Race Sex and Fracturing Justice Further

We're commiserating at the cafeteria table after another week of fighting the endless fight. One of our ranks is sharing another disturbing personal story about pitting the oppressed against the oppressed by racializing sex crimes. She's in a difficult position as both female and black, in dealing with the campus response to a recent assault allegation brought forward by a white woman against a black man. My friend knows the victim and defendant***, and evidence & precedent would suggest the allegation is true. However, discussions about the incident are charged with questions of whether or not the case is being taken more seriously than usual (ie noticed at all) because the defendant is black. My friend is finding it difficult to extricate her feelings about her role as a black student at a majority white college, and the well known prejudices against black males on campus, in the criminal justice system, and in society as a whole, from her personal knowledge that the woman's allegation is true and her anger at some other black students' kneejerk disbelief of the victim.

My friend's confusion and anger got me thinking. Since white woman vs black man is a presidential issue this year, we're probably all more aware of the battles among the ranks of the disadvantaged. The ways in which people feel forced to choose between multiple demographic categories they fit in to, and are open to criticism from the other, whatever the choice. A woman who votes for Obama isn't a feminist. A black woman who votes for Clinton's selling out her race. In democratic nomination-land it's easier to brush off what voters' choices say about their prejudices, or chalk up those choices (probably rightly so in most cases) to variables in which feminism and racial pride as deciding factors per se play less of a role. Still, the issue is fraught and uncomfortable. This is the case to an even greater extent in the land of rape trials, where race can and does play a role not simply in how likely people are to care about a reported rape but even in how they tend to define, in a specific case, what constitutes a rape.It is absolutely true that many accounts of rape and interpretations of how rape is reported are hopelessly naive and ignore racial implications. The racialization of justice is fact fact fact, and black men are much more likely to be reported for rape than white men (there's no credible existing evidence indicating that black men are more likely to rape people than white men, so don't try that rationale).

Since the same statistics show that black men are more likely to be reported, regardless of whether the victim is white or black, it is less likely that the racial element takes place at the level of accusation. Rather, racism probably pervades each subsequent level. Women raped by black men are probably more likely to be encouraged by friends and family to report it, and by police to press charges, since they know that in a racist system the victim is more likely to win the case. In a crime where the criminal justice process is so arduous and difficult and traumatic, in its own right, for victims, the probability of a conviction probably plays a huge role. Here's a good article America's skewed justice regarding race and rape in the past and today: http://findarticles.com/p/articles/mi_qa3880/is_200307/ai_n9242270.

Taking all that into account (yes, a big caveat), racial accounts of rape can also be hopelessly narrow in their understanding of women's perspectives. Take this ending quote from an editorial on the Duke lacrosse case and a 2006 case involving a black Naval officer and a white woman (it is unfortunate for you, beloved reader, that this was the first article I found in a cursory Google search, as it incensed me thoroughly and we will now discuss it for several hours):

"Whatever the outcome, women must feel uneasy about both cases. If the color of a woman’s skin — not her credibility or her character — determines how others react to an allegation that she was raped, members of the fairer sex are in for some tough days ahead."

Speaking, if nothing else, as a member of the fairer sex, I find both cases highly unsettling, if entirely unsurprising, but I find the author(one Gregory P. Kane)'s turn of phrase to be pretty unsettling too. Let's not kid ourselves here. White women who dare to report a rape don't get a warm public reception either (just one Baltimore radio station? Oh, I wish). Just look at statistics about college women (we're often white) and rape (we're often raped) and the pursuit of justice (we're among the least likely to report rapes, much less prosecute them), then survey us about the source of our silence (we tend to disbelieve we will be treated fairly, and most deeply fear the social consequences, the hate and victim blame of our internal pundits). I refuse to believe, whatever the identity of the accuser or the veracity of her accusation, that her rape allegation journey has been a walk in the park. The author's talk of how easy the media has been on her is an implicit suggestion that, for equity's sake, they ought to be harder on her.While race as a factor in how rapes are perceived and treated is a more obviously arbitrary and despicable, the author's standard of "credibility and character" is equally insidious.

I repeat this again for emphasis, credibility and character are not the standard by which the guilt of the accused should be determined. Personally, I think we ought to use evidence as that standard. I want people to look at scars and bruises, at STDs, at broken noses and torn insides. I want them to listen to witness accounts they heard someone say No. I don't care think it should matter what anyone's race is, or what anyone's past is, or what others think of their character (many serial killers, after all, are notoriously charming and productive citizens), because such things will never, ever, offer us the beyond a reasonable doubt evidence that we ought to need to convict. Regardless of the media response (and how shocked can we continue to be that right wing pundits are racist mysnogynist hypocrites?), according to this article the criminal justice system actually did a much more decent job than usual of defending the rights of a black man-- and it hardly favored the white woman.

