(Nikki Patin, Director of Training and Cultural Programs, Netsanet Tesfay, Esq. Counselor and Coordinator, Black Women’s Truth and Reconciliation Commission)
I. INVISIBLE BETRAYAL: POLICE VIOLENCE AND THE RAPES OF BLACK WOMEN IN THE UNITED STATES
22 September 2014
Black Women’s Blueprint
Farah Tanis, Executive Director, Chair, Black Women’s Truth and Reconciliation Commission on Sexual Assault
Betty Rosenda-Green, Project Coordinator
With support from:
Women’s All Points Bulletin
Crista Noel, Executive Director
Yolande M. S. Tomlinson, Ph.D.
To the Committee Against Torture (CAT) 53rd Session
· Aaliyah Sharif, Advisory Board, Black Women’s Blueprint
· Aishah Shahidah Simmons, Creator NO! The Rape Documentary, Commissioner, Black Women’s Truth & Reconciliation Commission on Sexual Assault
· Cassandre Pluviose, Advisory Board, Black Women’s Blueprint
· Chicago Taskforce on Violence Against Girls and Young Women
· Christina Jaus, Founder/Executive Director, WHEELS Collective
· Dikun Elioba, Advisory Board, Black Women’s Blueprint
· DRUM – South Asian Organizing Center
· Ebony Murphy
· Free Marissa Now (FMN)
· Georgia Women’s Action for New Directions (WAND)
· Kerry McLean, Human Rights lawyer, Commissioner, Black Women’s Truth Commission on Sexual Assault
· New Jim Crow Movement
· Ololade Siyonbola, Advisory Board, Black Women’s Blueprint
· One Billion Rising-Atlanta
· Reverend Lorena M. Parrish, M.Div., M.S.W., M.Phil., Ph.D., Advisory Board, Black Women’s Blueprint
· Samuel Maddox Sullivan
· Silvia M. Dutchevici, MA, LCSW; Critical Therapy Center, Advisory Board, Black Women’s Blueprint
· Vickie Casanova Willis -Trinity UCC Justice Watch Team, Black People Against Police Torture
· Women With A Vision, Inc.
II. Reporting Organization(s)
1. Black Women’s Blueprint is a national Black feminist organization using civil and human rights approaches to organize and develop a culture where women of African descent are fully empowered and where gender, race and other disparities are erased. Launched in 2010, it engages in progressive research, historical documentation, and policy advocacy and organizes on social justice issues steeped in the struggles of Black/African American women within their communities and the dominant culture. Black Women’s Blueprint is the convener of the first ever Truth and Reconciliation Commission to focus on Black women in the U.S. and their historical and contemporary experiences with rape/sexual assault. The organization is the national technical assistance provider engaging 105 Historically Black Colleges and Universities (HBCUs) across the country, providing training and capacity building to address gender-violence on their campuses.
2. Women’s All Points Bulletin (WAPB) is a human rights and community policing nonprofit that seeks to eradicated violence against women during policing encounters.
III. Issue Summary
4. Rape in the United States is a systemic crisis, even as 60 to 80 percent of rapes go unreported according a survey by the U.S. Department of Justice.[i] Furthermore, when victims do report, those incidents are systematically undercounted by at least one million cases by police departments.[ii] As scholars and advocates have pointed out, rape and sexual assault are systemic practices that continue because of the larger culture of violence within which people live and state officials operate.[iii]
5. Sexual misconduct by police officers, or public officials, is the second most prevalent form of police crimes as noted by a 2010 annual report conducted by the CATO Institute.[iv] The number is likely higher as victims tend to underreport in general, police officials tend to use a more limited definition to assess incidents of rape,[v] officers tend to profile victims whose credibility will likely be doubted, and victims of police crimes are, understandably, reluctant to report the crime to their perpetrators, the police. For Black women in the United States specifically, fully accounting for the ways in which their experiences of sexual assault, or rape more specifically, constitutes an act of torture requires understanding the historical context and institutional legacy of slavery and the contemporary burden placed on victims of police sexual assaults.
6. As the Committee on the Elimination of All Forms of Racial Discrimination asserts in its General Comment No. 25, it is important to consider how issues of gender are interlinked with race to “only or primarily affect women, affect women in a different ways, or to a different degree.”[vi] With that fact, black women in the United States face a peculiar from of rape-based torture that has its origins in American slavery and the state apparatuses that evolve to protect the interest of the economic elites, white men, and public officials.
