A 3-page Paper about Race and Poverty in the Americas

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Decoding Black Women: Policing Practices and Rape Prosecution on the Streets of Philadelphia Author(s): Toni Irving Source: NWSA Journal, Vol. 20, No. 2, Women, the Criminal Justice System, and Incarceration:

Processes of Power, Silence and Resistance (Summer, 2008), pp. 100-120 Published by: Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/40071277 Accessed: 27-11-2015 21:00 UTC

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Decoding Black Women: Policing Practices and Rape Prosecution on the Streets of Philadelphia TONI IRVING

Abstract

Black women are generally displaced as victims of rape. The police response to the sexual assault of black women in general and lower-class black women in particular is illustrative of how sexual ideologies help construct complex social hierarchies that in turn structure rights. How the law currently deals with rape places black women outside of the nar- rative frames that legitimate entitlement. Rape continues to stand in for, and effectively obscure, other social, political, and economic concerns. Unpublished and often ignored, the rape narrative is a ripe site to supply oppositional interpretations of national experience and transmit some of the structural problems in the criminal justice system. Pulling from over two thousand "real" rape cases of low-income black women ignored and not investigated in Philadelphia between 1995 and 2000, this article reads black female rape narratives as case studies in order to discuss the way personal narratives of rape victims are structured by competing and overwhelming sociolegal narratives that undercut their reception. As the fastest growing prison population, the presence of the law to punish black women stands in stark contrast to the absence of the law to protect them.

Keywords: rape discourse / sexual ideology / policing our criminal justice system / sexual citizenship / protection / black women

From the day they were liberated to the present time, prepossessing young colored girls have been considered the rightful prey of white gentlemen in the south, and they have been protected neither by public sentiment nor by law.

-Mary Church Terrell (1996, 77)

The institutional rape of black women has never been as powerful a symbol of black oppression as the spectacle of lynching. Rape has always involved patriar- chal notions of women being, at best, not entirely unwilling accomplices, if not outwardly inviting sexual attack. The links between black women and illicit sexuality consolidated during the antebellum years had powerful ideological consequences for next hundred and fifty years.

- Hazel Carby( 1992)

©2008 NWSA Journal, Vol. 20 No. 2 (Summer)

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Decoding Black Women 101

What passes for reality in any culture is the product of the culture's codes, so 'reality7 is always already encoded, it is never 'raw7.

- John Fiske (1987, 4-5)

Evidence of Things Not Seen

While walking home from a North Philadelphia bar one night, thirty-four- year-old Melody Madison was attacked by a man who struck her in the mouth, knocking out four front teeth, before dragging her to a park bench and raping her in front of a mural of Harriet Tubman (McCoy, Fazlollah, and Matza 2000). When the police arrived, Ms. Madison bore the physical markers on her body that dismissed any implication of consensual sex, she gave a detailed physical description of her assailant, including his nickname, and she possessed the pair of shorts he left behind. Despite the wealth of evidence, her case was closed without prosecution because, according to official reports, Ms. Madison (who does not have a phone) could not be reached for a follow-up interview.

Melody Madison lives in the poor, predominately black area of North Philadelphia. However, none of her markers - neighborhood, race, gender, class, lack of phone service, and previous misdemeanor - are constituted by law as factors that may disqualify an individual from equal access to the judicial process. Nevertheless, despite overwhelming evidence to aid her assailant's prosecution, the Sex Crimes Unit detective failed to investigate and filed away Ms. Madison's case under the noncriminal code 2701 or "investigation of person."

North Philadelphia is a poor black neighborhood that includes the kind of "million dollar blocks" feeding mass incarceration - blocks where enough people from the same street are imprisoned such that the total cost of their incarceration exceeds one million dollars. Maps of prison spending illustrate that most inmates come from just a handful of urban neighborhoods. North Philadelphia has a significant number of police officers, probation officers, and youth workers assigned to a neighbor- hood with a median household income of $16,764. So while residents are routinely tracked and prosecuted for crimes that send them to prison, the Sex Crimes Unit contends that it was unable to locate Ms. Madison and by extension unwilling to find her assailant. At the time, however, her attacker was on parole for a robbery conviction and already in the legal system.

Melody Madison's story is one of the thousands that the Sex Crimes Unit of the Philadelphia police department purposefully ignored and then misclassified throughout the 1990s. Reporters from the Philadelphia Inquirer inadvertently stumbled upon cases that were coded "investigation

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102 Toni Irving

of person" or " unfounded" but were in fact rapes and other sexual assaults. Upon investigation, it was determined that Philadelphia's Sex Crimes Unit rejected through misclassification about 30% of its caseload. In 1996 and 1997 alone, more than 2,000 cases were coded " investigation of person." Sex crimes detectives later acknowledged that the codes were used to suppress the complaints of women that they perceived to be false. Code 2656 (unfounded) translates into detective language as "perceived to be lying." Code 2701 (investigation of person) is Sex Crimes Unit double- speak for not going to investigate. Inquirer reporters "quickly learned that the victims most likely to be dismissed by police tended to be poor, transient women, with histories of drug abuse or petty criminal records" (McCoy and Fazlollah 2000a). Other throwaway codes included 2625 (investigation, protection, medical examination) and 2656 (offenses other than specified). The Philadelphia police codes for rape and attempted rape are 211 and 233, respectively.

After a series of articles appeared in the Philadelphia Inquirer in 2000 exposing the misclassified rapes, the Philadelphia police department iden- tified more than two thousand cases within the five-year statute of limita- tions to reopen. The meanings circumscribed within coding practices are emblematic of the critical lens that law enforcement brings to its reading of black women. I argue that the sheer number of misclassified cases illus- trate that rape prosecution functions as a form of racial classification that works to structurally, socially, and psychologically damage and disentitle poor black women.

