Samuel Vincent Jones, Sexualized Police Violence and Bias: Are Black Males Most Vulnerable?, 56 UIC Law Review 627 (Winter 2023) (234 Footnotes Omitted) (Full Document) (Permission Requested)

 

SamuelVincentJonesIt is sometimes mistakenly thought that the black male experience represents a mere racial variation on the white male experience and that black men suffer from discrimination only because they are black. Conceptualizing separate over-lapping black and male categories has sometimes interfered with the recognition that certain distinctive features of being black and male serve as the target for discrimination. -Lynn Adelman, U.S. District Judge

The horrific police killings of Tyre Nichols, George Floyd, Eric Garner, Tamir Rice, Philando Castille, and numerous other Black males -coupled with episodes of police targeting Black males like Kenneth Walker, whose encounter with police led to the tragic death of Breonna Taylor, a reasonable inference that anti-Black male bias permeates law enforcement and is a constitutive element of American culture. As police violence saturates the daily lives of many Black males, particularly heterosexual Black males, who generally lack the political, educational, and financial support their female and LGBTQ+ counterparts deservedly receive, anti-Black male bias flourishes in other facets of society. Jurisprudential critique of police violence against Black males is almost exclusively limited to killings, leaving virtually untouched any recognition of sexualized police violence or widespread mistreatment of Black males.

For instance, Black males fare worse than Whites and their female counterparts relative to unemployment, life expectancy, graduation, and incarceration rates. Black males are more likely to be searched, arrested, or killed by police; and are the only demographic group where police killings are a leading cause of death. Despite distinct manifestations of societal anti-Black male bias that relegates Black males to alarming levels of incessant oppression, intersectionality theorists have advanced empirically unsubstantiated claims that Black males are disadvantaged only by racism, but privileged because of maleness. Social and academic discourse are so suffused with assertions that Black males, like White males, occupy positions of privilege because of their maleness that this genus of anti-Black male bias is rarely challenged and, if challenged, is perceived as “anti-female or anti-queer,” or met with accusations of misogyny.

Consequently, the notion that Black maleness, and maleness generally, may render men and boys vulnerable to persistent degrees of sexual violence, including at the hands of police officers, likely strikes most observers as ludicrous. Such a claim conflicts with deeply rooted notions of male privilege and patriarchy. The conventional wisdom is that sexual violence against males, particularly at the hands of police officers, is virtually nonexistent and, thus, poses no significant public safety threat.

This Article challenges the conventional wisdom by making what some might consider a brash claim. Relying on objective assessments of legal strictures and investigative findings, this Article reasons, among other things, that Black males suffer from sexual violence at rates comparable to females, but are less likely to be identified as victims, and more likely to be wrongly convicted of sexual violence. It confronts contemporary assumptions about male vulnerability to sexual violence. In so doing, it reasons that societal narratives regarding sexual violence, masculinity, and race, improperly situate culpability in ways that vilify Black males, while elevating the social status and privileges of other groups.

The intent of this Article is not to expound on all historical accounts of sexual abuse of men and boys, police sexual violence or manifestations of anti-Black male bias. Rather, the aim is to contribute to an extant body of sexual victimization and intersectional jurisprudence that has long ignored the struggle of Black males to escape calamitous societal manifestations of anti-Black male bias.

The reasoning underlining this critique proceeds with the expectation that recognition of male vulnerability to sexual violence does not threaten the rights of women and girls to live free from the festering perils of sexual violence. There is no question that women and girls have historically endured significant levels of sexual harm, particularly at the hands of men, and that preventing sexual abuse of women and girls is, and should remain, a priority of law enforcement and serious academic inquiry. Nonetheless, because males, particularly Black males, experience comparable degrees of sexual violence from men and women, including police officers, it is critically necessary to examine preexisting and emerging cultural norms that facilitate sexualized police violence against men and boys.

The discussion advances in two substantive parts. Part II offers an elaborate survey of male sexual victimization rates with particular emphasis on boy victims. In so doing, it considers a growing body of literature that indicates males suffer from sexual violence at rates comparable to females. It also weighs societal narratives regarding sexual violence and masculinity against the backdrop of male vulnerability to sexual exploitation from traffickers, relatives, teachers, and other authority figures. Part III discusses the ignominy of Black masculinity, and how presumptions about Black masculinity and sexual violence render Black males increasingly susceptible to sexual exploitation and abuse. It briefly critiques the troubling, but largely unexplored, practice of police officer anal cavity searches of Black male motorists and pedestrians, which some scholars have categorized as rape. Part III also questions the legitimacy and motives surrounding the disproportionate arrest and prosecution of Black males for domestic sex trafficking.

 


II. Men and Boys Suffer from Sexual Violence at Rates Comparable to Women and Girls

A decade ago, after discovering that research regarding the experiences of male victims of human trafficking was grossly undeveloped and comparatively non-existent in academic literature, I wrote Invisible Man: The Conscious Neglect of Men and Boys in the War on Human Trafficking (“Invisible Man”). Invisible Man rested upon a series of jurisprudential and qualitative findings that established the falsity of the nation's conventional wisdom that human trafficking, including sex trafficking, is a categorical offense primarily perpetrated against women and girls. It reasoned that the constant portrayal of sex trafficking as an offense primarily perpetrated against women and girls, coupled with incessant descriptions of males as “criminals, cheaters, offenders, or victimizers of girls” encouraged legislatures to allocate resources firmly for women and girl victims, while not only ignoring male victims, but recasting them as victimizers.

