The construction of O.J. Simpson as a racial victim

Harvard Civil Rights-Civil Liberties Law Review

Volumn 32, Issue 1, 1997, Pages 49-103

  Carbado, Devon W ^a,b,c  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0031537877     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (311)

1. Patricia J. Williams, About O.J.: Who's On Trial - Him or Us?, NEWSDAY, Mar. 16, 1995, at A32.
2. Kristal Brent Zook, A Manifesto of Sorts For A Black Feminist Movement, N.Y. TIMES, Nov. 12, 1995, at F86.
3. I capitalize "Black" throughout this Article because "Blacks, like Asian, Latinos, and other 'minorities' constitute a specific cultural group and, as such, require denotation as a proper noun." Kimberlé Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988).
4. In the context of this Article, I define "antiracist discourse" to mean Black legal and political scholarship, activism, and discussions aimed at eradicating racism against Black people.
5. See, e.g., Kimberlé Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139 (describing how antidiscrimination law treats race and gender as mutually exclusive categories, and how this "single axis framework," which is also apparent in feminist theory and antiracist politics, renders the experiences of Black women invisible).
6. See BELL HOOKS, YEARNING: RACE, GENDER AND CULTURAL POLITICS 76-77 (1990).
7. See generally MICHELE WALLACE, BLACK MACHO AND THE MYTH OF THE SUPERWOMAN xxi (1990) (exploring "Black Macho" as one factor contributing "to the shortsightedness and failure of the Black Power Movement").
8. See Adrien K. Wing Brief Reflections Toward a Multiplicative Theory and Praxis of Being, 6 BERKELEY WOMEN'S L.J. 181 (1990-91).
9. Cheryl Harris, Myths of Race and Gender in the Trials of O.J. Simpson and Susan Smith - Spectacles of Our Time, 35 WASHBURN L.J. 225, 231 (1996).
10. HOOKS, supra note 6, at 59. See also Wahneema Lubiano, Black Ladies, Welfare Queens, and State Minstrels: Ideological War By Narrative Means, in RACE-ING JUSTICE, EN-GENDERING POWER: ESSAYS ON ANITA HILL, CLARENCE THOMAS, AND THE CONSTRUCTION OF SOCIAL REALITY 323, 346 (Toni Morrison ed., 1992) [hereinafter RACE-ING JUSTICE] (noting how Clarence Thomas and his supporters appropriated a "construction of mythic blackness as a category emptied of history and female gendering").
11. See HOOKS, supra note 6, at 59.
12. Antiracist discourse reflects an unmodified understanding of racism because the conception of racism that informs it is often based exclusively on Black male experiences. With respect to gender as a general category, then, antiracist discourse is partially modified (i.e., modified by Black men's experiences); with respect to female experiences with racism, antiracist discourse is unmodified.
13. The March was organized by an Executive Council, which included: Dr. Benjamin Chavis, Executive Director, National Million Man March/Day of Absence Organizing Committee; Mr. Ron Daniels, Campaign for a New Tomorrow; Minister Louis Farrakhan, Nation of Islam; Dr. Maulana Karenga, The Organization of Us; Ms. Mawina Kouyate, All African People's Revolutionary Party; Mr. Bob Law, Million Man March Citywide Coordinating Council; Mr. Haki Madhubuti, Third World Press; Mr. Leonard Muhammad, Nation of Islam; Dr. Imari Obadele, Republic of New Africa; Rev. Dr. Frank Reid, Bethel African Methodist Episcopal Church; Rev. Willie Wilson, Union Temple Baptist Church; and Dr. Conrad Worrill, Nation Black United Front. MANIFESTO OF THE MILLION MAN MARCH ON WASHINGTON iv (1995).
14. Id. at 8.
15. Id. at 1.
16. Id. at 3 (emphasis in original).
17. Lubiano, supra note 10, at 345.
18. Patricia J. Williams, Different Drummer Please, Marchers!, NATION, Oct. 30, 1995, at 493, 494. See also Donna Franklin, Black Herstory, N.Y. TIMES, Oct. 18, 1995, at A23 ("[I]t is hard not to interpret the exclusion of black women from this week's march . . . as an effort to rekindle black men's nostalgic desire to gain control over family life, a sphere many have abandoned.").
19. Patricia J. Williams, Different Drummer Please, Marchers!, NATION, Oct. 30, 1995, at 493, 494. See also Donna Franklin, Black Herstory, N.Y. TIMES, Oct. 18, 1995, at A23 ("[I]t is hard not to interpret the exclusion of black women from this week's march . . . as an effort to rekindle black men's nostalgic desire to gain control over family life, a sphere many have abandoned.").
20. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
21. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
22. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
23. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
24. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
25. Michel Marriott, Black Women Are Split Over All-Male March On Washington, N.Y. TIMES, Oct. 14, 1995, at A8 (quoting Barbara Arnwine, Executive Director of the National Lawyers' Committee for Civil Rights Under Law). See also Franklin, supra note 18, at A23. Franklin argues that the politics behind the March are very much connected to the traditional separate spheres ideology (men "work," women stay at home). She maintains that this ideology did not work for Black families during Reconstruction due to the inability of Black men to subsist as sharecroppers without the labor of their wives and children. According to Franklin, the March reflects a "nostalgic desire [of black men] to gain control over family life." She reasons that the March was a missed opportunity for Black women and men to come together to renew their commitment to fortifying the two-parent, egalitarian family. See also Marriott, supra, at A8 (describing a news conference held in Manhattan by five women and one man, including Angela Davis and Paula Giddings, that criticized the March for following "outmoded models of male-dominated approaches to rebuilding black families and communities"); Don Terry, Black March Stirs Passion and Protests, N.Y. TIMES, Oct. 8, 1995, at A24 (discussing the optimism the March engendered, as well as some of the criticisms, including the criticism that it focused too much on "atonement" at the expense of focusing on institutional racism, criticism of Minister Louis Farrakhan, and criticism that the March was sexist and excluded women as partners and participants). But see Melinda Beck, Beyond the Moment, What Can One Day Do?, NEWSWEEK, Oct. 30, 1995, at A38 (viewing the March positively, focusing on a few men and groups of men from different parts of the country, and how the March has motivated them to make positive changes in their lives and to become more involved with their communities and families); Debra Dickerson, Queen For a Day?, NEW REPUBLIC, Nov. 6, 1995, at 223 (stating that while she could not support the March initially because of Louis Farrakhan's anti-Semitic, sexist, anti-intellectual, and homophobic racism, after experiencing kindness by Black men just before the March [i.e., a door being opened, being called "sister" instead of "baby"], and seeing how respectfully Black men behaved towards her and other Black women at the March, she began to support the March).
26. See BELL HOOKS, KILLING RAGE 2 (1995).
27. Michael John Weber, Immersed in an Educational Crisis: Alternative Programs for African American Males, 45 STAN. L. REV. 1099, 1099-1100 (1993).
28. Thomas E. Midgette & Eddie Glen, African-American Male Academies: A Positive View, 21 J. MULTICULTURAL COUNSELING & DEV. 69 (1993).
29. In Garrett v. Board of Education, 775 F. Supp. 1004 (E.D. Mich. 1991), which invalidated a plan to create a public primary school for African American males, the district court noted, "Urban girls drop out of school, suffer loss of self-esteem and become involved in criminal activity. Ignoring the plight of urban females institutionalizes inequality and perpetuates the myth that females are doing well in the current system." Id. at 1007 (citations omitted). See also Jacqueline Pope, The Clarence Thomas Confirmation: Facing Race and Gender Issues, in COURT OF APPEAL, at 165, 167 (Robert Chrisman & Robert Allen eds., 1992) ("Witness the furor concerning 'at risk' African American males. According to the powers that be, they are in a crisis. True enough, but all African Americans are in serious trouble, financially and culturally. Women and children encounter dangers equal to those that men face. To focus on the hardships of half the race is foolhardy. As a result we find ourselves rushing to protect the male while neglecting the woman . . . .").
30. See Walteen Grady Truely & Martha F. Davis, Public Education Programs for African-American Males: A Gender Equity Perspective, 21 N.Y.U. REV. L. & SOC. CHANGE 725, 733-36 (1994-1995) (discussing how Black girls' educational opportunities are affected by pregnancy, sexual harassment, and the fact that Black girls have a "heightened sensitivity about their bodies and an awareness of their expected participation in domestic and household work").
31. See Spencer H. Holland, Positive Role Models for Primary-Grade Black Inner City Males, 25 EQUITY & EXCELLENCE 40, 42 (1991) (arguing that male teachers should instruct Black male students from kindergarten through the third grade, as Black male children "begin to reject females as inappropriate role models, because women cannot provide realistic examples of survival outside of home and school"); Ron Russell, Black Male Classes: Step Forward or Back?, DETROIT NEWS & FREE PRESS, Nov. 18, 1990, at 14A (reporting the comments of a Black male teacher that "[g]irls are a little bit more mature at this age [than boys], and they may learn a little better, so they're often showing the boys up in class . . . [which] can lead to bad behavior, and just turning off to learning"). As Truely and Davis note, "these statements focus[] on girls [or female teachers] as the cause of boys' underachievement." Truely & Davis, supra note 24, at 739.
