In 1973, a renowned progressive jurist, Chief Judge David L. Bazelon, was called upon to decide whether his court should maintain the corroboration requirement for allegations of rape and rape alone. He recognized that some of the justifications for this rule were archaic, and might be motivated by sexism. But he nonetheless endorsed the requirement, based in part on what he saw as the heightened threat of racism against the accused in rape cases. “There has been an enormous danger of injustice when a black man accused of raping a white woman is tried before a white jury,” he wrote. “There is still racism in our society and that racism may be particularly likely to surface in a case involving alleged sexual violations.”
Half a century later, this same notion often emerges in endorsements of exceptionalist policies, most notably (though not exclusively) from those on the left. Some advocates I’ve met explicitly put forward reasoning that mirrors Chief Judge Bazelon’s. Others don’t expressly endorse exceptionalism, but I suspect a similar instinct is at play when they invoke Black men’s unique vulnerability to such accusations while promoting policies that are unquestionably exceptionalist—as was done by influential defenders of DeVos’s rules. Because this justification for exceptionalism, unlike those discussed earlier, is rooted in a genuine and critical problem, it deserves particular attention.
I understand why, on first glance, the logic might make sense. False rape allegations have long played an outsize role in the oppression of Black men. (Allegations of sexual violence also play a significant role in the policing of queer people and non-Black people of color; remember Trump invoking fears of Mexican immigrants as rapists to launch his campaign. But critics’ primary focus, and so mine here, is anti-Blackness.) While available data these days suggests that conviction and discipline rates for sexual harms are less racially disparate than for other forms of misconduct, that research is limited, especially regarding sanctioning outside the courts. History, on its own, might suggest that tilting the scale more fully toward the accused specifically for sexual abuse allegations is a good way to promote racial justice.
But that position ignores the pressing need for racial justice for victims. As a long history stretching back to slavery shows, sexual abuse is often used as a tool of white supremacy, especially against Black women. And to this day, survivors of color face unconscionable obstacles to support and justice because of their race. In short, concerns about racial justice weigh on both sides of the scale. To the extent, then, that racism is exceptionally present in adjudications of sexual harms, we are pulled equally in both directions—to make it both exceptionally hard and exceptionally easy to prove. As I see it, the answer must be to follow the general rule, what might be called this book’s mantra: subject these accusations to the same procedures used for all other misconduct that implicates similar interests and similar stakes.
TO FULLY UNDERSTAND sexual harassment and exceptionalism today, we have to recognize the ways the history of anti-Black racism is inextricably tied to sexual violence. Much of that history takes place outside the courts—in extrajudicial lynchings, in Black victims’ stories that no judge would hear.
During and after Reconstruction, white communities latched on to the myth that Black men were unrestrainable rapists with animalistic sexual appetites, especially for white women. Investigating 728 lynchings of the 1880s and ’90s, the advocate and journalist Ida B. Wells highlighted the role that rape accusations played as an excuse for those murders. Nearly a third of the men lynched were accused of sexual assault. But the motivating force for the lynchings, Wells explained, was a desire to maintain racial hierarchy, not genuine concern about violence against white women. “Lynching was merely an excuse to get rid of Negroes who were acquiring wealth and property and thus keep the race terrorized,” she observed. The sociologist E. Franklin Frazier captured a similar sentiment: “The closer a Negro got to the ballot box, the more he looked like a rapist.”
Lynchings for alleged rapes were specially targeted to maintain a central component of the racial order: the prohibition on consensual interracial sex and romance between Black men and white women. After the Civil War, Southern states began to outlaw interracial marriage. Many Black men accused of rape during this time were likely partners in consensual, but illicit, relationships with their white putative victims. In an 1899 decision, the Supreme Court of Georgia explained how judges should handle a case where a Black man accused of raping a white woman testifies in his defense that in fact they’d had consensual sex. “The vital question … to be considered, is whether, under the circumstances of the particular case, a negro could reasonably be presumed to have thought that a white woman would consent to his lustful embraces,” the court wrote. And “no such inference will ever arise in his favor unless the circumstances are such that no other inference can be possibly drawn.” Put another way, sex between Black men and white women was presumptively criminal.