For this study, I read four specific rape narratives interrogating different but corroborative aspects of rape while examining police coding practices as evidence of a powerful relationship between the law, moral value, and social significance that facilitates particular cultural and/or political needs (Foucault, 1980). This essay focuses on three buried cases: a seven-year- old girl, an employed young woman in her twenties, a single unemployed woman in her thirties. I also examine a fourth case, the prosecuted rape of an upper-middle-class wife and mother. Black women's rape narratives that directly relate to "real rape" are an opportunity to track diverse techniques for subjugating black female bodies and to understand rape prosecution as "a networked systemic phenomenon indicative of trends in national culture" (Goldsby 2006, 5).

Of the more than two thousand cases that were improperly classified and shelved, ninety-one percent were reinvestigated. Based upon the police department's own reports, 705 involved rapes,- 532 were comprised of other sexual assaults which include forced oral sex and molestation,- 131 were not deemed sexual assaults but robberies, kidnappings, and aggravated assaults; and 600 remain unfounded (McCoy and Fazlollah 2000b). As a result of these findings, the number of reported rapes in Philadelphia increased dramatically (100%) as women generally began to feel that their

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Decoding Black Women 103

assaults would be taken seriously and their cases handled appropriately. In 1997, the department reported about 650 rapes per year,- in 2000, it was closer to 1,000 per year. In 2005 in the entire state of Pennsylvania, there were 3,398 forcible rape offenses reported to Pennsylvania police depart- ments, an average of nine per day or one every 2 hours and 34 minutes. There were 1,246 arrests (McCoy and Fazlollah 2000b). Beyond the num- bers, each coded case represents a mystification of an individual woman's rape narrative.

The coding practices amount to what Frederic Jameson describes as strategies of containment, which restrict alternative - or, in this case, women's own - accounts. Detectives ask questions that narrow possi- ble responses and shape poor women's narratives. The methods privi- lege a category of analysis that frames part of the text as the whole and rejects individuals perceived to have deviant qualities. Prosecution records suggest that white, middle-class, married women living in affluent neighborhoods are the most recognized victims.

Police codes are part of a process that legally defines women at the intersection of class, race, gender, and sexuality for the general public. For a nation whose citizens are entitled to equal protection, the detectives' inaction consequently intimates that both the case and the person are illegitimate, abnormal, or lack value. In contrast, the attention the police give to the sexual assaults of white women conveys the message that they are of value and that crimes against them have severe repercussions.1 Fur- thermore, media representations and public attention to lost, injured, or assaulted white women reiterate this point. There is a correlation between police norms and the public tolerance for particular crimes. The failure to notice poor black women's assaults, coupled with the public spectacle attended to black women perceived to be lying about sexual assault, work together with policing practices to frame black women as lawless.

According to Sex Crimes Unit supervisor George Pennington, "inves- tigation of person" was typically tagged on women with "baggage," for example, those who struggled with mental problems, had drug habits or criminal records, worked as prostitutes, or were deemed uncooperative or hard to reach. In other words, individuals considered social outsiders, inel- igible for the recognition and protection of community, were miscoded. In this context, policing is a way of cultivating very specific outcomes for people deemed undesirable. Yet policing practices are no different than other ideological state apparatus in the manner in which certain narratives are made available at the expense of others. The law is at the center of a problematic political relationship between dominant narratives and those bodies pronounced not to matter. As Judith Butler reminds us, "[M]eanings are circumscribed within a linguistic and a narrative frame, which both unifies certain legitimate sexual objects and excludes from intelligibility sexual identities and discontinuities that challenge the narrative 'logic'"

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(Butler 1990, 329). That poor black women's experiences are excluded from the legal register positions them as persons without legitimate sexual identities, not unlike their status during slavery. In this way, the state circumscribes under what conditions human lives are eligible for basic, if not universal, human rights and highlights a race- and class-based frame through which sexual assault victims lives are viewed as outside of a recognizable human community. While these codes contribute to a problematic process of subjectification for black women, they enable police practices to go unexamined and unmarked. The law exists primar- ily through its practice. Rape prosecution is another way to classify poor black women as outside of the conditions that merit protection and by extension to denaturalize their citizenship.

If citizenship is established through social and legal practices, group rec- ognition of belonging, and in the access to entitlements, then one can see how black women's experiences with the legal system position them as unworthy of such privileges (Weiner, 2004). This analysis of rape prosecu- tion practices reveals the ways in which entitlement is tiered and tethered to an individual's subject position and by extension their perceived value. This is a reality presenting a counter to the national narrative, which suggests equal opportunity and equal protection in a colorblind society. Priscilla Wald describes national narratives as official stories that validate and transmit the nation's ideal of itself to the public (Wald, 1995). Wald's conception of narrative helps frame the utility of my approach. Official stories tend to respond to national anxiety, and at the same time deflect anxieties to present a unified narrative of nation. As social texts, the black female's rape narratives under consideration here represent unofficial stories of the nation and as a result illuminate the cultural anxieties that drive them. I use the Philadelphia cases to expose the way personal nar- ratives of rape victims are structured by competing and overwhelming sociolegal narratives that undercut their reception. Each of the recovered stories reveals systems, socializations, obfuscations, and anxieties that articulate a more telling facet of the national narrative.

