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.