Invisible Man noted that the Trafficking Victims Protection Act (“TVPA”), while gender-neutral in text, failed “to protect male victims of human trafficking.” The work reasoned that the TVPA's ineffectiveness at protecting male victims flowed directly from law enforcement professionals and service providers interpreting the sole purpose of the TVPA to be for the benefit of women and girls. Invisible Man examined the degree male victims were woefully unaccounted for in victim data-reporting sources, national statistics, and law enforcement data. It argued that the lack of attention afforded male victims of sex trafficking further contributed to the surreptitious trafficking of boys to feed “the high demand for child pornography,” which depicted more boys than girls in most circumstances.

Invisible Man explained that men and boys “frequently do not report their abuse” because socially imposed constructions of masculinity pressured men and boys to act self-reliant and invulnerable. Those findings, coupled with a well-entrenched societal distrust of males, generally, resulted in (1) a lack of funding for male oriented anti-sex trafficking programs, (2) a dearth of male victim treatment centers and shelters, and (3) routine use of definitional standards that excluded male-victims, all of which amounted to a societal neglect of male victims of sexual abuse.

 

A. Data Indicates that the Number of Male and Female Victims of Sexual Violence are Virtually Equal.

Since Invisible Man, a number of tragic occurrences have increased awareness regarding the wide degree that men and boys experience sexual violence. More than 40 former Black male students reported being sexually molested by a University of Michigan physician. Over 12,000 boys reported being sexually abused as Boy Scouts. In excess of 162 male students reported being sexually assaulted by a school official at Ohio State University. A shocking report that famed #MeToo leader, Asia Argento, had sexual relations with a male child provided new insight regarding the extent males experience sexual violence.

The U.S. Department of State has now aligned itself with the findings advanced in Invisible Man by its recognition that “men and boys represent nearly half of the total number of human trafficking victims,” but are more likely “to be neglected by government and service providers” because such programs are earmarked almost exclusively for women and girls. Similarly, a growing number of sexual victimization studies, along with approximately twenty-six scholarly publications since Invisible Man, have examined the plight of male survivors of sexual violence and also posited that the conventional wisdom that sexual offenses are male perpetrated crimes principally committed against females is patently false. For instance, noted masculinities theorist, Tommy Curry, reasons that, “men comprise a significant number, if not half, of rape victims in the United States,” and that “men and women report similar rates of nonconsensual sex.” Jennifer Lyons and Elisa Romano point to several studies to support their claim that boys suffer from sexual abuse at rates near or equal to women and girls. Their study examined the childhood sexual experiences of men in Canada and the United States. It revealed over 41% of the male participants reported being sexually exploited before reaching the age of 16, often by either a relative or an authority figure. Another study revealed that of all child prostitutes in the U.S., “31% of the juveniles were male,” and an analogous study regarding male victims of sexual abuse revealed that “nearly half of the victims were male.” Similarly, a survey of current or former child victims of sex trafficking in five Midwestern cities revealed that at least 21.7% were male. Jennifer Cole points to an analysis of the National Incident Based Reporting System, regarding the population of child victims of sexual exploitation in the U.S., which revealed that “38% of the juvenile victims ... were male.”

Other observers point to a comprehensive 2016 study that found boys comprise at least “36% of children caught up in the U.S. sex industry.” A 2013 National Crime Victimization Survey involving 40,000 households in the U.S., revealed that “38 percent of incidents [involving rape] were against men.” In addition, a 2014 study of 284 men and boys in college and high school found that 43% of them reported being sexually coerced, with the majority of coercive incidents resulting in unwanted sexual intercourse, and 95% of the males reporting the perpetrators were female. Lastly, a survey of 13,294 adolescents enrolled in grades seven to twelve in the U.S., revealed that 68% of students engaged in child prostitution were male.

What is particularly salient regarding the aforementioned findings is that although they indicate male sexual victimization rates generally hover around 35 to 68 percent, logic suggests that male sexual victimization rates may be higher for at least two reasons. First, males routinely conceal their sexual abuse because of anti-masculine shame, the fear of being wrongly casted as willing participants in their own sexual abuse, or being the object of ridicule. Second, for too many years Center for Disease Control (“CDC”) studies regarding the prevalence of “rape,” in the U.S., included only males who reported having “been forced into anal sex or made to perform oral sex on another male.” A significant number of male victims of sexual violence who reported being “made to penetrate” another person - usually in reference to vaginal intercourse, receiving oral sex, or performing oral sex on a woman, were “not classified as rape.” Even feminist commentators acknowledge that existing data indicates that “if being made to penetrate someone was counted as rape,” the data would reveal “that women rape men as often as men rape women.” Indeed, at least one CDC study regarding intimate partner violence revealed that “the rates of nonconsensual sexual contact basically equalized, with 1.270 million women and 1.267 million men claiming to be victims of sexual violence.” The landmark study commonly referred to as the National Intimate Partner and Sexual Violence Survey in 2010 encompassed a long ignored category of sexual violence called, “being made to penetrate,” which included “victims who were forced to penetrate someone else with their own body parts, either by physical force or coercion, or when the victim was drunk or high or otherwise unable to consent ....”

