Excerpted From: Shelby Mitchell, The Societal and Prosecutorial Undervaluation of Sexual Offenses Against Black Men, 23 Rutgers Race & the Law Review 479 (2022) (115 Footnotes) (Full Document)


ShelbyMitchellWhile facially, most jurisdictions now recognize that regardless of gender, anyone can be sexually assaulted or raped, males who have been sexually assaulted or raped often still underreport. In particular, Black men underreport as they face additional challenges outside of gender: societal attitudes and racial bias. Since the inception of this country, sexual violence and stereotypes have been used as tools of oppression and devaluation against Black men and continue to be weaponized by this country's laws and prosecutorial practices.

According to the 2013 National Crime Victimization Survey, in asking 40,000 households about rape and sexual violence, the survey uncovered that 38% of the incidents were against men. However, in past years, men only accounted for 5 to 14% of rape and sexual assault victims. This surge in reported sexual violence against men can likely be attributed to the fact that definitions of rape and sexual assault have become more expansive in the last twelve years. For example, the FBI previously defined forcible rape, for data collecting purposes, as “the carnal knowledge of a female forcibly and against her will.” But, FBI Director Robert Mueller changed the definition in 2012 to “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Also, in 2010, the CDC's National Intimate Partner and Sexual Violence Survey introduced a category called “being made to penetrate.” As a result, with those new definitions being utilized, the U.S. saw the rates of rape and sexual assault of men in the U.S. begin to reflect the rates of women more closely.

Additionally, concerning race, it is a well-studied reality that racial animus exists in the U.S. legal system, often exacerbated by discretionary conduct in police and prosecutorial practices. As a result, there are two realities in this country: the overvaluation of white sexual assault or rape victims and the undervaluation of Black sexual assault or rape victims; and, the overvaluation of female victims and undervaluation of male victims. So, taking that into account, where does this leave the Black male in cases of rape or sexual assault as they are “undervalued” in both realities?

This note will explore the legal need to reconceptualize the definitions of rape and sexual assault as gender-inclusive crimes, focusing on the societal and prosecutorial undervaluation of rape and sexual assault offenses against Black men. Part I will examine the role history plays in the Black man's sexual victimization, Part II examines the denial of Black men's sexual victimization and the current legal practices that enable these harmful acts, Part III examines the role prosecutorial discretion plays in the handling of their cases, and Part IV provides suggestions in which prosecutors can reform their efforts in the handling of Black men's cases.

[. . .]

Although experts and scholars are devoting more time to studying mass incarceration, race, rape, sexual assault, and criminal justice reform, there is still a noticeable avoidance of the intersection of these issues. Many articles, notes, studies, and other forms of research on rape and sexual assault focus on females as victims, particularly about white women as victims, and more recently, Black women and their victimization in this country. There also has been a recent focus on the treatment of minorities by the justice system. Similarly, pertaining to gender, there have been more recent studies researching issues of gender discrimination in the investigation and prosecution of male rape and sexual assault victims. But notably absent is the intertwining of those topics, focusing on the victimization of Black men and how the current legal system not only fails to see them as victims but has practices that directly contribute to their victimization. Hopefully, Black men and their experience with sexual assault and rape due to individual, federal, and state-sponsored acts can be brought to the forefront, and the laws and prosecutorial conduct that prevents them from achieving equitable treatment can be acknowledged and revised.

Co-Editor-in-Chief, Rutgers Race and the Law Review; J.D., Rutgers Law School; B.A. in Psychology, Case Western Reserve University.