Race and Campus Rape: Equal Under the Law?

It took me five years to muster the strength to report my rape. It was still within the (five-year) limitation period, and I told my story to a Philadelphia prosecutor armed only with the evidence of ...

It took me five years to muster the strength to report my rape. It was still within the (five-year) limitation period, and I told my story to a Philadelphia prosecutor armed only with the evidence of my memory. I had been a 17-year-old freshman in college at the time of my assault and been dating my assailant, a college senior who belonged to a fraternity, a man to whom I had repeatedly said “no” when he pressured me to have sex with him. One day he stopped listening.

When I finally did report the crime, I was afraid that the assistant district attorney would not believe me—he was white and much older than me—and I knew that there was little hope for an investigation, much less a prosecution. But he said he did believe me, because my story was filled with too many holes and too many inconsistencies for me to have just made it up. And yet he could not move forward with the case, because in 1992, the year that my assault took place, the “no means no” rape clause did not exist in Pennsylvania, and rape, in legal terms, had to be accompanied by physical violence.

Earlier this year I met a lawyer, Gina Smith, who has worked hard to change such rape laws. I was giving a talk on campus rape to a group of college presidents whose schools are currently under investigation for possible violations of Title IX because of their handling of sexual violence and harassment complaints. A former prosecutor of sex crimes in Philadelphia, Smith had recently started working with college rape survivors to ensure that their schools are in compliance with Title IX. She told me that as a prosecutor she had turned away several victims who were raped before the Pennsylvania law changed to include verbal consent, and while feminist activists had successfully expanded antiquated rape laws, it was too little and too late for victims like me. When I asked her why she had turned her attention to campus sexual assault, she replied succinctly: “I believe that use of Title IX as an anti-discrimination law to alleviate rape might offer us a way out. It is a flexible enough model to support survivors and hold perpetrators more accountable. I think the criminal justice system could learn a lot from what is happening on college campuses right now.”

Today, in large part due to organizing done by college rape survivors, activists, and student journalists, the topic of campus rape is not only making national headlines but also reshaping popular attitudes and policy. This year President Obama established the first White House Task Force to Protect College Students from Sexual Assault. A bipartisan team of legislators led by Senators Claire McCaskill and Barbara Mikulski proposed the Campus Accountability and Safety Act, while Senator Barbara Boxer and Congresswoman Susan Davis introduced the Survivor Outreach and Support Campus Act. Even the phrase “no means no” is up for grabs; California lawmakers recently passed a trailblazing measure requiring all colleges that receive public funds to set a standard for when “yes means yes.”

The numbers are alarming: one in five college women will be a victim of rape or attempted rape during her college career. Time magazine ran a cover story about “The Sexual Assault Crisis on American Campuses” in May, in which Vice President Biden makes those numbers even more salient by saying to parents, “If you knew your son had a 20 percent chance of being held up at gunpoint, you’d think twice before dropping your kids off.”1 As both a survivor of campus rape and a college professor to whom students disclose their own sexual assault experiences, the growing attention to this crisis feels long overdue and is heartily welcomed. But as the co-founder of A Long Walk Home, a nonprofit organization that uses art and activism to empower college and high school student leaders, particularly students of color, in order to end gender-based violence, I also find our current moment of sexual assault activism strangely segmented and racialized. Though the students experiencing sexual violence on college campus are diverse, female students of color are still disproportionately victims of rape, and they are less likely to report their assault than white women. Moreover, current prevention rhetoric assumes a universal “hook-up culture” that many students do not engage in, and policy proposals assume a color-blind, one-size-fits-all approach to the crisis. Legislators and administrators rarely consider the ways in which racial attitudes and sexual assault work together to increase the likelihood of victimization and under-reporting by certain groups of women. Even more egregiously, the current moment seems to forget or ignore the experiences and resistance of female student activists of color, like filmmaker Aishah Shahidah Simmons and photographer Scheherazade Tillet (my sister), who paved the way for our recent reforms well before the Title IX investigations.

The rise of campus rape activism is only a small part of Stanford historian Estelle Freedman’s latest book, Redefining Rape: Sexual Violence in the Era of Suffrage and Segregation, but her attention to the unique interdependence between racial justice and sexual assault activism in American political history might give us some insight into the limits and the potential of our current moment. Using extensive newspaper articles, court records, and conference reports, as well as personal letters and memoirs, Freedman covers the history of anti-rape activism in the United States and reminds us that “for almost two centuries a regionally, racially, and politically varied group of reformers has tried, in the face of formidable obstacles, to change legal understanding of rape.”