32. See Spencer H. Holland, Positive Role Models for Primary-Grade Black Inner City Males, 25 EQUITY & EXCELLENCE 40, 42 (1991) (arguing that male teachers should instruct Black male students from kindergarten through the third grade, as Black male children "begin to reject females as inappropriate role models, because women cannot provide realistic examples of survival outside of home and school"); Ron Russell, Black Male Classes: Step Forward or Back?, DETROIT NEWS & FREE PRESS, Nov. 18, 1990, at 14A (reporting the comments of a Black male teacher that "[g]irls are a little bit more mature at this age [than boys], and they may learn a little better, so they're often showing the boys up in class . . . [which] can lead to bad behavior, and just turning off to learning"). As Truely and Davis note, "these statements focus[] on girls [or female teachers] as the cause of boys' underachievement." Truely & Davis, supra note 24, at 739.
33. For example, one advocate of all Black male schools states that "both statistical analysis of problems in the inner-city and scientific research of the differences between males and females in general will add new dimensions to the arguments in favor of single-sex education." Comment, Public Education: An Inner-City Crisis! Single-Sex Schools: An Inner-City Answer?, 42 EMORY L.J. 591, 643 (1993). But see Miriam P. Gladden, The Constitutionality of African-American Male Schools and Programs, 24 COLUM. HUM. RTS. L. REV. 239, 267 (1992-1993) (asserting that "the crisis in many black urban communities extends far beyond the issue of sexual stereotyping"). Gladden, though, does not consider any of the evidence or studies cited by the district court in Garrett. Id. at 265-68; see supra note 23 and accompanying text.
34. For example, one advocate of all Black male schools states that "both statistical analysis of problems in the inner-city and scientific research of the differences between males and females in general will add new dimensions to the arguments in favor of single-sex education." Comment, Public Education: An Inner-City Crisis! Single-Sex Schools: An Inner-City Answer?, 42 EMORY L.J. 591, 643 (1993). But see Miriam P. Gladden, The Constitutionality of African-American Male Schools and Programs, 24 COLUM. HUM. RTS. L. REV. 239, 267 (1992-1993) (asserting that "the crisis in many black urban communities extends far beyond the issue of sexual stereotyping"). Gladden, though, does not consider any of the evidence or studies cited by the district court in Garrett. Id. at 265-68; see supra note 23 and accompanying text.
35. See Nell Irvin Painter, Hill, Thomas, and the Use of Racial Stereotype, in RACE-ING JUSTICE, supra note 10, at 200, 213 (observing that in the Clarence Thomas Supreme Court confirmation hearings, "[m]ore, finally, is at stake here than winning a competition between Black men and Black women for the title of ultimate victim as reckoned in the terms of white racism").
36. Derrick Bell, The Sexual Diversion: The Black Man/Black Woman Debate in Context, in SPEAK MY NAME: BLACK MEN ON MASCULINITY AND THE AMERICAN DREAM 144, 147 (Don Belton ed., 1995).
37. "Racial formation" refers to the "sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed." MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 55 (1994).
38. See Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365, 395 (arguing that stereotypes "make Black women invisible" and that this invisibility "serves to blind all women and all blacks to the interactive relationship between race and gender . . . and ultimately assures the perpetuation of domination on the basis of race and gender for all women and members of subordinate races"). 31 By using the term, "the Black community," in this context, I do not mean to suggest that the Black community actually exists as an essential, undifferentiated community. Rather, the term as I use it, is intended to refer to a politics of identification by people who perceive themselves to share a certain cultural heritage, historical experience, and contemporary reality.
39. According to a recent New York Times article, one in three Black men in their 20s is under the supervision of the criminal justice system (imprisoned or on probation or parole) on any given day. Fox Butterfield, More Blacks in Their 20s Have Trouble With the Law, N.Y. TIMES, Oct. 5, 1995, at A18. See also MARC MAUER, THE SENTENCING PROJECT, YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM: A GROWING NATIONAL PROBLEM 3 (1990) (observing that 23% of Black men between the ages of 20 and 29 are under some form of criminal restraint). Almost one third of all arrests involves an African American, often a young male. Anthony Platt, Crime Rave: Politics of Crime in the U.S., 47 MONTHLY REV. 35 (1995). See also Butterfield, supra (observing that while Blacks constitute only 12% of the population and 12% of monthly users, 35% of the people arrested for drug possession are Black and 74% of all prison sentences for drug possession are given to Black defendants). Disturbingly, the number of Black men under the supervision of the criminal justice system exceeds the number of Black men in college. Platt, supra.
40. According to a recent New York Times article, one in three Black men in their 20s is under the supervision of the criminal justice system (imprisoned or on probation or parole) on any given day. Fox Butterfield, More Blacks in Their 20s Have Trouble With the Law, N.Y. TIMES, Oct. 5, 1995, at A18. See also MARC MAUER, THE SENTENCING PROJECT, YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM: A GROWING NATIONAL PROBLEM 3 (1990) (observing that 23% of Black men between the ages of 20 and 29 are under some form of criminal restraint). Almost one third of all arrests involves an African American, often a young male. Anthony Platt, Crime Rave: Politics of Crime in the U.S., 47 MONTHLY REV. 35 (1995). See also Butterfield, supra (observing that while Blacks constitute only 12% of the population and 12% of monthly users, 35% of the people arrested for drug possession are Black and 74% of all prison sentences for drug possession are given to Black defendants). Disturbingly, the number of Black men under the supervision of the criminal justice system exceeds the number of Black men in college. Platt, supra.
41. According to a recent New York Times article, one in three Black men in their 20s is under the supervision of the criminal justice system (imprisoned or on probation or parole) on any given day. Fox Butterfield, More Blacks in Their 20s Have Trouble With the Law, N.Y. TIMES, Oct. 5, 1995, at A18. See also MARC MAUER, THE SENTENCING PROJECT, YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM: A GROWING NATIONAL PROBLEM 3 (1990) (observing that 23% of Black men between the ages of 20 and 29 are under some form of criminal restraint). Almost one third of all arrests involves an African American, often a young male. Anthony Platt, Crime Rave: Politics of Crime in the U.S., 47 MONTHLY REV. 35 (1995). See also Butterfield, supra (observing that while Blacks constitute only 12% of the population and 12% of monthly users, 35% of the people arrested for drug possession are Black and 74% of all prison sentences for drug possession are given to Black defendants). Disturbingly, the number of Black men under the supervision of the criminal justice system exceeds the number of Black men in college. Platt, supra.
42. According to a recent New York Times article, one in three Black men in their 20s is under the supervision of the criminal justice system (imprisoned or on probation or parole) on any given day. Fox Butterfield, More Blacks in Their 20s Have Trouble With the Law, N.Y. TIMES, Oct. 5, 1995, at A18. See also MARC MAUER, THE SENTENCING PROJECT, YOUNG BLACK MEN AND THE CRIMINAL JUSTICE SYSTEM: A GROWING NATIONAL PROBLEM 3 (1990) (observing that 23% of Black men between the ages of 20 and 29 are under some form of criminal restraint). Almost one third of all arrests involves an African American, often a young male. Anthony Platt, Crime Rave: Politics of Crime in the U.S., 47 MONTHLY REV. 35 (1995). See also Butterfield, supra (observing that while Blacks constitute only 12% of the population and 12% of monthly users, 35% of the people arrested for drug possession are Black and 74% of all prison sentences for drug possession are given to Black defendants). Disturbingly, the number of Black men under the supervision of the criminal justice system exceeds the number of Black men in college. Platt, supra.
43. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
44. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
45. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
46. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
47. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
48. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
49. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990) (discussing racial discrimination in the context of the death penalty); Barbara S. Meierhoefer, The Role of Offense and Offender Characteristics in Federal Sentencing, 66 S. CAL. L. REV. 367, 388-89 (1992) (observing that in 1990 the average sentence imposed on Black offenders with mandatory minimum behavior was 49% higher than that given to whites facing mandatory minimum sentences); MICHAEL J. LYNCH & E. BRITT PATTERSON, RACE AND CRIMINAL JUSTICE (1991) (examining racial and ethnic bias in the criminal justice system); Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 YALE L.J. 214 (1983) (exploring how the decision to detain a suspect is in part racially determined); Pamela Irving Jackson & Leo Carroll, Race and the War on Crime: The Sociopolitical Determinants of Municipal Police Expenditures in 90 Non-Southern U.S. Cities, 46 AM. SOC. REV. 290, 290-305 (1981) (discussing how race affects mobilization of police resources); Gregory Howard Williams, Controlling the Use of Non-Deadly Force: Policy and Practice, 10 HARV. BLACKLETTER J. 79 (1983) (critiquing police discretion to use non-deadly force). But see WILLIAM WILBANKS, THE MYTH OF A RACIST CRIMINAL JUSTICE SYSTEM 5-6 (1984) (arguing that although individuals in the criminal justice system may be racially prejudiced, prejudice and discrimination are not systemic).
