59 Pages Posted: 7 Feb 2007
This article explores the continuing gendered racism in rape prosecutions: the undervaluation of all rape offenses against Black women and the concomitant overvaluation of rape crimes against White women, particularly when committed by a Black man. In this article I review the legal and extra-legal factors that have historically evidenced the gendered racism in rape prosecutions. I also explore the prosecutorial methods that contribute to maintaining these racial disparities. Finally, I propose remedial actions for prosecutors, legislatures, and courts.
For most of this nation's history, raping a Black woman was simply not a crime. First, laws prevented the prosecution of any offender for the rape of a slave woman. At the same time, the rape of a White woman by a Black man was treated with especial violence. The Thirteenth and Fourteenth Amendments were proposed and ratified as vehicles to ensure the equal protection of the laws. After their enactment, although the de jure prohibition on prosecuting the rape of Black women ended, de facto barriers to prosecution remained.
The potent rape meta-narrative of a stranger who is a Black man violently assaulting a White woman continues to infect prosecutorial decisions. This influence is in part the product of prosecutors relying on system outcome bias regarding assessments of convictability. Such down streaming is the practice of considering at charging what prejudices and biases hypothetical jurors will employ when judging whether a rape victim is credible.
In this article, I propose prosecutors adopt charging criteria and employ review committees to end system outcome bias. In addition, legislatures should require accurate recordkeeping regarding the race of victim and perpetrator in every rape case from initial report through case completion. Finally, in egregious cases of overt racial discrimination, victims should sue for their right to be protected by the laws as guaranteed by the Thirteenth and Fourteenth Amendments.
Keywords: rape, race, prosecution, Constitution, 13th Amendment, 14th Amendment
Suggested Citation: Suggested Citation
Pokorak, Jeffrey J., Rape as a Badge of Slavery: The Legal History of, and Remedies for, Prosecutorial Race-of-Victim Charging Disparities. Nevada Law Journal, Vol. 7, p. 1, 2006; Suffolk University Law School Research Paper No. 07-12. Available at SSRN: https://ssrn.com/abstract=961877