The obstacles that these reformers faced were both internal and external. First, cultural and legal definitions of rape have always been tied to “the very meaning of citizenship in American history—that is, who was to be included in and who was to be excluded from privileges and obligations such as voting, jury duty, office holding, and access to due process of law.” Because African Americans, Native Americans, and women were historically denied access to the rights and rituals of citizenship, they were especially unprotected by rape laws. And though all women were vulnerable to sexual violence, Native American and African American women were more vulnerable, while African American men and later immigrant men were typecast as its primary perpetrators. In contrast, white men not only decided the terms and beneficiaries of US citizenship, but shaped rape laws that “contributed to the immunities enjoyed by white men who seduced, harassed, or assaulted women of any race,” and by doing so, reinforced their own “sexual privileges.”

Cultural and legal definitions of rape have always been tied to the very meaning of citizenship in American history.

Moreover, Freedman reminds us that though white women and people of color shared an outsider status or second-class citizenship throughout much of American history, they often found themselves at odds with each other over how to expand the category of citizenship itself. Consider the battle over voting rights, and the question of which group should be given the vote first: African American men, white women, or all African Americans and all women. The debate did not merely impede a multiracial, co-ed suffrage movement, but prevented the type of coalition building needed to make expansive gains at the height of the rape reform movement in the late 19th century. For readers familiar with the historical scholarship, such as Hannah Rosen’s Terror in the Heart of Freedom: Citizenship, Sexual Violence, and the Meaning of Race in the Postemancipation South (2009), Danielle McGuire’s At The Dark End of the Street: Black Women, Rape, and Resistance—A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power (2010), and Crystal Feimster’s Southern Horrors: Women and the Politics of Rape and Lynching (2011), it comes as no surprise that race has always been central to American rape culture and laws. What is unnerving is how little we remember that history as we organize to end sexual violence in the present.

The early reformers were not only beleaguered by internecine racial and gender battles, but also by the second obstacle that they had to confront—the ongoing attempt to expand rape laws from its colonial definition (borrowed from British law) as the “unlawful and carnal Knowledge of a Woman, by Force and against her will.” Two tenets distinguished rape from other crimes: the presence of physical force and the lack of women’s consent. Eventually, these political agitators had a number of key successes. They were able to expand the category of “rape victim” to include adolescent girls, boys, married women, and women of color, as well as to redefine lack of consent beyond the use of force and verbal permission. The prosecution of rape crimes, on the other hand, was no more guaranteed than it was before. Legal definitions of rape have changed over time, but these efforts have always been undermined by the production of corresponding stereotypes by judges, psychiatrists, the press, and the general public—stereotypes that simultaneously assumed the complicity of female accusers and protected the sexual privileges of those (mainly white and male) accused of rape. To contest such constant pushback, Freedman’s book suggests, these activists continually had to shift strategies and discourses in order to prove the validity of rape as a crime and a social crisis.

But the effectiveness of such moves was always challenged by another more enduring phenomenon: the lack of a united front. This chronic lack has made the history of the struggle to redefine rape in the United States largely invisible,

in part because the disparate critics … never formed a unified social movement. No single organization, such as those focused on achieving suffrage or temperance, addressed sexual violence. Thus there is no collection of national conference proceedings or a periodical devoted to the subject of exposing rape as a racial and political problem. Nor was there a consistent set of local interventions, akin to the anti-vice commissions that addressed prostitution in American cities in the early twentieth century.

The results of this failure to cohere were a set of early responses to sexual assault that were “highly fragmented and regionally varied,” occupying “a very broad spectrum of American politics” and a social movement that has yet to find a center or collective identity. This is why, for example, groups organizing to reform sexual assault laws and policies in the military and those addressing campus rape have had such divergent outcomes. Sexual assault in the military has also reached epidemic proportions. In 2013, the Pentagon released a survey estimating that 26,000 men and women were sexually assaulted in 2012, up from 19,000 in 2010. Of those, 3,374 cases were reported. Public pressure to change sexual assault reporting and prosecutions in the military began to mount with films like The Invisible War and Senator Kirsten Gillibrand’s hearings for the Military Justice Improvement Act, but reform to combat rape in the military halted over a single policy disagreement: taking the prosecution of sexual assault cases out of the military chain of command. While military reform reached an impasse, two legislators who were on opposite ends of that debate—Senators McCaskill and Gillibrand—seem to have found common ground in campus sexual reform, even as the public has pivoted away from the military issue.