For decades, male victims of sexual violence were largely excluded from many studies and crime statistics involving sexual violence because it was not until 2012 that the Federal Bureau of Investigation (“FBI”) modified its definition of rape to include male victims. Prior to that time, the nation's top law enforcement agency released data regarding rape that wrongly excluded male rape victims. The more inclusive definition of rape now accounts for male victims. This much needed modification to criminal jurisprudence is particularly notable in light of harmful discoveries regarding Jerry Sandusky's sexual abuse of multiple male students at Pennsylvania State University, and emerging studies that indicate homosexual men commit sexual assault at rates at least comparable to that of heterosexual men.

 

B. Harmful Narratives regarding Masculinity and Sexual Violence.

A significant degree of political, academic, and social discourse is interspersed with claims that women and girls are especially vulnerable to sexual exploitation. Through relentless and courageous social messaging, commentators and survivor advocates have skillfully defended the right of women and girls to live free of sexual violence and have positioned the protection of women and girls as a societal imperative.

Sexual victimization scholars observe, nonetheless, that implicit in the narrative that women and girls are routinely subjected to systemic forms of sexual violence are false presumptions that position males as almost always the “perpetrators” and rarely the “victims.” Heather Hlavka notes that boys are rarely viewed as victims of sexual violence because the great weight of social messaging dedicated to men and boys falsely casts them as self-reliant or privileged. Repetitive claims of male privilege and female suffering, Hlavka reasons, has led to a “hierarchy of sexual harm” within American culture that prioritizes the prevention of sexual violence against women and girls, while ignoring sexual violence against men and boys. As a consequence, stakeholders know comparatively very little about how men and boys experience sexual violence.

Curry notes that a significant degree of academic literature is fueled by “various myths” that sexual violence is largely gender specific and findings that run contrary to the “female victim-male perpetrator” narrative are “politically unpalatable.” Cole points to narratives that casts innocent males as pimps, purchasers of sexual services, or willing participants in their own sexual abuse - rather than victims of sexual violence, as central to the marginalization of male victims. Other commentators reason that current narratives are shaped by a societal intent to brand masculinity as intrinsically “toxic” so that males behave more “feminized.”

Mentally and emotionally constrained by societal narratives that position sexual violence against males as a rare occurrence, and contentions that real men “man up,” male victims of sexual violence often misperceive themselves as falling outside societal expectations of masculinity. Consequently, male victims of sexual violence suffer in silence to avoid the shame, stigma, emasculation, or fear of being perceived as gay or weak, which typically occurs when males disclose their sexual victimization. In some cases, societal narratives prompt some males to believe they cannot be sexually exploited.

The severe harm caused by a male's misinterpretation of his sexual victimization increases the possibility of the male becoming a victimizer, or a runaway, which amplifies the probability of the boy becoming a child prostitute, particularly, if he is between ages eleven and thirteen -the average age that boys typically become child prostitutes. Research reveals that male runaways that walk the streets are attractive targets to sexual predators or sex traffickers because the dire circumstances boys encounter often compel boy runaways to have sex in exchange for resources they need to stay alive. Runaways comprise “the largest population of child victims of sex trafficking,” accounting for an “estimated 75% of all child prostitutes,” with approximately half being boys.

Cole notes that boy prostitutes today are significantly more likely to misinterpret their sexual abuse as merely “hanging out” because it aligns with their psychological need to cope with the socially imposed shame boy victims experience and their strong desire to align with societal expectations of masculinity as virtually invulnerable.

So entrenched is the narrative that males are seldom vulnerable to the vagaries of sexual violence that legal guardians and relatives have been found to openly flaunt the sexual abuse of their own children. In one case, a gay couple, William and Zachary Zulock, allegedly molested their two elementary school-aged adopted sons, blatantly used social media platforms to prostitute their sons, and openly invited people to participate in sexually abusing the young boys. One man told investigators that one of the husbands sent him Snapchat messages, including one that read, “I'm going to f--my son tonight. Stand by,” which was accompanied by pictures of the husband sexually abusing his adopted son.

Such tragedies occur too often because boys who report sexual violence to child services workers may be ignored and returned to the custody of the foster parents that sexually abused them. Even when sexually abused boys report sexual abused by a family member to another family member, it is not inconceivable that the boy will be instructed that his sexual abuse is not a “big deal.” Cole warns that, “mothers on drugs allowing men to sleep with their boys for drugs,” unstable homes, or compromised parenting, are pathways to boy sexual victimization. In some cases, boys are so confused about the tension between their sexual victimization and persistent societal narratives depicting males as perpetrators rather than as victims that they often confide in the person that is sexually abusing them. For instance, in a case in which a boy's mother trafficked him for sex, the boy continued visiting her after he was removed from the mother's custody because he wanted to see her despite being afraid of her. In other cases, well-intended parents or legal guardians may be dangerously unsuspecting of the lingering threat child sex trafficking rings pose to their male children.

