Excerpted From: Reema Sood, Biases Behind Sexual Assault: A Thirteenth Amendment Solution to Under-Enforcement of the Rape of Black Women, 18 University of Maryland Law Journal of Race, Religion, Gender and Class 405 (Fall, 2018) (221 Footnotes) (Full Document)

ReemaSood.jpegDevaluation of Black women's bodies derives from the long history of slavery in this country. The treatment of Black women, from slavery to the present, ties closely to the systemic tactics of oppression utilized by White slave owners after our country's founding. In removing autonomy and control over Black female slaves' bodies, slave owners ensured that any offspring borne from the rape of a Black slave would become indoctrinated into slavery. Though Congress provided options to remedy the unconscionable, disparate treatment of the races by passing the Thirteenth and Fourteenth Amendments to the Constitution, the broad “badges and incidents” of slavery persist, coloring the treatment of Black women many years after abolition.

Sexual assault deeply affects victims, changing their lives forever. Scholars have written that rape “breaks the spirit, humiliates, tames, [and] produces a docile, deferential, obedient soul.” Rape degrades, oppresses, and instills fear. It does not relent, as the lingering effects of rape remain in a victim's life: “resolution of the trauma is never final; recovery is never complete.” Rape also affects more than just the victim: It ripples out to entire communities. Victims of rape struggle to heal after the trauma and their connected circles of family and friends suffer with them. sexual assault crimes pose a great threat to the safety and well-being of Black women. Police and prosecutors both have significant discretionary powers to investigate these crimes. Unfortunately, implicit, unconscious biases plague our criminal justice system and in turn adversely affect law enforcement's handling of sexual assault crimes. Black women in particular suffer the consequences of law enforcement's discretionary power and have historically been victimized by law enforcement. Crimes against Black women are poorly investigated and sometimes ignored altogether. When police actually attempt to investigate alleged crimes against Black women, they often believe the victims are not credible. Further, the few sexual assault crimes that actually lead to police charges are frequently not pursued by prosecutors. Whether the disparity arises from unconscious or intentional biases, it inflicts harm on Black women by denying them access to justice.

Part II traces the history of this country's degradation of Black women's bodies and assesses how historical abuses continue to shape the experiences of Black women with respect to the full enjoyment of their rights as enshrined in the Thirteenth Amendment, the 1866 Civil Rights Act, and 42 U.S.C. § 1981. Part III outlines the Thirteenth Amendment as the best method for addressing oppression and control over Black bodies because of the Amendment's historical grounding and its unburdened status compared to the Fourteenth Amendment. It further connects the Thirteenth Amendment with the history of depriving Black women the fundamental human right to bodily autonomy. Part III-C addresses the seminal Supreme Court decisions that initially limited the viability of Thirteenth Amendment arguments, including the Civil Rights Cases and Plessy v. Ferguson. Part III-D outlines the Amendment's practical implementation and resurrection in the courts, making particular use of the 1968 decision Jones v. Alfred H. Mayer, Co. to show how critical the Amendment can be in the fight to protect the lives, safety, and rights of Black women. Part IV presents potential remedies, including: (1) a call to action for practicing attorneys to implement Thirteenth Amendment arguments and increase their prominence in jurisprudence, (2) options for Congress to create laws intended to resolve discriminatory treatment of sexual violence against Black women, and (3) the option for Black women to seek civil tort actions as a means of redress.

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Black women suffer from sexual violence at a higher rate than White women because of centuries-old racist biases stemming from the institution of slavery, and the United States continues to ignore their struggle. The 34th Congress anticipated the numerous injustices that would outlast emancipation and passed the Thirteenth Amendment and the 1866 Civil Rights Act with the intention of empowering Congress to enact further legislation to protect Black people. The disparate treatment of Black women subjected to sexual violence remains unresolved generations after abolition and requires direct action. Utilizing the Thirteenth Amendment to its true post-Jones potential would force the criminal justice system to make the necessary changes to provide Black women with the security they have long been promised.


J.D. Candidate, 2019, University of Maryland Francis King Carey School of Law.