Unrecognized Injustice — The Situation of Rape
Posted by Jon Hanson & Michael McCann on April 27, 2007
Seventeenth-century English Chief Justice Sir Matthew Hale wrote, rape “is an accusation easily to be made and hard to be proved.” At least since then, that sort of thinking has been a major impediment to protecting women against sexual violence.
Of course, the impediments are many. In fact, social psychologists have discovered that one of the biggest challenges is in the way we categorize an occurrence. There is a “rape prototype” that influences what counts as a “rape” and what counts as something else — say, consensual sex or a seduction. (Legal scholar Martha Chamallas has a compelling article on that topic.) The purest form of the rape prototype, complete with racial details, includes a brutish man (usually black), unknown to the victim, bounding out of the bushes or breaking into a home and violently forcing himself on a young, innocent, white (probably blonde) woman.
Elements of this prototype can be found throughout our culture, from the cinema (see above) to political ads (see below). And that same prototype, many have argued, has interfered with our ability or willingness to recognize or respond to the harms associated with atypical forms of sexual violence, such as marital rape, date rape, same-sex rape, prison rape, and party rape.
Amesty International has just published a disturbing study about the sexual violence against Native American women in the U.S. To be sure, there are numerous causal factors (including jurisdictional ambiguity, budgetary constraints, and bureaucratic indifference) behind the trends described. But, in additon to those situational factors, a less obvious causal contributor, we suspect, is the rape prototype.
In the eyes of many Americans, the brutalization of Native American women, because they do not match the prototypical victim, does not seem quite as bad and the perpetrators do not seem quite as heinous as they might, were the similar trends occuring to women in a midwestern suburb. In fact, the legacy of cultural stereotypes and historical practices might well contribute to the sexual violence against Native American women, or so the Amnesty International Report suggests. To paraphrase Justice Hale, in many contexts, rape is easily proved, but rarely prosecuted. We excerpt the summary of that Report below.
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Sexual violence against Indigenous women in the USA is widespread — and especially brutal. According to US government statistics, Native American and Alaska Native women are more than 2.5 times more likely to be raped or sexually assaulted than other women in the USA. Some Indigenous women interviewed by Amnesty International said they didn’t know anyone in their community who had not experienced sexual violence. Though rape is always an act of violence, there is evidence that Indigenous women are more like than other women to suffer additional violence at the hands of their attackers. According to the US Department of Justice, in at least 86 per cent of the reported cases of rape or sexual assault against American Indian and Alaska Native women, survivors report that the perpetrators are non-Native men.
Sexual violence against Indigenous women is the result of a number of factors including a history of widespread and egregious human rights violations against Indigenous peoples in the USA. Indigenous women were raped by settlers and soldiers in many infamous episodes including during the Trail of Tears and the Long Walk. Such attacks were not random or individual; they were tools of conquest and colonization. The underlying attitudes towards Indigenous peoples that supported these human rights violations committed against them continue to be present in society and culture in the USA. They contribute to the present high rates of sexual violence perpetrated against Indigenous women and help to shield their attackers from justice.
Treaties, the US Constitution and federal law affirm a unique political and legal relationship between federally recognized tribal nations and the federal government. There are more than 550 federally recognized American Indian and Alaska Native tribes in the USA. Federally recognized Indian tribes are sovereign under US law, with jurisdiction over their citizens and land and maintaining government to government relationships with each other and with the US federal government. The federal government has a legal responsibility to ensure protection of the rights and wellbeing of Native American and Alaska Native peoples. The federal government has a unique legal relationship to the tribal nations that includes a trust responsibility to assist tribal governments in safeguarding the lives of Indian women.
Tribal law enforcement agencies are chronically under-funded – federal and state governments provide significantly fewer resources for law enforcement on tribal land than are provided for comparable non-Native communities. The lack of appropriate training in all police forces — federal, state and tribal — also undermines survivors’ right to justice. Many officers don’t have the skills to ensure a full and accurate crime report. Survivors of sexual violence are not guaranteed access to adequate and timely sexual assault forensic examinations which is caused in part by the federal government’s severe under-funding of the Indian Health Service.
The Federal Government has also undermined the authority of tribal governments to respond to crimes committed on tribal land. Women who come forward to report sexual violence are caught in a jurisdictional maze that federal, state and tribal police often cannot quickly sort out. Three justice systems — tribal, state and federal — are potentially involved in responding to sexual violence against Indigenous women. Three main factors determine which of these justice systems has authority to prosecute such crimes:
– whether the victim is a member of a federally recognized tribe or not;
– whether the accused is a member of a federally recognized tribe or not; and
– whether the offence took place on tribal land or not.
The answers to these questions are often not self-evident and there can be significant delays while police, lawyers and courts establish who has jurisdiction over a particular crime. The result can be such confusion and uncertainty that no one intervenes and survivors of sexual violence are denied access to justice.
Tribal prosecutors cannot prosecute crimes committed by non-Native perpetrators. Tribal courts are also prohibited from passing custodial sentences that are in keeping with the seriousness of the crimes of rape or other forms of sexual violence. The maximum prison sentence tribal courts can impose for crimes, including rape, is one year. At the same time, the majority of rape cases on tribal lands that are referred to the federal courts are reportedly never brought to trial.
As a consequence Indigenous women are being denied justice. And the perpetrators are going unpunished.
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