The mother of a male victim who was trafficked for sex for years without her knowledge, resolved that her son committed suicide because “[h]e couldn't deal with the torture and the shame of being prostituted.” The mother discovered that her son was a sex trafficking victim only after arrests of the sex traffickers were made public. When describing the “hopelessness and despair” her son silently endured before his death, the mother acknowledged that “the pain of not being able to help [her] son ... was insurmountable.” The mother's exceptionally tragic experience, at a minimum, underscores the suffering mother's experience as a result of misguided social narratives regarding sexual violence. It also shows the grave degree that sexual violence relegates boy victims to near perpetual states of isolation, despair, anxiety, depression, substance abuse, post-traumatic stress disorder, and other manifestations of sexual torture. It comes as no surprise that out of the nearly “two thousand [annual] suicides among fifteen to nineteen-year olds, 85 percent are boys.”

For Black boys, their youth experiences are subject to a unique brand of perilous social conditions because they typically are denied the imprint of childish innocence their White counterparts enjoy. Despite their desire to be seen as masculine, strong or self-reliant, their struggle to attain manhood is dependent on them constricting their masculinity so that others feel comfortable enough not to perceive them as a threat. Undeservedly viewed as “sexual brutes,” Black boy victims of sexual violence are rarely accepted as victims, and, consequently, denied support when they disclose their sexual abuse. Ultimately, some Black boys come to believe their death or sexual victimization is only a matter of time and that they are of nobody's concern.

The incessant manifestation of anti-Black male bias that Black boys experience lead them to endorse harmful anti-Black male stereotypes that increases their vulnerability to sexual violence. Their vulnerability to sexual violence correlates with their increased rates of indiscriminate arrests at an early age that lead to their being sent to facilities where they are routinely raped or sexually assaulted. Scholars note that “among diverse groups of men, young Black males experience statutory rape, sexual coercion, and sexual manipulation more than other groups.”

Despite freely accessible data that indicates the alarming degree to which Black boys suffer because of their maleness, racial justice discourse focuses squarely on harm relative to race or ethnicity, leaving the sexual violence that Black boys experience unexplored. Consequently, the daily lives of Black boys is diminished by the perpetual threat of sexual violence. This constant state of oppression is exacerbated by the fact that mothers of many Black boys are “not able to turn to middle class safety nets in the same way as their white counterparts” because police officers, and other authority figures, are perceived as “potential predators” who threaten the survival or emotional well-being of their Black sons. The tragedies too many mothers endure, in part, because of anti-Black male bias, accentuates the need for greater cultural awareness regarding the methods sexual predators use to target potential male victims, which have proven to be enormously threatening in scope.

For instance, in 2018, police officials discovered the existence of a sex trafficking ring in Connecticut that had been preying on boys for more than two decades. Officials identified at least fifteen victims, but believed the sex trafficking ring sexually exploited dozens more. The traffickers specifically targeted boys who were developmentally disabled, mentally impaired, or addicted to drugs, and often lured boys from drug rehabilitation centers. They provided the boys with highly addictive drugs, such as heroin or cocaine, and then took the impaired boys to perform sex for older men in exchange for payment to the sex trafficker.

Child pornography also operates as a catalyst for the sex trafficking of boys. The United States accounts for approximately 37% of all child sexual abuse internet sites that facilitate sex trafficking. Despite established prohibitions against child pornography, there has been a global increase in the manufacture and distribution of child pornography over the last decade, as tens of millions of child sexual abuse images and videos are shared every year. Today, global child pornography rings that specialize in targeting boys continue to be discovered. In some regions, boys comprise the majority of child victims.

To cite but one example, after Invisible Man revealed the degree to which boys are vulnerable to child pornography rings, the U.S. Immigrations and Customs Enforcement (“ICE”) and Homeland Security officials discovered, “one of the largest [child pornography] operations ever uncovered,” which involved use of a secret website to victimize at least 250 children, mostly boys, and approximately 27,000 subscribers. At the time authorities dismantled the child pornography ring, the website contained “more than 2,000 shared webcam-captured videos of mostly juvenile boys,” between the ages of three and seventeen, from thirty-nine States, with twenty-three of the child victims hailing from other countries. U.S. officials maintained that never in the history of ICE had the agency located so many victims during the course of a single child commercial sexual exploitation investigation. Discovery of the vast child pornography network is representative of the thriving public safety threat child pornography poses to males. Nonetheless, research regarding the impact of child pornography rings on males remains glaringly underdeveloped in today's purported climate of sexual violence awareness.

Despite credible data that indicates males comprise a statistically comparable percentage of victims of sexual violence, the notion that males suffer high rates of sexual abuse likely strikes most as absurd because it contradicts modern day expressions of male privilege. Consequently, the sex trafficking of males has little or no presence in historical or contemporary anti-trafficking legislation. Neither the TVPA, the Preventing Sex Trafficking and Strengthening Families Act of 2014, nor the Justice for Victims of Trafficking Act of 2017, despite being meritorious achievements, specifically require gender inclusivity or direct child services agencies or law enforcement personnel to safeguard against anti-male bias so that male victims are not ignored. Some states even require male child victims of statutory rape to pay child support upon reaching adulthood for any offspring resulting from sexual abuse by an adult.

