Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
A 26-page guide from the U.S. Justice Department outlines criteria for investigating rape claims—especially when cops are the alleged attackers.
On December 10, Oklahoma City police officer Daniel Holtzclaw was convicted on 18 counts of rape and assault after over a dozen African-American women reported that he sexually abused them under threat of arrest. Speaking with The Oklahoman newspaper after the verdict, Oklahoma City Police Chief Bill Citty said that his biggest takeaway from the trial was that “the system does work.”
Perhaps he was referencing that particular court trial, but it’s not clear that the criminal justice system works for everyone. There were 18 counts of rape or assault of five of the women that Holtzclaw was cleared of, and attorneys for the women say there were other victims who were afraid to come forward. Almost all of the women had been arrested in the past on drug or prostitution offenses, which prosecutors in the case argued was the reason Holtzclaw preyed on them: No one would believe the words of women with criminal records.
It was, in fact, the testimony of a woman with no criminal history that sparked the investigation into Holtzclaw, which led to his firing earlier this year and the ensuing criminal charges against him. Yet while there has been plenty of focus on this one police officer, there’s evidence of a wider culture of police sexual abuse—through direct attacks by cops and through coverups by fellow officers. An Associated Press investigation found last month that over a thousand police officers were fired between 2009 and 2014 for rape and other sexual misconduct. This is most certainly an under-count, the media outlet acknowledged, for a number of reasons, including police intimidation and fear of retaliation.
"It's so underreported, and people are scared that if they call and complain about a police officer, they think every other police officer is going to be then out to get them," Sarasota, Florida, police chief Bernadette DiPino told the Associated Press.
To address that, the U. S. Justice Department just issued new guidelines on identifying and preventing “gender bias” among police officers. The federal agency defines gender bias as a form of discrimination that ends up with women receiving less legal protection than would men when the police estimation of an incident is colored by factors such as ignorance about transgender issues, whether a woman is a sex worker, or whether a woman is intoxicated.
Just 26 pages long, the Justice Department isn’t presenting the guidance as an exhaustive list of steps local law enforcement agencies should take to root out these biases. Instead, it’s a list of principles for local police departments to adopt should they choose to take up addressing gender bias in practices and policies. Much of the guidance builds upon lessons learned from police departments in New Orleans and Missoula, both of which DOJ flagged in recent years for patterns of sexual misconduct.
While most of the document deals with how police should treat women when investigating sex crimes involving intimate partners or unknown civilian assailants, one of the principles does speak directly to sex crimes involving police. Reads the DOJ report:
Law enforcement agencies strive to be seen by their communities as credible and legitimate authorities in enforcing the law and protecting public safety. If a law enforcement agency does not fully investigate reports of sexual assault, sexual misconduct and domestic violence perpetrated by its own officers, or fails to appropriately discipline officers when those allegations are substantiated, the legitimacy of that law enforcement agency may be called into question. This, in turn, may make victims more reluctant to report crimes of sexual assault and domestic violence, which undermines public safety by increasing the risk of future harm from offenders who are not held accountable by the criminal justice system.
To this end, DOJ is recommending that police departments “at a minimum … open an internal investigation whenever an allegation is made that an officer has engaged in sexual abuse, sexual misconduct or domestic violence, irrespective of whether the officer was acting in his or her official capacity at the time,” and also that they refer sexual misconduct claims to local prosecutors.
The underlying problem the guideline aims at addressing, though, is how police officers determine a victim’s credibility when reporting a sexual crime, whether the attacker is wearing a badge or not. As was the case with Holtzclaw’s victims, black women’s accusations are often received under a cloud of skepticism, especially if they’ve had past run-ins with the law. As Treva Lindsey wrote of the Holtzclaw trial for Cosmopolitan:
The racial identities of Holtzclaw's accusers fit within a long history of systemic sexual violence against black women. His role as a police officer gave him a specific kind of power and authority with which to engage his accusers. He could threaten them with arrest or incarceration, or convince them that no one would believe them because of any past encounters they had with law enforcement or with their drug addictions. … Framing these women as liars and as criminally inclined builds upon a tendency not to see black women as victims. In stark contrast to the accusers, the defense attorney described Holtzclaw as an "all-American good guy.”
Black women in the sex work industry who’ve leveled rape charges that turned out to be unfounded—the woman at the center of the 2006 Duke lacrosse players scandal, for example—often are held up as the standard by which all black women’s rape accusations are held. Other tales of the sexual abuse of black women are immediately tagged as pure fantasy, as was the case with Aziah "Zola" Wells, who posted a Twitter saga about two exotic dancers who were essentially kidnapped for sex work—though many of the more violent elements turned out to be true.
But these few cases obscure the history of state-sanctioned rape of black women, often by deputies of the law, that Lindsey pointed to in Cosmpolitan. Wrote law professor Jeffrey Povorak in a 2006 article for the Nevada Law Journal:
For most of this nation's history, raping a Black woman was simply not a crime. First, laws prevented the prosecution of any offender for the rape of a slave woman. At the same time, the rape of a White woman by a Black man was treated with especial violence. The Thirteenth and Fourteenth Amendments were proposed and ratified as vehicles to ensure the equal protection of the laws. After their enactment, although the de jure prohibition on prosecuting the rape of Black women ended, de facto barriers to prosecution remained.
The potent rape meta-narrative of a stranger who is a Black man violently assaulting a White woman continues to infect prosecutorial decisions. This influence is in part the product of prosecutors relying on system outcome bias regarding assessments of "convictability. " Such "down streaming " is the practice of considering at charging what prejudices and biases hypothetical jurors will employ when judging whether a rape victim is credible.
Such biases have stopped many women from coming forward when sexually abused by professionals in positions of authority, as recently reported in the case of housing tenants fearing eviction. The DOJ guidance doesn’t address gender biases as practiced by prosecutors, judges and juries, but says addressing it at this level is “critical to ensuring that justice is served.”
Many people who were following the Holtzclaw trial thought that justice would not be served, given that the jury was all white and all of the victims were black with checkered pasts. Oklahoma City Artists for Justice co-founder Grace Franklin told The Oklahoman, “There was a huge concern in the African-American community about a jury being able to really see the evidence and be able to look past what the defense was presenting about the women.”
The jury pulled through for the women, but there are still outstanding questions about how Holtzclaw was able to get to victim number two, let alone victim number 13. A system can’t be considered “working” if the focus is only on
“a few bad apples” as opposed to the entirety of police culture, as Kimberlé Crenshaw, author of the #SayHerName report on black women and police violence, recently told CityLab.
Robert Muhammad raised questions about this when speaking with The New York Times about the Holtzclaw trial. “What about his supervisors? … Where are the checks and balances, the audit system that shows accountability for our police and for our tax dollars?”