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.