Law school professors are fond of saying that “hard cases make bad laws,” by which they mean that when a situation is complicated, it can be difficult to ferret out what kind of rule will bring about justice. When I was in law school, I always found myself wanting to challenge that statement. After all, if a rule doesn’t apply in all situations, isn’t it a bad rule?
I was reminded of my objections the other day when I read Womanist Musings’ comments on the recent posthumous exoneration of Timothy Cole, a black man convicted of raping a white woman in 1986 in Texas. Renee focussed mostly on the white privilege of the victim, Michelle Mallin, and how that affected the dynamic of the case. I came away from the post thoughtful, but not entirely comfortable, with her analysis. Renee is angry – and there’s some validity to this – that Mallin “was not concerned enough to ascertain the facts of her own case.”
I want to be completely clear at the outset. I am in wholehearted agreement with Renee that Mallin has white privilege here, and that it needs to be talked about. White privilege, like the patriarchy of which it is part and parcel, is omnipresent. It is there in every transaction between two people of different races. It is nothing short of offensive to pretend otherwise, particularly in light of this country’s history of having black men murdered on the mere suspicion of having looked at a white woman.
But I feel uncomfortable with talking about this situation as if the only relevant dynamic were race-based. After all, at least one thing remains undisputed: Michelle Mallin was raped. The reason this exoneration happened is because her actual rapist came forward and confessed when he heard that Cole had died in prison. And the actual rapist is also black.
Yes, Mallin picked Cole out of a lineup three times. But as most law enforcement officials know, cross-racial eyewitness identifications are notoriously unreliable. Why they are so unreliable is obviously a matter of speculation for empirical research, but it isn’t much of a leap to guess it’s because white people have trouble distinguishing among the faces of black people.
This prejudice is not morally neutral, of course. But it manifests in this context for a reason. I want to pretend that in a moment of emotional trauma I will have clarity of thought and purpose and be able to resist years upon years of unconscious racial-bias programming, but I can’t promise it. I can’t promise that when the weight of a bunch of people who keep telling me they’re here to help me show me a Polaroid photograph, and suggest it’s him, when my brain just wants this to be over and done with, the story sealed off by a triumphant jury verdict and an attacker locked in prison, that some neural pathway in my brain will not close off and say, yup, that’s him. Particularly where, as in Michelle Mallin’s case, the cops don’t tell me about the inconsistencies between my story and the accused’s profile, because they have their own conviction quotas and moral righteousness to keep up.
Which brings me back to hard cases and bad law. I have never reported a rape. But I have read and heard any number of accounts from women (many of them white) who did, and the word you never hear them utter is “control.” The word you do hear is “frustrated.” Frustrated because the system always seems stacked against them. Frustrated because whatever story they want to tell is not ultimately the one the jury hears. In fact, to listen to these women, one wonders how anyone could possibly want to report a rape. The catharsis only counts for so much. And it’s these experiential accounts of the justice system that make me wonder if we can really think of white women who are raped as being in control of their “rape” narrative.
The patriarchy is always eager, after all, to co-opt women’s legitimate complaints about attacks on them as women and twist it to serve its own ends. (To wit: Sarah Palin.) So as a special bonus prize for raped women who turn to the justice system, the patriarchy’s faux-rage over their rapes never has much to do with empathy, but everything to do with power. In fact, the patriarchy’s tendency to hyperbolize the rape of white women – usually by fetishizing white female virginity and sexuality as some kind of ultimate purity – has only made women more afraid to admit theirs. There’s a lot of talk among rape survivors, for example, about the fear of being defined by the incident, of spending the rest of your life subject to the pity of well-meaning people who ask you how you “possibly lived through it.” (It’s sneaky in the ways it kills us with kindness, that patriarchy is.) And as any number of prominent public rape prosecutions have shown, public perception and hysteria over the judicial process can swiftly spirals out of control.
In short, the prosecution of the crime of rape, even when the victim is a white woman, is usually little more than the patriarchy asserting itself in the guise of “protecting” white women, without regard to how their interests are protected in the process. And when the accused is a black man, rape is patriarchy’s lucky day – a two-for-the-price-of-one sale of oppressive practices! Savings and injustice for all!
So going back to Mallin, talking about the identification process as though it were hers to control is a reduction. It fails to account for the fact that the system is set up to keep the woman out of the driver’s seat of her story. It fails to account for the subtle ways in which patriarchy defends its own interests by letting the system get by on eyewitness identifications when it knows full well how problematic they are. It fails to account for the enormous pressure put on women to convict their rapist so that the “community” (always a watchword for patriarchy) gets to cathartically celebrate his punishment even as its women unwillingly have sex every night of the week in loveless marriages or drunkenly in backseats outside local bars.
Most sadly, though, it fails to account for the ways patriarchy pits white women against black men. It tries to tell us our interests are opposed, makes us aggressors to each other, when in fact we all have the same problem: rape laws, and the way they are administered, are currently nearly useless for everyone involved. The only person getting catharsis here is the (often white, often male) prosecutors and cops. Everyone else leaves that courtroom unhappy, unsatisfied, and most importantly, wholly without justice. And that system is what we have to keep firmly in our target sights even as we puzzle out the complexities involved. We owe that to the next black man whose picture gets shoved in front of the next white rape victim. Both of them are being manipulated for ends that are not their own by a system powerful enough not to get a little thing like complicated facts in its way.