Framing the Subject

On several levels, Melody Madison serves as a case study of how instru- ments of power work together to reinforce particular behaviors at an institutional level. Ms. Madison has a police record indicating that she spent two months in prison for kicking and biting a housing authority policeman, and she has a history of drug and alcohol abuse (McCoy, Fazlollah, and Matza 2000). The previous misdemeanor created a record that included qualities considered reprehensible and that can always be reanimated for any future encounters with her. Madison's criminal record

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Decoding Black Women 105

helps to structure her as a nonviable subject and contributes to the way she is perceived in the present. Having a criminal record, along with being poor, single, African American, and female practically ensures her exclusion from the protection of the law.

Conversely, the brutal rape that resulted in Ms. Madison's jaw being wired shut is coded in a manner that unauthorizes it. Ms. Madison's rape is delegitimized and decriminalized; it is not prosecuted and she is not protected. Officer Joseph Repholz, who walked a beat in the area for eleven years, attested that he knew Melody Madison as "a troubled but decent person" and could have located her had the rape squad contacted him. Detectives in other units routinely reached out to him for help locating victims, suspects, or witnesses. The streets of Philadelphia mark individu- als as unfit in ways that are difficult to trace. In this light, the failure to prosecute or even investigate Madison's rape signifies ways that dominant society constantly shifts power to strategically meet particular cultural or economic needs (Foucault 1980, 194-5).

The stories herein, of Melody Madison, Tikesha Farmer, Jesine Wil- liams, and Charlotte Pierce Baker, are examples of the way rape discourse speaks to many aspects of life that fall outside the actual criminal act of sexual assault. Each case respectively illuminates the roles that devi- ance, mental health, youth, and marital status play in determining black women's entitlement in addition to class.

Twenty-two-year-old Tikesha Farmer's story appeared to begin when she was on her way to a cousin's birthday party in West Philadelphia and was grabbed at knifepoint, hustled into an abandoned rowhouse, then raped and sodomized. She relayed to a Sex Crimes Unit detective that her attacker had two moles on his penis. Yet Farmer, a hairstylist, was questioned in a manner that compelled her to acknowledge being sexually abused as a child, having drinking and drug problems, and having a his- tory of mental illness. According to Farmer, detectives repeatedly asked her if she was hallucinating. It seems they spent more time investigating Farmer than her case, which was promptly coded as 2701 (investigation of person).

Like Ms. Madison before her, Tikesha Farmer's interaction with the police generated criminalizing official records portraying her experiences with substance abuse and mental illness rather than her sexual victimiza- tion - until a second woman, raped in the same building, gave a descrip- tion of her rapist that included two moles on his penis. Procedurally, the possibility of a psychiatric disorder should have incited greater attention to Ms. Farmer rather than less. Mental illness and victimization are fre- quently linked, and it is often difficult to determine the sequence of this dynamic relationship. Violent victimization of people with mental ill- ness occurs at a higher rate than victimization in the general population as these individuals may have difficulty protecting themselves, thereby

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increasing their vulnerability to victimization (Irving, 2006).2 Instead of attending to this reality, the police create records that position single black women as already aberrant; this construction functions as both a cause and an effect of rape. Furthermore, the authority position of sex crimes detectives gives their views more credence and makes it difficult for vic- tims to counter them. In the Duke Lacrosse rape case, despite the sexual assault nurse's report indicating "blunt force trauma," the North Carolina Attorney General characterized Crystal Magnum's accusations as "faulty and unreliable" and made reference to records of her mental health history in sealed court files (Wilson and Barstow 2007). It becomes increasingly apparent that the dismissed, buried, uninvestigated, and ignored accounts present a challenge to official stories of nation and, by foregrounding them here, the discursive nature of law.

Among Philadelphia's arsenal of neglected sexual assaults is another assigned to Roscoe Cofield, the detective on Melody Madison's case. This time, however, the victim, a seven-year-old girl, is unmarked by drug or alcohol habits, mental illness, or promiscuity. While playing outside of her babysitter's house, Jesine Williams was abducted, driven to a park several miles from her home, raped, then pushed out of the car into the snow (Fazlollah 2000). An injured and disoriented Jesine found a female stranger she encountered on the street, who then took her to the nearby house of Dorthea Arrington, where she repeated her story and the police were called. In the third telling in front of both Ms. Arrington and Police Officer Sheila Pressley, Jesine explained that she was "touched by a man who snatched her in front of the house and took her to the park, laid her down and pulled her pants down then got on top of her." She identified her assailant as Jasper Washington, someone her aunt used to date. She said, "he got on top of me ... I was crying and screamed" (Fazlollah, 2000). Afterwards Pressley wrote up the report as a case of "lost child," made no mention of the rape allegations, then dropped Jesine at a neighbor's house because her mother was not at home. Jesine's story was reconstructed from interviews with the girl's family, Detective Cofield, and a review of confidential police documents, including records of the internal inquiry into Pressley's conduct. This rape also occurred in North Philadelphia.

At seven years old, Jesine Williams has not had the opportunity to con- duct her life in a manner that would incite value judgments beyond the basic fact of her race and class status. Officer Pressley's account overrides Jesine and she translates a little girl's trauma and assault into confusion that frames her as "lost child," meaning having gone astray, bewildered as to place and direction - in fact, she was lost in terms of how the word connotes distracted, distraught, desperate, hopeless.3

The discrepancy between a young girl's account of her sexual assault and the law's representation of it is the tension between rape narratives and national narratives that this essay isolates and interrogates. Rape

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Decoding Black Women 107

prosecution is a highly contested representation of power relations. This was one of countless cases that weren't even forwarded to the Sex Crimes Unit to eventually get dismissed as "investigation of person." Jesine would have been another female lost in the system if not for her mother Mary's persistent pressing. The elder Williams works seven days a week as a col- lection specialist and attributes this experience to her determination and disinclination to accept "no" easily. After a series of calls, a new officer took Jesine to St. Christopher's Hospital for Children, where doctors found dried blood and semen during their examination.

