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January 06, 2020 HUMAN RIGHTS

The Intersection of Race and Rape: Viewed through the Prism of a Modern-Day Emmett Till

by Chelsea Hale and Meghan Matt

Emmett Till’s name sparks immediate emotion and often sends chills down the spine of any American with a beating heart. Fourteen-year-old Till was murdered in 1955, but his name and story still conjure emotions today. Perhaps that’s because many of us are aware of the unspoken reality surrounding Till’s story—aspects and versions of it live on through the lives of many other African American men, such as the one that inspired this work.

This modern Emmett Till, whose name we intentionally left out of this article for confidentiality, was convicted as a teenager and is presently serving a 100-year sentence in Louisiana for the attempted rape of two white teenage girls in the 1970s. A group of lawyers and activists are currently advocating his case and we did not want any publicity in the article to adversely affect their efforts. As Mammie Till changed the course of history with her decision to “let the world see” the brutalized body of her young son, we have similar ambitions. We wish to disrupt a disturbing narrative surrounding the intersection of race and rape, specifically, how African American defendants accused of raping white women are treated differently under the law than white men accused of raping African American women.

Emmett Till was a 14-year-old African American who was lynched in MS in 1955 after being accused of offending a white woman in her family's store.

Emmett Till was a 14-year-old African American who was lynched in MS in 1955 after being accused of offending a white woman in her family's store.

Photo taken on December 25, 1954.

The practice of exploiting and violating the bodies of African American women with impunity is an ancient one. During America’s chattel slavery system, white slave owners freely and legally raped the women whom they enslaved, often in front of their families. (Danielle Mcguire, “‘It Was like All of Us Had Been Raped’: Sexual Violence, Community Mobilization, and the African American Freedom Struggle.” Journal of American History (2004).) They used rape to assert their power and authority over their property without accountability. The offspring of enslaved women were then also considered their master’s property, giving these men more economic power and further stripping African American women of the rights to their own bodies and babies. Id. The legal system enforced this by the sin of omission. No Louisiana law made rape of a black woman, slave or free, a crime. Rape was specifically limited to white women under the state’s law. (Judith Kelleher Schafer, Slavery, the Civil War, and the Supreme Court of Louisiana (1994), 85–87.) However, Louisiana’s provisions mandated capital punishment for both the rape and the attempted rape of a white female by a slave.

 In 1845, James Marion Sims, the father of modern gynecology, began experimenting on enslaved women without consent and without any anesthesia, causing untold suffering. Operating under the mere racist notion that African American people did not feel pain, patients were completely naked and asked to perch on their knees and bend forward onto their elbows so their heads rested on their hands. After 30 operations and four years spent experimenting on a 17-year-old enslaved woman, he finally “perfected” his method. Only then did he begin to practice on white women, to whom he freely administered anesthesia. Sims’s heinous acts were legally permissible because enslaved women were only considered their master’s property and were allowed no autonomy of their own bodies.

This continued into the lynching era, where the most common reason for public lynching was the perception that white women needed to be protected from African American rapists and attempted rapists. (Jeffrey J. Pokorak, “Rape as a Badge of Slavery: The Legal History of, and Remedies for, Prosecutorial Race-of-Victim Charging Disparities,” 7 Nev. L.J. 1, 23–24 (2007).) Black men were painted as sexually deviant monsters. In fact, writer and politician Rebecca Latimer Felton said, “If it needs lynching to protect woman’s dearest possession from the ravening human beasts, then I say lynch a thousand times a week if necessary.” Between 1880 and 1950, around 5,000 people were lynched in the United States, nearly six people every month for 70 years.

During the Jim Crow era, white men used rape and rumors of rape not only to justify violence against African American men, but also to remind African American women that their bodies were not their own. Here, once again, white men in positions of power over African American women, such as police officers and employers, used sexual assault and rape to dominate them. In early 1930 in New Orleans, a 14-year-old African American girl named Hattie McCray repeatedly fought off the police officer attempting to rape her. In response to her bravery, he shot and killed her. Patricia Hill Collins observed of this continuing practice, “No longer the property of a few white men, African American women [and girls] became sexually available to all white men.”

Next, America moved to the period of legalized lynching. It is during this time that we moved from extrajudicial execution—lynchings—to judicially enforced lynchings, also known as capital punishment. Here, courts applied what is best described as situational reasoning. If the accused was African American and the victim white, the jury was entitled to draw the inference, based on race alone, that he intended to rape her. This helps to explain very troubling sentencing patterns. According to the U.S. Department of Justice, between 1930 and 1972, 455 people were executed for rape, with 405 of those being African American. Moreover, according to the Wolfgang and Riedel study, African American defendants whose victims were white were sentenced to death approximately 18 times more frequently than defendants in any other racial combination of defendant and victim. Notably, no white man has ever been executed in the United States for the non-homicide rape of an African American woman or child.

