominant social and legal ideologies did not recognize
a crime or collaborate in the recording of victims testimonies, rape narratives
were silencedin the courts and in the historical record.
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NOTES
AUTHORS NOTE: All translations are mine. I am grateful to Sharon Block, Kathleen McHugh,
Omar Valerio-Jimnez, and the anonymous reviewer for their suggestions on earlier
drafts of this essay.
1. Among the numerous types of judicial records from colonial Spanish America are ecclesiastical hearings in appeals for divorce; Inquisition investigations and trials; civil suits
between spouses; paternity suits (for child support) in the secular courts; and criminal
trials. Examples of studies based on such records include Martnez-Alier, Marriage and
Elopement; Taylor; Seed; Nizza da Silva; Gutirrez, Honor and When Jesus Came;
Stern; Dueas Vargas; Few; and Lewis.
2. Studies of rebellions include Taylor; Stavig; Thomson; and Van Young, The Other
Rebellion. For studies of rebellions in Central America specically, see Martnez Pelez;
Contreras R.; and Van Young, Augustn Marroqun.
3. This literature is extensive for Spanish America; examples include Martnez-Alier; Seed;
several articles in Lavrin, ed.; Stern; Chambers; Shumway; and, on the nineteenth century, Christiansen. For Central America, this scholarship has focused primarily on the
nineteenth century; see Rodrguez Senz, Hijas and Divorcio; Palomo de Lewin; Jefferson ch.. 3; Few; and Ericastilla Samayoa and Jimnez Chacn.
4. Exceptions include Castaeda; and Rodrguez Senz, Tiyita. Brief discussions of rape
are offered in Lozano Armendares 8689; Chambers 21113; and Lavrin, Sexuality
71.
5. The research for this article is drawn from a broader reading of court records in the
Archivo General de Centroamrica in Guatemala City (AGCA), which I did as part of
the research for a larger study (Komisaruk). In the archive, the records of judicial cases
heard by the Audiencia during this period are mixed together with those heard by the
citys secular court, and indeed most of the cases heard by the Audiencia originated in
the capital city and its nearby hinterland. This abundance of cases from the capital city
may result from the concentration of population there, but it is probably also because
the difculty of traveling long distances limited peoples access to the Audiencia. The
archives convey a sense that the Audiencia often functioned, in its judicial role, as an
additional municipal courtalbeit a higher court or a court of appeal, but nevertheless a court that was largely serving the same population as the Guatemala City courts
did.
6. The court records are classied in the AGCA under the signaturas A1.15 y A2.2, catalogued for the period studied here in drawers 16 through 131 of the AGCA card
catalogue (chero). Because there are thousands of extant case records for the period of
my initial study, I did not read all the cases for these years, but rather sampled them
essentially at random. I tended to choose those documents that had suffered less water
damage and were therefore more legible, but these choices bear no correspondence to
the content or nature of the legal proceedings. A survey for sexual assaults based on the
summaries in the AGCA card catalogue or the cover pages of court cases would not be
reliable, because many of these summaries do not accurately reect the contents of the
cases. Reading the whole case record is the only way to be sure of its content, and even
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
393
then the accusations cannot always be characterized by a single infraction. The processes
of trial and litigation involved declarations by alcaldes, plaintiffs, defendants, and witnesses, with arguments and questioning by attorneys and interjections by court personnel; juridical proceedings themselves often amounted to a form of social negotiation in
which charges were led and then revised.
The Spanish reads: corromper por fuerza a alguna muger, especialmente doncella. On
the 1780 and 1803 editions of the dictionary, see Rodrguez Senz, Tiyita 43 n.9.
The 2001 dictionary of the Real Academia denes violar as: Tener acceso carnal con
alguien en contra su voluntad o cunada se halla privado de sentido o discernimiento [To
have carnal knowledge of someone against her/his will or when she/he is deprived of
consciousness or discernment].
For example, Seed; Twinam; and Socolow.
The mothers name was Flora Cortes; she was married to Vicente Machuca.
Rapto was often carried out with the cooperation of the girl, thus essentially amounting
to an elopement. Typically it was a strategy by young couples to skirt the barrier of disapproving parents. See Martinez-Alier, Elopement; Gutirrez, Honor; and Lavrin,
Sexuality.
In El Salvador, for example, the legal age of consent for sexual activities is 16; in Guatemala, 18; in Honduras, 14. Sex with children below these ages is dened as criminal (see
Legislation).
I use the term Indian to reect the terminology used in the records (india/o), and to
better reect the complex range of both local and non-local native American identities in
the colonial Guatemalan context. Indians in Guatemala included not only descendants
of the native pre-conquest communities in the region, but also Tlaxcalans and others
of native Mexican ancestrydescendants of the Mexican groups who accompanied the
Spanish conquerors on their arrival in Central America. The community of Ciudad
Vieja, in fact, was of mostly Mexican ancestry; see Matthew.
Female domestic servants in Guatemala City in this period usually made about 23
pesos per month, often in addition to room and board; see AGCA Sig. A2/leg. 185/exp.
3704 (year 1797, testimony of Felipa Vliz); Sig. A2/leg. 205/exp. 4191 (year 1803);
and Sig. A1/leg. 2861/exp. 25923 (year 1790). In contrast, the standard salary for wet
nurses was three or four pesos per month; see AGCA Sig. A1/leg. 154/exp. 3063.
The record was labeled by the courts notary as a case against Pedro Advncula or
Bolaos (alias Bellota), for violence in the abuse of a single woman (Contra Pedro
Advncula o Bolaos [alias Bellota], por violencia en el abuso de una soltera).
Rodrguez Senz (Tiyita, 30, 40) notes that in cases of incest, families likely feared
stigmatization; some cases were brought to court only when the victim became pregnant
and her sexual relationship could no longer be kept secret.
Rodrguez Senz (Tiyita) surveyed both secular and ecclesiastic court records. Inquisition records have proven fruitful on other aspects of sexuality in colonial Spanish
America; for example, in studies by Few and Sigal.
394
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and notaries. Because the purpose of judicial proceedings was essentially to

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by the moniker Cohete (literally, Firecracker), suggesting that she or her

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Santoss deposition suggests a grim environment of sexual abuse, fear, and

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