Even the most minor suggestions of sex were used to justify white violence. In late 1943, fifteen-year-old Willie James Howard of Live Oak, Florida, gave a Christmas card to his crush, a white girl with whom he worked. “I love your name. I love your voice. For a S.H. [sweetheart] you are my choice,” he wrote in rhyme to Cynthia Goff. After Goff showed the note to her father, he, along with two other men, abducted Willie and his father, James. The white men bound Willie’s hands and feet at the banks of the Suwannee River and told the teenager to choose: they could shoot him, or he could jump into the water. James, restrained by the men, watched his son drown. The NAACP took on the case to no avail. A grand jury refused to indict the murderers. The field secretary who led the NAACP’s campaign for Willie was killed, along with his wife, when the KKK bombed their home. A little over a decade after Willie’s death came the vicious mob murder of fourteen-year-old Emmett Till for allegedly grabbing and whistling at a white woman, Carolyn Bryant Donham. Donham would later tell a historian that her claim was “not true.”
Brandon, the California football player who told me about his experience of being investigated by his school, saw his own story as one more example of a Black man falsely accused of sexual assault but assumed guilty by white authorities. He got the sense that the investigator who handled his case assumed that because Brandon is Black, “I’m automatically aggressive and hyper-masculine,” and, as a result, found his account less credible than that of the non-Black complainant. Undoubtedly, those stereotypes still carry dangerous force today. Even though conviction patterns for sex offenses are less racially disparate than for other crimes, Black people are still overrepresented on sex offender registries. And Black defendants are wrongfully convicted of rape at a disproportionately high rate. In 1989, Trump spent $83,000 on ads calling for New York to “bring back the death penalty” as a direct response to allegations that a group of teenagers had raped a woman in Central Park. Four of the boys were Black, and one was Latino; the woman was white. With no inside information or unique insight, Trump was convinced of the teens’ guilt. We now know that the woman had indeed been brutally raped, but not by the boys the police zeroed in on, all of whom were convicted and served long sentences despite their innocence. “The Central Park Five,” as they came to be known, were cleared in 2002 by DNA evidence and the actual rapist’s confession. Now they go by “The Exonerated Five.” Nonetheless, as of 2019, Trump remained unshaken in his conviction that the men were guilty.
WE’RE RIGHT TO worry that unfounded stereotypes of Black men as hypersexual rapists may influence responses to sexual harassment reports against them. We’re right to be careful that our own efforts to address sexual harassment do not continue that racism. Yet the use of false accusations to justify violence against Black men is only one terrible part of the role of sexual violence in the perpetuation of white supremacy. Another is white people’s rampant sexual terrorization of Black people, particularly Black women, before and after emancipation—and the widespread white tolerance of this abuse. Wells observed that as with the lynching of Black men, the rape of Black women by white men served both to enact and enforce racial hierarchies. Often, she said, the very same white men who lynched Black men in the name of white women’s honor also raped Black women. The KKK used the gang rape of Black women as one of its tools of terror.
Legal sanctions for these sexual abuses were “practically unheard of,” writes the historian Sharon Block. “No rape conviction against a white man, let alone a victim’s owner, for raping an enslaved woman has been found between at least 1700 and the Civil War.” Before 1861, a Black woman in the American South was not legally permitted to even file a rape charge against a white man.
White impunity derived from the very nature of slavery. Because enslaved women were understood by law and white society as property rather than actual humans, explains historian Peter Bardaglio, “the law treated the rape of one man’s slave by another white man as a trespass against the slave woman’s master rather than a crime against the woman herself.” White tolerance for sexual abuse of enslaved people also rested on stereotypes about Black sexuality. In 1859, a Mississippi appeals court overturned the conviction of an enslaved man who had been convicted of raping an enslaved child. “The crime of rape does not exist in this State between African slaves,” the court explained. “The regulations of law, as to the white race, on the subject of sexual intercourse, do not and cannot, for obvious reasons, apply to slaves; their intercourse is promiscuous, and the violation of a female slave by a male slave would be a mere assault and battery.” The following year, the legislature forbade Black men from raping Black girls under the age of twelve. It declined to place any restrictions on white men’s legal right to rape Black girls and women.
