by Catherine Polta
Rape laws started off as property laws, and the harm was to the man who had an interest in his wife, daughter, or slave. As a consequence of this legal framing, a woman could not be raped by a man who had a property interest in her because the man essentially owned the woman’s sexuality. Slaves were “unrapable” by their owners, and rape by a non-owner was treated as trespass. (The Legal Dictionary.) The confluence of a patriarchal system of property and the institution of slavery served to deeply entrench female sexuality as a reflection of White male desire. Despite subsequent legal reforms, this conception has been resilient in the face of social movements exalting female sexual autonomy. As testament to this, legal recognition of spousal rape—rape which occurs within a marriage—is a relatively new development in U.S. law; spousal rape has been illegal in all 50 states only as of 1993 and remains woefully under-enforced. (RAINN.)
Rape reform movements have suffered from racial indifference; reforms primarily address and benefit White women, while benefits reach women of color only through incidental effect. Although White women are very much still fighting for equality, recognition, and legal recourse, they have less of a battle to fight than non-Whites, and their victories do not readily translate to victories for non-Whites. Only by consciously acknowledging the race-based effects of facially neutral policies can there be any direct redress for women of color. Rape shield laws, below, are exemplary of rape reform measures that failed to reach beyond White women.
The privileging of White women over women of color in rape reform is a fairly inevitable consequence of a culture that presupposes the moral authority of White men. Because the audience of rape reform movements are White men, those reforms that appeal to White men are most successful. The audience must be White men, because White men were—and to large extent remain—the people with the power to change the regime: White men monopolize legislatures, sit behind judicial benches, prosecute (or fail to prosecute) crimes, and fill jury boxes. All this adds up to a system that facilitates White male abuses of power, reflected by statistics showing that most rapists are male and White. (RAINN.) Another way of saying this is that our criminal justice system exists within and perpetuates rape culture—a rape culture still bearing a legacy of slavery, apartheid, and WASP ethnocentrism.
Rape is about power, and when we talk about rape culture, we’re talking about a culture that is permissive towards sexual abuses of power against disenfranchised people. This is part of a cruel loop. Certain demographics are devalued. Lack of value translates to lack of power. Because individuals within those demographics lack of power, they are readily victimized and have little opportunity to self-help. Because the dominant culture does not value the individual, however, the individual is not perceived as harmed by the victimization. The victim is both blamed for the victimization for failure to self-help and yet not acknowledged as having been victimized.
The result of all this is that rape laws have not done much for people with whom White men cannot empathize—i.e.: pretty much everyone who is most likely to be raped. Prisoners, racial minorities, gender-nonconforming individuals, and women are all readily victimized within our particular brand of rape culture, thanks to their lesser value within the system. In turn, the less status a demographic has within the system, the less it is likely that any victim within that demographic will be vindicated through the justice system.
Rape culture is characterized by a tendency towards blaming the victim: there is a myth that victims invite their own abuse through promiscuous reputations, immodest clothing, and bold attitude. Victim-blaming goes hand-in-hand with slut-shaming, devaluing individuals who display the above characteristics. As with underprivileged demographics, these devalued individuals are seen as not harmed or inconsequently harmed by rape. Slut-shaming and victim-blaming are particularly pernicious against demographics stereotyped as promiscuous or uncontrollable.
Rape reform in the second half of the 20th century attempted to counteract the tendency of juries to enquire deeply into a victim’s sexual past and rely on slut-shaming stigma to hold the victim, rather than the defendant, liable for rape. Rape shield laws were erected, preventing certain avenues of questioning aimed at discovering victim’s past sexual history and limiting inquiries into the victim’s behavior throughout the incident in question. This reform, however, provided only moderate relief, and almost exclusively benefitted White women.
Rape victims of color continue to receive incredibly low conviction rates against their rapists, because juries are subject to the same racial stigmas that pervade White rape culture. (Gill, 7 UCLA Women’s L.J. 27, at II.D.) Juries are less likely to believe the testimony of non-White victims, resulting in lower convictions rates and lesser sentences for defendants who rape non-White victims. (Id.) The unspoken conclusion is that the sexual autonomy and physical integrity of non-White victims is less valuable than that of White victims. This value judgment is further reflected by elevated rape rates against Native Americans, Blacks, and interracial women. (RAINN.)
Most rapes are intraracial (Yale), which is likely a corollary to the fact that most rapes are committed by family members, friends, and acquaintances, and the US remains a largely racially segregated country. A jury facing a non-White victim is most likely facing a non-White defendant, and White stereotypes adhere to the defendant as much as to the victim. Curiously, this results in a greater burden placed on the victim: Black, Latino, and Native American men are stereotyped as hypersexual, hypermasculine, and uncontrollable, and their girlfriends and acquaintances are believed to have assumed the risk of rape merely by associating with non-White men.
When non-Whites are convicted, however, they serve harsher sentences that White defendants. For example, in Texas, Black defendants convicted of rape are seven times more likely to receive the death penalty than White defendants. . (Gill, 7 UCLA Women’s L.J. 27, at II.D.) Harsher punishment of non-Whites is a problem throughout the criminal system, reflecting the White myth that non-Whites require stronger punishment in order to tame their wild, animalistic tendencies.
Racism appears in all facets of the criminal justice system, echoing deep-seeded cultural norms that overvalue Whites and undervalue non-Whites, ensuring that White men remain in a position artificial moral authority. White rape culture is pervasive and insidious, perpetuating the idea that individual sexual autonomy is valued on a sliding scale. Refusal to recognize stigma adhering to underprivileged demographics merely ensures the cycle will continue. People in power need to cut this shit out, and they need to stop indoctrinating marginalized communities with their ethnocentric bullshit. All people have inherent value, anyone can be raped, and all victims are harmed by rape. End of story.