This shift not only divides resources and creates a hierarchy of sexual assault survivors, but also undermines the possibilities for a widespread anti-rape movement. In Freedman’s book, however, we quickly learn that this lack of unity is not entirely unusual or unexpected, because a lack of consensus about rape reform and accountability among the reformers themselves is a consistent theme throughout American history. And though Redefining Rape begins in colonial America, the vast majority of the book takes place during a period that continues to shape our attitudes and practices of gender and race today: the era of suffrage and segregation, from the late 19th to the early 20th centuries. Called the “nadir” of African American history, it was a time that distinguished itself by its severe racial retrenchment, violence, and new laws that limited black men’s citizenship in the wake of the abolition of slavery, but it also fostered a sense of possibility—that if women did in fact gain the right to vote, they could change the judicial, medical, and social culture that made them vulnerable to rape in the first place. Meanwhile, stereotypes that black men were prone to raping white women were used by many white southerners to justify their pernicious attacks on African American freedoms, such as legal restrictions of voting rights and the rise of mob lynching. Freedman tells the tales of lost and potential political rights both to underscore the centrality of rape reform to the histories of these social movements and to highlight the ongoing vulnerability of black women to rape, by white and nonwhite men, as a result of their doubly denied citizenship.

The era of suffrage and segregation was distinguished by its severe racial retrenchment, violence, and new laws that limited black men’s citizenship, but it also fostered a sense of possibility.

Looking back today, it might seem naive that many suffragists believed that the right to vote and the expansion of white women’s political and sexual rights alone could prevent rape. But this strategy marked the novelty of the moment, for “the post–Civil War woman suffrage movement diverged from the antebellum emphasis on protection by further rejecting women’s dependence on men.” The suffragists explicitly challenged coverture laws, arguing that women’s political participation was one way to hold male-dominated legislatures, juries, and judges accountable for their treatment of female victims in rape cases. At the same time, the differences among the suffragists themselves—promoting chastity versus female sexual agency, advocating for free love versus not acknowledging marital rape, promoting empowerment for white women versus centering the experiences of women of color—impeded their long-term effectiveness. One of the most significant gains they made, however, was changing the “age of protection” laws and increasing the age of consent from 10 to 17. Unfortunately, the enforcement of these new protections collided with a burgeoning discourse about sexuality put forth by psychiatrists, judges, and even fathers who were accused of incest. It painted adolescent female sexuality as out-of-control or dubious. “By overstating the power of suffrage and legal reform more generally,” Freedman writes, “they underestimated broader obstacles, including economic and racial inequalities and deeply ingrained gender norms. Their inflated expectations set the stage for disappointment once women gained the right to vote.”

One of the main reasons that suffrage alone could not radically decrease women’s vulnerability and increase the prosecutions of rape crimes was, as Freeman repeatedly insists, because sexual assault and racial violence are so deeply interconnected. To overlook how they mutually constitute each other meant to misunderstand how rape functioned as a ritual of white male citizenship, alongside the right to vote. In contrast, as former slaves began to assert their newly gained political sovereignty through the courts, African American women took the unprecedented step of turning to the state to prosecute their white sexual assailants. Within African American claims for citizenship, black women’s experiences with interracial rape did not contradict, but rather supported, the need for political sovereignty. Nevertheless, their allegations rarely led to the successful prosecutions of white assailants and did not significantly redefine them as rape victims in the eyes of the press or amongst police and prosecutors. This is because their political status barely changed after slavery: in a post-emancipation society, they remained victims of racial violence, sexual assault, and ongoing stereotypes of them as naturally lascivious and therefore unable to be raped.

It was with that burdened history that I, an African American college rape survivor, tried to get justice. I am often asked why I waited so long, why I did not go immediately to campus police and report my assault. Under such scrutiny, I try to relay two important details of my life back then. The first is that there was little formal education about rape prevention when I was college. There was a quick orientation for new students, but no administrator or faculty spoke to us about risk factors, the protocol for reporting sexual assault, or the recovery process. Tragically, the Take Back The Night student events, which originated in the 1970s and are popular among college activists and rape survivors today, were non-existent on my campus in the 1990s. Though I knew I was raped, I had little structural support from my university. That sense of vulnerability was intensified by another reality that I and many of my peers were facing—we were racial minorities who felt unprotected from the onslaught of verbal attacks and physical threats that our white peers aimed at us. Eight months after my assault, I lived in a predominately African American dorm on campus, and we were subjected to several racial insults, including, among other humiliations, a series of prank phone calls, the N-word, and eventually a bomb threat. Within that racially explosive atmosphere, disclosing that I had been sexually assaulted by another African American student felt paramount to treason.