Without legal protection, Black women were also unable to physically protect themselves, at least not without risking an even worse fate. In 1855, a Black woman named Celia killed the man who enslaved her when he attempted to rape her. Under Missouri law at the time, a woman was allowed to use force to resist the “imminent danger of forced sexual intercourse.” But Celia was charged, convicted of murder, and hanged for her crime. The judge held that a “master” had an absolute right to sex with his slave, who thus had no right to protect herself. Some other victims who defended themselves from white rapists were lynched by mobs.
The racist and sexist ideologies that left Black women unprotected by law outlasted slavery. In 1897, the governor of Florida commuted the sentence of a man convicted of raping eight-year-old Hattie Dargan, after his white defenders argued the Black child was a “hoar” who “traded sex for candy.” Cole Blease, who served as the governor of South Carolina from 1911 to 1915, pardoned many men, both Black and white, who had been convicted of violence against Black women and girls. He was candid as to his motivation: “I am of the opinion, as I have always been, and have very serious doubt as to whether the crime of rape can be committed upon a negro.” Pardoning a white man convicted of sexual violence against a Black woman, Blease expressed skepticism that anyone would risk conviction for “what he could usually get from prices ranging from 25 cents to $1.” In other words, Black women were so sexually available as to be unrapeable. Courts instructed juries that Black women were less likely to be chaste than white women, and, based on that belief, applied different legal standards to rape claims brought by victims based on their race. A 1968 study concluded that officers were less likely to pursue rapes reported by Black victims than by other complainants because they believed two stereotypes: Black people were unusually untrustworthy and unusually promiscuous.
It’s easy, in discussing the sexual vulnerability of Black women before and after emancipation, to render them weak and helpless. To do so would be a grave mistake. Historians Crystal Feimster and Danielle McGuire, among others, have documented Black women’s efforts to combat sexual violence—efforts that laid the groundwork for what became the civil rights movement. Crucially, even when courts were unlikely to recognize their injuries, Black women publicly bore witness to white sexual abuse.
In 1944, Recy Taylor was raped at gunpoint in Abbeville, Alabama, by six white men who abducted her on her way home from church with her family. She was twenty-four, a Black sharecropper and mother. When Taylor begged the men to let her go, Herbert Lovett, the group’s leader, ordered her to “act just like you do with your husband or I’ll cut your damn throat.” One of the men confessed to the rape, and four admitted to having sex with her (consensually, they insisted), but two grand juries made up entirely of white men refused to issue an indictment; the case never went to trial. Rosa Parks led an NAACP investigation and then a national campaign to protest the inaction. In her book about the case, McGuire convincingly argues that the campaigns for Taylor and other Black victims abandoned by the law were direct predecessors of the Montgomery bus boycotts and racial justice fights across the country, providing structure and strategy for these later struggles. (After McGuire’s book was published, in 2010, the Alabama legislature apologized to Taylor. A documentary about her assault, The Rape of Recy Taylor, was released in 2017, three weeks before her death at the age of ninety-seven.)
The hypocrisy of white frenzy over the mythical Black rapist while white communities and courts tolerated the rampant, unchecked rape of Black people by white men was not lost on civil rights activists. Advocates realized that these two strands of history are not conflicting narratives but part of the same story. Both were designed to maintain racial hierarchy. Both were often enacted by the very same white supremacists. Both were justified by the same stereotypes of Black people as hypersexual and untrustworthy—stereotypes that persist today.
I NEVER LEARNED those histories of sexual violence, and of Black women’s central role in social change, until I met Feimster in my final year of college. For so many of us, our knowledge of white racist violence and Black resistance leaves out half the story—the female half, specifically. And our erasure of Black women’s history shapes how we understand sexual violence today. So often, in conversations about sexual violence and race, we ignore how racism affects victims, too. We leave out how white supremacy renders people of color, and especially Black women, vulnerable to violence, and how it shapes their access to support and justice afterward.
