Kimberle Crenshaw identified the unique, and often ignored, political and social assumptions to which African American women are subjected because they are neither white women nor African American men. White feminist legal theory assumes that women are white and uses African American women only as a source for anecdotal information. Crenshaw uses “intersectionality” to specify the subject positions inhabited by African American women. Crenshaw explicates that, at the nexus of race and gender,
[t]he experiences Black women face are not subsumed within the traditional boundaries of race or gender discrimination as these boundaries are currently understood, and that the intersection of racism and sexism factors into Black women's lives in ways that cannot be captured wholly by looking at the race or gender dimensions of those experiences separately.
Poor African American women do not, in general, benefit from legal intervention in seeking protection from intimate-partner violence. Violent partners are removed from the home, but law enforcement interactions with the African American community can lead to violence and or incarceration. African American women who are victims of intimate-partner violence are stigmatized by community members for bringing their partners into the criminal justice system. The same stigma can attach to African American women who seek orders of protection. Orders of protection remove the abuser from the home and give the victims a perceived zone of safety in their everyday lives. However, the cessation of violence comes at a high economic price. Courts wonder why abused women stay in violent relationships because they fail to understand that economic abuse is a component of intimate-partner violence. Race and poverty compound the complexities of intimate-partner violence.
This Article reviews the treatment of one client of the Domestic Violence (DV) Clinic that I direct who sought an order of protection. The family court treated my client with disdain, and it took several hearings before the court would fully enforce an order of protection. The court expressed doubt as to her legitimate fear and abuse, and treated her more harshly than other women I have represented. My client was a poor, African American woman, and the court did not let her forget her status. She would ask me, “What does it take to get justice?”I did not have an answer then, but this Article is the response.
This Article will explain why my client, as a poor, African American woman, could not receive access to justice by petitioning the court for safety. The intersectionality of race, class, and gender at times dictates outcomes and can have lethal consequences for a vulnerable population. In Part I, I explain the impact of poverty and victimization on courts that purport to be fair and impartial. In Part II, I review the hearing that denied my client the safety she sought through an order of protection. Part III reviews the effects of race and inequality in the lives of African American women. In Part IV, I present race, class, and gender as extralegal factors that affect access to justice. Finally, in Part V, I analyze cases such as Castle Rock that illustrate a negative due process paradigm, resulting in restricted remedies for poor women who seek protection.
I. Poverty and Victimization
Record economic inequality exists in the United States. In 2009, median income declined for all family households, with African Americans suffering the greatest income decline. The income decline exacerbated the ongoing problem of the African American median income trending as the lowest in the United States, recorded in 2009 at $32,584. The disparity in median income between African Americans and other ethnic groups evidences the increase in wealth disparity and economic inequality. The discrepancy in income has grown since the 2001 recession. The U.S. Poverty Report noted that the top 20% of income generators ($100,000+) earned 50.3% of all income and the lowest 20% of income generators ($20,453) earned 3.4% of all income generated. The African American community, with the median income of $32,584, produces minimal wealth. The low median income of the black community means that African Americans fall in the bottom half of wealth generation in the United States. Black income generates merely 13% of all income in the United States. The implications of economic inequality are wide-ranging for the African American community, as legal scholar Patricia Hill Collins noted:
Arguing that the economic inequality that characterized the United States at its inception continues to influence contemporary institutional practices, structural discrimination perspectives argue that American social institutions routinely discriminate against Native-Americans, African-Americans, Puerto Ricans, and Mexican-Americans. Limited to segregated neighborhoods, educated in inferior schools, and lacking access to the good jobs that are increasingly located in inaccessible suburban neighborhoods, these groups bear an unfair share of the costs of economic development and American economic restructuring. Thus, the disproportionate placement of these groups in the bottom twenty percent of American households reflects less on their abilities and motivation and more on historical, sedimented racial discrimination.
While women are bearing the brunt of poverty, income inequality is especially devastating for single women of color. Single African American women have an average personal wealth measured at $100. Single Latinas have an average personal wealth of $120. Single African American women aged thirty-six to forty-nine have a personal wealth of $5. In contrast, single white women have a personal wealth of $41,500. Nearly half of all single African American and Latino women have negative personal wealth, as their debts exceed their assets. The statistics are compounded when motherhood is added to the equation. On average, single women of color with children under the age of eighteen have no measurable wealth.
Structural and institutional racism contribute to and create economic inequality. The incongruity of racism is reflected in how those in the bottom socio-economic rung of society are also blamed for their circumstances. African American women are impoverished at rates disproportionate to the total U.S. population. For example, African American women are six percent of the U.S. population but represent nearly thirty-seven percent of impoverished females in the United States. Further, African American women account for nearly the largest number of women living in poverty.