Although the U.S. State Department 2020 Trafficking in Persons Report (“TIP”) makes clear that there is a serious need to “increase access to victim services” for men and boys in the U.S., observers have found that there are “zero screening tools that have been developed specifically to screen males for sexual abuse.” Consequently, sexual abuse victim treatment programs that address physical and mental health needs unique to male victims of sexual violence continue to be virtually nonexistent. A 2012 survey of child sex trafficking provider organizations revealed that while 36% were exclusively for female victims, none of the programs were exclusively for boys, and of thirty-three operational residential programs identified, only two accepted male victims. Likewise, when opening a shelter in North Carolina for male victims of sex trafficking, journalist Heather Sells found that only one other shelter existed for male children in the United States. Judge Jane Cork, who presides over cases in Minnesota involving male victims of sex trafficking, observed that there is “a complete lack of services for male victims” of sex trafficking and only “one of four ... shelters has a bed for boys, but most of the shelters do not even take boys.”

 


III. Anti-Black Male Bias and Harmful Policing

The prevalence of sexual violence against males is inextricably linked to the failure of police officials to properly identify male victims or fully comprehend how males experience sexual violence. Today's police officer is more likely to charge a boy victim of sex trafficking with prostitution rather than rescue the boy. Some police officers have linked the failure of law enforcement efforts to properly detect and rescue boy victims of sexual violence to the law enforcement community's inability to “break into” and dismantle the “secret society” created by male sex trafficking networks. Other police officers explain that the law enforcement community's failure to prevent male sexual violence is due to the sheer allegiance of some legislators and police officials to the female victim-male perpetrator oriented approach to combatting sexual violence. For example, when a police officer was questioned about the need for law enforcement officials to avoid criminalizing boy victims of sex trafficking in favor of redirecting their efforts to rescuing boy victims, the police officer bluntly confessed that legislators have no interest in allocating funds to prevent the sex trafficking of boys. The officer stated, “[i]t would be impossible to convince white, male state senators to pass a law that does not criminalize youth in the sex trade if you tell them that boys are involved ....” Simply put, despite men and boys suffering from sexual violence at rates comparable to women and girls, there appears to be a profound lack of interest in using the full range of government to prevent male sexual abuse. For Black men and boys, the harmful consequences of governmental mistreatment is far more pronounced, in part because Black masculinity is socially positioned as a societal threat.

 

A. Anti-Black Male Bias Operates as a Catalyst for Casting Black Males as Sexual Predators

Despite being contradicted by virtually incontrovertible official data, the stereotypical Black male in the US is “a savage beast incapable of controlling his sexual urges.” In recognition of this oppressive feature of American culture, the late feminist theorists bell hooks reasoned:

Seen as animals, brutes, natural born rapists and murderers, black men have no real dramatic say when it comes to the way they are represented. They have made few interventions on the stereotype. As a consequence, they are victimized by stereotypes that were first articulated in the nineteenth century but hold sway over the minds and imagination of citizens of this nation in the present day .... At the center of the way black male selfhood is constructed in white-supremacy patriarchy is the image of the brute, untamed, uncivilized, unthinking and unfeeling.

In line with hooks' posture, Achille Mbembe, opines in his highly noted work, Black Reason, that through the process of disseminating false and destructive narratives of Black males, a “massive coating of nonsense, lies, and fantasies” arises that operates as a cultural “envelope whose function” is to “substitute for the being, the life, the work and language of Black males” to situate them as a societal “problem.” The performative outcome of the narratives Mbeme and hooks describe is a coercive social arrangement that restricts Black male social mobility and freedom, purportedly for the public good. Relentless portrayals of Black males as criminals have so effectively disparaged their identity that Black males remain relegated to incomparable and undeserved levels of lethal policing, poverty, school expulsion, homelessness, and incarceration. For many Black males, feelings of “hopelessness, inequality and blocked opportunities” are a way of life. For astute commentators, no other group is more disadvantaged at birth than Black males.

Disadvantages unique to Black masculinity have historical roots dating back to the advent of the African slave trade. Black males were characterized as “sexual predators whose primary desire was to violate [W]hite women.” The irony surrounding the persistent nature of the “Black male sexual predator” claim has attracted attention. Scholars observe that although the majority of alleged perpetrators of sexual violence identified during the “#MeToo movement” were “powerful White men,” it was “White men [who] largely created the myth that black men should be feared, as a means of dehumanizing them and keeping them enslaved.” Victimology theorists have noted that, historically, women have often been “pressured by white men to falsely accuse black men of rape so that the alleged suffering of the victim could be seized upon to justify the execution or lynching of the accused [black male], and by extension to legitimize the segregation and repression of all black men.” Despite the meritless underpinnings of the “Black male sexual predator” myth, it has held profound relevance in American legal history. In Long v. Hooks, justices even acknowledged that “the history of policing sexual contact between Black men and white women--including using accusations of inappropriate or violent conduct, from wolf whistles to rapes, to imprison or lynch Black men--is a long and troubling one in this country.”

Severely biased legal proceedings against Black males perceived as heterosexual, such as those involving the Scottsboro Boys, Groveland Four, or Central Park Five, are scant examples of the wide-ranging degree the mythological Black male sexual predator stereotype provides a false justification for the incarceration or killing of innocent Black males. This ignominious genus of anti-Black male bias also enables the $300 billion criminal justice system, comprised mostly of Whites, to exert control over a comparatively large percentage of Black males under the guise of protecting society from the purported threat of Black male savagery.