I recognize that I’m wading into fraught territory for a white woman like myself. Luckily, there is plenty of excellent work on the topic from those who have more skill and authority in this space than I. These include, recently, the Black women who wrote and organized to stop the entertainer R. Kelly. Allegations of sexual abuse of Black girls, backed by documentary evidence, had dogged the R & B singer for years. One video showed what appeared to be R. Kelly urinating on an underage girl, among other sex acts; a criminal case based on that evidence failed when the girl believed to be depicted refused to cooperate with prosecutors. In 2017, two Black organizers, Kenyette Barnes and Oronike Odeleye, started the #MuteRKelly campaign, urging listeners to become “financially divested from the man and his music” in response to the harm he had inflicted on Black girls. The two were angered that R. Kelly was scheduled to perform at a county-owned venue in Atlanta. “I have been hearing about R. Kelly’s sexual abuse of young Black women since I was in my teens,” Odeleye explained at the time. “Every few years more women come out with their stories. More images and videos surface. More Black girls are scarred for life just as they are coming into their womanhood and sexuality.” Audience dollars—and tax dollars—should not be supporting the man responsible for that damage, she and Barnes thought.
The campaign simmered. Then it exploded, thanks to a 2019 documentary by the filmmaker dream hampton. First Illinois, and then New York and Minnesota, charged R. Kelly with sexual abuse and other crimes. His record label dropped him. The singer sat for an ill-advised interview with Gayle King, during which he shouted denials, cried, and, in one particularly dramatic turn, jumped out of his chair. Facing consequences for his alleged actions, after all this time, was apparently too much to bear.
The central public defense of R. Kelly was not, exactly, that he was innocent. Rather, some—primarily but not exclusively men—argued that R. Kelly was only a target because of racial animus. After all, plenty of white male predators walked free. A rival hashtag campaign proposed a different course: #FirstThem, “them” being white rapists. Until they were held accountable, the logic went, R. Kelly shouldn’t be, either.
Supporters of the #MuteRKelly campaign pointed out that #FirstThem’s racial politics excluded the singer’s victims. R. Kelly targeted Black girls, which might explain why it had taken so long for the entertainment industry and legal authorities to concern themselves with the allegations against the singer. As Saida Grundy observed in the Atlantic, the justifications used to excuse the sexual abuse of Black girls are rooted in stereotypes harkening back to slavery. The idea that Black girls are “fast” parallels the notion of Black men as hypersexual rapists.
Plus, Grundy noted, R. Kelly’s otherwise extraordinary alleged abuses were typical in one respect: “sexual assaults, like nearly all other violent crimes, overwhelmingly happen within a racial group.” To demand a delay in consequences for Black people accused of sexual assault, then, means demanding a delay in justice for their overwhelmingly Black victims. “We know that this system is unfair to Black people—not just Black men, but Black people,” hampton explained during an NPR interview. “We know what this system does to us, right? So to turn to that system for justice is itself an oxymoron. But at the same time, we have a knee-jerk reaction to protect Black men, always at the expense of Black women.” Kimberlé Crenshaw, the legal academic most famous for developing the theory of intersectionality, diagnosed the same pattern—which, she wrote, can be weaponized by alleged abusers: “Here anti-racism marshals support for Black men accused of abuse, but it is absent in the defense of the women and girls who have come forward to hold them accountable.” This she dubs the “‘Save Our Brotha’ (‘SOB’) playbook.”
I must admit I often feel anxious writing about abuse of Black victims by other Black people because I fear I will say something racist. Focusing on white people—“minding my own business”—seems a lot easier. But Crenshaw denounces that route of comfortable silence, however tempting it may be. The SOB playbook, she writes, “works primarily to reinforce white laissez-faire in matters of intra-racial abuse, persuading non-Black allies to remain silent as a gesture of anti-racist solidarity, and abetting the disregard of others who write off the allegations of intra-racial abuse so long as the predation stays confined to Black women and girls.”