50. See, e.g., Salim Muwakkil, Are Black Males an Endangered Species?, UTNE READER 46, 46-47 (Nov./Dec. 1988) (arguing that the civil rights community should focus specifically in the problems facing "endangered" Black males); see generally The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (featuring testimony predominantly from Black leaders, scholars, and professionals about the high rates of incarceration and unemployment among Black men and the shorter average life expectancy of Black men compared to Black women and white men). But see BARBARA SMITH, Ain't Gonna Let NOBODY Turn Me Around, in COURT OF APPEAL, supra note 23, at 185, 187 ("Black women are once again viewed as the source of the myriad problems our people [Black people] face and despite the fact that we [Black women] experience sexual oppression on top of racism and class oppression, we are portrayed as being in a much better position than endangered Black men.") (emphasis added).
51. See, e.g., Salim Muwakkil, Are Black Males an Endangered Species?, UTNE READER 46, 46-47 (Nov./Dec. 1988) (arguing that the civil rights community should focus specifically in the problems facing "endangered" Black males); see generally The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (featuring testimony predominantly from Black leaders, scholars, and professionals about the high rates of incarceration and unemployment among Black men and the shorter average life expectancy of Black men compared to Black women and white men). But see BARBARA SMITH, Ain't Gonna Let NOBODY Turn Me Around, in COURT OF APPEAL, supra note 23, at 185, 187 ("Black women are once again viewed as the source of the myriad problems our people [Black people] face and despite the fact that we [Black women] experience sexual oppression on top of racism and class oppression, we are portrayed as being in a much better position than endangered Black men.") (emphasis added).
52. See, e.g., Salim Muwakkil, Are Black Males an Endangered Species?, UTNE READER 46, 46-47 (Nov./Dec. 1988) (arguing that the civil rights community should focus specifically in the problems facing "endangered" Black males); see generally The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (featuring testimony predominantly from Black leaders, scholars, and professionals about the high rates of incarceration and unemployment among Black men and the shorter average life expectancy of Black men compared to Black women and white men). But see BARBARA SMITH, Ain't Gonna Let NOBODY Turn Me Around, in COURT OF APPEAL, supra note 23, at 185, 187 ("Black women are once again viewed as the source of the myriad problems our people [Black people] face and despite the fact that we [Black women] experience sexual oppression on top of racism and class oppression, we are portrayed as being in a much better position than endangered Black men.") (emphasis added).
53. Zook, supra note 2, at F86.
54. I am not suggesting that it is necessarily problematic to view every Black male criminal defendant as a possible victim of racism, but that it is problematic for this to be the predominant conception of Black male criminal defendants to limit our ability to see Black men in other ways.
55. See California v. Simpson, No. BA097211, 1995 WL 672670 (Cal. Super. Ct. Sept. 26, 1995) (closing argument of prosecutor Marcia Clark; evidence review included).
56. See Jimmie Briggs & Marcia D. Davis, The Brutal Truth: Putting Domestic Abuse on the Black Agenda, EMERGE, Sept. 1994, at 50, 52 ("For many [Black people], Simpson is another victimized Black man, not a man with a history of brutalizing his wives.").
57. In fact, Judge Ito ruled that "evidence of defendant's prior assaults upon Nicole Brown Simpson may be admitted at trial as to issues of motive, intent, plan and identity." California v. Simpson, No. BA097211, 1995 WL 21768, at *2 (Cal. Super. Ct. Jan. 18, 1995) (ruling on defense motions to exclude evidence of domestic violence). See also Benjamin Z. Rice, A Voice From People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 952 (1996) ("Evidence of a pattern of abuse provides necessary background information about the nature and quality of the relationship. Most importantly, since the victim is not available to testify in a spousal homicide case, admitting evidence of abuse may be the only way to get this information before the jury."); Toni L. Harvey, Batterers Beware: West Virginia Responds to Domestic Violence with the Probable Cause Warrantless Arrest Statute, 97 W. VA. L. REV. 181, 206 n.145 (1994) (observing that approximately one-third of all female murder victims are also victims of domestic violence). But see Lenore E. Walker, remarks made by press release distributed by Richard Cohen Associates, Public Relations Counsel 1, 2 (Jan. 27, 1995) (on file with author) (suggesting that Dr. Walker, a leading expert on battered woman syndrome, was expected to testify that "it cannot be predicted that a particular batterer will turn out to be a killer unless there is evidence of prior escalating life threatening behavior"). The defense later removed Dr. Walker from the witness list.
58. In fact, Judge Ito ruled that "evidence of defendant's prior assaults upon Nicole Brown Simpson may be admitted at trial as to issues of motive, intent, plan and identity." California v. Simpson, No. BA097211, 1995 WL 21768, at *2 (Cal. Super. Ct. Jan. 18, 1995) (ruling on defense motions to exclude evidence of domestic violence). See also Benjamin Z. Rice, A Voice From People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 952 (1996) ("Evidence of a pattern of abuse provides necessary background information about the nature and quality of the relationship. Most importantly, since the victim is not available to testify in a spousal homicide case, admitting evidence of abuse may be the only way to get this information before the jury."); Toni L. Harvey, Batterers Beware: West Virginia Responds to Domestic Violence with the Probable Cause Warrantless Arrest Statute, 97 W. VA. L. REV. 181, 206 n.145 (1994) (observing that approximately one-third of all female murder victims are also victims of domestic violence). But see Lenore E. Walker, remarks made by press release distributed by Richard Cohen Associates, Public Relations Counsel 1, 2 (Jan. 27, 1995) (on file with author) (suggesting that Dr. Walker, a leading expert on battered woman syndrome, was expected to testify that "it cannot be predicted that a particular batterer will turn out to be a killer unless there is evidence of prior escalating life threatening behavior"). The defense later removed Dr. Walker from the witness list.
59. In fact, Judge Ito ruled that "evidence of defendant's prior assaults upon Nicole Brown Simpson may be admitted at trial as to issues of motive, intent, plan and identity." California v. Simpson, No. BA097211, 1995 WL 21768, at *2 (Cal. Super. Ct. Jan. 18, 1995) (ruling on defense motions to exclude evidence of domestic violence). See also Benjamin Z. Rice, A Voice From People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 952 (1996) ("Evidence of a pattern of abuse provides necessary background information about the nature and quality of the relationship. Most importantly, since the victim is not available to testify in a spousal homicide case, admitting evidence of abuse may be the only way to get this information before the jury."); Toni L. Harvey, Batterers Beware: West Virginia Responds to Domestic Violence with the Probable Cause Warrantless Arrest Statute, 97 W. VA. L. REV. 181, 206 n.145 (1994) (observing that approximately one-third of all female murder victims are also victims of domestic violence). But see Lenore E. Walker, remarks made by press release distributed by Richard Cohen Associates, Public Relations Counsel 1, 2 (Jan. 27, 1995) (on file with author) (suggesting that Dr. Walker, a leading expert on battered woman syndrome, was expected to testify that "it cannot be predicted that a particular batterer will turn out to be a killer unless there is evidence of prior escalating life threatening behavior"). The defense later removed Dr. Walker from the witness list.
60. In fact, Judge Ito ruled that "evidence of defendant's prior assaults upon Nicole Brown Simpson may be admitted at trial as to issues of motive, intent, plan and identity." California v. Simpson, No. BA097211, 1995 WL 21768, at *2 (Cal. Super. Ct. Jan. 18, 1995) (ruling on defense motions to exclude evidence of domestic violence). See also Benjamin Z. Rice, A Voice From People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 952 (1996) ("Evidence of a pattern of abuse provides necessary background information about the nature and quality of the relationship. Most importantly, since the victim is not available to testify in a spousal homicide case, admitting evidence of abuse may be the only way to get this information before the jury."); Toni L. Harvey, Batterers Beware: West Virginia Responds to Domestic Violence with the Probable Cause Warrantless Arrest Statute, 97 W. VA. L. REV. 181, 206 n.145 (1994) (observing that approximately one-third of all female murder victims are also victims of domestic violence). But see Lenore E. Walker, remarks made by press release distributed by Richard Cohen Associates, Public Relations Counsel 1, 2 (Jan. 27, 1995) (on file with author) (suggesting that Dr. Walker, a leading expert on battered woman syndrome, was expected to testify that "it cannot be predicted that a particular batterer will turn out to be a killer unless there is evidence of prior escalating life threatening behavior"). The defense later removed Dr. Walker from the witness list.
61. See HOOKS supra note 6, at 61-62 (noting, in a discussion of the Central Park rape case that "[g]iven the work Black women have done within feminist writing to call attention to the reality of black male sexism, work that often receives little or no attention or is accused of attacking black men, it is ironic that the brutal rape of a white woman by a group of young black males serves as the catalyst for admission that sexism is a serious problem in black communities").
62. See Drawing Lines and Lessons, TIME, Oct. 9, 1995, at 36 (quoting Jill Nelson). "[W]hen you think about the average young African American, O.J. Simpson is not symbolic of that kind of police victimization." Id. (quoting John Mack, President of the Urban League, Los Angeles).
63. See Karen Baker Fletcher, Tyson's Defenders and the Church of Exclusion, N.Y. TIMES, Mar. 29, 1992, at 17 (observing that Dr. Theodore J. Jemison, president of the National Baptist Convention U.S.A. Inc, the nation's largest Black denomination, initiated a "cry for mercy" rally for Mike Tyson in New York). Benjamin Hooks, former President of the NAACP, was present at this rally, and Maya Angelou "sent a letter stating that she wished she could have attended." David Porter, Tyson is Not A Hero; Rally Was Disgusting, ORLANDO SENTINEL, June 22, 1995, at C1.