A recent study concluded that African American men convicted of raping white women receive more serious sanctions than all other sexual assault defendants. (LaFree, “The Effect of Sexual Stratification by Race on Official Reactions to Rape,” 45 AMBit. Soc. Rev. 842, 852 (1980).) Another study in Dallas found that the median sentence for an African American man who raped a white woman was 19 years, whereas a white man who raped an African American woman received a 10-year sentence. (Katharine K. Baker, “Once a Rapist? Motivational Evidence and Relevancy in Rape Law,” 110 Harv. L. Rev. 563, 586 (1997).) Furthermore, African American defendants are subjected to a disproportionate number of wrongful convictions for rape. (Brandon L. Garrett, “Judging Innocence,” 108 Colum. L. Rev. 55, 66–67 (2008).)

Statistically, African American women are much more likely to be victims of rape than are white women, and often they are subsequently revictimized by the judicial system. If these facts don’t cause alarm, perhaps the truth will. In a 1971 study on judges’ attitudes toward African American rape victims, a judge was quoted as saying: “With the Negro community, you really have to redefine rape. You never know about them.” (C. Bohmer, “Judicial Attitudes Toward Rape Victims,” 51 Judicature 303 (1974).)

There is a heavy imbalance of justice between African American defendants accused of raping white women and white men accused of raping African American women. Despite changes being made to current laws, the interpretation of the law, or the law as it is applied, has not. For instance, in Coker v. Georgia, the defendant was convicted of rape and sentenced to death (97 S.Ct. 2861). In 1977, the United States Supreme Court ruled that a “sentence of death for [the] crime of rape of an adult woman was grossly disproportionate and excessive punishment forbidden by the Eighth Amendment as cruel and unusual punishment.” Id.

From left, Sheriff Willis McCall, jailer Reuben Hatcher, Walter Irvin, Charles Greenlee, and Samuel Shepherd (from the Groveland Four).

From left, Sheriff Willis McCall, jailer Reuben Hatcher, Walter Irvin, Charles Greenlee, and Samuel Shepherd (from the Groveland Four).

Lakeland County Jail, FL in 1949

Another imbalance of justice involves the trial experiences of rape victims. The case of Betty Jean Owens is a perfect illustration of this. Armed with switchblades and shotguns, four white boys from Florida made a pact to “go out and get a nigger girl” and have an “all-night party.” On May 3, 1959, four white males crept up to the car, pointed a shotgun at the driver, and forced the black students out of the car. After one fled and two were ordered to leave, Betty Jean Owens was left alone with the four white males. She was forced into a car belonging to one of the boys. After the four males drove her to a different side of town, Betty Jean Owens was forcibly raped seven times. Later that evening, an officer found Owens bound and gagged, lying on the backseat floorboards. When he attempted to help Owens out of the car, she collapsed once her feet touched the floor.

Owens testified in front of an all-white jury and 400 witnesses who gathered in the courtroom. Not only was she violently raped seven times by her four attackers, she was also psychologically raped by the defense while testifying on the witness stand. Though her attackers confessed in writing to kidnapping and raping Owens, they entered a plea of innocent and their defense attorney portrayed them as respectable citizens. As a result, the four men were granted leniency and given a life sentence, instead of being sentenced to death. However, one of the men was paroled after serving only four years. Betty Jean Owens is a profound demonstration of an African American woman having a surplus of proof—confessions from her attackers, eyewitness testimony, and physical evidence—showing her white attackers’ guilt, yet not receiving justice. Alternatively, in the case of the African American man serving a 100-year sentence, his accusers only needed the power of a white woman’s word to certify an African American man’s guilt.

Samuel Shepard, Walter Irvin, Charles Greenlee, and Ernest Thomas—known as the Groveland Four—were accused of raping a white woman in 1949 in Groveland, Florida. At the age of 17, Norma Padgett informed police she had been abducted and raped by four men. Greenlee, Irvin, and Shepard were charged, jailed, and beaten on the night of their arrest. Subsequently, an all-white jury sentenced 16-year-old Greenlee to life in prison, while Irvin and Shepard, both World War II veterans, received the death penalty. Unlike the other three men, Ernest Thomas was shot to death before he could be charged or tried for the alleged crime. Prior to his death, Thomas was “hunted for more than 30 hours . . . by an armed, deputized posse of approximately 1,000 men with bloodhounds.” (Ian Stewart, Accused of Florida Rape 70 years Ago, 4 Black Men Got Posthumous Pardons. 11, January 2019.)