Lawyers for Owens didn’t just damage this woman’s credibility when she took the stand to testify. They eviscerated her. They picked her clean. By the time they were done the judge was criticizing the prosecution for putting on such a poor witness.Their evidence of her lack of credibility? She was extremely drunk. She was overly flirtatious. She offered to give another guy a lap dance, and when he refused she cursed him out. I know how it is, and how juries are influenced, but I can't seem to understand why any of that matters. Even considering such evidence in a rape trial encourages the persistence of rape myths about who deserves rape, that help many people in their seemingly endless quest to find any possible way to blame a woman - of any color - for her own rape. Why is any of this stuff about the background and demographics of the individual even admissible as evidence? Is there a study that says rich men are less likely to rape than poor ones? That black women are more likely to lie about a rape than white ones? That sexually active women are more likely to allege a rape than (former) virgins? Does any of your personal experience or statistical evidence suggest anything other than that rapists do what they think they'll get away with? Doesn't this mean we should be even more likely to believe a man would choose a less "credible" woman if compelled to rape, whether her credibility is undermined by character or color? It shouldn't matter if a woman is black, a lesbian, mentally ill, addicted to crack, an ex-con, a prostitute, walking naked down the street in a bad neighborhood at 3am. It shouldn't matter if a man is President of the United States or Ghandi or a wonderful public citizen. If there's evidence of rape. If she screamed. If she said no. If she's physically hurt. Then he's guilty, 100%, for what happened. It is his act of violence, no matter who she is, and the blame for his aggression (in terms of convictions if not in religious or rehabilitative terms) belongs to him.

Now I know you might say many cases don't have such clearcut evidence available, b/c there aren't witnesses, or documented physical injuries, or any forensic evidence, but I counter to you that many cases actually DO have such evidence. And I can promise you that even in such cases, for some god damn inexplicable reason, it still matters to the decision who the victim and the assailant are. It's a long road and most likely fruitless road to justice for the woman described above, no matter the evidence in favor of her claim, mostly because an eerie percentage of the population really doesn't think that anything that happens to such a woman, no matter how brutal, is really rape. Because in the end, the prejudices of the jury matter, and there are people a jury just doesn't feel sorry for.

So Yeah, Mister Cane, the fair sex is in for a rough ride (for a change?). So are black men. And the innocent accused of all colors. And perhaps most unlucky of all-- as the Duke case showed -- black female victims of rape by white men. But not because of what Mr. Kane describes. Suppose a situation of guilt. Suppose a black man rapes a white woman based on overwhelming evidence, and he gets convicted. Suppose we could know that if the exact same jury heard the exact same trial, but with a white defendant, they would have acquitted him. Are we upset that the black rapist was convicted, if all the evidence was good, even if the thing that tipped the scales was his race? I hope any citizen with conscience would fight like hell to make sure that in the future, the white guy is convicted too. I hope that angry citizen would fight even harder to make sure that race is removed as a weight in the criminal justice system, to ensure that innocent black men not be lumped together with this guilty one. But I'll be damned if I feel sorry that a rapist was brought to justice, and I'll be double damned before I argue that the woman's "credibility" should have been the deciding factor instead.

Suppose innocence. Suppose a present-day To Kill A Mockingbird. Even make it a rich white family, the most "credible" sort of family, and a poor black man. Should we argue that the trial should not take place? Or should we fight for a fair trial? Shouldn't we argue, instead, that evidence should be the basis of conviction? Shouldn't it be that if the punch is right handed and the man's right arm doesn't work he isn't guilty? Shouldn't it be that if there's not enough evidence, then no one gets convicted? Shouldn't we fight so that our criminal justice system works like that, for innocent white men too? If the trial were fair, why would we need to undermine the credibility of the accuser before she even goes to trial?

Suppose fact. We live in a country where black men are much more likely than their white counterparts to be accused, and convicted, of crimes they commit, and crimes they don't commit. A country where women are astronomically less likely to report rape than they are to experience it, because too often it is they who bear the highest social and economic costs. We've got a dark history, where nothing boiled the blood of a lynch mob like a black man having sex with a white woman, even (or perhaps especially) consensual sex. A tradition in which the children of black women raped by their white masters were born the chattel of their fathers, and raping a slave was an impossible concept because slave women werent considered as humans. A tradition wherein women spent their lives in marriages where they were beat and raped every night, just to avoid the social and religious consequences of divorce. It's a history that bleeds and bleeds and bleeds into the present. How can you quantify it or balance its individual parts? How can you argue that we should sacrifice one victim of that history to another?