64. See Karen Baker Fletcher, Tyson's Defenders and the Church of Exclusion, N.Y. TIMES, Mar. 29, 1992, at 17 (observing that Dr. Theodore J. Jemison, president of the National Baptist Convention U.S.A. Inc, the nation's largest Black denomination, initiated a "cry for mercy" rally for Mike Tyson in New York). Benjamin Hooks, former President of the NAACP, was present at this rally, and Maya Angelou "sent a letter stating that she wished she could have attended." David Porter, Tyson is Not A Hero; Rally Was Disgusting, ORLANDO SENTINEL, June 22, 1995, at C1.
65. See Joe Treen & Bill Shaw, Judgment Day: Payback Comes to Sexual Predator Mike Tyson, Who Broke All the Rules - Until a Victim Fought Back, PEOPLE, Feb. 24, 1992, at 36 (detailing allegations of sexual and physical misconduct against Mike Tyson).
66. ISHMAEL REED, AIRING DIRTY LAUNDRY 74 (1993).
67. A substantial debate is occurring in legal academia about the use of stories, or narratives, as a form of discussing the law. In response to Derrick Bell, Patricia Williams, Richard Delgado, and others who have been instrumental in legitimating the use of narratives in legal discourse, a number of scholars have voiced their disagreement with reliance on narratives. See generally Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992); Daniel A. Farber & Suzanna Sherry, Telling Stories Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV. 665, 666 (1993) (arguing that majoritarian scholars tell "stories" about merit, causation, blame, responsibility, and racial justice, but perceive them to be an objective truth). Narratives are intellectual methodological devices that convey the multiple dimensions of marginality and oppression, privilege and power through concrete experiences. Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413 (1989).
68. A substantial debate is occurring in legal academia about the use of stories, or narratives, as a form of discussing the law. In response to Derrick Bell, Patricia Williams, Richard Delgado, and others who have been instrumental in legitimating the use of narratives in legal discourse, a number of scholars have voiced their disagreement with reliance on narratives. See generally Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992); Daniel A. Farber & Suzanna Sherry, Telling Stories Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV. 665, 666 (1993) (arguing that majoritarian scholars tell "stories" about merit, causation, blame, responsibility, and racial justice, but perceive them to be an objective truth). Narratives are intellectual methodological devices that convey the multiple dimensions of marginality and oppression, privilege and power through concrete experiences. Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413 (1989).
69. A substantial debate is occurring in legal academia about the use of stories, or narratives, as a form of discussing the law. In response to Derrick Bell, Patricia Williams, Richard Delgado, and others who have been instrumental in legitimating the use of narratives in legal discourse, a number of scholars have voiced their disagreement with reliance on narratives. See generally Mark Tushnet, The Degradation of Constitutional Discourse, 81 GEO. L.J. 251 (1992); Daniel A. Farber & Suzanna Sherry, Telling Stories Richard Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV. 665, 666 (1993) (arguing that majoritarian scholars tell "stories" about merit, causation, blame, responsibility, and racial justice, but perceive them to be an objective truth). Narratives are intellectual methodological devices that convey the multiple dimensions of marginality and oppression, privilege and power through concrete experiences. Richard Delgado, Legal Storytelling: Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411, 2413 (1989).
70. A substantial body of scholarship suggests that feminism, while purporting to represent all women, often marginalizes the experiences of women of color. See, e.g., Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990) (critiquing, among other white feminists, Catharine MacKinnon and Robin West for assuming "that a unitary, 'essential' women's experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience").
71. Farrakhan Describes Cycle of Domestic Violence, WASH. POST, June 27, 1994, at A22.
72. The purpose of this Article is not to suggest that Black women are more subordinated than Black men, but that the extent and nature of Black women's
73. Paul Duggan, Washington Comes to a Stop; Then Pent-up Emotions Start Spilling Out, WASH. POST, Oct. 4, 1995, at A1.
74. Selwyn Crawford, Queries Persist on Blacks' Reaction, DALLAS MORNING NEWS, Oct. 8, 1995, at 32A. See generally infra Part IV for further discussion of this issue.
75. See, e.g., The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (addressing the problems facing young Black men; problems facing Black girls raised only in the context of teenage pregnancy and single-parent households); YOUNG, BLACK AND MALE IN AMERICA: AN ENDANGERED SPECIES (Jewelle Taylor Gibbs ed., 1988) (presenting an interdisciplinary perspective on the major social and economic problems of young Black men in the U.S., but mentioning young Black women only peripherally in the context of unwed teenage pregnancy and teenage fatherhood). See also Michele Ingrassia, Endangered Family, NEWSWEEK, Aug. 30, 1993, at 17 (claiming that female-headed, single-parent households "boost crime rates, lower educational attainment and add dramatically to the welfare rolls" within the Black community). But see Marian E. Douglas, Building Community for Black Single Mothers, SAGE, Fall 1990, at 53 (stating feelings of invisibility and attack from indifference and hostility as a Black single mother); Marcia Gillespie, In the Matter of Rape, ESSENCE, Jan. 1992, at 60, 94 (suggesting that Black women are discouraged from talking about intraracial rape because there are some Black men and women "who wish to believe that racism as defined by men is the only form of oppression to be addressed or that it must take priority over all else").
76. See, e.g., The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (addressing the problems facing young Black men; problems facing Black girls raised only in the context of teenage pregnancy and single-parent households); YOUNG, BLACK AND MALE IN AMERICA: AN ENDANGERED SPECIES (Jewelle Taylor Gibbs ed., 1988) (presenting an interdisciplinary perspective on the major social and economic problems of young Black men in the U.S., but mentioning young Black women only peripherally in the context of unwed teenage pregnancy and teenage fatherhood). See also Michele Ingrassia, Endangered Family, NEWSWEEK, Aug. 30, 1993, at 17 (claiming that female-headed, single-parent households "boost crime rates, lower educational attainment and add dramatically to the welfare rolls" within the Black community). But see Marian E. Douglas, Building Community for Black Single Mothers, SAGE, Fall 1990, at 53 (stating feelings of invisibility and attack from indifference and hostility as a Black single mother); Marcia Gillespie, In the Matter of Rape, ESSENCE, Jan. 1992, at 60, 94 (suggesting that Black women are discouraged from talking about intraracial rape because there are some Black men and women "who wish to believe that racism as defined by men is the only form of oppression to be addressed or that it must take priority over all else").
77. See, e.g., The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (addressing the problems facing young Black men; problems facing Black girls raised only in the context of teenage pregnancy and single-parent households); YOUNG, BLACK AND MALE IN AMERICA: AN ENDANGERED SPECIES (Jewelle Taylor Gibbs ed., 1988) (presenting an interdisciplinary perspective on the major social and economic problems of young Black men in the U.S., but mentioning young Black women only peripherally in the context of unwed teenage pregnancy and teenage fatherhood). See also Michele Ingrassia, Endangered Family, NEWSWEEK, Aug. 30, 1993, at 17 (claiming that female-headed, single-parent households "boost crime rates, lower educational attainment and add dramatically to the welfare rolls" within the Black community). But see Marian E. Douglas, Building Community for Black Single Mothers, SAGE, Fall 1990, at 53 (stating feelings of invisibility and attack from indifference and hostility as a Black single mother); Marcia Gillespie, In the Matter of Rape, ESSENCE, Jan. 1992, at 60, 94 (suggesting that Black women are discouraged from talking about intraracial rape because there are some Black men and women "who wish to believe that racism as defined by men is the only form of oppression to be addressed or that it must take priority over all else").
78. See, e.g., The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (addressing the problems facing young Black men; problems facing Black girls raised only in the context of teenage pregnancy and single-parent households); YOUNG, BLACK AND MALE IN AMERICA: AN ENDANGERED SPECIES (Jewelle Taylor Gibbs ed., 1988) (presenting an interdisciplinary perspective on the major social and economic problems of young Black men in the U.S., but mentioning young Black women only peripherally in the context of unwed teenage pregnancy and teenage fatherhood). See also Michele Ingrassia, Endangered Family, NEWSWEEK, Aug. 30, 1993, at 17 (claiming that female-headed, single-parent households "boost crime rates, lower educational attainment and add dramatically to the welfare rolls" within the Black community). But see Marian E. Douglas, Building Community for Black Single Mothers, SAGE, Fall 1990, at 53 (stating feelings of invisibility and attack from indifference and hostility as a Black single mother); Marcia Gillespie, In the Matter of Rape, ESSENCE, Jan. 1992, at 60, 94 (suggesting that Black women are discouraged from talking about intraracial rape because there are some Black men and women "who wish to believe that racism as defined by men is the only form of oppression to be addressed or that it must take priority over all else").