Irvin᾽s and Shepard’s appeals reached the United States Supreme Court, which upon review, ordered a retrial. Instead of following the judgment rendered by the Supreme Court, Sheriff Willis McCall handcuffed the two men, drove them to the countryside, and shot them. Although McCall would argue his actions were in self-defense, Irvin was wounded and Shepard died. When Irvin was retried, he was sentenced to death; however, that sentence was later converted to life in prison. Just one year after being released on parole, Irvin passed away in 1969. Greenlee was released in 1962 and lived until his death in 2012. Seventy years after the Groveland four were wrongfully accused of raping a white woman, they received a pardon from Governor Ron DeSantis, who labeled this tragedy a “miscarriage of justice.” Id. Along with their posthumous pardon, the city of Groveland issued an apology to the men and their families. 

Screenshot of @Fox News on Twitter.

Screenshot of @Fox News on Twitter.

In 2016, Malik St. Hilaire, along with another African American student from Sacred Heart University, was falsely accused of raping a white student, Nikki Yovino. Initially Yovino claimed the two African American students raped her in a bathroom during an off-campus party. Investigators stated that they believed Yovino’s initial story and appeared to have witness statements to corroborate her claims. However, another student came forward to police and reported explicit text messages between Yovino and the two accused students. After being confronted by police, Yovino admitted to making up the story because she worried her “consensual encounter” with the two students would damage her relationship with a different student. Because of her lies, the two African American students were left to suffer the consequences of a guilty party in the court of public opinion. One of the male students lost his football scholarship after the allegations by Yovino were made, and both students withdrew from Sacred Heart University.

Even though a criminal trial was never held, the two young black males were given the excessive sentence of guilt before a thorough investigation was ever conducted. Even with Yovino’s lenient penalty for falsely reporting a crime, these two young men’s lives have been forever altered because the color of their skin was different from that of their wrongful accuser.

These examples illustrate a legal shortcoming when it comes to the legal concepts of “presumption of innocence.” The “presumption of innocence,” although not expressly enumerated in the U.S. Constitution, comes from the Bill of Rights. The general theory is that every defendant charged with a crime is presumed innocent until proven guilty beyond a reasonable doubt. However, there is a preconceived notion that a man of color accused of rape, by a white woman, is presumed guilty beyond a reasonable doubt. In the case of a white man accused of raping an African American woman, the presumption of innocence shifts from the white defendant to the African American female victim. Here, there is a presumption that a woman is unchaste because the color of her skin is black. Alternatively, the standard applied to the white defendant is the presumption that he is innocent until the African American victim is proven pure, innocent, and deserving of the law beyond a white person’s reasonable doubt.

Research shows laws and procedural mechanisms applied in cases involving African American men accused of raping white women voids the presumption of innocence, or applies a different standard of the law when compared to a white man accused of raping an African American woman. In the case of Betty Jean Owens and others, the white attackers confessed to raping African American women. Even with the confessions of her white attackers and the detailed testimony of these African American victims, juries responded with leniency and mercy. The outcome of the Groveland Four, Gregory Counts, and VanDyke Perry, however, is the word of their white accusers, alone, being sufficient enough to find them guilty of rape simply because they were African American men.

When it comes to rape, African Americans theoretically receive equal protection under the law, but do not actually receive equity in the application of the law. Equality without equity provides a pathway for African Americans to continuously find themselves lynched and victimized by the justice system, time and time again. Although the date of Emmett Till’s death was over 60 years ago, the physical slaughter and disregard for his body is emblematically carried out by the social and judicial nullification of African Americans’ lives today.

In 1955, the imbalance of justice prevented Till—whose eye was beaten from its socket, who was fatally shot, and whose body was weighed down by a 75-pound fan—from receiving justice. Today, the scales of justice continue to weigh down African American men; moreover, African American women are still beaten down by a judicial system that refuses to protect them under the law.

There are so many cases like that of our modern-day Emmet Till, who is serving a 100-year sentence in Angola Penitentiary for the rape of two white girls. Furthermore, there are also countless Betty Jean Owens who have never come forward because of the presumption of guilt their race carries. Their stories, along with so many others, represent the unchanged and reoccurring reinforcement of power and ownership when it comes to the bodies of African American women, accompanied by the presumption of guilt when it comes to African American men. Regardless of laws that sit on the books today, the realities are unchanging.

A legal scholar once commented, “While white women have been spared at all costs, African-American women’s bodies have always been like a buffet for white men to have, and take, and come back as often as they wanted.” Both history and our present legal system prove this to be true. When a woman comes forward with an accusation of rape against any man, the issue shouldn’t be the law treating her as it did when she was property because of her race. By altering the application of the law, all women, especially African American women, should be seen as human in the eyes of the law, and therefore deserving of protection under the law.

Then, and only then, can we begin to call our system “just.”

Chelsea Hale and Meghan Matt are 2L students at the Southern University Law Center in Baton Rouge, Louisiana. Both women plan to practice in the areas of civil rights litigation and criminal law.