So entrenched is the nation's notoriously harsh vilification of Black males that it is widely accepted that the easiest criminal allegation to make in the U.S. is one against a Black male because the accuser will almost invariably be presumed innocent, and the Black male perceived as the wrongdoer, without significant consequence to the false accuser. Commentators note that although “feminist movements” have tended to ignore this particular manifestation of anti-Black male bias and “White supremacy,” it cannot be reasonably denied that numerous “instances of modern-day women weaponizing their womanhood by using police and law enforcement” have had tragic consequences for Black males. Legal scholars note that the disturbing effect and historiography of Black males being falsely accused of crimes is so well documented, it is “undisputed.”

As signified by the aforementioned cases involving the Groveland Four, Scottsboro Boys, Central Park Five, and too many others, criminal cases against Black males do not typically turn on the weight of the evidence, accuracy of facts, or character of witnesses, as would be the circumstance for many non-Black males. Rather, criminal cases against the Black male are too often a product of the anti-Black male bias harbored by prosecutors, judges, police, juries, medical examiners, and so forth. Not surprisingly, 54% of wrongful convictions are attributed to government misconduct, such as witness tampering, threats and manipulation, misconduct during interrogations, fabricated official evidence interrogations, fabricated official evidence (forensic fraud, fake crimes, and fictitious confessions), concealment of exculpatory evidence, and misconduct during the trial (police perjury and misconduct by prosecutors).

Because of anti- Black male bias positions non-black males to use the Black male sexual predator stereotype to their advantage, one can reasonably predict the legal outcome of a case involving sexual violence and an accused Black male in virtually every circumstance. Black males are “three and half times more likely to be innocent when accused of sexual assault.” According to data reported by the National Registry of Exonerations, a prisoner serving time for sexual assault is 3.5 times more likely to be innocent if he is a Black male than White. Although roughly 13% of White victims of sexual assault were attacked by Black men, and 70% of White victims of sexual assault were attacked by White men, Black men account for 57% of exonerees falsely accused of sexual assault. It comes as no surprise that a Black male defendant convicted of sexually assaulting a White woman is approximately eight times more likely to be innocent than a White male. In addressing the historic nature of false rape allegations against Black males, legal theorist Angela Davis, noted:

In the history of the United States, the fraudulent rape charge stands out as one of the most formidable artifices invented by [gendered] racism. The myth of the Black rapist has been methodically conjured up whenever recurrent waves of violence and terror against the Black community have required convincing justification.

Despite well known cases involving notoriously false allegations against Black males, such as cases involving Charles Stuart, Susan Smith, Patricia Ripley, Sherry Hall, and too many others, false allegations against Black males persist with great latitude without any apparent abatement in frequency. Although Black males are as likely as females to be victims of sexual violence--as detailed in Part II--Black males are more likely to be falsely accused and wrongly convicted of offenses involving sexual violence. Alarming degrees of unjust Black male incarceration, discrimination, and lethal policing, make clear that there is virtually no limit to the harm an individual or government official may attempt to inflict upon a Black male.

For example, the Black male sexual predator myth has served as a pretext for the disproportionate arrest and incarceration of Black males on grounds that they are “domestic sex traffickers, commonly referred to as pimps.” Police appear so obsessed with arresting Black males for allegedly being pimps that they often arrest victims of sexual violence for the purpose of targeting a pimp or use safe houses to coach victims on how to testify against an alleged pimp rather than to help the victim. Despite legal prohibitions against police officers requiring child victims of sex trafficking to cooperate with police investigations, some police officers will refrain from arresting a child victim only “if [the child] gives up the name of [a] pimp.” In some cases, police officers pressure women to break up consensual relationships and claim to be victims of sex trafficking so that a Black male can be arrested on grounds that he is a pimp. In other cases, accusations against unsuspecting Black males arose only after foreign White females residing in the U.S. who did not want to be deported, agreed, at the behest of police officers, to accuse an innocent Black male of being their pimp.

Simply put, police officers and “other white authority” figures in some jurisdictions routinely arrest innocent Black men for allegedly being “pimps” that “[have] never sold a girl in their lives.” The disproportionate targeting of innocent Black men for alleged domestic sex trafficking, nonetheless, is not limited to local police operations. Scholars who have examined federal prosecution practices posit that the customary aim in federal sex trafficking investigations or trials is to cast Black males as coercive and controlling, despite the range of evidence to the contrary.

In a nationwide study of cases prosecuted under the TVPA, Black males represented 80 to 90% of the defendants, though Black males account for roughly only 6.5% of the U.S. population. In Oregon, researchers found that “49/58 (85%) of the Oregon federal defendants were black males” though Black males comprise “less than one percent” of Oregon's general population. Observers also note that in some cases, the catalyst for arresting and prosecuting Black males has little to do with genuine efforts to curtail sex trafficking. Rather, the prosecution of Black males has more to do with federal prosecutors trying to position themselves for political offices with convictions of Black males so that they can boast that under their leadership convictions grew “from zero per year to ten.”

Once convicted of being a pimp, Black males are routinely sentenced to over thirty years in prison and do not receive comparable plea agreements as White defendants charged with identical or comparable offenses. Researchers have found that, “an alarmingly large and growing number of black men have been prosecuted and received what are effectively life sentences for crimes that are barely noticed when committed by white men or non-Black males.” As police officers and prosecutors know quite well, when Black males are sent to jails or prisons, they are “routinely raped or sexually assaulted.”