79. See, e.g., The Plight of African-American Men in Urban America, 1991: Hearings before the Senate Comm. on Banking, Housing, and Urban Affairs, 102d Cong. (1991) (addressing the problems facing young Black men; problems facing Black girls raised only in the context of teenage pregnancy and single-parent households); YOUNG, BLACK AND MALE IN AMERICA: AN ENDANGERED SPECIES (Jewelle Taylor Gibbs ed., 1988) (presenting an interdisciplinary perspective on the major social and economic problems of young Black men in the U.S., but mentioning young Black women only peripherally in the context of unwed teenage pregnancy and teenage fatherhood). See also Michele Ingrassia, Endangered Family, NEWSWEEK, Aug. 30, 1993, at 17 (claiming that female-headed, single-parent households "boost crime rates, lower educational attainment and add dramatically to the welfare rolls" within the Black community). But see Marian E. Douglas, Building Community for Black Single Mothers, SAGE, Fall 1990, at 53 (stating feelings of invisibility and attack from indifference and hostility as a Black single mother); Marcia Gillespie, In the Matter of Rape, ESSENCE, Jan. 1992, at 60, 94 (suggesting that Black women are discouraged from talking about intraracial rape because there are some Black men and women "who wish to believe that racism as defined by men is the only form of oppression to be addressed or that it must take priority over all else").
80. Isabel Wilkerson, Whose Side to Take: Women, Outrage and the Verdict on O.J. Simpson, N.Y. TIMES, Oct. 8, 1995, § 4, at A1.
81. The dialogues presented in this Part are from the author's notes. Thus, this is a recreation of the workshop rather than a presentation of it.
82. Kimberlé Crenshaw, Mapping The Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1258 (1991). Crenshaw also states that "[i]t is important to emphasize that wife abuse is prevalent throughout our society. Recently collected data merely confirm what people working with victims have long known: battering occurs in all social and economic groups." Id. at 1258 n.54 (citations omitted). Other recent articles also support the notion that there is no real nexus between race, class and domestic abuse.
83. See, e.g., David M. Zlotnik, Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to Enforce Civil Protections Orders, 56 OHIO ST. L.J. 1153, 1163, 1215 (1995) (stating that abuse crosses all economic and class boundaries and that it is established that domestic violence occurs in families and relationships of all ages, communities, income levels, races, religions, employment situations, and marital status).
84. But see Helen Rubenstein Holden, Comment, Does the Legal System Batter Women? Vindicating Battered Women's Constitutional Rights to Adequate Police Protection, 21 ARIZ. ST. L.J. 705, 708 (1989) (stating that societal and cultural factors are part of the cause of wife abuse).
85. See Jim Tranquada, As Anniversary Arrives, Impact of Case Seen as Wide-Ranging, GAZETTE (MONTREAL), June 12, 1995, at B8; Maria Puente, Poll: Blacks' Confidence in Police Plummets, USA TODAY, Mar. 21, 1995, at 3A. But see Carl Rowan, O.J. Trial is About Murder - Not Race, CHI. SUN-TIMES, Aug. 2, 1995, at 41 (arguing that dismissed jurors' comments about the trial show that there is no essential or universal "white" or "Black" perspective of the Simpson trial).
86. See Jim Tranquada, As Anniversary Arrives, Impact of Case Seen as Wide-Ranging, GAZETTE (MONTREAL), June 12, 1995, at B8; Maria Puente, Poll: Blacks' Confidence in Police Plummets, USA TODAY, Mar. 21, 1995, at 3A. But see Carl Rowan, O.J. Trial is About Murder - Not Race, CHI. SUN-TIMES, Aug. 2, 1995, at 41 (arguing that dismissed jurors' comments about the trial show that there is no essential or universal "white" or "Black" perspective of the Simpson trial).
87. See Jim Tranquada, As Anniversary Arrives, Impact of Case Seen as Wide-Ranging, GAZETTE (MONTREAL), June 12, 1995, at B8; Maria Puente, Poll: Blacks' Confidence in Police Plummets, USA TODAY, Mar. 21, 1995, at 3A. But see Carl Rowan, O.J. Trial is About Murder - Not Race, CHI. SUN-TIMES, Aug. 2, 1995, at 41 (arguing that dismissed jurors' comments about the trial show that there is no essential or universal "white" or "Black" perspective of the Simpson trial).
88. I am not arguing here that Simpson's social status precluded him from being a victim of racism generally and police misconduct specifically. See ELLIS COSE, THE RAGE OF A PRIVILEGED CLASS (1994) (discussing middle class Blacks' anger that racism continues to limit their opportunities for upward mobility).
89. See also Julian Bond, Judging the Verdict: Reaction to the O.J. Simpson Trial; No Island in a Sea of Racism, ATLANTA J. & CONST., Oct. 4, 1995, at 13A ("Past or present, many people seem to say, it [Mark Fuhrman's racism and the racism of the Los Angeles Police Department] should not redound to Simpson's benefit. Since he enjoyed success despite being black, why should his blackness now become his salvation? Why not? Why should he be immune from the advantage or adversity that flows from our racist society?").
90. Jack E. White, Simpson Verdict Exposes Racial Gulf and Paranoia, DALLAS MORNING NEWS, Oct. 8, 1995, at 1J. O.J.'s ability to reclaim his Blackness during his trial raises serious questions about whether skin color should continue to function as a proxy for political ideology and commitment to racial justice.
91. See Robert S. Chang, The End of Innocence or Politics After the Fall of the Essential Subject, 45 AM. U. L. REV. 687, 690 (1996) (arguing that "[racial] identity (in its essential form) is a poor proxy for common interest" and suggesting that coalition building should be based on political commitment).
92. Kevin Brown, The Social Construction of a Rape Victim: Stories of African-American Males About the Rape of Desirée Washington, 1992 U. ILL. L. REV. 997 (arguing that "[o]ur consciousness is influenced and conditioned within the context of the systems of ideas and thought that we draw upon in order to process the complex information that we receive. These cultural patterns and systems of meaning precede our interpretation of reality, and we often draw upon them to make sense out of the complex information we receive.") (footnote omitted).
93. I do not suggest that everyone in the Black community conceptualized the Simpson case in the form that the Narratives provide, but that rather the ideas in the narratives help to explain the racial divide reflected in the polls.
94. Judith M. Pasternak & Chris Seymour, What the Simpson Case Really Means, TIKKUN, Sept. 1994, at 25.
95. Kenneth B. Noble, Not Guilty: A City Reflects, N.Y. TIMES, Oct. 4, 1995, at A13 (comments made by a Black man when the Simpson verdict was announced to Susan Grigsby Gates, a Los Angeles writer and newspaper columnist).
96. Howard Kurtz, Hung Jury in the Court of Public Opinion, WASH. POST, Oct. 4, 1995, at B1 (comment made on a talk show hosted by a white conservative. Another respondent said, "Why don't we just open up the prisons and let 'em all go?").
97. Wilkerson, supra note 52, § 4, at A1.
98. See, e.g., William F. Buckley, Jr., The O.J. Verdict Deserves Protest Outcome Says Nothing about Justice, Speaks Volumes on Race Relations, ARIZ. REPUBLIC, Oct. 10, 1995, at B5 ("It is simply undeniable that the black majority believed him innocent because he was black.").
99. See Last Week in O.J. History: Week 68, BOSTON GLOBE, Oct. 8, 1995, at A34 ("What the jurors are saying is that they looked for a reason to acquit. There was no critical thinking going on") (quoting Marcia Clark).
100. See Gerald F. Uelmen, It's Public Perception That's Skewed; Simpson Verdict: The Jury Decided On the Facts; It Didn't See the Sideshow That Convinced the TV Audience Otherwise, L.A. TIMES, Oct. 10, 1995, at B9.
101. Id.
102. See id.
103. This is ironic given the extent to which this trial has raised issues about media excess and the role of cameras in the courtroom. See, e.g., Tom Shales, A TV Nation, Together And Divided, WASH. POST, Oct. 4, 1995, at B1 (contending that the announcement of the verdict was like "'Who Shot J.R.?' times 10, only it was real"); Sheryl Stolberg, The Simpson Legacy; Just Under the Skin; Will We Ever Get Along, L.A. TIMES, Oct. 10, 1995, at S3 ("The Simpson extravaganza was deadly in its seduction, an almost fatal attraction for a nation hooked on the stuff on which tabloids are made."); The Verdict Is In: A City Divided, L.A. TIMES, Oct. 4, 1995, at B8 (arguing that "the Simpson case provides few clear lessons . . . [because it] was so atypical, so distorted by the media circus and overwhelming television and radio coverage").
104. This is ironic given the extent to which this trial has raised issues about media excess and the role of cameras in the courtroom. See, e.g., Tom Shales, A TV Nation, Together And Divided, WASH. POST, Oct. 4, 1995, at B1 (contending that the announcement of the verdict was like "'Who Shot J.R.?' times 10, only it was real"); Sheryl Stolberg, The Simpson Legacy; Just Under the Skin; Will We Ever Get Along, L.A. TIMES, Oct. 10, 1995, at S3 ("The Simpson extravaganza was deadly in its seduction, an almost fatal attraction for a nation hooked on the stuff on which tabloids are made."); The Verdict Is In: A City Divided, L.A. TIMES, Oct. 4, 1995, at B8 (arguing that "the Simpson case provides few clear lessons . . . [because it] was so atypical, so distorted by the media circus and overwhelming television and radio coverage").