7. As women, Black women were subjected to sex-specific violations such as rape, forced pregnancies, and other gender-based violations. As Blacks they were subjected to chattel slavery, as was also true for Black men and children, and were therefore reduced to being viewed, treated, and consumed as property, and not as human beings.[vii] As bodies to produce other enslaved bodies, as flesh to satisfy their slave masters desires, as slaves to be worked as needed, and as property to be sold at will, Black women were deemed not able to be raped. Slave owners and other white colonialists justified this torture and inhuman treatment of Black women through stereotypes and pseudo-scientific justifications of their degraded moral capacity, lascivious behavior, and animal-like capacity for sex.[viii] Under this logic, Black women were thought to not only lack the capacity to make morally sound decisions but they are made to bear the blame for their own abuse. This racist logic further implies that this capacity and animalistic quality functions to entice their perpetrators, which means they have sought out their own rape and sexual exploitation. Furthermore, Black women could not be raped because they were not legally people (but property).
8. While legal slavery has ended, the rape and sexual torture of Black women and the justification for this torture still continue. Contemporary gendered and racial profiling of Black women are rooted in the enforcement of Slave Codes, Black Codes, and Jim Crow segregation laws, which were state sanctioned practices that were a combination of de jure and de facto forms of social, legal, and economic laws, policies, and other constrains placed on Black people in the U.S. For example, “We Charge Genocide,” a petition submitted to the UN by the Civil Rights Congress in 1951, documented thousands of incidents of police violence against African Americans alone. While the modern Black civil rights movement ushered in a formal end to Jim Crow era segregation, it has taken decades to gain mainstream acknowledgement of the multiple and covert ways that racial apartheid functions in the United States.[ix] And it is still not widely accepted or acknowledge. Michelle Alexander and a number of other scholars and advocates, for example, have documented the ways the criminal justice system still functions as a form of new Jim Crow.[x] Yet, for all the acknowledgement of this new-era racial apartheid and the terrorism of the police and criminal systems officials, it has mainly functioned to raise the profile of the torture and deprivation of life of Black men.[xi]
9. Black Women and the Police: Nationwide, there is a rise in police interaction with Black women, as over 2 million women were arrested in 2010 in the U.S.[xii] An increase in arrests means increased contact between police and women in Black communities, which are over-policed.[xiii] The Women’s Prison Association (WPA) states that nationwide, the number of female arrests has increased by over 800 percent from 1977-2007 while the male prison population grew by 416 percent during this same time period.[xiv] The WPA also states that two thirds of women are incarcerated for non-violent offenses, such as drug-related crimes. From 1999-2008, there was an increase of 19 percent of female arrests related to drug crimes compared to ten percent for men. When looking at this issue through both a gendered and racial lens, WPA cites that 93 out of every 100,000 white women were incarcerated in 2008 while the number for Black women is 349 out of every 100,000. Although the Black population is 13 percent of the entire population of the United States, meaning around half of Black women make up 6.5 percent, Black women comprised 32.6 percent of the female prison population.
10. Officer Daniel Holtzclaw & Oklahoma City: A white Oklahoma City police officer by the name of Daniel Ken Holtzclaw was charged in August 2014 on sexually assaulting, raping, stalking, fondling and exposing himself to at least eight Black women, who are between the ages of 34 and 58, during traffic stops while on duty.[xv] According to reports, Holtzclaw targeted these women because he profiled them as drug users, prostitutes and sex workers. Given that all these women are Black and at least one is not in fact a sex worker or drug user, and none fit the typical age profile, Holtzclaw profiled these women precisely because of their Black female identity. Despite the admission of investigating officers that there might be more victims, Holtzclaw was released on a mere $500,000 bond after having an initial $5,0000,000 bond.[xvi]The reduction of the bond and the attempts of Holtzclaw’s family’s and legal strategy to discredit these women as legitimate victims signal a disturbing but likely outcome to this case.[xvii] As well, Holtzclaw’s celebrity as a former college football player, his status as an officer, and the race and presumed social standing of the victims collude to contribute to the minimalization of the incident in any news outlet, including social media. Instead, the few places that do raise the incident are opinion blogs and other lower-profiled news outlets, which only serve to cast further doubt on the actual violations. Despite the facts that 22 percent of Black women and 50 percent of racially mixed Black women experience rape in higher amounts when compared to white women, [xviii] the long-standing legacy and continued devaluing of Black women as legitimate victims of rape and assault generally compounds Black women’s continued victimization and likelihood to get a conviction against a police officer no less.