 

B. Police Anti-Black Male Bias and Sexual Violence

Perhaps the most alarming non-lethal manifestations of anti-Black male bias in law enforcement are police violent attacks on the sexual organs of Black male suspects, including the practice of conducting warrantless anal cavity searches of Black male motorists and pedestrians for the purported purpose of searching for contraband. Although a comprehensive discussion of these heinous police practices goes beyond the scope of this Article, because sexualized police violence has persisted largely unexamined by sexual victimization theorists, several points of discussion are warranted.

First, courts and legislators have largely closed jurisprudential gaps in criminal law that once gave police officers near unfettered rights to invade or exploit a suspect's most intimate and sexual body parts in ways that blurred the line between effective policing and sexualized police violence. Federal police officers and local police officers in many states are now prohibited from having sex with arrestees or people in custody. Correction officers are now prohibited from having sex with inmates. Police officers are no longer authorized to have sex with prostitutes under the guise of collecting evidence of criminal behavior to arrest them.

Consistent with this jurisprudential trend, courts have established that in order for a police officer to manually search a male's anus, the police officer must first obtain a search warrant. Some jurisdictions, if not all, have even mandated that all anal searches be conducted in sanitary environments by a physician, nurse, or emergency medical technician. Although the use of anal cavity searches are lawful in limited circumstances, courts have acknowledged that an anal cavity search is “degrading” to the person probed and an affront to a suspect's “dignitary interest” because the procedure targets “an area of the body that is highly personal and private.”

Second, it is widely accepted that all states and the District of Columbia have expanded their definitions of rape and sexual assault, in such a way that most standards include prohibitions against touching of sexual organs, and anal penetration, with most allowing for more than just the male sex organ to be the penetrating object. Sexual assault generally includes any contact or penetration, however slight. The DOJ has also expanded its definitions of rape, forcible rape, forcible sodomy, and sexual assault, to include “[t]he penetration, no matter how slight, of the vagina or anus.” Put succinctly, anti-rape and anti-sexual assault laws are inclusively designed to protect male victims from anal penetration.

Third, rape and sexual assault are globally accepted as forms of torture, the prohibition of which is deemed fundamental to civilized nations. The right to live free from sexual violence, such as rape or sexual assault, is a non-derogable human right that is absolute and not subject to derogation or exception, even in time of war or emergency.

The conventional wisdom is that the risk of becoming a victim of sexualized police violence when traveling public streets is virtually nonexistent. The following examples illustrate, nonetheless, that Black males are stopped on public streets and subjected to disturbing acts of sexualized police violence:

1. Darren Manning

Darren Manning, a sixteen-year-old Black male and a straight-A student, was castrated by a female police officer after she allegedly stopped him because she found him suspicious. While allegedly conducting a body cavity search, the police officer squeezed Manning's testicles so hard, “they ruptured with an audible pop.”

2. Abner Louima

Abner Louima, a Haitian man, was forced into a police station bathroom, where Officer Volpe grabbed his testicles, kicked him in the groin, and then anally penetrated him with a bathroom plunger. Afterwards, Officer Volpe “paraded the plunger around the station as proof of his conquest.”

3. Coprez Coffee

After stopping Coprez Coffee, Officer Scott Korhonen and Officer Gerald Lodwich anally penetrated Coprez Coffee with a screwdriver under the guise of searching for illegal drugs.

4. Angel Perez

Chicago Police officers allegedly took an unsuspecting Perez into a warehouse building in Chicago's Homan Square and inserted a pistol into his anus. In describing what he referred to as “sexual assault,” Perez reported:

He's [a police officer] saying that, you know, when you're in jail and you get penetrated by an African American, that it feels just like a gun going up your rear end. While he's doing all this, he ends up pulling down my pants, and he gets near my rear end, I guess you can say, and that's when I just felt something cold and hard just, I guess, penetrate me. And that's when I just jerked, and I freaked out, and I just went into full panic attack. I couldn't even talk.

One police officer reportedly yelled, “I hear that a big [B]lack n ––– r dick feels like a gun up your ass.”

5. Andre Little

Officer Kristopher Tong approached a teenager who was merely standing on a public platform and threatened the teen after he reportedly refused to move to another part of the platform. After a brief exchange, Officer Tong pointed his taser at the scrotum of the teen. The teen screamed, “Don't tase me, bro! Please don't tase me in the balls! You don't have to do this!” Officer Tong responded by tasing the teen in his scrotum and then turning him onto his stomach and tasing the teen in his back.

6. Corey Green

Corey Green, a 33-year pest exterminator, had to undergo surgery to restore blood flow to his genitals after a police officer in the city's Brooklyn borough reportedly kicked Green in his groin” while searching for a robber. Despite Green not being identified by the victim as the culprit, a police officer threw Green to the ground and another police officer began “stomping on his groin with a boot, crushing his scrotum.”

7. Elijah Pontoon

Police officers conducted a probe of Elijah Pontoon's anus for three minutes while he was handcuffed under the guise of looking for illegal drugs that were never found. The sodomy was so violent and outside the bounds of human decency that one police officer, while penetrating his anus, confused Pontoon's anal hemorrhoid for drugs, stating: “[i]f that's a hemorrhoid that's a hemorrhoid, all right? But that don't feel like no hemorrhoid to me.”