105. This is ironic given the extent to which this trial has raised issues about media excess and the role of cameras in the courtroom. See, e.g., Tom Shales, A TV Nation, Together And Divided, WASH. POST, Oct. 4, 1995, at B1 (contending that the announcement of the verdict was like "'Who Shot J.R.?' times 10, only it was real"); Sheryl Stolberg, The Simpson Legacy; Just Under the Skin; Will We Ever Get Along, L.A. TIMES, Oct. 10, 1995, at S3 ("The Simpson extravaganza was deadly in its seduction, an almost fatal attraction for a nation hooked on the stuff on which tabloids are made."); The Verdict Is In: A City Divided, L.A. TIMES, Oct. 4, 1995, at B8 (arguing that "the Simpson case provides few clear lessons . . . [because it] was so atypical, so distorted by the media circus and overwhelming television and radio coverage").
106. Courtland Milloy, In White Riot, It's Smolder, Baby, Smolder, WASH. POST, Oct. 8, 1995, at B1 ("The outrage in white America is widespread, though deceptively low-key. Call it a 'quiet riot,' and it's only just begun."). See also Stephen Labaton, Lessons of Simpxim Case Are Reshaping the Law, N.Y. TIMES, Oct. 6, 1995, at A1 (observing that the Simpson case is being used as the basis for a California ballot initiative to amend the state constitution so that unanimous jury decisions would no longer be required in most criminal cases); Brian McGrory, White Backlash Feared Over Simpson Verdicts, BOSTON GLOBE, Oct. 8, 1995, at A1 ("Here in California, backers of the anti-affirmative action ballot initiative said they are anticipating a surge in support [as a result of the verdict]."); Noble, supra note 61 ("A lot of people will have to pay the price for O.J.'s freedom, because there's no question that there will be a backlash.") (quoting law professor Susan Estrich).
107. Courtland Milloy, In White Riot, It's Smolder, Baby, Smolder, WASH. POST, Oct. 8, 1995, at B1 ("The outrage in white America is widespread, though deceptively low-key. Call it a 'quiet riot,' and it's only just begun."). See also Stephen Labaton, Lessons of Simpxim Case Are Reshaping the Law, N.Y. TIMES, Oct. 6, 1995, at A1 (observing that the Simpson case is being used as the basis for a California ballot initiative to amend the state constitution so that unanimous jury decisions would no longer be required in most criminal cases); Brian McGrory, White Backlash Feared Over Simpson Verdicts, BOSTON GLOBE, Oct. 8, 1995, at A1 ("Here in California, backers of the anti-affirmative action ballot initiative said they are anticipating a surge in support [as a result of the verdict]."); Noble, supra note 61 ("A lot of people will have to pay the price for O.J.'s freedom, because there's no question that there will be a backlash.") (quoting law professor Susan Estrich).
108. Courtland Milloy, In White Riot, It's Smolder, Baby, Smolder, WASH. POST, Oct. 8, 1995, at B1 ("The outrage in white America is widespread, though deceptively low-key. Call it a 'quiet riot,' and it's only just begun."). See also Stephen Labaton, Lessons of Simpxim Case Are Reshaping the Law, N.Y. TIMES, Oct. 6, 1995, at A1 (observing that the Simpson case is being used as the basis for a California ballot initiative to amend the state constitution so that unanimous jury decisions would no longer be required in most criminal cases); Brian McGrory, White Backlash Feared Over Simpson Verdicts, BOSTON GLOBE, Oct. 8, 1995, at A1 ("Here in California, backers of the anti-affirmative action ballot initiative said they are anticipating a surge in support [as a result of the verdict]."); Noble, supra note 61 ("A lot of people will have to pay the price for O.J.'s freedom, because there's no question that there will be a backlash.") (quoting law professor Susan Estrich).
109. See Last Week in O.J. History, supra note 65, at A34.
110. David S. Broder, Misjudging the Jury System, WASH. POST, Oct. 11, 1995, at A21.
111. For an excellent discussion of the construction of the O.J. Simpson case in the op-ed pages of the media, see Christo Lassiter, The O.J. Simpson Verdict: A Lesson in Black and White, 1 MICH. J. RACE & L. 69 (1996).
112. Here and elsewhere, I refer to the print media for examples of how Black voices and white voices are positioned with regard to the O.J. Simpson trial. Whether these stories, statistics, and polls are accurate is not at issue. It is that these portrayals have the status of being familiar, recognizable, and "true," and therefore play a fundamental role in creating "common sense" notions about race. Similar to cultural narratives, media-filtered information represents part of our knowledge, and contributes to the divergence in responses between Blacks and whites. For example, polls are engineered to create newsworthy results. In this service, they reduce complex issues to dichotomies - of Black and white, man and woman - that operate largely independent of context. These reductions are understood on a baseline of previous media-filtered portrayals. As the "race gap" was a substantial part of the Simpson trial coverage, it shaped the way Blacks and whites imagine their own positions with regard to each other. People respond not only to the events of the trial, but also to the way that the mass-mediated discourse of the trial has positioned them with regard to race and racial narratives. Answering polls, responding to questions about racially sensitive topics, and speaking to the press are forms of participation in a pre-existing dialogue. Thus, these "dialogues" are both a formative and reflective part of the process in which definitions of racism and racial experiences are constructed. This approach of a composite media-rendered dialogue between white people and Black people in the Simpson case, illustrates how race and gender are understood differently in white and Black communities.
113. See Duggan, supra note 49 ("I'm shocked . . . . [J]ustice wasn't done."). See Anna M. Virtue & Doug Conner, The Simpson Verdicts: From Coast to Coast, A Nation is Divided on Simpson Verdict, L.A. TIMES, Oct. 4, 1995, at A1. See also Don Aucoin & Zachary Dowdy, Local View: Surprise, Anger, Relief, BOSTON GLOBE, Oct. 4, 1995, at A21.
114. See Duggan, supra note 49 ("I'm shocked . . . . [J]ustice wasn't done."). See Anna M. Virtue & Doug Conner, The Simpson Verdicts: From Coast to Coast, A Nation is Divided on Simpson Verdict, L.A. TIMES, Oct. 4, 1995, at A1. See also Don Aucoin & Zachary Dowdy, Local View: Surprise, Anger, Relief, BOSTON GLOBE, Oct. 4, 1995, at A21.
115. See Duggan, supra note 49 ("I'm shocked . . . . [J]ustice wasn't done."). See Anna M. Virtue & Doug Conner, The Simpson Verdicts: From Coast to Coast, A Nation is Divided on Simpson Verdict, L.A. TIMES, Oct. 4, 1995, at A1. See also Don Aucoin & Zachary Dowdy, Local View: Surprise, Anger, Relief, BOSTON GLOBE, Oct. 4, 1995, at A21.
116. See, e.g., Martin Gottlieb, Racial Split at the End, as at the Start, N.Y. TIMES, Oct. 4, 1995, at A1 ("They have to retry him . . . . It's ridiculous, you know."); Michael Granberry & Rebecca Trounson, The Simpson Verdicts: In O.C., Some Cheers Amid Chorus of Disbelief, L.A. TIMES, Oct. 4, 1995, at A12 (recounting reactions of an Orange County, California, resident who said, "Hell, yes, he's guilty . . . . This whole thing is ridiculous.").
117. See, e.g., Martin Gottlieb, Racial Split at the End, as at the Start, N.Y. TIMES, Oct. 4, 1995, at A1 ("They have to retry him . . . . It's ridiculous, you know."); Michael Granberry & Rebecca Trounson, The Simpson Verdicts: In O.C., Some Cheers Amid Chorus of Disbelief, L.A. TIMES, Oct. 4, 1995, at A12 (recounting reactions of an Orange County, California, resident who said, "Hell, yes, he's guilty . . . . This whole thing is ridiculous.").
118. Comments referring to the evidence include, "there was a mountain of evidence," Robert A. Jordan, No Victory, No Defeat, Only an Angry Racial Divide, BOSTON GLOBE, Oct. 8, 1995, at A35; the evidence was "conclusive," Anthony Lewis, An American Dilemma, N.Y. TIMES, Oct. 6, 1995, at A31; "the evidence was overwhelming," R. H. Melton, Reflections in a Polarized Mirror, WASH. POST, Oct. 3, 1995, at A10.
119. Comments referring to the evidence include, "there was a mountain of evidence," Robert A. Jordan, No Victory, No Defeat, Only an Angry Racial Divide, BOSTON GLOBE, Oct. 8, 1995, at A35; the evidence was "conclusive," Anthony Lewis, An American Dilemma, N.Y. TIMES, Oct. 6, 1995, at A31; "the evidence was overwhelming," R. H. Melton, Reflections in a Polarized Mirror, WASH. POST, Oct. 3, 1995, at A10.
120. Comments referring to the evidence include, "there was a mountain of evidence," Robert A. Jordan, No Victory, No Defeat, Only an Angry Racial Divide, BOSTON GLOBE, Oct. 8, 1995, at A35; the evidence was "conclusive," Anthony Lewis, An American Dilemma, N.Y. TIMES, Oct. 6, 1995, at A31; "the evidence was overwhelming," R. H. Melton, Reflections in a Polarized Mirror, WASH. POST, Oct. 3, 1995, at A10.