Crenshaw compares the defense of R. Kelly to that offered for Clarence Thomas when he was a nominee for the Supreme Court accused of sexually harassing Anita Hill, among others. Thomas and his defenders insisted that the accusations against him were racist, or what the nominee called a “high-tech lynching.” Lost in their objection was that Hill herself was Black. “Underlying [Thomas’s] comment was the idea that sexual harassment, like the feminism that pointed it out, was a white preoccupation incompatible with antiracism,” Crenshaw writes. Hill’s experience was not interchangeable with that of a Black man’s, nor—as too many white feminist supporters assumed—a white woman’s. Instead of acknowledging the intersections of identity that informed Hill’s experience, Thomas’s defenders simply erased her race, acting as if the only potential for racism lay with those who would condemn Thomas. But didn’t the Senate Judiciary Committee’s, and the country’s, evaluation of her credibility and worth also implicate racial inequality?
We see similar dynamics in play when opponents of Title IX protections argue that efforts to address sexual assault in schools will be bad for Black students without so much as mentioning Black survivors. My friend and former colleague Nia Evans called back to Hill’s mistreatment in her writing about Title IX, observing, “We’re seeing the same flawed arguments today. Is it not also a matter of racial justice to support and believe Black women? We face high rates of sexual harassment and violence all over the country, and it’s largely unseen. Just look at Harvard, Howard, and Spelman where Black women have been speaking out for years about the violation of their Title IX rights. Their right to learn free from sexual violence is a matter of racial and gender justice, but because they sit at the intersection—just like Anita Hill—they’re slipping through the cracks.”
A narrow vision of racial justice that leaves out victims “contributes to the trend of rendering Black sexual assault survivors invisible,” writes Wagatwe Wanjuki, a writer and longtime anti-rape activist who was one of the original Know Your IX organizers. Often, the races of alleged victims are selectively elided to present a simplified narrative. For example, in an influential 2018 op-ed, Lara Bazelon, a lawyer and professor, presented the experience of one of her clients, a Black male student who had been accused of sexual assault by a white female classmate. The school had taken her word over his, and Bazelon suggested that this determination was the result of racism. Because of stories like his, she explained, she supported DeVos’s rules as a matter of racial justice. But as a letter to the editor later revealed, Bazelon had left out a key detail: a second woman who had also reported her client, but whom the school hadn’t believed—a student Bazelon mentioned only in a parenthetical without any racial identifier—was a woman of color. There were two stories here about race. One was of a white woman’s word taken over a Black man’s, the other of a woman of color deemed less credible than her white classmate. Apparently only one of these factored into Bazelon’s assessment of DeVos’s policies. Only one was worth telling.
Law professor Nancy Chi Cantalupo notes that “discussions of campus sexual violence tend to omit race in the discussions of accusers.” As a result, writes fellow law professor Deborah Brake, they allow critics to pit “a racially diverse group of accused students, with black men featured prominently among them, against a race-less (and implicitly white) group of accusers.” The blame lies at the feet of journalists and commentators, yes, but student anti-violence movements also have a role in allowing this narrative to take hold: Wanjuki has spoken about how the unrepresentative whiteness of our public-facing advocates rendered us ill-prepared to counter the erasure of survivors of color.
An erroneously simple story of rape and race—in which only Black men are (alleged) rapists and only white women are (supposed) victims—also ignores Black men’s own sexual victimization. In 2019, students at Morehouse, the famous all-male historically Black college, came forward as survivors of sexual harassment by the same staff member. The school, by their account, knew about the predation but took no action to protect its students. Not only do Black men face stereotypes that they are prone to commit sexual violence, but they are also confronted with myths and biases that make it harder for them to protect themselves and to be believed when they are abused. “Overshadowed by the specter of violence and deviance and death, many people do not believe Black men can be victims of rape,” writes the scholar Tommy Curry. Among the contributing stereotypes: “Black men are insatiable. They want sex; if they did not want it, they are (or should be) capable of fending off an attacker.” Yet self-defense comes with costs, too. Terry Crews, the actor and former NFL star, spoke publicly in 2017 about a high-level Hollywood executive who had grabbed Crews’s genitals at a party. Crews didn’t react in the moment, he explains, because, as he puts it, “‘240 lbs. Black Man stomps out Hollywood Honcho’ would be the headline the next day.”
