IV. Race, Class and Gender as Extralegal Factors
A. Introduction
African Americans have a turbulent history in the U.S. court system. Legal scholars have documented the travails of African American men in the criminal justice system. African American women have fared no better. Beyond the facially neutral application of the law, discretion lies within the domain of the judge and jury based on extralegal factors that include race, class and gender. African American women who interact with the court system face a unique experience that cannot be explained by either their race or their gender separately. Kimberlé Crenshaw identifies the often ignored political and social stance that African American women endure as being neither white women nor African American men. White feminist legal theory constructs women as white and mines the experience of African American women for anecdotal information.
B. Domestic Violence and African American Women
Dr. Lenore Walker, in her groundbreaking book, Battered Women, found nine traits battered women share: (1) low self-esteem; (2) belief in common myths of battering relationships; (3) belief in the traditional feminine sex-role stereotype; (4) acceptance of responsibility for their batterers' actions; (5) guilt and denial of feelings of terror and anger; (6) public passivity combined with the ability to manipulate the home environment to stave off violence or death; (7) severe stress reactions; (8) the use of sex to establish intimacy; and (9) refusal to seek outside assistance. Walker utilized Martin Seligman's learned helplessness to underscore why women stayed in abusive relationships. Walker describes the cognitive effects on battered women as follows:
[The] learning ability is hampered and the repertoire of responses from which people can choose is narrowed. In this way, battered women become blind to their options . . . . Repeated batterings, like electrical shocks, diminish the woman's motivation to respond. She becomes passive. Secondly, her cognitive ability to perceive success is changed. She does not believe her response will result in a favorable outcome, whether or not it might.
Lenore Walker created the normative battered woman against which all other battered women are measured. Battered women who are not white, passive, or straight, will have difficulty being configured into the battered woman standard. Compounding the predicament for poor, battered African American women is a court system that historically has been a barrier for equal treatment in the administration of justice for African Americans.
Donna Coker examined four problems with domestic violence laws when addressing the intersection of race, gender, and poverty: (1) the significance of race or ethnicity in shaping the efficacy of universal intervention strategies; (2) the tendency to ignore the importance of women's economic subordination in their vulnerability to battering; (3) the trend to develop increasingly punitive criminal measures against batterers without evidence that these measures improve the well being of victims; and (4) the pervasive presumption that women should leave battering partners and that doing so will increase their safety.
Universal intervention strategies, such as mandatory arrest of the abuser, have proven to be ineffective deterrent strategies in poor African American communities. Early studies of mandatory arrest policies evinced greater recidivism if the abuser was unemployed and--depending upon the city--whether the abuser was African American. Racially charged encounters between law enforcement and the African American community make mandatory arrest laws highly controversial. In severe cases of abuse, the mandatory arrests could place the abuse victim in danger for future violence. Another irony of mandatory arrest laws has been the arrest of the abuse victim if she defended herself against her abuser.
Economic vulnerability is a pronounced racial differential in the experiences of battered women. Poor African American women are the most vulnerable of domestic violence victims because they are the lowest on the socioeconomic scale. Being poor leaves this subset of domestic violence victims principally dependent upon the abuser for financial support. Beth Ritchie described the plight of battered African American women who turned to crime, explaining that “[p]oor African American battered women in contemporary society are increasingly restricted by their gender roles, stigmatized by their racial/ethnic and class position and constrained by the competing forces of tremendous unmet need and very limited resources.” However, economics is not the only consideration that influences choices made by poor, battered African American women.
Punitive measures also help determine whether poor, battered African American women will seek protection of the state. Increasing criminal sanctions against batterers which do not benefit the battered victim alienate both abuser and the victim from the system. Donna Coker analyzed the Miami-Dade County clerk of court requirement that abusers' employers be contacted if a domestic violence conviction resulted. Coker noted that the program did not benefit the victim and produced economic hardship if the abuser lost his job. She noted, “professional men are not likely to lose their jobs if their boss is notified of a misdemeanor conviction, but men working in low skill jobs, where men of color are disproportionately represented, are likely to be fired.” The abuse victim is vulnerable because she loses financial support and faces potential retaliation by the abuser who subsequently blames her for his loss of employment.
The most pernicious example of how conventional feminist theory fails to connect to the lives of poor, battered women is the fallacy that battered women should leave the abusive relationships and they will then be safe. Access to services and state intervention are contingent upon the battered woman permanently severing herself from her battering partner. First, poor women cannot easily uproot themselves and their children for safety when they are economically dependent upon the batterer. Moreover, because poor battered women cannot afford to cut themselves off entirely from social and familial sources of support, separation does not lead to safety for poor African American women. Separating from an abusive partner may prove dangerous for some women, especially African American women. Women who leave relationships are often at high risk for homicide or severe violence for the first year after they leave or when the abusers know their partners are leaving for good. The danger is far more significant for African American women. In 2007, African American women were four times more likely to be killed by boyfriends or girlfriends than white women.
Some battered women seek to end the violence in the relationship but not end the relationship. State intervention means not only ending the relationship but cooperating with law enforcement and prosecutors. However, many battered women have orders of protection removed and refuse to cooperate with prosecutors because the threat of state intervention was successful in ending the abuse.
C. Battered African American Women and Identity Construction
How do judges perceive poor African American women who appear before them requesting legal intervention involving a violent relationship? Will the judges' responses be as fair and impartial as they would be if a wealthy white male stood before the bench requesting legal assistance? How can racial stereotypes exist in the courts when laws are facially neutral and judges are impartial? Ian Haney López has explained that legal actors are “simultaneously ignorant and informed participants in the construction of races.” Social and legal conceptions of race and racism shape judges' understandings and their resulting views. Presented as neutral perceptions, these views are actually heavily biased.
Mario Barnes describes how legal actors perceived his grandmother as a defendant in the courtroom:
Court papers from my grandmother's case reflect that legal actors made repeated references to my grandmother's identity traits. These references minimized her individual identity, while she became hypervisible as a function of stereotypes associated with the race, class, and gender categories the court concentrated upon. The documents of the case suggest a particularized vision that legal authorities had of my grandmother. It was an image constructed by linking attitudes about the meaning of the identity categories she inhabited to some behaviors which had limited relevance to her case and to others which were only helpful to diminishing her social status.
As poor African American women stand before the bench requesting legal intervention to end violence in their relationships, judges wrestle with unconscious racism regarding the person appearing before them. Unconscious racism does not seek to intentionally harm certain groups; however, the effect of judicial decisions based on racially prejudiced beliefs and desires still produces harmful outcomes.
In short, racism prevents poor, battered African American women from seeking assistance, even though they are the population that is at the highest risk for violence, including lethal violence. African American women, battered and non-battered, have negative perceptions of law enforcement, and the legal system that affects their attempts to obtain assistance.
