The Intersectionality of Race and Gender in Rape Crimes Against Women of Color

(Disclaimer: I know I'm talking about penalty enhancement before any charges have been filed or any crime has been proven, and I know the accused are innocent until proven guilty. But go along with this intellectual exercise of mine. And don't just chalk it up to me reacting more as a woman/feminist who has attended one too many "Take Back The Night" rape vigils than as an objective, reasonable lawyer. I am both, and commenting as a lawyer, but admitting some personal visceral reactions--and not just because I'm a woman. I don't know how you could avoid admitting some revulsion at the alleged misconduct. And look, I'm taking care to use words like "alleged" and "accused." This is a post about intersectionality, the difficulty of prosecuting someone under hate crimes, and the complicated issues arising from crimes against women of color.)

Over at BlackProf, Spencer Overton writes:

Rape perpetuated by white men against black women implicates power dynamics along racial, gender, and economic lines. Like the government's response to Katrina, the case raises larger questions about the continued lack of human decency afforded African Americans that was reflected in U.S. Supreme Court Chief Justice Roger B. Taney’s 1857 pronouncement in the Dred Scott case. Justice Taney wrote that blacks “had no rights which the white man was bound to respect.”

What motivates a rape crime? I don't ask this facetiously. Really, I wonder. If you're like most lay people, you learn from Law & Order that it's about power and control. That's probably the case. But from a legal standpoint, if the prosecutor is attempting to obtain a penalty enhancement for a felony crime motivated by a specific animus against a member of a protected group--a racial minority, a religious minority, sexual orientation, or gender--it really matters what the motivation was. It has to be "because of" that protected group membership. There has to be a hate crime statute on the books. Not every state has hate crimes statutes, and of those that do, most only protect victims of crimes motivated by racial or religious animus. And the animus is hard to prove to get that desired penalty enhancement for the perpetrator or civil remedy for the victim. There has to be some proof that this crime wasn't arbitrary violence with a randomly picked target--it was "because" he was "a chink," or because she was a "bitch and whore," or because he was a "fag," etc. I do not enjoy saying these words by way of example--but all of these words have been used to demonstrate the particular animus, the particular hatred motivating the crime.

So what movitated the gang rape at Duke? One might argue that most rapes are a gender-motivated crimes--since the great majority of rapes are perpetrated against women, it would seem obvious that it was "because of" the woman's sex that she was raped. Most rapists are heterosexual, and therefore their targets are likely to be women. Thus, but for the victim being biologically a woman, the rape would not have occured. There is a certain logic to this--there is a "discriminatory selection" of the victim based on some trait, in this case, manifestly observable. In the "discrimnatory selection" model of Wisconsin v. Mitchell affirmed Wisconsin's bias crime statute providing penalty enhancement for violent crimes in which the offender "intentionally selects his victim because of the victim's race, religion, color, disability, sexual orientation, national origin or ancestry." But there is another model to consider when discussing bias crimes --the "animus" model. This goes to the mens rea of the crime, or as Law & Order people have heard it, "motive." Most bias crime scholars and law enforcement agencies adopt the "animus" model, understanding prejudice and hatred to be about more than treating people differently--there is some measure of hatred and hostility towards the victim's group and thust the victim for being a member of that group. And finally, there is the "because of" model" I alluded to earlier, and most of states with hate crimes statutes adopt this model. FOr exampe, California's hate crimes statute provides for penalty-enhancement if certain crimes are committed "because of the victim's race, color, religion, ancestry, national origin, or sexual orientation." This "because of" formulation straddles the line between discriminatory selection and animus--on the one hand, it indicates a certain specificity in the selection of the victim, but it could also suggest maliciousness on the part of the perpetrator against a certain group. Under any of these three formulations, it would be hard to classify this crime against these women of color.

The Duke lacrosse team gang rape tragedy has been written up in many blogs as a hate crime. There is evidence, corroborated by a witness next door, that racist slurs were shouted at the two black women hired to dance at the lacrosse team party as soon as they entered the building. Allegedly, one of the men also took a broomstick out and threatened to rape the women with it. Frightened, the women left, but one of the team members followed them out, apologized, and the women reentered the building. They were then shoved into the bathroom and gang-raped.

I've read quite a few articles about this today, and have felt sick to my stomach with each reading. I read most of the entries at the blog set up to follow this story--Justice 4 Two Sisters. Over the past few days, more evidence has come out complicating the motivations behind this crime. Via the Smoking Gun, a pdf of the search warrant citing the email sent less than an hour after the rape by one of the accused rapists:

tomorrow night, after tonights show, ive decided to have some strippers over to
edens 2c. all are welcome.. however there will be no nudity. i plan on killing
the bitches as soon as the walk in and proceeding to cut their skin off while
cumming in my duke issue spandex.. all in besides arch and tack please respond.

I'm finding it really hard to go on at this point, but I suppose I must comment on this horrible thing. North Carolina's statute for felony penalty enhancement Sec. 15A-1340.16(a6)(d)(17) allows for penalty enhancement for the following aggravating factor:

The offense for which the defendant stands convicted was committed against a victim because of the victim's race, color, religion, nationality, or country of origin.