Women living in poverty are among the most vulnerable and victimized populations according to crime statistics. The Department of Justice found that African American women are more likely than white women to be victims of intimate-partner violence and that African American women are twice as likely to be killed by a spouse as white women. The legal and political implications of being an African American woman become apparent when one examines the violence these women suffer. Despite the perilous nature of being an abused African American woman, seeking redress is difficult. An African American woman walks into a courtroom not as an individual but as an assemblage of racial and gender stereotypes. The stereotypes work to her detriment. Mario Barnes argues that courts use official narrative to disguise biased social construction of minority identities--the individual is erased and the group stereotype will reconstitute individual identity. The courts use stereotypes and the societal significance of race, class, gender, and other identity variables to perform a legal construction of identity. Individual narratives are reduced to oppressive stereotypes with stock stories. Consequently, courts do not view poor, battered African American women as individuals but as an amalgam of stereotypical constructs of race, class, and gender. The court treated my client as another stock story of an abused, poor African American woman.
II. My Client
Lake County, Indiana is the second largest and most diverse county in Indiana. My students in the Domestic Violence (“DV”) clinic assist petitioners when they arrive in the clerk's office to petition for an order of protection. A.J. is an African American woman in her mid-thirties and a mother of two sons. A.J. had an order of protection in place, yet her ex-boyfriend, J.B., continued to harass her. J.B. is a twenty-five-year-old white male who had dated A.J. for one year. A.J. contacted me after I introduced myself to her months earlier about assistance. The DV clinic assisted A.J. with a motion for contempt based on J.B.'s continued contact and harassment, including death threats. The contempt hearing juxtaposed two legally constructed identities-- the court perceived A.J. as an African American single mother who had chosen to enter into a tumultuous relationship with J.B., a young, white male whose violent acts the court downplayed because of his racial and gender identity.
On direct examination, A.J. described the violence she endured during and after the relationship:
It was very abusive. He displayed--put a gun in my mouth, cocked it--like cocked the trigger back and he a number of times--25 times he had put guns to my chest, my rib cage, telling me he was going to chop my body up, pull my teeth out, throw me in the Calumet River and to tell my mother that; that that's where I'd be at.
He choked me until I passed out. And he said that he was going to chop up my body and pull my teeth out so no one would identify me--be able to identify me.
[H]e said he was going to kill us and displayed a gun.
J.B. countered A.J.'s violent portrayal by bolstering his credibility as a father, provider, and future husband:
I'm engaged. I'm supposed to be married before Christmas. I have another daughter on the way. I haven't been bothering with [A.J.]. You can check my phone records. You can do anything. I haven't bothered her. I'm not this . . . “menace to society” . . . I've been too busy with my kids. My baby's mother's been working full time, you know . . . I have been there everyday watching my kids like I'm supposed to.
J.B. appealed to the judge to empathize with him by highlighting their shared white, middle class identity, an identity that A.J. obviously did not share. The judge then engaged J.B. in a colloquy about his upcoming marriage plans:
Q: And you said you're engaged or you're getting married?
A: Yes, I am. I'm engaged.
Q: And your fiancée, where does she live?
A: [address omitted]
Q: When is the wedding set?
A: We were just coming down to the court office before Christmas. We were gonna pay the $60 to get married.
J.B. thus successfully turned the judge's attention away from his history of violent conduct. While the court conversed with J.B. about his personal life and future plans, it ignored the personhood of my client. The court never directly engaged in any comparable colloquy with A.J., leaving her personhood invisible to the court. A.J.'s experience exemplified how African American women are invisible in the court system and American society. As I attempted to redirect the court's attention to my client's concerns, the respondent basked in the court's attention because of his racial and gender identity--an identity that sought to appeal to the court's power. Cheryl Harris argues that, even though the power of whiteness is somewhat diminished by the amelioration of racial stratification, whiteness still has material significance. J.B. can still draw the court's attention to his whiteness; A.J. cannot. Harris describes this appeal as a claim of relative privilege against a person of color. J.B.'s father testified, which further bolstered his association with whiteness and therefore his legitimacy.
I cross-examined J.B. about his arrests for violation of the order of protection and battery to my client. I questioned J.B. about his gun-wielding death threats to A.J. and her family. J.B. claimed that each allegation was false, though some were documented and bolstered by eyewitness testimony. I produced A.J.'s cell phone records, which showed eighty-four phone calls to A.J. after the court granted the order of protection. J.B. claimed that A.J. had herself created the records of the phone calls by accessing his cell phone account via the Internet.
Before making a ruling, the judge addressed J.B.'s father about his employment and J.B.'s employment:
Q: Does your son live with you?
A: Yes. He also lives with the . . . he also stays where his two children are.
Q: Is he employed?
A: Not at this time. He is searching for a job.
The judge then addressed J.B. about whether evidence existed to meet the legal threshold to have his right to possess firearms prohibited.