11. Silence prevails and the invisibility is almost complete within Black communities and in greater society about Black women’s lives, about the level of sexual victimization, the systematic exclusion of our specific gendered experiences in the broader agenda for civil and human rights. There is a dearth in resources allocated for the collection of data and consequently a lack of information and statistical data specific to the incidence of rape and sexual assault on Black/African American women in the United States. The experiences of NGOs such as Black Women’s Blueprint reveal that the number or sexual assaults and those that go unreported are considerably higher in Black communities than in other communities. It is for these reasons and more that we ask the committee to follow on the Special Rapporteur on Torture to not only designate rape as a torture, but to break the silence around the rape of black women by calling for the Department of Justice to open a federal investigation into the of Daniel Holtzclaw cases specifically and other police rapes of black women case nationally.
IV: Concluding Observations
12. The Committee Against Torture made two recommendations in its 2006 Concluding Observations on the last report submitted by the United States that relate to the issues outlined above. To date, these recommendations have not been fully implemented.
13. Paragraph 37: “The Committee is concerned about reports of brutality and use of excessive force by the State party’s law-enforcement personnel, and the numerous allegations of their ill-treatment of vulnerable groups, in particular racial minorities, migrants and persons of different sexual orientation which have not been adequately investigated (art. 16 and 12). The State party should ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished.
13. Paragraph 41: (a) Prevent and punish violence and abuse of women, in particular women belonging to racial, ethnic and national minorities. Do these measures include providing specific training for those working within the criminal justice system and raising awareness about the mechanisms and procedures provided for in national legislation on racism and discrimination?
(b) Address the report of an increase in incidences of domestic violence, rape and sexual assault (National Crime Victimization Survey, December 2008).
(c) Ensure that reports of violence against women are independently, promptly and thoroughly investigated, and that perpetrators are prosecuted and appropriately punished. Please include statistical data on the number of complaints concerning violence against women and the related investigations, prosecutions, convictions and sanctions, as well as on compensation provided to victims.
14. Paragraph 42: The Committee requests the State party to provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints.
V: U.S. Government Report
The following list provides a summary of relevant statements made by the United States Government in its most recent periodic report to the Committee Against Torture.
Paragraph 8-10: The U.S. Government has no intention of enacting separate torture statue as it believes U.S. Constitutional rights brings it within full scope of its treaty obligations.
Paragraphs 230-249: Although the government said that it would ensure investigation and ‘appropriate punishment’ and that the U.S. Department of Justice under its Civil Rights Division has addressed sexual assault as police misconduct, we still do not see the implementation of this statement being done seriously. Further, the use of misconduct is ambiguous at best and does not amount to an acknowledgement of police rape as torture. In its response the Government asserts that cases of rape and sexual assault have gone down, but it ignores the facts that it is not using the new or expansive definition of rape to make this assessment and
VI: Legal Framework
The following articles of the Convention are called into question under this report: 1, 2, 4, 10, 12, 13, and 14
VIII: Other UN Bodies Recommendations
ICCPR Article 7: Right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.
Articles 1: Black women are disproportionately impacted in nearly all categories of analysis with respect to rape and sexual torture; Article 2 calls for effective measures to remedy discrimination; Article 5 puts responsibility on government to address racial discrimination with respect to health outcomes. Article 6 calls for government to ensure access to competent tribunals
CERD General Comment No. 25 also calls for the recognition of the interlinked, and therefore unique, nature of discrimination when race is considered along with other factors such as gender.
Special Rapporteur on Torture: “It is widely recognized, including by former Special Rapporteurs on torture and by regional jurisprudence, that rape constitutes torture when it is carried out by, or at the instigation of, or with the consent or acquiescence of public officials.”[xix]
IX: Recommended Questions:
1. What immediate and sustainable measures does the U.S. Government plan to take to eliminate incidences of police rape, sexual assault and sexual misconduct, and what will the timeline for implementation look like? What resources will be allocated for the training of officers and other public officials and for the collection of information and statistical data that is inclusive of Black/African American women and other interlinked identities that make women vulnerable to police crimes?