I THINK OFTEN of a conversation I had with a white lawyer who had published a critique of some proposed protections for student victims. “All I want to do is whatever will help poor Black and brown kids,” she told me in explanation. I pointed out that Black and brown kids, not just white students, get sexually victimized. “I hadn’t thought of that,” she said. The comment startled me, because it put so starkly the racial assumptions that underlie conversations about sexual violence, and also because it was unquestionably racist. This lawyer, who understood her mission as promoting racial justice, was only able to see young people of color as alleged abusers, not as victims. They can, of course, be both, and face racism in both positions. (Although my focus here has been anti-Blackness, a similar tension can arise in connection with queer rights: while some worry that institutional efforts to address sexual harassment may end up targeting queer people disproportionately, queer people are also at tremendous risk for sexual victimization, and thus particularly need institutional protections.)
Supporters of policies like DeVos’s fail to realize—or fail to care—that by making it exceptionally hard for anyone to prove allegations of sexual harassment, they are making it exceptionally hard for survivors of color, too. Worse yet, some of those policies could exacerbate the effect of racist stereotypes that survived the end of slavery and Jim Crow. The scholar Jessica Harris notes that even on contemporary college campuses, “Black women are described as promiscuous” and “Latinas are seen as sexy and feisty.” White women, on the other hand, are historically “constructed as pure and virginal.” As a result, “acts of sexual violence against white women are more believable but also more tragic and compelling because they, unlike the stereotypes of women of color, have never asked for sex.” Against that backdrop, exceptionalist procedures like DeVos’s may guarantee that only white victims have a real chance of success. For example, as Wanjuki and Brake have argued, a heightened standard of evidence may devastate survivors of color, who, in the eyes of administrators, may never be “clear and convincing” victims. And the civil rights stakes for these survivors are immense: the consequence of disbelief is not only impunity for their assailants but loss of access to much-needed institutional support and a profound frustration of their ability to learn, work, live full lives. Our task, then, must be to root out stereotypes and prejudices that hurt those on both sides of a sexual harassment accusation—a goal that cannot be achieved by creating more obstacles for one side in favor of the other.
Of course, people of color find themselves on both sides of every kind of adjudication, in and out of the courts. How to design policies and procedures that ensure racial justice for both victims and the accused is a tremendous task, one that has been the subject of considerable debate among scholars and activists, especially with respect to criminal prosecution. I do not pretend to offer a comprehensive answer on how to weigh these interests across different adjudications with different stakes. My point here is far narrower: whatever balance we strike in general for allegations vetted through a given system, we should use for sexual harms, too. Because even if these cases implicate unique stereotypes and histories, that weight pulls in two directions.
The exceptionalist “fix” is attractive because it’s simple, concrete. In rejecting it, I wish I could point toward a single perfect solution that addressed racism on both sides of the ledger. Our project, however, is of course far more complicated. But the good news is that we already have tools at our disposal. Looking beyond the particular context of sexual harassment, we can learn from the broad strategies recommended by advocates and civil rights leaders for combating discrimination in organizations and communities—including their advice regarding discipline for nonsexual harms. Rules should be precise and specific to reduce discriminatory enforcement; if it’s clear from the written policy what conduct is prohibited, there’s less room to enforce it selectively. Good procedures can help both sides without tipping the scales—for example, by giving everyone the opportunity to tell their story, present evidence, and rebut the other side’s account. Institutions should train a diverse group of decision-makers on how to resist their personal biases. And, to hold themselves accountable, they should track outcomes for all investigations based on the identities of the people on both sides of the accusation and publish anonymized data. These are smart practices regardless of the alleged offense.
Rooting out prejudices is easier said than done. Yet taking the simpler, one-sided way out is not an option. Nor is giving up on addressing sexual harassment altogether once we are faced with thorny complexity. The only way to the other side of this mountain is over it. We cannot throw up our hands and settle on the side of violence.