Q: Do you have any weapons?
A: No sir. No, your Honor.
Q: Didn't you say you work at a hospital?
A: [name of hospital omitted], full time and [name of hospital omitted], part time.
The judge sought to further J.B.'s claim of legitimacy and white privilege by asking questions that comport with middle class values of employment and residency. As Cheryl Harris has shown, “jobs, entitlements, occupational licenses, contracts, subsidies, and indeed a whole host of intangibles” are all indicia of the bundle of rights known as whiteness. The judge's questions about J.B.'s class status, work status, marital plans, residence, etc. enabled the judge to find the commonalities he sought in order to justify his ruling.
The judge found J.B. had violated the order of protection; however, the court sought to equalize the blame for the violations:
THE COURT: We're here for two things today. One is a petition to modify the order of protection that was entered on February 20th, 2009 and the other is a petition for contempt; Plaintiff alleging that--or Petitioner alleging that the Respondent violated the protective order.
I'm gonna grant the petition to modify the protective order, first. And I'm gonna make the protective order mutual because I find that--
THE COURT REPORTER: We can't do it mutual.
THE COURT: Can't do it mutual?
THE COURT REPORTER: You can't. Not any longer.
THE COURT: Really? Okay.
The judge attempted to enforce a mutual order of protection against A.J. and J.B. The judge did not articulate his rationale for such a bizarre outcome, but I surmised that the judge sought to elevate the concerns of J.B. over those of my client, the actual victim of the abuse. The race and gender implication of the case became clear. The judge then extended the order of protection, suspended a seven-day jail term, and denied the request to prohibit J.B. from having weapons or surrendering weapons during the pendency of the order of protection. I inquired to the judge about the denial of the prohibition of firearms:
MS. BROWN: [A]re you denying the request for a prohibition of firearms and surrender of weapons?
THE COURT: Well, I haven't heard any evidence that he has any. So, yes.
Despite A.J.'s extensive testimony regarding J.B.'s repeated use of firearms to threaten her, the court did not find sufficient evidence to prohibit J.B. from possessing weapons. The judge weighed the credibility of A.J. versus J.B. and found J.B. more credible, despite pending criminal charges and eyewitness testimony of death threats and gun possession.
Ian Haney López finds that unconscious racism undergirds the current legal construction of race in two interrelated ways: “[f]irst it fosters the racially discriminatory misapplication of laws that themselves do not make racial distinctions[;] and second, it engenders the design and promulgation of facially neutral laws that have racially disparate effects.” A.J. was unable to obtain the full force of the order of protection because the court weighed her safety against the infringement of J.B.'s right to possess a weapon, and consequently sided with J.B. I asked A.J. on direct examination why J.B. should not have a gun, and she responded: “I think that he will kill me. In my heart, I believe that he will kill me.” A.J.'s fear was palpable yet the court declined to give her the additional protection she required. If the courts will not fully enforce orders of protection, domestic violence victims have no recourse.
III. Effects of Racial and Economic Inequality
Economic inequality has its roots in the birth of United States. The poor have always been part of the American panoply. England profoundly influenced how America treated its poor. Colonial America inherited four principles from the English approach to poverty: (1) poor relief was a public responsibility; (2) relief was local; (3) kin responsibility denied public aid to individuals with families who could assist them; and (4) pauper children were handed over to farmers and artisans. Two institutions developed in assisting the poor as a consequence of English influences: outdoor relief and poor houses.
Outdoor relief was “‘relief given from the public funds to the poor in their homes not including medical care.”’ It was thought to be kindly, as it did not break up poor families; economical because it aided families in supporting themselves; and pragmatic because it placated the demands for assistance that outnumbered institutions available. Outdoor relief had many critics including taxpayers resentful of paying relief to those whom they considered able-bodied. Philadelphia abolished forms of outdoor relief in 1793. Public officials and reformers found outdoor relief spawned idleness and laziness in the poor. New York reformers attempted to abolish outdoor relief in the 1820s with limited success. Poor houses developed with the growth of cities throughout the colonies. Boston built one of the first poorhouses in 1664; Phildalphia followed in 1732, and New York, in 1736. Poorhouses were a reaction to the harsh treatment the poor received in many communities. The poor were auctioned off as cheap labor, most often in country towns. States contracted with private service providers who maintained the poorhouses. Administrators placed the poor, without family or homes, into poorhouses.