8. James Mitchell

After being stopped for a minor traffic violation, Deputies Jacob Goforth and Daniel Wilkey ordered James Mitchell out of a vehicle, and then punched and kicked him, mercilessly. After Mitchell complained of hernia pain, a police officer grabbed his genitals, and then sodomized him under the guise of conducting an anal cavity search for drugs.

9. Kevin Campbell

Allen Park police officer, Daniel Mack, stopped Campbell's car and ordered Campbell to produce his driver's license and registration. After Campbell protested the officer's conduct, he was taken to a police station. At the station, Campbell was ordered to “get naked” and “drop” his “drawers,” and subjected to repeated probing of his genitals and anus against his verbal objections.

10. Robert Douglas

Robert Douglas was stopped by undercover police officers and shackled to the window bars of a nearby home in public. A police officer then pulled down his pants, bent him over and “search[ed] his buttocks.”

11. Juan Johnson

In Johnson v. District of Columbia, the court considered a case involving, Juan Johnson, an off-duty police officer, who was mistaken for a criminal. After police officers failed to notice Johnson signaling that he was a fellow police officer, the police officers repeatedly kicked and stomped his groin and buttocks while he lied in a prone position with his arms and legs spread. Neither the court nor defense counsel were able to discern how “repeatedly kicking a surrendering suspect in the groin--produced some law enforcement benefit that might outweigh the serious harm.” The Johnson court reasoned that the offending police officer was not entitled to qualified immunity.

12. Joshua Rashid Radwan

In Radwan v. County of Orange, video footage revealed that despite Radwan being placed in handcuffs and leg irons and posing no threat to officers at the scene of his arrest, a police officer grabbed his testicles and threw him to the ground. The court reasoned that Radwan clearly established “an excessive force violation of his Fourth Amendment rights.”

In each of the aforementioned warrantless circumstances, the offending police officer knowingly had offensive contact with a sexual organ or intimate body part of the victim; knew or had reason to know that the contact would likely cause serious bodily and psychological injury; and the victim was helpless to prevent the sexual act. The offending officer used force or the threat of deadly bodily harm to perpetrate the sexualized violence, and did so intentionally, knowingly or with reckless regard for the law, dignitary interest or welfare of the victim. Under such circumstances, it cannot be reasonably denied that the abovementioned illustrations of sexualized police violence fit squarely within the jurisprudential strictures of sexual battery, if not sexual assault or rape.

Simply put, despite clear legal frameworks that mandate compliance with constitutional safeguards, such as the duty to obtain a warrant before conducting an anal cavity search, some police officers ignore mandates by engaging in disturbing acts of sexualized violence against Black males with apparent impunity. If legal prohibitions against sexual violence are to connote moral authority, there must be a genuine expectation that they are observed across all spectrums of society. Freedom from sexual violence is an individual and societal imperative that non-Black males courageously assert and expect for themselves. A failure to recognize the right of Black males to also live free of sexualized violence, particularly at the hands of police officers, compromises the legitimacy of anti-sex crime frameworks and law enforcement practices, generally.


IV. Conclusion

Because of their race and gender, innocent Black males are routinely viewed as threats, criminals, lazy, incompetent, or sexual predators. Readily obvious, but rarely discussed, this strand of anti-Black male bias unites virtually every American institution, from our courts and corporations to our political offices and universities.

Granted, we have witnessed notable improvements in laws that proscribe sexual violence and police brutality and embraced the need for greater awareness concerning the harmful effects of conscious and unconscious bias. Black male victims of sexual violence, nonetheless, continue to suffer without any apparent abatement in the degree of sexual violence they experience, often at the hands of police officers. For too many Black males, manifestations of anti-Black male bias, such as sexualized police violence, undeserved police targeting, and false accusations, facilitate incomparable levels of depression, homelessness, poor health, incarceration, unemployment, poor education, a lack of social mobility, and even death.

There is no question that Black males have not benefitted from emerging displays of societal shame linked to America's long history of legalized slavery and racial segregation. To a large degree, the plight of Black males has worsened for at least two reasons. First, institutions often earmark funding, educational privileges, and employment opportunities for members of virtually every minority group but Black males, under the guise of curtailing past or current discrimination.

Second, objections to Black male exclusion or attempts to address the dire needs of Black males, generally, are routinely met with claims that doing so reinforces discrimination against non-Black males. Recognizing the hazard that may envelope them unless they disparage or exclude Black males, organizations use such contentions to justify the continued repression of Black males. In doing so, institutions prevent Black males from competing for critical resources and opportunities, while, simultaneously, elevating the status, privileges, and rights of non-Black males.

As this Article has demonstrated, the unparalleled disadvantages confronting Black males because of widespread anti-Black male bias are not a figment of the imagination. They persist with rigor, ostensibly, to the satisfaction of many. Sadly, few appear willing to discuss or even acknowledge the existence or catastrophic effect of anti-Black male bias. Perhaps there is a fear that doing so will only alienate groups that benefit from anti-Black male bias. Regardless of the rationale behind our social acquiescence to Black male oppression, the end result is a society with a maligned and self-regarding false construction of itself.

Associate Dean and Professor of Law, University of Illinois Chicago School of Law.