Notice that gender is not a protected category. Notice also that the horrible email does not allude to race, only gender--"strippers," and "bitches." Without the evidence of racist slurs against the women, it would be hard to make the case that this rape was "because of" the victim's race. But if the NC statute had included both race and gender as protected categories, I wonder if the prosecutor would have had to "pick one" to argue for penalty enhancement. It's a valid question. Under traditional antidiscrimination law, you can't get both. You can be discriminated against because you're Black, or because you're a woman, but not both. This is particularly true in the employment discrimination context--if you're a black woman passed over for promotion, but the white women around you are being promoted, and the few black men around you are being promoted, under the burden of proof to state a Title VII claim, you'd probably lose your case. Is this the case for hate crimes? Does the victim have to "choose" one aspect of her identity under which to seek penalty enhancement?

I must ask a criminal law prof. If this were the case--if I had to choose between arguing that I was singled out because I was a woman or because I was an Asian (lots of complicated history with either category) and the statements made in my case were "Hey, Geisha girl!" or "Hey, Tokyo Rose!" (this was actually said to a friend of mine--but no violence ensued, mainly because she was dragged out of the bar before she could kick the guy in the groin), would I have a better argument for racial or gender-motivated violence? Is it not problematic if the law does not recognize the possibility that it is because of both, because of the fetishized and inherently violent attitudes that can be possessed against Asian women? Even if the prosecutor did not have to argue either/or, in general, how often are such prosecutions argued for under both categories? In other words, does the criminal justice system privilege one identity category over the other? Is one identity category easier to argue, or easier to win under than the other? Which is generally more sympathetic to the juror?

Which brings me to intersectionality. What is Intersectionality?

It's an alternative conceptual model to the mainstream civil rights and mainstream feminist discourse that elides the realities of the lives of women of color where race and gender interact to produce a sort of "double oppression." This double oppression is not adequately remedied by the remedies and discourse formulated by the Black-male centric civil rights movement, nor the white-woman centric feminist movement. With respect to the issue of rape, according to Kimberle Williams Crenshaw, in "Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color:"

Generations of critics and activists have criticized dominant conceptualizations of rape as racist and sexist. These efforts have been important in revealing the way in which representations of rape both reflect and reproduce race and gender hierarchies in American society. Black women, as both women and people of color, are situated within both groups, each of which has benefitted from challenges to sexism and racism, respectively, and yet the particular dynamics of gender and race relating to the rape of Black women have received scant attention. Although antiracist and antisexist assaults on rape have been politically useful to Black women, at some level, the monofocal antiracist and feminist critiques have also produced a political discourse that disserves Black women.

...[A] sexual hierarchy [is] in operation that holds certain female bodies in higher regard than others. Statistics from prosecution of rape cases suggest that this hierarchy is at least one significant, albeit often overlooked factor in evaluating attitudes toward rape. A study of rape dispositions in Dallas, for example, showed
that the average prison term for a man convicted of raping a Black woman was two
years, as compared to five years for the rape of a Latina and ten years for the rape of an Anglo woman. A related issue is the fact that African-American victims of rape are the least likely to be believed. The Dallas study and others like it also point to a more subtle problem: neither the antirape nor the antiracist political agenda has focused on the Black rape victim. This inattention stems from the way the problem of rape is conceptualized within antiracist and antirape reform discourses. Although the rhetoric of both agendas formally includes Black women, racism is generally not
problematized in feminism, and sexism, not problematized in antiracist discourses. Consequently, the plight of Black women is relegated to a secondary importance: The primary beneficiaries of policies supported by feminists and others concerned about rape tend to be white women; the primary beneficiaries of the Black community's concern over racism and rape, Black men. Ultimately, the reformist and rhetorical strategies that have grown out of antiracist and feminist rape reform movements have been ineffective in politicizing the treatment of Black women.

Because Black women face subordination based on both race and gender, reforms ofrape law and judicial procedures that are premised on narrow conceptions ofgender subordination may not address the devaluation of Black women. Much of theproblem results from the way certain gender expectations for women intersect with certain sexualized notions of race, notions that are deeply entrenched in American culture. Sexualized images of African Americans go all the way back toEuropeans' first engagement with Africans. Blacks have long been portrayed as more sexual, more earthy, more gratification-oriented. These sexualized images of race intersect with norms of women's sexuality, norms that are used to distinguish good women from bad, the madonnas from the whores. Thus Black women are essentially prepackaged as bad women within cultural narratives about good women who can be raped and bad women who cannot. The discrediting of Black women's claims is the consequence of a complex intersection of a gendered sexual system, one that constructs rules appropriate for good and bad women, and a race code that provides images defining the allegedly essential nature of Black women. If these sexual images form even part of the cultural imagery of Black women, then the very representation of a Black female body at least suggests certain narratives that may make Black women's rape either less believable or less important. These narratives may explain why rapes of Black women are less likely to result in convictions and long prison terms than rapes of white women.

This article is 15 years old--it was published in 1991--and it still raises relevant and troubling issues. I don't have any answers to any of these issues I've raised today. I don't know whether the Lacrosse team planned to rape the dancers. I don't know whether they specifically asked for Black dancers so that they could specifically target their desire and animus against Black women. I don't know whether charges will be filed, and if so, against which of the 46 white Lacrosse members. I don't know if there will be enough evidence to convict (there are reports that condoms were used so there might be insufficient DNA evidence), or if there is a conviction, whether the prosecutor will seek to enhance the penalty for a hate crimes violation. I don't know whether the women will win under the theory that this was a racially motivated hate crime, or whether it will be better for them if it is argued as such. I don't know the answers to any of this. I, like you, read all of this, and am left bewildered and bereft, completely depressed and yet determined to just keep asking questions. It's all I can do. It's all any of us can do. Ask the questions and demand some answers, the biggest question of all being how something like this can still happen among this supposedly more enlightened and educated generation.