The quality of the relief depended upon whether the impoverished person was seen as virtuous or worthy. Those committed to dangerous, brutal, and demoralizing poorhouses were categorized as degraded. One had to be seen as being a worthy member of the local community to receive aid. Otherwise, the poor were shunned as vagabonds and beggars. The “deserving” and “undeserving” distinctions became apparent with the development of the modern American economy. A laissez-faire approach to poverty cultivated a view of the impoverished as weak, intemperate, indolent, deviant, and evil because of a ready supply of mobile and eager laborers present and ready to work. The deserving poor were seen as worthy of assistance and the undeserving poor were seen as morally deficient and punished for their status. Society began to treat the undeserving poor as paupers and allowed them to exist in substandard living conditions under the veil of moral degradation. Female aid recipients became the prototype of the deserving/undeserving poverty categorization.
B. Women and the Welfare State
The poverty distinctions for women determined the depth and quality of services they received. Widows of working, productive men were the pinnacle of the morally deserving for assistance whereas unmarried women were ostracized and condemned. The welfare state began with private charities and later became funded through government grants and benefits. In the late nineteenth century and early twentieth century, reformers waged campaigns to have benefits for “worthy” mothers. Special allowances were made for widowed mothers so that they could stay home and raise their children. Women had to endure intense scrutiny to be deemed worthy of state implemented benefits. Middle class White Anglo-Saxon Protestant (WASP) social workers determined eligibility for benefits based on the mothers' household budgeting skills, drinking habits, and child-rearing practices. The reformers' and the social welfare administrators' suspicions of single mothers and immigrants were especially pernicious. Single women were not allowed to cohabitate or have sexual relations outside of marriage. Single mothers in particular were stigmatized for their status. Single mothers received no assistance and divorced women received a modicum of assistance. Social welfare administrators pressed foreign-born immigrant recipients to become “Americanized” to receive aid. They were encouraged to apply for citizenship and prepare “American” meals, while administrators frowned upon immigrants who spoke in their native languages or failed to maintain “proper” household standards. The New Deal established the federal government as the deliverer of assistance to families; nevertheless, the moralism remained.
The 1935 Social Security Act established Aid to Dependent Children (“ADC”), and later Aid to Families with Dependent Children (“AFDC”), which allowed states to be the delivering--and screening--bodies for assistance to impoverished families. States denied single mothers assistance for not providing a suitable home and for fraternizing with men. New Deal reformers sought to recreate the patriarchal family structure of the family wage system through welfare. Women were to remain in the home taking care of the children, and the state provided for the care of family until a pension was available for widows or married men found employment to care for the families. New Deal reformers had a narrow definition of family and did not anticipate the progeny of single, never-married mothers who would be future ADC/AFDC recipients. All women did not benefit from the New Deal welfare programs. African American women faced restrictions on accessing ADC based on state restrictions. Decades later, African American women who did receive AFDC would become the lightning rod for race relations, welfare policy, and the future of the African American community.
C. The Moynihan Report and the Culture of Poverty
Senator Patrick Moynihan drafted a report on poverty in the African American community in 1965. The report “emphasized that the socioeconomic system in the United States was ultimately responsible for producing unstable poor black families.” The Moynihan Report caused immediate controversy. The major tumult surrounding the report centered on the percentage of unwed births by African American women and Moynihan's use of terminology such as “pathology” to describe the state of African American families.
Social conservatives focused on what they termed the “culture of poverty” and contended that values and behaviors, and not intergenerational poverty, were the root cause of African Americans' plight. The culture of poverty belief persisted as liberal social scientists retreated from academic discussions of race and poverty. Conservatives in the Reagan era sought to blame the innercity dislocation during the 1980s, after years of liberal policies, on the liberal policies themselves. George Gilder, Charles Murray, and Lawrence Mead argued that liberal policies exacerbated, rather than alleviated, ghetto-related tendencies. Liberal programs were discredited and labeled self-defeating because they ignored the behavioral problems of the underclass. Liberal social scientists did not respond, and conservative claims that were not scientifically proven were repeated and unchallenged. William Julius Wilson reopened the debate with the publication of his book, The Truly Disadvantaged. Wilson refocused attention on the instability of the African American family and its role in undermining changes for African American children. Wilson distinguished the African American middle class, which he saw as advancing in socioeconomic terms, versus the African American lower class, which he saw as losing ground. Despite Wilson's work, the damage was already done. Conservatives appropriated the Moynihan Report and used it to trumpet welfare reform, citing examples of African Americans lacking personal responsibility and welfare dependency.
D. The Public Face of Welfare
Charles Murray's Losing Ground showed that he was an expert on the culture of poverty belief. Murray argued that the increased number of single, female head-of-households was the primary cause of poverty, especially among African American women. Murray identified the higher birth rates for single African American women as compared with white women as a major cause of African American poverty. Murray further postulated that existing welfare programs caused dependency and created incentives for anti-social behavior and out-of-wedlock births. The depiction of single, poor African American mothers as the root of the society's ills gave the perception that they were unable to conform to white middle class standards because of their deviant behavior. The groundwork was laid for a welfare reform agenda.
