Nelligan 1983 Law

Title Information

Author: Peter J(ames) Nelligan

Title: Social Change and Rape Law in Hawaii

Subtitle: -

Thesis: Ph.D. Thesis, University of Hawaii at Manoa

Year: August 1983

Pages: ix + 488pp.

Language: English

Keywords: 18th Century, 19th Century, 20th Century | Hawaiian History, U.S. History | Cases: Offenders / Benny Ahakuelo, Henry Chang, Horace Ida, Joseph Kahahawai, James Majors, Wilbur Moyd, David Takai, John Wiley; Cases: Victims / Kamaka, Thalia Massie, Therese Wilder; Prosecution: Laws; Types: Gang Rape, Interracial Rape

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Link: Clarence Darrow Digital Collection (Free Access)

Link: ProQuest (Restricted Access)

Additional Information


»This case-study in the sociology of law is an examination of social influences on the form and content of the legal prohibition against rape in the Hawaiian Islands during the period from prior to Western contact through 1981. It employs a model which integrates concepts from the work of W. I. Thomas and other symbolic interactionists with macro-structural and cultural variables. The model is used to analyze the effects upon rape law of changes in sexual, ethnic, and class stratification, as well as the importation of an Anglo-American legal system, a "generalized sex taboo," and other Western cultural forms.
The findings suggest that the Westernization of Hawaii transformed the status of women into sexual property and relegated them to non-public roles. Women also were divided into "respectable" and "unrespectable" categories based on their observance or non-observance of norms of sexual exclusivity. Rape law at the operational level protected only those who were "respectable." Rape and rape law became laden with symbolism. The symbolic content increased as marked ethnic and class stratification developed in the late nineteenth and early twentieth centuries, leading to a number of socially defined "sex crime waves." During these episodes, the male, Caucasian (haole) elite made demands on the legal system to control the presumed dangerous sexual proclivities of the non-white underclass. These demands were shaped and filtered through whatever behavioral model had hegemony at the particular time, be it hereditarian-eugenic, social-environmental, or individual-psychiatric. The English-language newspapers were the prime definers of these situations, providing the basic information and images upon which legal premises, and assuming the subordinate status of women, the episodes of rape concern and rape law reform had little or no lasting significance other than the support of the existing sexual, ethnic, and sexual stratifications systems.
The post-World War II period brought an increasing breakdown of the ethnic and sexual stratification systems in Hawaii and in the rest of the U.S. as well as loosening of the norms of sexual regulation. Changes in the sexual stratification system became self-conscious in the feminist movement in the 1970's. The feminist movement in Hawaii and elsewhere took rape over as its own issue and dismissed such concepts as the protection of "honor" and "womanhood" as the primary values underlying rape law. Rather the value of self-determination and the assaultive aspects of rape were emphasized. Significant changes in rape statutes and in rape law administration were made. Rape law was extended to protect those women who would have previously been defined as "unrespectable." It is suggested that in some ways Hawaii is coming full circle with respect to sexual stratification and rape law after a long period of aberration when traditional Anglo-American rape law dominated.« (Source: Thesis)

»Dissertation on "social influences on the form and content of the legal prohibition against rape ... from prior to western contact in 1778 through 1981."« (Source: The written records of Hawaii's women: an annotated guide to sources of information in Hawaii)