The case was then forwarded to the Sex Crimes Unit for investigation where Roscoe Cofield requested that the little girl tell the story for the sixth time that day. Even then, Jasper Washington was never interviewed nor was his DNA tested until the case was reopened on December 20, 1999 - almost four years after the assault but one day after the Philadel- phia Inquirer published an article detailing how police had mishandled the case. While Jasper Washington continued to deny raping Jesine - even after the DNA test proved he had - in this case, Cofield acknowledged that he believed the Jasper was guilty, but just could not catch up with him. Eventually he was tried and convicted of involuntary deviate sexual intercourse, simple assault, and corrupting the morals of a minor.

Although Washington was previously arrested seven times and con- victed four times (once for selling crack cocaine in 1990), none of those arrests were for sexual assault. Court records show that in 1996, a 13-year- old girl told police that Washington exposed himself to her and offered her $5 to expose herself to him. That report was not pursued. Ironically, Washington was able to tap into the ideas already circulating about black females and stressed to newspaper reporters that "[Jesine] kept lying on a whole lot of people" (Fazlollah, 2002). At seven years old, Jesine did not have a problematic history and yet she was not exempted from the predica- ment of her subject position. Jesine's case reveals the legitimating aims that politically construct black females from girlhood as sexual subjects outside of the scope of the kinds of experiences that stand as normative.

Although police acknowledged that the 2701 code was abused, the excuses they offered for the failure to investigate comment on an extra- legal system of socialization that precedes the statutes and spirit of the law. Complaints from low-income women or those who lived in dangerous neighborhoods had the greatest likelihood of being dismissed. Sex Crimes Unit supervisor George Pennington concluded that, "If [rape] was from a shady part of the city, who's going to complain? These people are from the inner city" (Fazlollah, Matza, McCoy, and Benson 1999). Pennington's train of thought suggests that "these people should be used to it" - with "it" referring here to both the violence and the inattention of the law. The reference to "these people" suggests individuals outside of the community who are far removed from the ideal of "We the People." "These people"

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and " inner-city" are also standard codes for African American,- the detec- tive's use of these terms is certainly linked to the reality that the inner city of North Philadelphia is simultaneously policed and not protected. In both instances ["2701" and "these people"), the use of coding functions as a technique of domination.

The "shady" parts of the city are an even less veiled code for the places where darker people live. In Philadelphia, those neighborhoods are North and West Philadelphia; they are routinely profiled in the media as the soulless site of crime, violence, poverty, drugs, teen pregnancy, tough schools, abandoned cars, and boarded-up buildings. When television, film, and newspapers pair people of color with bleak and dysfunctional environ- ments, they equate conditions with character for a national public that is implicitly encouraged to bond through mutual disidentification. Such stark representations of urban environments contribute to the cohesion of a mass public by diverting its attention away from less obvious differences to focus on a sameness that is not "shady." By not regarding the structural factors that create these contexts, America can maintain its image of a land of opportunity for competent citizens. Similarly, as Lauren Berlant has noted, "[T]he structure of television experience promotes the annihi- lation of memory, and in particular, of historical knowledge and political self-understanding" (Berlant 1997, 30). In this regard, images regularly circulating through the media develop a referential quality - much like the process of canonization - that informs average Americans about who is and is not entitled without ever needing to consider how. For a public who feels included in the national narrative, the media facilitate a sense of connectedness or an "imagined community" (Anderson 1991). The "shady" part of the city suggests - without ever needing to say so - that good citizens do not live there and the failings of the police are justified.

Through the legal system, black women's sexual assaults are framed to suggest private, possibly pathological, but nonpolitical acts. How the law currently deals with a black woman's rape reinscribes the historical notion that for black women, sex is never against their will (Hartman 1997). When the police forward a case to sex crimes detectives, it confirms their acknowledgement (usually because of rape-kit evidence) that a rape did occur. The rape squad unit's failure to investigate then suggests that what happened was not a significant transgression. Much like the film Philadel- phia in which the individual's subject position caused HIV contraction to be viewed as deviant and deserved (i.e., practicing homosexual) or unfor- tunate and undeserved (heterosexual mother via blood transfusion), the police response to rape cases reinscribes national feelings about "others." Furthermore, research has found that jurors believe that black women are more sexually active and therefore less harmed by assault. The Philadel- phia cases illustrate the way unmediated violence against black women decriminalizes it, assigning black women a dysfunctional particularity

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that in tandem confirms and extends the sexual value ascribed to the women whose assaults are prosecuted. In the broadest sense, through coding, the police engineer outcomes that reinforce diminishing narratives already in circulation.

In the candor of retirement, George Pennington, the former Sex Crimes Unit's chief statistical officer, indicated that it was a common practice "to put aside victims who didn't fit a certain 'profile,' who were not 'people of substance' . . . and to avoid traveling to a tough neighborhood to look for suspects" (Fazlollah, Matza, McCoy, and Benson 1999). This logic presumes that black women lack substance because they are generally displaced as victims of rape.

Police responses to black female sexual assault embody a full spectrum of sociopolitical issues. Black women are not so much displaced by prob- lematic misconceptions but encoded in the very understanding of devi- ance. In this manner, particular social constructions become racialized, so that poverty, deviant behavior, or dangerous sexual activity are viewed as endemically black. The value-laden management of these social problems may therefore seem colorblind. In turn, such tropes mask iniquitous social relations allowing racism, sexism, and classism to play out as the natural workings of the system.