2.Given the June 2011 report by the International Association of Chiefs of Police which acknowledges the own and others’ awareness and documentation of police sexual misconduct, what steps is the government willing to take to reform police behaviors, enact strict disciplinary policies and procedures.
3.Why has the Department of Justice not open an investigation into the rapes and sexual assault cases involving Officer Daniel Holtzclaw in Oklahoma City, Oklahoma?
1. We respectfully ask the Committee to continue the work of the special rapporteurs on Torture and other regional jurisprudence to acknowledge that police rape, and the rape of Black women, is torture.
2. Open a federal investigation into the Oklahoma cases involving Daniel Holtzclaw, similar to other civil rights investigations undertaken by the Department of Justice.
3. Amend the Prison Rape Elimination Act to say Prisoners instead of Prison and redefine “in custody” to include the moment a person comes in contact with an police officer or relevant public officials.
4. Enact federal legislation that requires the federal government to record complaints of all allegations of police violence, abuse and misconduct (including excessive force, rape, sexual assault, illegal searches, false arrest, wrongful prosecution, and racial profiling) against state and federal law enforcement, incidences of police abuse and misconduct at all levels as well as officers dismissed for misconduct; this information should be made explicitly available to the public via an online database.
5. Working with community advocates and other relevant stakeholders, enact a Police Rape Commission to investigate, document, prosecute officers found to have raped or otherwise sexually abused, assaulted, and harassed women and girls, and provide the Commission with adequate resources and an online database so that it is sustainable and avoids backlogs of complaints and data.
[iv] This report is accompanied by an addendum on police rapes and it provides statistical insight on the impact to all women, including Black women.
[v] Note that as of 2012, the FBI’s Criminal Justice Information Services (CJIS) Advisory Policy Board with approval by the U.S. Attorney General Eric Holder has approved a new definition of rape as “the penetration, no matter how slight, of the vagina or anus with anybody part or object, or oral penetration by a sex organ of another person, without the consent of the victim” (pg. 5). This is a change that law enforcement officials note will cause a “big increase” in reported (which is not the same are recorded) cases of rape (pg. 31). For more information, see http://www.policeforum.org/assets/docs/Critical_Issues_Series/improving%20the%20police%20response%20to%20sexual%20assault%202012.pdf.
[vi] “General recommendation XXV on gender-related dimensions of racial discrimination.” Annex V. GENERAL RECOMMENDATIONS. At its fifty-sixth session the Committee on the Elimination of All Forms of Racial Discrimination.
[vii] There is a plethora of literature on this dual burden placed on enslaved women. One example is Jennifer F. Morgan’s Laboring Women: Reproduction and Gender in the New World. University of Pennsylvania Press: Philadelphia, 2004.
[viii] A key text to articulate this inhuman definition of people and Black women is Thomas Harriot’s A Briefe and True Report of the New Found Land of Virginia (1588)
[x] Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Era of Colorblindness. The New Press: New York, 2010.
[xi]Ibid.In the book’s introduction, Alexander admits that this is mainly an examination of Black and Latino men, and more needs to be done to assess the treatment of Black women.
[xv] See the accompanying addendum that discusses the phenomenon of “driving while female”, where a study in Philadelphia, entitled Driving While Female (2002) found more than 400 examples of police using their badge to exploit women.
[xvii] Bernd, Candice . “Police Departments Ignore Rampant Sexual Assault by Officers.” Truthout02 July 2014http://www.truth-out.org/opinion/item/24677. As Bernd quotes Jen Marsh, vice president of victims services at the Rape, Abuse and Incest National Network (RAINN), “‘[Officers] tend to choose victims that would lack so-called credibility in the eyes of other law enforcement, whether it was somebody who was engaged in sex work or whether it is somebody who was intoxicated or who was using drugs, and then they use that justification for why that person cannot be believed.”
[xviii]According to the National Intimate Partner and Sexual Violence Survey, 2010 Summary Report, Centers for Disease Control and Prevention (CDC), in the US, nearly 1 in 5 women have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration. Further, 47,220 women reported experiencing rape in 2013. Black women experience rape at a rate of 22 percent higher than white women in New York City, for example, and women who were half Black (or racially mixed with Black) experienced sexual assault at a rate 50 percent higher than white women.
[xix] Manfred Nowak, Special Rapporteur on Torture report before the Human Rights Council, 15 Jan 2008, A/HRC/7/3, para 36