121. See Granberry & Trounson, supra note 76 (comments of a housekeeper from Laguna).
122. See id. (comments of a criminology major); Lewis, supra note 76 (commenting that to white people, the DNA evidence demonstrated that Simpson was at the scene of the crime). But see Martha Ezzard, Judicial Pendulum Swinging; Simpson Verdict Drives a Larger Wedge Between Blacks and Whites, ATLANTA J. & CONST., Oct. 4, 1995, at 12A ("[J]urors . . . don't like to convict on circumstantial evidence . . . . This isn't the first time . . . that complex scientific data, like the DNA blood evidence, seemed to make no impact on a jury.").
123. See Francis X. Clines, The Nation: And Now, the Audience Rests, N.Y. TIMES, Oct. 8, 1995, at D1 (pointing out that some questions of Simpson that went unanswered during the criminal trial - "Why did you flee in such a serio-comic wave of self-pity? How do you account for the murder night?" - may have to be answered in a civil suit).
124. See Tom Baxter, Not Guilty; 1 Verdict, 2 Sides, ATLANTA J. & CONST., Oct. 2, 1995, at 1C.
125. See Aucoin & Dowdy, supra note 75 (discussing the question some seventh-grade Blacks had about whether Fuhrman would go to jail for perjury; Fuhrman had denied using the word "nigger" in the past 10 years).
126. The jury heard a tape that included Fuhrman's use of the word "nigger" in the following context: "They [female police officers] don't do anything. They don't go out there and initiate contact with some 6-foot-5-inch nigger who's been in prison for seven years, pumping weights." Verdict Ends Long Ordeal, WASH. POST, Oct. 4, 1995, at A29.
127. See Timothy Egan, The Simpson Case - the Jury: With Spotlight Shifted to Them, Some Simpson Jurors Talk Freely, N.Y. TIMES, Oct. 5, 1995, at A1 (noting that Simpson juror Brenda Moran was convinced of Fuhrman's racism after learning of his comments about interracial couples).
128. This interpretation invokes Fuhrman's racism to conclude, "We don't trust the messenger." See Baxter, supra note 81; Racism in America: A Worthy Battle for All, ATLANTA J. & CONST., Oct. 5, 1995, at A18.
129. See California v. Simpson, No. BA097211, 1995 WL 672670 (Cal. Super. Ct. Sept. 26, 1995) (closing argument of prosecutor Marcia Clark).
130. The prosecution dubbed Mark Fuhrman their star witness. See Bond, supra note 56 (observing that Fuhrman was "the people's poster boy"). When Fuhrman testified, he appeared compellingly professional. It was only after the defense team exposed him as a racist that America's view of him changed. See Peter S. Canellos, Racial Divide Shown on Police, BOSTON GLOBE, Oct. 4, 1995, at A1.
131. Though many people consider Simpson's guilt and Fuhrman's racism mutually exclusive, some have argued that the police could have tried to frame a guilty man. See Jack E. White, A Double Strand of Paranoia, TIME, Oct. 9, 1995, at 38-39.
132. See Gottlieb, supra note 76 (noting the comments of a white man that "O.J. should have burned and the cops should have lost their jobs. Instead, O.J. does no time and the cops go on being cops").
133. "[P]ublic policies such as affirmative action, the racial spoils system, and the cult of diversity have encouraged identity politics . . . . It isn't surprising, then, that the jurors had no pangs of conscience about regarding Mr. Simpson as a member of a group and not seeing his victims at all." George Will et al., What Did O.J. Simpson Trial Tell Us?, DALLAS MORNING NEWS, Oct. 6, 1995, at 25A; see also Roland Nethaway, Remember King's Dream, ATLANTA J. & CONST., Oct. 5, 1995, at 19A (arguing that the verdict "appears to be another race-based decision").
134. "[P]ublic policies such as affirmative action, the racial spoils system, and the cult of diversity have encouraged identity politics . . . . It isn't surprising, then, that the jurors had no pangs of conscience about regarding Mr. Simpson as a member of a group and not seeing his victims at all." George Will et al., What Did O.J. Simpson Trial Tell Us?, DALLAS MORNING NEWS, Oct. 6, 1995, at 25A; see also Roland Nethaway, Remember King's Dream, ATLANTA J. & CONST., Oct. 5, 1995, at 19A (arguing that the verdict "appears to be another race-based decision").
135. Clines, supra note 80 (observing that in a civil suit Simpson's defense counsel may have to grapple with the issue of domestic abuse more than his defense counsel did in the criminal suit).
136. See Baxter, supra note 81, at 1C ("One side, mostly white, has considered the escape run in the Bronco, the DNA evidence and the 911 tapes [as] incontrovertible evidence of Simpson's guilt").
137. See Egan, supra note 84 (reporting the comments of juror Brenda Moran that Fuhrman is "a racist" and "not credible" as a witness).
138. See The Verdict Is In: A City Divided, supra note 69 (observing that the police misconduct and racism in the Los Angeles Police Department was sufficient for many Blacks to find reasonable doubt).
139. See Egan, supra note 84 (quoting juror Brenda Moran as saying, "This was a murder trial, not domestic abuse. If you want to get tried for domestic abuse, go in another direction.").
140. According to a poll conducted by the Los Angeles Times, whites attributed the verdict to the mostly minority jury. See Cathleen Decker, The Times Poll; Most in the Country Disagree With Simpson Verdicts, L.A. TIMES. Oct. 8, 1995, at A1.
141. See Steve Profitt, Talking About Race to Bring the Nation Together, L.A. TIMES, Oct. 8, 1995, at A3 (pointing to Robert L. Shapiro's assertion that Johnnie Cochran and the rest of the defense team played the race card "from the bottom of the deck").
142. See John L. Mitchell & Jeff Leeds, Half of Americans Disagree with the Verdict; Reaction: High-Voltage Joy, Angry Denouncements, L.A. TIMES, Oct. 4, 1995, at A1 ("The last time I was this shocked by a verdict and thought it was this wrong was the original Rodney King decision. What's going on in this town . . . is that we're using our legal system as a manifestation of our racism.") (comments of movie producer Cal Brady). See generally Ezzard, supra note 79 (analogizing the Simpson and King cases).
143. Peter S. Canellos, Acquittal Is Said to Stir Voices of Racial Discord; The Simpson Aftermath, BOSTON GLOBE, Oct. 5, 1995, at A1.
144. Broder, supra note 72 (observing that "[b]lack jurors routinely do convict black defendants and send them off to prison"). What is insidious about statements suggesting that Blacks do not (or will not) convict Black defendants is that they assume bias among Black jurors but ignore bias among white jurors. Given a white defendant and a Black defendant charged with the same crime, a white jury is more likely to convict the Black defendant and to give him a harsher sentence. See, e.g., Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another Racial Prosecution and Wrongful Conviction in Maycomb, 45 ALA. L. REV. 403 (1994); Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611 (1985). For many white Americans, Black people signify criminality: a Black person stands before the criminal justice system guilty until proven innocent. See Sheri Lynn Johnson, Racial Imagery in Criminal Cases, 67 TUL. L. REV. 1739, 1751 (1993). The focus on Black juries is troubling for another reason. It obscures the fact that the history of the Black jury is a very short one due to the prosecutorial practice of routinely striking all African Americans from jury panels; this was pervasive until the Supreme Court declared it unconstitutional in 1986. Batson v. Kentucky, 476 U.S. 79 (1986).
145. Broder, supra note 72 (observing that "[b]lack jurors routinely do convict black defendants and send them off to prison"). What is insidious about statements suggesting that Blacks do not (or will not) convict Black defendants is that they assume bias among Black jurors but ignore bias among white jurors. Given a white defendant and a Black defendant charged with the same crime, a white jury is more likely to convict the Black defendant and to give him a harsher sentence. See, e.g., Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another Racial Prosecution and Wrongful Conviction in Maycomb, 45 ALA. L. REV. 403 (1994); Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611 (1985). For many white Americans, Black people signify criminality: a Black person stands before the criminal justice system guilty until proven innocent. See Sheri Lynn Johnson, Racial Imagery in Criminal Cases, 67 TUL. L. REV. 1739, 1751 (1993). The focus on Black juries is troubling for another reason. It obscures the fact that the history of the Black jury is a very short one due to the prosecutorial practice of routinely striking all African Americans from jury panels; this was pervasive until the Supreme Court declared it unconstitutional in 1986. Batson v. Kentucky, 476 U.S. 79 (1986).
146. Broder, supra note 72 (observing that "[b]lack jurors routinely do convict black defendants and send them off to prison"). What is insidious about statements suggesting that Blacks do not (or will not) convict Black defendants is that they assume bias among Black jurors but ignore bias among white jurors. Given a white defendant and a Black defendant charged with the same crime, a white jury is more likely to convict the Black defendant and to give him a harsher sentence. See, e.g., Bryan K. Fair, Using Parrots to Kill Mockingbirds: Yet Another Racial Prosecution and Wrongful Conviction in Maycomb, 45 ALA. L. REV. 403 (1994); Sheri Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611 (1985). For many white Americans, Black people signify criminality: a Black person stands before the criminal justice system guilty until proven innocent. See Sheri Lynn Johnson, Racial Imagery in Criminal Cases, 67 TUL. L. REV. 1739, 1751 (1993). The focus on Black juries is troubling for another reason. It obscures the fact that the history of the Black jury is a very short one due to the prosecutorial practice of routinely striking all African Americans from jury panels; this was pervasive until the Supreme Court declared it unconstitutional in 1986. Batson v. Kentucky, 476 U.S. 79 (1986).