Bodies That Matter

Indeed, the law constructs an image of the black female body that frames sexual violence as merely an extension of black women's "normal" sexual practices. There are a litany of comments and images throughout history that mark black women sexually deviant, lascivious, indiscriminant, and easy. Such stereotypes of the hypersexual black woman continue to depo- liticize the sexual assault of black female bodies, diminish their rights, and place them outside of the narrative frames that legitimate entitle- ment. The experiences with sexual assaults of black women in general and lower-class black women in particular are clouded by this history that marks them. Consequently, black women's public and written claims to entitlement often depend on defending their names by challenging their sexual depictions. Although sexualized perceptions of African American women are certainly central to the common responses to them as rape vic- tims, larger structural issues work in concert to position them as outside of the system of entitlement.

When the Philadelphia Inquirer exposed the Sex Crimes Unit's burial of rape cases, it suggested to a mass public that although the juridical pro- cess may fall into remission, democracy can be maintained through the media. However, the media continue to convey a different story to those who fall outside of identifiable norms that create national subjectivity. To

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illustrate this point, in her book Surviving the Silence: Black Women's Stories of Rape, Charlotte Pierce-Baker recounts her experience with fourteen-year-old Renee. When Renee was asked in the emergency room if she told anyone else about being raped in her Philadelphia high school, she retorted, "Why would anybody care? Nobody's going to do anything anyway" (Baker 1998, 6).

Sadly, Jesine's experiences confirm fourteen-year-old Renee's com- ments. In light of Susan Estrich's (1986) particularly useful work on "real rape," it bears repeating that these young girls were not hard to reach; they were not marked by drug habits, criminal records, or mental illness,- and they should not have been sexualized (Frohmann 1991, 213-226). Following Bakhtin's (1981) theory that language is an expression of social identity, one can see how the larger narratives that resonate throughout the nation in turn shape individual subjectivity. For young women like Renee, the media, law, society, and her school all convey to her that her concerns, struggles, experiences, and even assaults are not considered legitimate subjects of public discussion or legal action.

When articulated, rape narratives give subjectivity to the indefinite strangers subordinated and misrepresented in official stories, allowing identifications that make black women's experiences relevant in a public way. In the telling, rape narratives bring black female bodies into focus as distinct from the host of tragic ideas attributed to them. Speaking and being heard is one of the ways that identity is transformed from aberrant to authorized. In unpacking what is at stake in maintaining a hierarchy of race-based sexual protection, black women's stories of sexual violence are a ripe site to answer Carby's call for "feminist work that interrogates sexual ideologies for their racial specificity and acknowledges whiteness, not just blackness, as a racial categorization" (Carby 1992).

Shortly after the 1989 Central Park jogger case- or "The Central Park Horror," as one headline described it - there was a rush of media atten- tion, including Donald Trump's full page advertisement in the New York Times calling for the reestablishment of the death penalty. In this case, a 29-year-old white female investment banker attributed her rape to six African American and Latino males and reiterated for a national public that rape is what strangers - usually black men - do to white women. A young white female investment banker's rape generated public atten- tion that a thousand other rapes in New York City in the year prior did not garner. On the same day as the Central Park jogger case, a young black woman was raped in Brooklyn and then thrown from the roof of a four-story building without public notice (Terry 1989).

As technologies of citizenship, these vehicles suggest that only certain kinds of people are proper national subjects. As a result, young women like Renee are conditioned early on to live through assault privately, without expectation of protection. According to the Bureau of Justice Statistics

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National Crime Victimization Survey, the most-cited reasons for not reporting rape to the police were "personal matter, 23.3%; fear of reprisal, 16.3%; police biased, 5.8%" (Rennison 2002). Renee's comments suggest that rape is one way that inner-city young black women come to know themselves as disconnected from the wider public that is protected and that does not recognize them as belonging. The failure to prosecute rapes does not merely reinforce tiers of value, but for the women whose cases are buried and ignored, rape also amounts to a process of subjectification.

By contrast, stories of white women's rape and black men's lynching are not just stories of sexual subjection. They also serve as official national narratives that do not intend to represent realities as much as they "func- tion as a disguise, or mystification, of objective social relations" (Carby 1992). National narratives of rape have typically moralized the need to protect white women from black men. The narratives assume a chaste white female victim and a brute black male, which ultimately enables the control of the former and suppression of the latter. Even in its historical context, rape is largely about maintaining racial boundaries. The black male as rapist is an official story that functions to thinly veil underlying accounts of white anxiety over black bids for entitlement. Cultural nar- ratives of black male as rapist implicitly suggest that black women are undesirable and by extension lack value, which serves to further expulse the rapes of black females from consideration.

The individuals who perform the many different roles that make up the legal system and the web of social relations that project sexual norms are mutually informing. The power to define an anomaly is delegated to the Sex Crimes Unit as representatives of the law and - by extension - normalizing agents. Downgrading particular cases despite an abundance of evidence demonstrates how certain individual perceptions can generate legal policies and establish by law that black female bodies are less sig- nificant than others. Individual law enforcement agents and the criminal justice system continue to inscribe, enforce, and legitimate a view of black women who are available for sexual assaults without repercussion, distinguishing them from the protected symbol of American civilization that the case of the Central Park jogger represents.