Conservatives crafted their version of welfare reform, which included the key components: (1) reduction in welfare expenditures; (2) decrease in government bureaucracies; and (3) allowance for privatization. Conservatives lobbied Congress to grant states more autonomy to redesign welfare programs with moral and religious underpinnings. States enacted workfare programs to make program recipients work for their benefits. Other reforms would allow for religious organizations to participate in the delivery of social services. The lynchpin, however, was transforming welfare to reflect normative family structure and values. Families that reflected normative values were upheld as exemplary, and those that deviated, such as single parent households, were blamed for poverty. Traditional family values became the foundation for welfare reform. Family-oriented reforms included promotion of marriage and fathers' rights; aggressive child support enforcement; and a family cap to benefits. Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) in 1996. The passage of PRWORA can be linked to images of undeserving poor African American women living unrepentant and degenerate lifestyles at the expense of hardworking U.S. taxpayers.
E. Welfare Queens and Racial Stigma
Race can be used to distinguish groups of individuals without harm or consequence, but imposing attitudes and behaviors in terms of race is often problematic. Economist Glen Loury defines race as:
[A] cluster of inheritable bodily markings carried by largely endogamous group of individuals, markings that can be observed by others with ease, that can be changed or misrepresented only with great difficulty and have come to be invested in a particular society at a given historical moment with social meaning.
Loury not only embraces the social construction of race, he highlights how human behavior is organized around race categorization. Influential observers--police officer, bankers, and realtors--hold schemes of race classification in their minds and act based on those classifications. Thus, the problem of racial stereotyping is negative racial classifications. These negative racial classifications have implications beyond the attitudes held by their believers. Negative stereotypes have a direct impact on the affected person. Loury suggests that while overt discrimination has diminished for African Americans, racial injustice in the United States persists. Present day discrimination that affects social, economic, and political life, though less transparent, is harder to root out. Racial classifications and stereotypes are the first step towards discriminatory actions.
Historically, there are myriad racial stereotypes that continue to harm African American women's psyches. Beginning with the historical caricatures of Mammy, Aunt Jemima, and Jezebel, African American women have been subjected to these negative stereotypes throughout U.S. history. Modern caricatures of the Sapphire, the matriarch, and the welfare queen serve the same purpose of attempting to represent the lives of African American women as problematic and/or inconsequential. Linda Ammons argues that the stereotypical images of African American women are so powerful that they connote violence, disdain, fear, or invisibility, suggesting that “black women are ever cognizant of the possibility of humiliation just because of who they are.” Stereotypes negatively influence how stakeholders in the legal system treat impoverished African American women when they seek access to justice.
IV. Race, Class and Gender as Extralegal Factors
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.
V. Negative Rights and Limited Remedies
A. Negative Rights
Castle Rock is but the latest in a series of cases in which the Supreme Court has enumerated the limits of procedural due process rights or affirmed negative rights. The Fourteenth Amendment only restricts the freedom of states to make certain types of laws or take certain actions. The Supreme Court will review either procedural or substantive due process claims. Procedural review requires the court to review if the government entity has taken an individual's life, liberty, or property without fair procedure or due process. A substantive review requires a judicial determination of whether the substance of the legislation is constitutional. The Due Process Clause is one of the most litigated clauses in the Constitution. It is incumbent upon the courts to balance individual rights against laws created by state government. Congress drafted the Fourteenth Amendment without listing specific rights to grant leeway to future congresses and future courts to deal with circumstances not anticipated in 1866. Constitutional rights are either negative or positive. Negative constitutional rights limit government intervention and positive rights define what the government must do or provide for its citizens. The Framers used negative rights to limit the power of national government. Prior to the ratification of the Fourteenth Amendment, the Framers phrased the Bill of Rights in negative terms. The Framers sought to protect citizens from a self-interested state or federal government. Professor Michael Gerhardt noted that the passage of the Fourteenth Amendment radically altered the federalism concept underlying the Bill of Rights. A tension and legal conundrum began with the expansion of federalism:
For every negative right the Fourteenth Amendment protects, the power of the federal courts is increased with a corresponding decrease in the power of state government. For every positive right that [the Fourteenth] [A]mendment imposes, the federal courts' power increases with a corresponding decrease in both state autonomy and resources.
The Fourteenth Amendment is a complex doctrine that seeks to balance protection of individual rights against guarantees of the appropriate procedures if rights are infringed, or as constitutional scholar Erwin Chemerinsky states:
The simplest, and perhaps most elegant, way of understanding the Fourteenth Amendment is to view the Privileges or Immunities Clause as protecting rights from interference, the Equal Protection Clause as assuring equal treatment, and the Due Process Clause as prescribing the procedures that government must follow when it takes away life, liberty or property. At a minimum, the Due Process Clause seems to define how government must act when it deprives people of their rights.