Ok, I tried to click on the link to read the Womanist Musings comments but it didn’t work out. But, if they are really suggesting that its a rape victims duty to “ascertain the facts of her own case,” that is bullshit. That makes me very angry. Unfortunately, as you mention cross-racial eye-witness accounts are deeply flawed for a variety of reasons. Hell, even intra racial eyewitness accounts are flawed. I read up on this in law school and there’s a lot of good research behind why this is, primarily that when you’re the victim of (any) violent crime you’re not thinking clearly both during and after and are in a highly suggestible state afterwords. But of course once you are convinced that you have made an eye-witness account that face then BECOMES the face of your attacker. I guess what I’m saying in a long winded way, is that victims of violent crimes are not in a good place (to put it mildly) and I think its beyond wrong to blame them. That’s why we have the police, they are SUPPOSED to be impartial third parties who can investigate with clear heads. Of course there are MANY problems with the police but that doesn’t mean all victims now need to take it upon themselves to start impartially investigating their own assaults. Ok I’m going to end the rant now, I could go on and on.
rape laws, and the way they are administered, are currently nearly useless for everyone involved
This is why I didn’t want to report my own rape. From the horror stories I have heard, and the fact that my case involved alcohol and a former boyfriend, I knew it would be a purely circumstantial, he-said, she-said case and didn’t want to go through it. I didn’t want to have to deal with my reputation coming into question, my motivations coming into question. It was just easier not to report at all.
If I was raped by a stranger, I’m not sure that I would react the same way. Would I report THAT rape? I don’t know. I do know that the process of prosecuting a rape sometimes seems like more trouble than it’s worse.
I would like to hear other victims’ reasons for not reporting their own assaults, if any of the commenters that have been in that situation care to share. Was it a personal decision? Did the laws and law enforcement affect the decision in any way?
I didn’t report my rape, either, Britni. Largely because by the time I had even realized that what happened to me was rape, I had no evidence (you’d have thought that the doctor who gave me Plan B after I went in and told her about how I woke up naked in a strange apartment with no memory might have offered a rape kit, or an STD screen, or even some counseling, but you’d be wrong). It would have been my word against his, and he was a big man on campus, with a million witnesses who could have said they saw me drinking that night. It would have been humiliating and painful, and I decided it wasn’t worth it. It would have also put my family through the pain of wanting me to have justice and not getting it, and I ended up choosing not to tell THEM that I was raped, either.
I didn’t get justice, but I did get counseling. I really recommend talking to a counselor about it.
@funnyface: Knowing the story behind your rape, I’m not sure if I would have reported, either. It’s such a shame that we feel like we have no case, or that it’s just easier not to, or that no one will believe us. It says a lot about the rape culture of shame that we have in this society.
And I’m actually considering counseling, and am in the process of looking for a therapist
Pilgrim Soul, you really hit it out of the park. I had heard the story of Timothy Cole on the radio, and I am disgusted on his behalf. That being said, the rape victim in this case is not responsible for the injustice against him. There is privilege involved in this case, but it’s not the rape victim’s privilege. It’s the lack of privilege held by black men, as opposed to white men. White men who suddenly get religion when a man of color rapes one of “their” women are not sympathetic to female victims; they are merely attempting to protect what they see as their property: women’s bodies.
It’s the lack of privilege held by black men, as opposed to white men.
Sarah, this is a great point. You hit the nail on the head here.
“white people have trouble distinguishing among the faces of black people”
All races have this poor recognition/differentiation issue with other races, but it is affected by degree of exposure as well. You can actually reverse the effect such that adopted Asian babies in predominantly white areas show better recognition of white faces than of Asians or any other race. People in more diverse areas show a lesser other-race effect (if any), etc.
Aaaaand I’m a geek.
DangerMouse, I love you for your geekiness.
A former coworker watched the wrong person’s label being put on her rape kit–it’s a good thing she noticed and flipped the eff out, but still, LAW ENFORCEMENT FAIL.
(She was roofied, no justice, etc.)
This is really excellent, PilgrimSoul. There are two victims here. The raped woman did not get “redeemed” by Cole’s conviction, just as she would not have, had the real rapist been convicted. White women can not count on being believed when they are raped, either. I find that implication really offensive, given the extremely low rate for reporting and conviction.
I’m not black, I’m Indian. I’ve noticed that in cases of domestic violence(analogous to rape in many ways) the community rallies around the man, both out of the sense that it’s not a big deal, and because protecting the men=protecting the community from the outside(white) justice system. Women are encouraged to suck it up and deal privately so as not to hurt the (men in the)community. That’s what the WM post reminds me of, especially the contempt for Mallin from some of the comments. One person even says “That is why the police should never believe a rape victim’s story”(!)
I heard Mallin being interviewed on npr the other week and was struck by the whole fucked uppedness of this case. It seems like the people to blame are 1. the dude who raped her, heard about Cole being imprisoned, but waited until the statute of limitations was up to come forward (ie he felt bad about Cole, but not so much about what he did to Mallin) 2. the police who withheld all of the contradictory information and 3. our prison system that neglects the health needs of inmates and allowed Cole to die in his cell.
One area of common ground is the testing of rape kits. Even in cases where the victim has the wherewithal to actually realize what’s happened to her and decides to go get a rape kit done in time, many cities have huge backlogs and thousands of the kits are NEVER TESTED within the statute of limitations. DNA evidence preserved by the rape kits can allow for prosecutions with very low rates of false convictions (due to mistaken ID), and yet EVEN when given special federal funding to cut down on the backlogs, cities aren’t doing it. WTF is up with that? Here’s some recent info. http://www.hrw.org/en/news/2008/10/28/us-la-police-fail-use-funds-test-rape-kits
I didn’t report my rape either. He was my boyfriend and a football player (I was so amazingly stupid for agreeing to date him) and I was just one of those stoner sluts who smoked and ran with a fast crowd, and just happened to still be a virgin until he raped me.
I didn’t even want to try, this happening in Idaho and all.