A Journal of Criminal Justice article on "The Impact of Race on the Adjudication of Sexual Assault and Other Violent Crimes" locates the continuation of such juridical practices in the present. Maxwell, Robinson, and Post (2003) found that African Americans who commit crimes are treated more punitively than whites in all cases except murder and sexual assault, which are typically intraracial. Ninety-eight percent of African American sexual assault victims were victimized by an African American offender; however, "African Americans and Hispanics arrested for sexual assault are significantly less likely to be found guilty and received sig- nificantly fewer months of incarceration than whites" (531). The notable

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exception to the incarceration reprieve is when African American men rape white women, in which case they receive longer sentences. The researchers conclude that "some judges may regard sexual assault as normal behavior within the African American subculture" (Maxwell, Robinson, and Post 2003). The apparent leniency toward black-on-black crime reiterates the devalued social status of black women. It represents the way modern citizenship functions as a disproportionate system in which the universalism ascribed to white and/or middle-class bodies is protected and subtended by the infinite particularity assigned to poor, black, female bodies (Wiegman 1995, 6).

Therefore, although African Americans are generally treated more puni- tively by the criminal justice system and although sexual assault is pros- ecuted in a similar manner as other violent crimes, African American men are treated more leniently only when they sexually assault African Ameri- can women. Conversely, white men receive lesser sentences for all violent crimes except when they rape or sexually assault a white woman. Together, these factors highlight both a devaluation of black female sexuality and the increased value of white female victims. Research has found that although 71% of whites received more than ten-year sentences for sexual assault against white women, only 29% of African Americans received long sen- tences for sexual assault against black women. Most African Americans convicted for rape and serving time in state prisons were more likely to state that their victims were white (Maxwell, Robinson, and Post 2003). In fact, the consistent instances in which African Americans receive better treatment than whites is when they commit intraracial or black-on-black crimes that generally equate to murder and sexual assault. This amounts not so much to a benign neglect of African American communities but to a legal reinscription of Jim Crow where different racial communities are subject to different legal standards of protection and prosecution.

According to the "broken windows" theory, at the community level, disorder and crime are usually inextricably linked in a kind of develop- mental sequence. Social psychologists and police officers tend to agree that if a broken window in a building is left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. Windowbreaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers, whereas others are populated by window-lovers,- rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing (Kelling and Wilson 1982).

Notwithstanding the social science data, black women's rape narratives invariably implicate a host of political actors, sometimes suggesting sys- temic, institutional factors or active strategies. Rape narratives circulate as counter discourses to national narratives, as they provide keen insights and oppositional interpretations of national experience. Until recently,

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a combination of delicacy, a disinclination to be further sexualized, and mass society's disinterest resulted in very few published accounts of black women's literal (not figurative, implied, or displaced) experiences of rape and very few outlets for women to be heard (Hine 1989). Unpublished and often ignored, the rape narrative is an unofficial story that has the potential to expose and transmit some of the fictions of citizenship.

Consequently, unchecked violence against black women creates an environment that makes it increasingly necessary that they take respon- sibility for their own protection. Women currently represent the fastest growing population in prison and reflect a profile that is overwhelmingly poor, relatively likely to be unemployed prior to arrest, disproportionately African American (46%), and disproportionately likely to report significant histories of victimization from girlhood through adulthood (Richie 2002, 138). Thirty-two percent of women in prison serving sentences for murder were convicted of killing a husband, ex-husband, or boyfriend. Therefore, imprisonment becomes just the visible and quantifiable manifestation of other aspects of a black woman's subordination and I daresay evidence of the criminalization of their resistance.

The incarceration rate for black women, at 358 per 100,000, is nearly four times the incarceration rate for white women, which stands at 94 per 100,000. African American women still make up 65% of the rape caseload in Philadelphia (Rennison 2002), even though rape remains the most underreported crime and despite the history of police misclassifica- tion. Still, black women are erased as rape victims. The presence of the law to punish black women stands in stark contrast to the absence of the law to protect them. Furthermore, the repeated deference to criminalized images captivates the public and produces a virtual reality that connotes un worthiness. At the same time, the politics and police power-plays that give credibility to these images are rendered invisible. The national public is not surprised by the state of things, nor are we outraged in a sustainable fashion,- this dynamic, Althusser (1971) would say, is ideology at work.

In tacit disavowal of ideology, Philadelphia Police Commissioner John Timoney announced in response to the newspaper exposure that he "set up a command structure within the Special Victims Unit to make sure that no matter what the private beliefs of an investigator are, those private beliefs should in no way impact on how a victim is treated." Timoney attempts to isolate a pervasive technique from greater public processes and reduce it to private beliefs. The right to privacy is fundamental to national experience and suggests a protected space that is beyond the scope of the law. Private beliefs, like private life, are ways of situating experiences as outside of the scope of public interest. Departing from the notion that private beliefs have no basis in public life, Timoney's statement implies that the nation can legislate acts but cannot be responsible for thoughts. The handling of the rape cases is more about police culture than specific

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leadership, as Timoney assumed the position from Richard Neal in March 1998. Priscilla Wald suggests, "[N]ational narratives actually shape per- sonal narratives by delineating the cultural practices through which per- sonhood is defined" (Wald 1995, 4). Attention to national narratives brings into sharper focus the social and legal imperatives that mediate the oppor- tunity to tell and to ensure a particular reception. Rather than approach these comments as "the private beliefs of an investigator" as Timoney would have the newspaper reading public view them, the national narra- tive framework makes it possible to look at the shared values, ideologies, and norms implicit in the language police use and see them as reflective of a national subjectivity.

