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.