The root of the problem is not what Mr Kane outlines, it is this: There's room for whatever prejudices we can come up with (and we're good at that) to seep into the process and prevent the administration of justice as defined by the laws of the day. This is the core problem, and it will persist indefinitely given these circumstances. For as long as personal opinion plays such a large role in what the word rape even means. For as long as certain acknowledged forms of rape are considered non-criminal -- if the woman has done certain things to deserve or "ask for it." For as long as the law remains unclear, for as long as character is permissible as evidence, then it just makes it easier for racist judges and jurors (racism, after all, is tying character to race) to justify their decisions based on facts and assumptions that are fundamentally unrelated to the crime. That gap in understanding, that ambiguity of definition and mixed feeling about rape, leaves ample room for all manner of sins-- for racism and sexism alike.

As someone who's been lauded for being such a "credible" witness, I have to say this much. What that man did to me is his fault, not mine. But it isn't his fault because I'm educated, or because I look white, or because my criminal record's clean and my shit's in order and my mind is clear. It's his fault because it was his act of abuse and his act of violence, and we expect adults to control themselves, their sexual impulses, and their anger and hate. I know I'm lucky as hell that I have "credibility" going for me, but really I'm not all that lucky. I still have to endure character attacks all the time (from people involved in the trial and from people who just like their own opinions), because of the crime itself, because I'm a woman, because people will use whatever twisted narrative they can to make this my fault or society's fault or anyone's fault but his. And anyway, what makes makes my story "credible" in the ideal courtroom sense of the word shouldn't be who I am, it should be all the evidence. Evidence that it happened, that it hurt, that I tried to stop it, that I pushed and hit and ran and still he didn't give up.

I know it won't be popular to bring Jesus into this, but: 'Truly I tell you, just as you did it to one of the least of these who are members of my family, you did it to me.' Matthew 25:35, 37, 40. What's the point of all these security cameras and forensic tests and witnesses, when the final judgment is still based, inextricably, in here-say and prejudiced assessments of who we are? You think it's a different story when it happens to a different woman? You think it hurts me worse than it would have hurt a less "credible" victim? You really believe a different history convicts a black man, a different tradition than the tradition that ignores a white girl? It isn't. You think the system of belief that undermines any non-white non-male non-straight person as somehow not "credible" doesn't eventually undermine me? It does. That system of belief will find a way to dehumanize me too, it already has-- it'll find a reason to call my testimony illegitimate too-- so don't tell me that such a system favors me. It's the same fucking story every time, with the same hideous prejudices and power plays behind it.

See we're sharing the costs of injustice now, and that is a communal problem that must be addressed with communities in mind. But while criminal justice reform should be dealt system-wide, individual cases need to be centered around the crime itself. By replacing race with character (though we already use both ad nauseum) as a standard in our courts, we'd just be trading one injustice in for another. And though I don't want to minimize the unique way prejudices operate for different people and demographic groups, when it comes to the functioning of a system of justice as a whole, its all the same problem in end.

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***note: several yrs later and with the trial over i'm now able to say without linking myself too closely to anything specific that, while the rest of the description is faithful, the white student victim under discussion @ the cafeteria table was in fact me, and the black woman student is a close friend of mine (and one of the more inspiring survivor-turned-activists i've ever met). it was an incredibly painful experience to hear not only that my case had made it on the agenda at the weekly discussion forum for the college's black student groups, but that it had been framed as an example of unfair racialization of campus crimes. here is my friend's account of the meeting:

she did not say who brought the issue up, but the situation was described and the identity of the accused disclosed to the forum (mine was not). not knowing the details of the case and having never met the accused-- who was, like me, a new student on campus at the time of the attack-- many of the students at the meeting took the racial account at face value. my wonderful friend stood up against this, and also corrected some initial misinformation about case. thankfully, she was joined by several students (i do not know who they were, but god bless) who did, in fact, know him. these students argued that, for various reasons, the situation between myself and the accused was not a representative example of the phenomenon of injustice toward black men, and would therefore be a poor choice for a cause celebre. these reasons (some more valid than others) included the fact that the accused, who is as i have mentioned a highly privileged expatriate, is neither african american nor disadvantaged in many of the ways that black students often are. his brief tenure on campus had apparently also been sufficient to establish him with a -- somehow unsurprising-- negative reputation (mostly among members of the isolated enclave of new students) for airs of snobbishness, disinterest in socializing with other black students, and general creepiness toward women.

ultimately, as far as i know, no significant portion of the black community on campus ever came out in support of his cause.