Roscoe Cofield, the detective assigned to the cases of both Jesine Wil- liams and Melody Madison, exemplifies this relationship between private beliefs and national subjectivity. In justification of his failure to investi- gate, Cofield stressed that "some women lie about being raped." Accord- ing to Cofield, his nickname for the Philadelphia police department's Sex Crimes Unit, in which he worked for nine years, was "The Lying Bitches Unit." Cofield clarified by saying, "Half the girls that came in, they were lying." (McCoy 2003). As agents of law enforcement, the meanings encoded in police language constitute these women. Cofield's comments reflect a public investment in the idea of black women as liars; by not investigating, he implicitly provided a lawful validation of this percep- tion. The comments are also an occasion to beg the question of why the countless cases of women who were raped but rejected in Philadelphia do not receive a fraction of the attention accorded the disbelief framing Anita Hill, Tawanna Brawley and most recently Crystal Gail Mangum from the Duke Lacrosse rape case. In each of these instances - a Yale-educated upper-middle class woman testifying in Clarence Thomas's Senate confir- mation; a poor urban teenager accusing white male police officers of sexual assault; and a poor, black, single mother working at an escort service while enrolled at a predominantly black University - the images of black women of different experiences, backgrounds, and locations are equally loaded with sexual stereotypes that undermine the reception of their personal accounts. The different degree of attention accorded the ignored testi- mony versus the challenged and sensationalized media accounts is cer- tainly related to the techniques facilitated through proliferating images of "welfare queens," "the girlfriend problem," and "nappy-headed hos."4

Rape as a Metalanguage

The collective response to sexual assault and rape prosecution is sym- bolic of the less visible processes that naturalize particular histories as collective memory. Hortense Spillers (1987) sums it up:

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Let's face it. I am a marked woman, but not everybody knows my name. "Peaches" and "Brown Sugar/7 "Aunty," "Granny," a "Miss Ebony First," or "Black Woman at the Podium:" I describe a locus of confounded identities, a meeting ground of investments and privations in the national treasury of rhetorical wealth. My country needs me, and if I were not here, I would have to be invented.

In Philadelphia and elsewhere, stereotypes of black women continue to be invented. That they lie is only half the story for Roscoe Cofield. He further explains his reasons for not investigating by claiming that rape was a ploy some women used to swindle a free abortion out of the government. Pennsylvania is one of thirty-four states that restrict Medicaid coverage of abortion to extreme circumstances - rape, incest, and when a woman's life is in danger. The Pennsylvania Abortion Control Act was previously more restrictive than the federal Medicaid law; up until 1995, to qualify for a Medicaid-funded abortion in Pennsylvania, a woman had to person- ally report the rape to the police, including the name of her assailant, if known. Chief Inspector Maxwell supported Cofield's thesis by adding, "In some cases, they had cabs running because they wanted to get an abortion and they just asked us to give them a number. . . . [T]hey can't afford an abortion, so they're going to say they were raped" (Fazlollah et al. 1999). In Maxwell's analysis, he presented poverty as a motive for lying about rape rather than a pretense for domination. Maxwell's comments tap into welfare-queen myths that similarly suggest black women are reckless, deviant, and exploitive.

Assigning noncriminal codes changes the tenor of the incidents and the attention to those assaulted, ostensibly downgrading individuals as well as crimes. Much like post-Katrina acts that designated "finding" versus "looting" by the subject position of the person trying to survive, codes - a symbol of police culture - designate a victim's value relative to other vic- tims and other crimes. Police coding practices are reinforced by prosecutors and judges. Crenshaw (1991) showed that "the average prison term for a man convicted of raping a black woman was two years, as compared to five years for the rape of a Latina and ten years for the rape of an Anglo woman" (1269). As a form of normative grammar, codes monitor, censor, and teach in a manner that maintains particular power relations and ostensibly produces politics intimate to - yet outside of - the bureaucracy of public policy. The behaviors, although not legal, are lawful and therefore difficult to monitor or regulate. As a result, rape conveys varying meanings when experienced by different groups, structuring both an individual's under- standing of her gender, class, and citizen and how she is represented to the larger public. The way that rape is able to speak about and lend meaning to a variety of aspects of life - race, class, neighborhood, mental health, work history, and marital status - that should fall outside of its referential scope arguably elevates it to a metalanguage (Higginbotham 1992).

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Contrary to Cofield's and Maxwell's perceptions, state records show that in all of 1993, only ten women obtained Medicaid abortions on grounds of rape while hundreds of real rape victims were coded as 2701 (Investigation of Person) and not investigated (Fazlollah, Matza, McCoy, and Benson 1999). The all- too-familiar link between black women, sexual deviance, and rampant reproduction is one that casts black female bodies as " welfare queens" when they choose to have babies and

" lying bitches" if they choose not to have them. The egregious irony here is that black women are the poster children of welfare despite the fact that they are not the majority of recipients,- yet, black women do make up the majority of rape cases and continue to be ignored as victims.

The police, however, are just one factor in the sociopolitical system. For single black women, especially those in the inner city, the ability to rely upon the law as it is written is the promise fulfilled in citizenship,- for others, the law is not a source of justice or protection, but contains, constitutes, and generates violence. Class is a significant factor intersect- ing race and mediating rape prosecution outcomes. Charlotte Pierce- Baker - a middle-class African American graduate student, mother, and wife of a university professor - describes decidedly different experiences with the legal system in the aftermath of being raped. Pierce-Baker's case was directly investigated and even elicited the aid of the Federal Bureau of Investigation to conduct photo analysis from the camera of the automatic teller machine where the then-alleged rapist withdrew money from her account. We learn through Pierce-Baker (1998) that a successful prosecu- tion requires the financial wherewithal to take valuable time away from work for trips to the Assistant District Attorney's office at least three times a week, as well as an acceptable body - unmarked, middle class, and presumably married.