The negative rights interpretation means that citizens have no constitutional right to government services, and thus, because government has no duty to provide services, it need not do so competently. In declining to hold the Winnebago County Department of Social Services negligent in its failure to protect a child from a severe abuse, Justice Rehnquist's opinion expounded on the negative rights:
The [Due Process] Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text . . . . The purpose of [the Clause] was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political process[.]
Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid . . . . If the Due Process Clause does not require the State to provide its citizen with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.
Justice Rehnquist's rationale for rejecting positive rights was not new. The Supreme Court has long rejected attempts at creating positive rights claims for welfare benefits, education, housing, and medical services. The accumulated denial of positive rights by the Supreme Court became the underpinning for decisions that many in the legal community view as morally reprehensible.
1. Harris v. McRae
Title XIX of the Social Security Act of 1965 established the Medicaid program to provide federal reimbursement for states that provided medical assistance to the needy. However, in 1976, Congress passed the Hyde Amendment, which severely curtailed reimbursement of federal funds for the costs of abortions under the Medicaid programs. A group of indigent pregnant women from New York, along with other parties, sued in federal court. They sought to enjoin enforcement of the Hyde Amendment citing violations of the Due Process Clause of the Fifth Amendment and the Religion Clause of the First Amendment. The plaintiffs also sought to have states continue to provide funding for medically necessary abortions. The District Court granted injunctive relief. In Harris v. McRae, the Supreme Court denied that Title XIX of the Social Security Act entitled states to pay for medically necessary abortions of impoverished women where the Hyde Amendment would have left the abortions unreimbursed. The Court found that Congress did not intend to shift the entire costs of medically necessary abortions to participating states. The Hyde Amendment restriction did not, in the Court's view, impinge upon any liberty protected under the Due Process Clause of the Fifth Amendment. It did not restrict women from obtaining medically necessary abortions; rather, it only encouraged alternate activities in the public interest. The Court further elucidated that a woman's choice to terminate her pregnancy did not create a constitutional entitlement to financial resources that would give her a full range of protected choices.
The restriction on the federal funding placed a greater burden on indigent women's abilities to obtain abortions. Lawrence Tribe determined that even under a negative and individualistic constitutional scheme there are exceptional affirmative rights. The Harris Court, however, determined that the state can restrict access to abortions by cutting off funding because the Equal Protection Clause is not a source of substantive rights and poverty is not a suspect class under the Fourteenth Amendment. Therefore, the women have no property interest in obtaining funding for an abortion. Lawrence Tribe espoused that the Constitution--and the scheme of negative and individual rights--was “written largely with a view to the rights of self-sufficient adult white propertied males.” Tribe notes that only with the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments does the Constitution make a plausible effort to give rights through affirmative government action “to those whom biology or history condemns . . . to conditions of dependence and relative helplessness.” Harris became the foundation for future decisions that would leave vulnerable populations without the protection and duty of affirmative rights that government should or would enforce.
2. DeShaney v. Winnebago County Department of Social Services
Joshua DeShaney was brutally abused by his father, which left him severely brain damaged. Doctors predicted that Joshua would spend the rest of his life in an institution as a result of the abuse. The defendants, including the State of Wisconsin Department of Social Services (“DSS”) social workers and other local officials, had reason to believe that the father was abusing the petitioner because Joshua had been admitted to the hospital for bruises on several occasions. The local emergency room notified DSS of the boy's treatment for injuries and Joshua's DSS caseworker also had observed evidence of injuries on his head during home visits. The DSS caseworker noted that she suspected child abuse and recorded these suspicions in her files; however, she took no action, and none of the officials acted to remove the petitioner from his father's custody. Joshua DeShaney asserted that he had a substantive due process fundamental right under the liberty component of the Due Process Clause to be protected by the Winnebago County Social Services once they became aware of the abuse by the father. As noted earlier, the Supreme Court held differently. The state's failure to protect an individual from private violence did not violate the Due Process Clause, and the state's knowledge of the danger that existed for Joshua DeShaney and its attempts to protect him did not create a special relationship that would give rise to an affirmative constitutional duty to protect.
Michael Gerhardt noted three important findings in Justice Rehnquist's opinion: (1) the Due Process Clause was clearly stated to be a negative rights doctrine; (2) a substantive due process violation would not be recognized unless the victim was in the state's physical custody, thus limiting the potential flood of cases into federal courts; and (3) the Court preserved state autonomy by limiting federal court oversight. Two troubling aspects exist about the DeShaney decision. First, Professor Gerhardt notes that even if Justice Rehnquist chose to make the claim that the Due Process Clause grants negative rights, states still have an affirmative duty not to deprive a person of the “‘life, liberty and property.”’ Second, Justice Rehnquist distorts the history of the Due Process Clause of the Fourteenth Amendment and compares it with the Framers' goal of limiting the power of the federal government, an interest grounded in the Due Process Clause of the Fifth Amendment. The purpose of the Due Process Clause of the Fourteenth Amendment was to expand--not limit--federal power by investing the federal government with the oversight to guarantee that states did not deprive their citizens of their rights to “life, liberty or property” without fair procedures. Legal scholars have argued that the Fourteenth Amendment should be used not only to assert affirmative rights but also to assert the rights of the poor. Justice Rehnquist sought to ignore or rewrite the intent of the Fourteenth Amendment and Joshua DeShaney was granted no recourse from the failure of the state to protect his life.
