Gendered Laws, Racial Stories

Abstract:     
In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to “Be a man. Stand up and fight.” If he is raped, the victim is often told that he is - or has been made - “gay,” and therefore “liked it.” Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment. In prison and in court, legal actors depart from ordinary legal rules to enforce the norms of masculinity as law, authorizing straight-identified manly men to police the gender conformity of less manly men by sexually abusing them.

Although correctional actors often respond to sexual abuse by enforcing gender rules, the story they tell about prison rape often features a familiar, but misleading, cultural trope of white vulnerability to black violence. This racial narrative obscures institutional responsibility for the gendered legal practices that condone and foster sexual violence, making prison rape seem inevitable. By casting sexual (and nonsexual) violence as a “complex and intractable problem” for which administrators are not to blame, this racial narrative bolsters the rationale for the rules and immunities which largely exempt prisons from the enforcement of constitutional norms. Thus the perception (and reality) of unchecked prison violence supplies a reason for courts not to interfere with the unlawful institutional practices that foster it.

Working Paper Series