Pierce-Baker's narrative (1998) brings to bear the intersectionality of race, class, gender, and social status (Crenshaw 1991). Not all black women are de facto ignored. Wives - especially upper-middle class professor's wives - belong. After extensive investigation, Pierce-Baker's assailant was prosecuted and received a thirty- to sixty-year prison sentence. Reflecting upon the case, the prosecuting attorney, Mark Lipowicz, disclosed that the most notable factor he "won't forget" was that, "All [juridical person- nel] had to pass through [Pierce-Baker's husband] before [she] could be approached. [She was] not to be violated again. There was a steep sentence because of all that. The judge saw it as a horrendous case ..." (Pierce-Baker 1998, 73). The "all that" refers to the rape of a woman with a protective husband and what the judge considered the terrorizing of an entire family. As a prosecuting attorney, Lipowicz has seen many cases of rape, but what he "won't forget" is that this particular black woman was married to a highly respected and ever-present husband who was intent upon insuring her protection. Pierce-Baker's husband functioned as guardian and both

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demanded and validated the extension of legal protection. At the same time, the prosecutor's and judge's remarkable reaction to it suggests that this kind of protection seldom occurs for black women.

Melody Madison's and Charlotte Pierce-Baker's cases suggest a corre- lation between the degree of significance a victim represents in society, the attention they receive from law, and ultimately the investigation and prosecution of sexual assaults. Just as having a socially significant husband functioned to legitimate Charlotte Pierce-Baker's body as worthy of pro- tection, unprosecuted rape can be understood as a legitimating extension of other ways of disentitling black female bodies. The rape cases described herein unearth some of the embedded qualifiers to the rights of citizen- ship as entitlements like protection are experienced as aspects of race and class status. The disparity between the police response to Ms. Madison's rape carried out on the dangerous streets of North Philadelphia and the response to the rape of Mrs. Pierce-Baker enacted in the bluestone three- story house of her solidly middle-class life reads as a tale of two Phillies.

Although there are a variety of factors conditioning the perceived legiti- macy of rape, that the system devalues poor black women in particular still must be emphasized and elaborated. The difference between "real rape" and "simple rape" - or between Mrs. Pierce-Baker's experiences and Ms. Madison's - is also the difference between the law as it is written and the legal system as it operates - the ruse of the constative as performa- tive. In speech act theory, Austin (1965) defined constative utterances as those that describe possibilities. Laws, constitutions, bills of rights, and declarations of independence are passive documents bolstered by prem- ise and democratic assumptions. Consider Thomas Jefferson's famous "Declaration of Independence":

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with inherent and inalienable rights; that among these are life, liberty, and the pursuit of happiness,- that to secure these rights, governments are instituted among men.

All along, this essay asserted that such truths are neither self evident nor ensured. Jefferson's ideals are not contracted, declaratory, or akin to doing; they do not perform acts or extend rights. They merely describe an idea of nation, in the earliest language of American personhood that imagines bridges between people and circumstances where none exist.

In a highly punitive American society, not addressing violence against black women is its own form of violence that is cumulative. Rape con- tinues to stand in for - and effectively obscure - other social, political, and economic actors and structures. In turn, it is necessary to examine the experiences of black female bodies, as well as to investigate the way code words, employment practices, housing developments, the criminal justice system, and social policies serve as vehicles for inscribing an idea

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118 Toni Irving

of innate moral, sexual, and mental inequalities. Now is a good time to rethink the way we view rape and the sociopolitical conditions that foster it. Eventually, we may create a new national narrative.

Toni Irving is Assistant Professor of English at the University of Notre Dame where her research and teaching considers the discursive nature of the law and the relationship between sexuality, social policy, and the public constitution of entitlement. Dr. Irving is currently completing a monograph titled Founding Fathers and Single Black Mothers: Black Female Sexuality and Citizenship from Dred Scott to the Patriot Act. Professor Irving also consults on criminal justice issues as they relate to reentry, women, children and families.

Notes

1. I use the term sexual assault here to acknowledge a broader range of experi- ences that include various types of unwanted sexual touching or penetration without consent, such as forced sodomy (anal intercourse), forced oral-genital contact, rape by a foreign object (including a finger or a popsicle stick), and sexual battery (the unwanted touching of an intimate part of another person for the purpose of sexual arousal). The classification of sexual assault in the crime index is limited to actual offenses of forcible rape or attempts, as estab- lished by police investigation. See http://www.fbi.gov/ucr/cius2006/offenses/ violent_crime/f orcible_rape.html.

2. In an ironic reversal, the defendants accused the media of a rush to believe the worst about them. In a profound statement of marginalized subjectivity, Mr. Seligmann, one of the defendants, said, "This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If police offi- cers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can't imagine what they'd do to people who do not have the resources to defend themselves. So rather than relying on disparag- ing stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it." See Duff Wilson and David Barstow, "Duke Prosecutor Throws Out Case Against Players," New York Times, April 12, 2007.

3. Pressley was eventually suspended without pay for six days because she failed to conduct a thorough investigation, seek hospitalization, protect a crime scene, safeguard evidence, or notify a supervisor and the appropriate investigative unit after being informed. She is now assigned a desk job.

4. "The girlfriend problem" is one account for the rapidly increasing number of women entering the criminal justice system and references the way women become involved and implicated in drug-related crimes because of their

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relationships and shared households with men who deal drugs. " Nappy - headed hos" is how national syndicated radio host Don Imus referred to mem- bers of the Rutgers women's basketball team. As college-educated successful women, the Rutgers team rounds out profiles that include upper-class single, lower-class single, upper-middle-class college students, lower-middle-class college students, and lower-class young girls. Among my sample, only the case of an upper-class married African American woman received attention indicative of model citizens.

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