3. Town of Castle Rock v. Gonzales
Jessica Gonzales obtained a restraining order against her husband, Simon Gonzales, during divorce proceedings. She had three daughters with her husband and the divorce court ordered Simon Gonzales not to disturb the peace of the petitioner or her children. Three weeks after the issuance of the order, Simon Gonzales took the children without the permission of Jessica Gonzales. After two hours, Jessica Gonzales informed the police of her suspicion that Simon Gonzales had taken her daughters. Ms. Gonzales sought to have the restraining order enforced; however, the Castle Rock police told Ms. Gonzales they would not look for her husband or children and told her to wait for their return. After seven hours, Ms. Gonzales again sought to have her restraining order enforced and have the police locate her children, only to be told again by the Castle Rock police to be patient. At three o'clock in the morning, Simon Gonzales appeared at the Castle Rock police station and opened fire with a semi-automatic handgun. Castle Rock police shot and killed him. The police later located the bodies of the three daughters inside Simon Gonzales's truck.
Jessica Gonzales filed a Section 1983 suit against the Castle Rock Police department. The Tenth Circuit ruled for Ms. Gonzales, finding that Colorado's statute established clear intent to abrogate the traditional presumption of police discretion and thereby required the police to enforce restraining orders. The Town of Castle Rock appealed to the Supreme Court, which overruled the Tenth Circuit. The Court held that the procedural component of the Due Process Clause does not protect everything that is described as a “benefit”; rather, there must be a legitimate claim to an entitlement to create a property interest. The Court further held that a benefit is not protected if officials have the discretion to grant or deny the benefit. Therefore, the Colorado law did not create a personal entitlement to enforcement of restraining orders, even if the enforcement was mandatory by law.
The Castle Rock decision was one of the last decisions for the term of Chief Justice Rehnquist. Douglas Kmiec notes, “[i]n drawing the line as crisply as he does between negative and positive liberty, Rehnquist arguably understates and perhaps even disserves the most basic moral right that he had framed in relation to the very purpose of government.” The negative rights doctrine grew more perverse as the Court allowed government's obligation to protect its citizens to be so narrow in interpretation that a mandatory-enforced restraining order was not seen as a protected interest. Roger Pilon theorized that Mrs. Gonzales had a right of protection for her and her children under a social contract and delegated its enforcement to the government. The Town of Castle Rock broke that contract and the Supreme Court upheld its decision.
B. Underenforcement and State Power
Many critical race theorists and criminologists have criticized the criminal justice system for overenforcement. The disproportionate presence of law enforcement in communities of color and its disparate effect on convictions and sentencing leaves communities wary of police presence. A corresponding problem is underenforcement. Professor Lawrence Sager developed the theory of underenforcement of constitutional rights. His thesis is that a gap exists as to whether federal courts will fully enforce constitutional rights; federal courts use theories or concepts of rights to limit the actual application or conception of rights. Therefore, a federal court may agree with a constitutional right in concept yet limit enforcement of that right. Underenforcement also influences government response. Underenforcement is a weak state response to law breaking and victimization. It can be linked to official discrimination and deprivation. The state routinely failing to enforce the law and protect citizens in impoverished and high-crime areas leaves an already vulnerable population further victimized. Police failure to respond leads to increased violence, legal failure, and undemocratic treatment of the poor-- hallmarks of discrimination. Deprivation can be measured by race, class, gender, and political powerlessness. Communities of color suffer higher crime and victimization rates than affluent white communities, and African American communities are disproportionately victimized.
Serious crimes go unsolved because of underenforcement in poor communities and fewer services are offered to victims. In Los Angeles, homicides are concentrated in the racially segregated neighborhoods of Compton and South L.A. While African Americans are 12% of the U.S. population, they are 47% of U.S. homicide victims. These homicide statistics include African American women who are victims of intimate-partner violence. African American homicide rates are six times higher than for whites. While the national clearance rate for homicides is 64%, more than half of homicides from Los Angeles remain unsolved. Where underenforcement exists, criminals grow bold and residents become uncooperative with law enforcement. Underenforcement is danger to communities and manifests itself in the court system as well.