Freedman goes to great lengths to historicize the relationship between racism and sexual violence in the lives of African American women, but unfortunately one of the least theorized threads of Freedman’s book is why there were so few claims of intra-racial sexual harassment or rape by African American women during this period. One suspects that this is because African American women found themselves in a double bind. To accuse black men of sexual assault would further perpetuate stereotypes of black men’s sexual aggression, and these women knew that there would be little interest in prosecuting African American men who weren’t assaulting white women. So, in this era of suffrage and segregation, black women sought legal protections from the daily assaults of white men as a matter of political strategy and personal survival, but accusing black men of rape rarely fit a racial justice framework.

For African American women the consequences of Scottsboro were complicated.

Freedman exposes another intimate relationship between rape and racial justice by focusing on the “most famous rape case of the century,” the Scottsboro Trial of 1931. In that case, nine African American teenagers were accused of rape by two young white women, Victoria Price and Ruby Bates. They were convicted 16 days after their arrest, and eight of them were sentenced to execution. The Scottsboro case was kept alive by the extensive media coverage at the time and by a plethora of artistic reinterpretations, including a Broadway musical in 2010. The case was also unusual for its length: it was made up of three trials, at the second of which one of the witnesses recanted her testimony of sexual assault. And it was an anomaly for its coalitions: organizations like the American Communist Party and the National Association for the Advancement of Colored People (NAACP) productively worked together. Their efforts, as well as a groundswell of public support for the accused, eventually led to charges being dropped for four of the nine defendants. The remaining young men were sentenced to terms ranging from 75 years to death; all but two spent time in prison. But for Freedman, it also marked a turning point: white liberals and leftists now sought to extend the legal protections of black men accused of rape, and African Americans accused of assaulting white women no longer faced automatic death sentences by lynching or by the law. But it also created a new conundrum for rape reformers and “a central dilemma with the modern politics of rape: how to extend the legal protections enjoyed by white male citizens to African American men without undermining women’s rights to legal protection.”

Today, black men are more likely to be prosecuted and still serve longer sentences for interracial rape than white men; meanwhile there have been concentrated efforts to separate the myth of the black male rapist from the actual experiences of African American men and their desire for full citizenship. For African American women, however, the consequences of Scottsboro were complicated. The racial justice movement to protect black men falsely accused of rape did not automatically mean that black women who were raped received the same media attention or an interracial coalition of support. Rather, they continue to endure high rates of sexual violence with little recourse to help or justice outside the African American community.

Though Freedman does not prescribe a solution for the organizers and policymakers currently working on redefining rape culture and laws and providing justice for victims, she does give us a set of variables that we must consider: to do effective anti-rape work today, we must value and prioritize how rape and racism intersect in the United States. The absence of such analysis continually undermines the possibility of the interracial and inter-organizational coalition building that is so necessary to combat sexual assault and promote racial justice. If, for example, the organizers of SlutWalk in 2011 had explicitly addressed race equality within their framework of ending victim-blaming and the slut-shaming of sexual assault survivors, that movement might not have been overshadowed in the United States by either “The Open Letter from Black Women to the SlutWalk” or the controversial sign held by a young white female SlutWalk marcher in New York that, taking a cue from a 1972 John Lennon and Yoko Ono song title, read, “Woman is the Nigger of the World.”

Freedman’s book reveals to us that the fights over rape reform have always been about citizenship—to define who or who is not really an American—and whether the state exists to enable perpetrators or to empower their victims. This means that all rape reform, including the gains that are taking place on college campuses all over the country, should put young women of color at the center of our efforts rather than the margins. Freedman’s historical narrative might suggest that a formidable movement to end rape is an impossible dream. But I think her analysis gives us a more precious resource—it tells the story of people who fought, and occasionally won, a battle to expand American citizenship. And by showing us their strategies and limits—both internal and external—she gives us a blueprint to organize with, against, and beyond, so that we might redefine rape laws and culture and save the soul of our campuses and our country. icon

  1. Eliza Gray, “The Sexual Assault Crisis on American Campuses,” Time, May 15, 2014.
Featured image: “Take Back the Night” sign outside a sorority. Photograph by danielhedrick / Flickr