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Excerpted From: Michelle S. Jacobs, The Violent State: Black Women's Invisible Struggle Against Police Violence, 24 William and Mary Journal of Women and the Law 39 (Fall, 2017) (482 Footnotes) (Full Document)


MichelleSJacobThe theme of this special issue, Women and Law Enforcement, is particularly timely. Incidents of police brutality have reached a new level of public visibility. Though not everyone agrees on whether the use of violence by the police is inappropriate, conversations about police violence are occurring everywhere. An exploration of the topic of Women and Law Enforcement would not be complete without at least one article that puts Black women at the center of the lens of analysis, particularly as it relates to the state-sponsored violence Black women experience at the hands of law enforcement. This Article is about law enforcement's violence towards Black women specifically. The reader should not feel free to substitute the phrase “women of color” where “Black women” has been written. The Article is not about “women of color.” For decades now, mainstream feminists have attempted to discuss violence against women, while relegating the experiences of Asian women, NativeAmericanwomen, Latinas, and Black women into one category called “women of color.” Scholarship describes the experiences of White women as normative, all other women experiences are subsumed in those. For over twenty years now, the data (when you can find data specifically about non-White women) consistently shows that the communities of non-White women do experience violence, both at the hands of the state, as well as at the hands of intimates, but that violence manifests differently in each community. Intuitively, that would make sense as the women in all communities are viewed through the stereotypical lens created by Whites for each ethnic/racial community. The lumping of their experiences into one homogenized category masks the complexity of violence in each community and renders the differences between the communities invisible. Black women have a very specific history with the state and law enforcement that is not replicated among other women's communities, and it is that unique situation that is the focus of this Article.

Black women's interaction with the state, through law enforcement, is marked by violence. Black women are murdered by the police. They are assaulted and injured by the police. They are arrested unlawfully by the police; and finally they are tried, convicted and incarcerated for defending themselves against nonpolice violence. State violence against Black women is long-standing, pervasive, persistent, and multilayered, yet few legal actors seem to care about it. This Article will bring together the strands of scholarship that exists across several fields on the dilemma of state sponsored violence against Black women, to highlight for legal scholars the depth of the problems Black women experience. The relationship between Black women and the state was birthed in violence, through the establishment of slavery in the colonial world. Part I of this Article explores the historical roots of Black women's interaction with the state. The historical exploration is necessary because in the foundational years of interaction between Black women and White colonists the process of dehumanization and genesis of cultural stereotypes were created. Throughout the research cited in this Article, contemporary linkages to both legal policy, as well as law enforcement behavior will be made to stereotypes fostered and maintained through slavery.

Black women are subjected to every type of law enforcement violence imaginable. The most severe violence causes death, but Black women are routinely brutalized by the police in ways that do not cause death.

Part II of this Article is broken into two sections. The first will cover police killings of Black women. Police killings of Black people receives national media attention today, principally as a result of the #BlackLivesMatter movement. Most of the attention focuses on the issue of the police killings of Black men. Grassroots movements and independent journalists are now tracking police killings because data from law enforcement on the number of Black people killed by the police is woefully inadequate. Even that scarce data however, rarely does a statistical gendered analysis, which means that the deaths of Black women at the hands of the police do not receive the level of attention that the killings of Black men receive. The #SayHerName project is attempting to bring these women's stories to the forefront of the public discussion. The second part of the section will explore the conditions under which Black women are physically assaulted by the police. Here again, data is scarce and researchers few, but from what is available, disturbing trends in law enforcement become apparent.

The level of sexual violence against Black women is high, Part III of the Article seeks to highlight when the police rape and sexually assault Black women. Police rape is a complex matter on many levels. Can any woman who is raped by the police, much less a Black woman, report that rape to the police? The realities of community relationships formed with the police dramatically impact a Black woman's ability to gain legal protection when her rapist is a cop. Intimately connected to this issue, is the law's reaction to claims that a Black woman has been raped. Legal and social science literature demonstrates that prosecutors may be reluctant to take a case of rape forward where the victim is a Black woman. That reluctance is often tied to who or what the woman is and or how the jury will perceive the woman. In this context, vulnerable populations of women are at risk of having their cases refused by the state. Ultimately, the question must be asked whether all Black women are always in the category of vulnerable women such that their rape complaints are not viewed as viable. The end of the section will also cover the more modern phenomenon of police officers trafficking Black girls and women.

Intimate partner violence (IPV) continues to be a serious problem in the United States. Police families are not immune from experiencing violence at the hands of police officers. Part IV begins with police violence within the home. Intimate partner violence among law enforcement and the military is higher than the rate of violence in civilian populations. Police who can batter can also batter Black women. However, obtaining any satisfying statistics about police batterers can be extremely difficult, and even more so if one is searching for data on the race of victims of police battering. The second section in Part IV will focus on violence that occurs when the police respond to Black women who complain of abuse at the hands of an intimate partner. Research, sparse as it is, shows that Black women are more likely to be arrested by the police when they report intimate violence. In this section, the root failure of feminist and anti-violence advocates to do a complete race and gender analysis during the push for adoption of the original Violence Against Women Act will be discussed. It is argued that the push to have VAWA adopted, and to encourage greater police participation in the criminal justice response to intimate violence, led the movement to ignore serious warning signs that Black women would fare poorly under the legislation. The problems associated with mandatory arrest, dual arrest and no drop prosecution provisions for Black women will be discussed. Within Part IV, the plight of Black women who defend themselves from the batterers and are prosecuted for murder will close out the section.

Tensions can arise within the feminist movement when Black women call for their issues to be placed at the center of analysis. For predominately White organizations, there is political capital to be gained by arguing that all women are impacted by oppression, injustice, violence in the same way. But the small amounts of data that are available consistently demonstrate quite the contrary. Black women experience these things, particularly violence from the state, in a qualitative and quantitative level that is very different from how middle class White women experience state-sponsored violence. Part V explains why it matters to specifically to Black women that their trauma be acknowledged. Secondly, I explore why mainstream anti-violence groups and other feminists organizations should be concerned about what is happening to Black women specifically. Finally, the Article concludes by highlighting why moving the discussion of violence against Black women from the dusty corners of isolation closer to the center of policy planning, drafting of legislation, and political brainstorming matters to both Black women and to the larger feminist and anti-violence communities.

[. . .]

There is a really easy answer to the question of whether the race or ethnicity specific designation matters. The simple answer is, it does. It matters in critically important ways, both to the individual constituent groups and equally as important to the women's organizations themselves.

[. . .]

From a purely interests-convergence perspective, it should matter because to the extent that there are some women who do not have the rights of White women, then the rights of all women (including White women) are weakened. It should matter to White women because many women in the United States--who are Black, who are poor, or who may have criminal records when they reacted to save their own lives from abuse and violence and violated some normative value established for women--remain outside of the bubble of feminist advocacy. These are the very women who need the help and support of a national women's movement. But if they are not valued as women, and if their wounds are not recognized as wounds, even if they are shaped differently, women's organizations will never be able to move from ignoring their issues to creating space for them under the women's umbrella. And the failure of all women to work towards the elimination of state-sponsored violence against Black women, and women from communities of color, would be a failure of epic proportions for the women's movements of today.

Professor of Law, University of Florida, Levin College of Law.

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