Underenforcement can be determined by five triggering factors: (1) official discriminatory intent; (2) group disadvantage; (3) interference with basic life functions; (4) undermining civilian relations with law enforcement; and (5) lack of countervailing values. Underenforcement of protection orders after Castle Rock is now sanctioned by the courts. State and federal courts have denied relief where police refused to arrest a violent boyfriend after a 911 call and he later killed his girlfriend. They also denied relief where a domestic violence victim, shot by her husband, sought relief because the police refused to arrest after initial order of protection violations. Courts have followed the DeShaney/Castle Rock precedent to the detriment of domestic violence victims.
The five triggering factors for underenforcement are met. First, no court will ever admit to official discriminatory intent; however, when vulnerable populations are denied due process constitutional protections, a form of discriminatory intent manifests itself. When the state knowingly fails to protect abused children or when law enforcement refuses to enforce a mandatory restraining order, a second-class citizenry exists that is not equally protected by the state, and the court gives full endorsement. Second, domestic violence victims now have a group disadvantage. Professor Alexandra Natapoff notes that underenforcement is a problem when it reinforces group disadvantage. Law enforcement can now choose as a policy to limit enforcement of orders of protection while allocating resources to more “worthy” crime victims. Public resources are redistributed away from vulnerable, politically weak populations, such as domestic violence victims. Third, underenforcement of orders of protection does interfere with the basic life functions of domestic violence victims. Domestic violence victims must operate with hyper-vigilance, which interferes with employment and education, and makes them economically vulnerable. A domestic violence victim can neither work nor educate herself without fear of looming violence. Basic life functions become maladjusted. Natapoff finds that underenforcement hinders engagement in fundamental functions, such as employment or forming institutional relations, which in turn stunts full societal participation. Fourth, the lack of enforcement of orders of protection undermines civilian relations with law enforcement. If law enforcement fails in its basic function of serving and protecting vulnerable populations, such as domestic violence victims, the enforcement of law-abiding norms is meaningless. Social disorganization exists when laws are not enforced and crimes are overlooked. Impoverished communities have high levels of social disorganization and high crime rates, and they fail to cooperate with law enforcement. When law enforcement fails to properly enforce orders of protection, a social norm is thus created that gives permission for batterers to continue the abuse of their victims undaunted by any potential sanctions. Finally, a countervailing value does not exist for lack of enforcement of orders of protection. In the distribution of law enforcement resources, reviewing the necessity to protect vulnerable citizens from violence versus allocating resources elsewhere does not justify an equal or distinct value that would leave domestic violence victims potential homicide victims. As Natapoff summarizes, although “normal political competition will often lead to unequal distributions, when those distributions result in unjustified group handicaps or pervasive disadvantages, the political process alone cannot validate such results.” The lives of domestic violence victims are at risk because of systemic underenforcement.
How effective can an order of protection be when the Supreme Court limits the remedies vulnerable populations have if law enforcement or state employees fail in their duties? Ensuing cases prove that seeking remedies becomes a fruitless effort. Jessica Gonzales--now Jessica Lenahan--sought an international venue to seek redress. In 2005, the American Civil Liberties Union and Columbia Law School filed a petition on behalf of Lenahan with the Inter-American Commission of Human Rights (“IACHR”) asserting human rights violations based the Castle Rock Police Department inaction on the order of protection and the subsequent Supreme Court decision. The IACHR is an autonomous organ of the Organization of American States (“OAS”), the purpose of which is to promote the observance and defense of human rights. The OAS considers claims of human rights violations and issues written decisions on state responsibility. The OAS is not a court of last resort and has no enforcement power; nevertheless, its decisions have significant moral and political impact. The United States has not ratified any Inter-American human rights treaties; therefore, human rights complaints are brought before the IACHR under the American Declaration and the OAS charter. The IACHR issued a report in 2011 finding that the United States failed to act with due diligence to protect the lives of Jessica Lenahan and her daughters, Leslie, Katheryn, and Rebecca. The impact of the decision should bolster advocates to use international bodies to attempt to influence U.S. policy. As counsel for Jessica Lenahan, Lenora Lapidus gave the following recommendations:
[A]dvocates must first publicize those proceedings, observations, and recommendations to make the public aware of the mechanisms and their operation as well as the substantive abuses that are at issue in the proceedings before these bodies. Furthermore, advocates must cite as persuasive (though not controlling) authority the concluding observations in other legal proceedings? both in domestic courts and before international bodies?and must use the recommendations as support for policy changes at the state and federal legislative and executive levels.
Stereotypes and racial stigmas hamper poor African American women who seek intervention in violent relationships. The most poor and susceptible to lethal violence are exposed to a court system that does not understand or address the urgency of domestic violence in the lives of poor African American women. Courts must be more culturally competent in dealing with the intersection of race, class, and gender with the additional component of domestic violence.