  Abstract (p. iii)
  List of Tables (p. ix)
  Chapter I. Introduction (p. 1)
    Purpose of the Study (p. 1)
    Subject Matter and Setting (p. 3)
    The Sociology of Criminal Law (p. 7)
      Antecedents (p. 7)
      Conflict and Radical Criminology (p. 13)
    Legal Action and The Definition of the Situation (p. 17)
    Symbolic Interaction (p. 22)
    Social Structure (p. 29)
    Culture (p. 34)
    The Relationship Between the Internatl and External Communities (p. 40)
    Summary: An Analytical Framework (p. 41)
  Chapter II. Ancient Hawaiian Society and the Consequences of Foreign Contact (p. 44)
    Ancient Hawaiian Society (p. 44)
      Basic Characteristics (p. 44)
      The Status of Women (p. 46)
      Ancient Law (p. 48)
      Norms of Sexual Regulation (p. 50)
    The Results of Western Contact (1778-1820) (p. 55)
      Political Consolidation (p. 55)
      Social Disorganization (p. 56)
  Chapter III. Legal Transformation and Rape Laws: 1820-1850 (p. 58)
    The American Missionaries (p. 58)
      General Background (p. 58)
      The Missionary Program -- Education and Law (p. 61)
    The Rape Laws of 1835 and 1841
      The First Wwritten Rape Law in Hawaii 1835 (p. 67)
      The Rape Law of 1841 (p. 76)
    The Wiley Case (p. 80)
    Social and Legal Changes During the Middle and Late 1840's (p. 84)
    The Penal Code of 1850 (p. 90)
  Chapter IV. Rape Law 1851 to 1892 (p. 98)
    Introduction (p. 98)
    Population Changes During the Monarchy (p. 100)
    The Emerging Pattern of Race Relations (p. 106)
    Rape Prosecutions 1850-1892 (p. 110)
      Characteristics and Patterns of Rape Prosecutions (p. 113)
      Case Dispositions (p. 122)
      Qualitative Aspects of Rape Prosecutions During the Monarchy (p. 127)
    The First Crisis of Rape Law: Protecting Native Children from Haole Men (p. 139)
  Chapter V. Urbanization and Ethnic Tensions: 1893-1941 (p. 146)
    Population, Stratification, Urbanization, and Ethnic Relations (p. 147)
    1910-1911: The Creation of "Indecent Assault" (p. 155)
      Summary and Conclusion: 1910 Episode (p. 164)
    1912-1913 Episode: Protection of Girls from Asian Men (p. 165)
      The Symbols and Imagery of Rape and Theories of Sex Crime (p. 171)
      Proposed Legislation: The Retributive Solution (p. 177)
      Proposed Legislation: The Scientific-Humanitarian Solution (p. 179)
      Other Legislation (p. 184)
      A Final Note: Crime Reporting (p. 185)
      Summary and Conclusion: 1912-13 Episode (p. 188)
    1923: Supressing the Gangs: The Rise of Social Work and Social Environmentalists (p. 190)
      Imagery of the Act (p. 198)
      Imagery of the Actor (p. 199)
      Imagery of the Victim (p. 200)
      Summary and Conclusion: 1923 Episode (p. 202)
    1929: The Triumph of Punishment (p. 203)
      The Scientific-Humanitarian Solution Versus Retribution (p. 208)
      Other Activities (p. 213)
      Community Response to the Crime Wave: The Governor's Advisory Committee on Crime (p. 218)
    The Massie Case: Affirming Social Boundaries and the Return to Private Retaliation (p. 226)
      An Outline of the Major Events of the Case (p. 230)
      Reform Legislation (p. 252)
      The Investigations (p. 259)
      The Trial of Lt. Massie, Mrs. Fortescue, and Accomplices: The Unwritten Law (p. 269)
      A Period of Calm: 1932-1941 (p. 271)
  Chapter VI. The Transformation of the Ethnic Stratification System: 1942-1970 (p. 272)
    Social Changes: 1942-1970 (p. 273)
    Prostitution, Rape, and the War (p. 280)
    The Sexual Psychopath Bills of 1947 (p. 284)
      Sexual Psychopath Bills in Hawaii: An Abortive Attempt at Statutory Change (p. 290)
    The Majors-Palakiko Case: Crime and Punishment in a Changed Community (p. 299)
      The Majors and Palakiko Case as Symbol (p. 315)
      Legal Action (p. 319)
    Hunting Communists: A Functional Substitute for Hunting Rapists? (p. 322)
    The 1959 Episode (p. 329)
      Second Report of the Governor's Committee on Sex Offenders (p. 359)
      Press Reaction to the Committee's Report (p. 365)
      Legislative Proposals Subsequent to the Report of the Governor's Committee (p. 366)
      Summary and Conclusions about the 1959-60 Episode (p. 367)
    The Remainder of the 1960's: The Last Decade of Traditional Rape Law (p. 368)
    Summary and Conclusions About this Period (p. 380)
  Chapter VII. The Rediscovery of Women and Victims: 1971-1981 (p. 382)
    Major Social Changes in Hawaii During the 1970s (p. 384)
    The Adoption of the New Hawaii Penal Code and a New Rape Statute (p. 395)
    The Emergence of Rape as an Issue in Hawaii (p. 405)
    Rape Law Reform in the Legislature (p. 415)
    The Jogger Rape Case and the Nanakuli Case: The Courts and Statutes Under Fire (p. 428)
    The "Nanakuli Case": Rape, Resistance, and Tourism (p. 434)
    Summary and Conclusion (p. 452)
  Chapter VIII. Summary and Conclusion (p. 455)
    The Sex Crime Episodes (p. 464)
  References (p. 468)

Reviews: Merry, Sally E. »Law and Colonialism.« Law & Society Review 25(4) (1991): 889-922. – Full Text: JSTOR (Restricted Access)

Wikipedia: History of Hawaii, Joseph Kahahawai, Massie Trial, Thalia Massie

Added: March 12, 2001 – Last updated: March 15, 2014