147. O.J. Simpson's case is, in a significant sense, a mirror image of the Rodney King case. Evidence not heard by the jury but spread through the media in Simpson's case caused criticism of the jury for failing to engage in critical thinking; in King's case, the jury was criticized for ignoring evidence that the general public thought clearly convicted the police, despite the fact that the jury saw more evidence than did the general public. See Harvey Levin, Trial By Fire, 66 S. CAL. L. REV. 1619, 1621 (1993) (arguing that the media only showed the most inflammatory portions of the videotape used by the prosecution in the King case).
148. See Pete Dexter, When It's Your Garbage, Will You Be Celebrating?, SACRAMENTO BEE, Oct. 9, 1995, at A2 (observing that the "clenched fist" of one of the jurors "explained how the jury had discussed the blood evidence" in the case).
149. See Media Made Race an Issue, Panel Says; Biased Press Was Out to Convict O.J., Advisers Contend, S.F. CHRON. Oct. 7, 1995, at A6 (noting comment of a Black interviewee that it was problematic for Tom Brokaw to describe the gesture of a Simpson juror as a "black power salute" when it was only a raised fist).
150. See LyNell Hancock, Why Batterers So Often Go Free, NEWSWEEK, Oct. 16, 1995, at 61 ("O.J.'s acquittal resonated loudly among those blacks who have experienced decades of injustice in the criminal justice system. Yet women and victim advocates say the quieter message is equally dire: men can beat their wives, perhaps even kill them, and go unpunished.").
151. See Duggan, supra note 49 ("This [verdict] helps send the message to the system that black men deserve fairness, too."); Virtue & Conner, supra note 75, at A11 ("If he had been found guilty, any hope I had that racism could be beaten would have disapneared.") (quoting a Black woman); Stephen Labaton, supra note 70 ("You can't have cops act in irresponsible ways and not have that haunt you. As a society we will continue to pay a horrible price for a law enforcement community that is infected by racism.").
152. See Melton, supra note 77.
153. See Sheryl Stolberg, supra note 69 (quoting sociologist Joe Feagin who suggests that "[m]ost African Americans look at the O.J. Simpson case through totally different glasses for a very simple reason, and that is that black people generally don't get justice in the American criminal justice system").
154. See Peter S. Canellos, supra note 99 (quoting Gareth Saunders, a city councilor in Roxbury, Massachusetts, who asserted that "[t]o the black community, this verdict shows them that there's still some hope that the criminal justice system isn't so completely biased against the black community."); Gottlieb, supra note 75 (quoting Bonnie Beasley, who lives near Simpson's mother, as saying, "[T]his verdict shows that the black race has hope.").
155. See Judith Michaelson, The Simpson Verdict; Callers to Talk Radio Span The Dial With Debate; Reaction: About the Only Person to Claim No Opinion Is Kato Kaelin, Even Though His Station Billed His Afternoon Show as a 'Worldwide Exclusive," L.A. TIMES, Oct. 4, 1995, at A9 (quoting a white caller to KACE-FM radio station who stated "I wish we could all get along.").
156. See The Politics of O.J.: Will the Backlash Swallow Powell?, HOTLINE, Oct. 5, 1995, at White House '96 (quoting Colin Powell's opinion of the Simpson trial that "[i]t should be troubling not to me but to all Americans that there is still [racial] polarization.").
157. See Leonard Greene, African-American '96 Resolution: Awareness, BOSTON HERALD, Jan. 1, 1996, News 6 (commenting that not enough attention was paid to "the racial divide the Simpson case exposed"): G.K. Diamond, Race Contaminated All Our Judgments, ST. LOUIS POST-DISPATCH, Oct. 4, 1995, at 7B (observing that polls showed the existence of racial divisions).
158. See Leonard Greene, African-American '96 Resolution: Awareness, BOSTON HERALD, Jan. 1, 1996, News 6 (commenting that not enough attention was paid to "the racial divide the Simpson case exposed"): G.K. Diamond, Race Contaminated All Our Judgments, ST. LOUIS POST-DISPATCH, Oct. 4, 1995, at 7B (observing that polls showed the existence of racial divisions).
159. See Rhonda Chriss Lokeman, Bigger Than O.J.: Different Perceptions of Race Have Divided Americans for Years, KANSAS CITY STAR, Oct. 15, 1995, at J1 ("To witness the fallout across America since the Simpson 'not guilty' verdict was read in Los Angeles County Court, one would think that the American people until that moment were linked arm-in-arm singing the old jingle, 'I'd like to teach the world to sing in perfect harmony . . . .'").
160. Henry Louis Gates, Jr., Annals of Race: Thirteen Ways of Looking At a Black Man: A Different Kind of Jury - One Made Up of Black Cultural Leaders - Weighs In on the Simpson Verdict and the Million Man March, NEW YORKER, Oct. 23, 1995, at 57 (quoting Cornel West). See also Andrew Hacker, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992).
161. Henry Louis Gates, Jr., Annals of Race: Thirteen Ways of Looking At a Black Man: A Different Kind of Jury - One Made Up of Black Cultural Leaders - Weighs In on the Simpson Verdict and the Million Man March, NEW YORKER, Oct. 23, 1995, at 57 (quoting Cornel West). See also Andrew Hacker, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992).
162. Jill Smolowe, Race and the O.J. Case, TIME, Aug. 1, 1994, at 24-25.
163. William Safire, O.J. Simpson Is Guilty - Of Exploiting His Own Race, CINCINNATI ENQUIRER, Oct. 15, 1995, at F4.
164. See Ronald Smothers, Not Guilty: Around the Nation - Atlanta; Roars of Delight, N.Y. TIMES, Oct. 4, 1995, at A13 ("Simpson had become a metaphor for the peril that . . . confronted all black people in the United States . . . ."); Duggan, supra note 49 (quoting interviewee who said, "As far as I'm concerned, Black America was on trial.").
165. See E.R. Shipp, O.J. and the Black Media: Neither a Typical Hero nor a Typical Victim, He Challenges Typical Coverage, COLUM. JOURNALISM REV. 39, 41 (Nov./Dec. 1994) ("Mark Riley, a programming director at WLIB radio in New York City, likens the affinity for O.J. to the impulse that made blacks crowd around radios to follow every punch in a Joe Lewis boxing match . . . . "'People react based on that gut-level feeling that in some way shape, or form they represent us.'"). However, after surveying the reaction to the Simpson trial in the Black media, Shipp notes that perceptions of Simpson vary along a spectrum, ranging from an icon of Black culture to a "'high class Uncle Tom.'" Id. at 40.
166. See Charles Trueheart, Many Abroad Saw America in the Dock, WASH. POST, Oct. 4, 1995, at A33 (observing that prior to last year, most Black South Africans had not heard of Simpson; but as the trial progressed, he came to symbolize racial victimization).
167. See Shipp, supra note 117, at 39 (quoting Barnett Wright, managing editor of The Philadelphia Tribune, as stating, "This was more than the coverage of a breaking story This was the breaking of another black man."). See also Jeffrey Toobin, Putting it in Black and White, NEW YORKER, July 17, 1995, at 31, 32. After surveying the same media sources as did Shipp, Toobin concludes that the Black press perceives that "the case is a metaphor for the plight of blacks caught in the criminal-justice system." Id. at 32.
168. See Pasternak & Seymour, supra note 60, at 26 (quoting Ofari Hutchinson, a Black sociologist, as suggesting that child abuse became a national issue only when charges were leveled at Michael Jackson, and that date rape became a national issue because of Mike Tyson).
169. See Shipp, supra note 117, at 41 (commenting that many Blacks were convinced the police and the media were "working in tandem").
170. See Smolowe, supra note 114, at 24. Other successful Black men have made claims of racial targeting which demonstrate the popular perception that the criminal justice system is used to defeat otherwise successful Black men. See Sam Taylor, Demonic Icon On a Murder Rap, OBSERVER, Jan. 8, 1995, at 5 (quoting rapper Snoop Doggy Dogg's claim that like O.J. Simpson, Michael Jackson, and Mike Tyson, he is "guilty only of being too black and too successful"). But see Crystal H. Weston, Orenthal James Simpson and Gender, Class and Race: In that Order, 6 HASTINGS WOMEN'S L.J., 223, 228 (1995) ("I've orown weary of hearing the charges that O.J. Simpson is being targeted because he's Black, and that his alleged persecution is yet another in line of recent attacks on famous Black males, such as Mike Tyson, Michael Jackson, Clarence Thomas, and Ben Chavis.").
171. See Smolowe, supra note 114, at 24. Other successful Black men have made claims of racial targeting which demonstrate the popular perception that the criminal justice system is used to defeat otherwise successful Black men. See Sam Taylor, Demonic Icon On a Murder Rap, OBSERVER, Jan. 8, 1995, at 5 (quoting rapper Snoop Doggy Dogg's claim that like O.J. Simpson, Michael Jackson, and Mike Tyson, he is "guilty only of being too black and too successful"). But see Crystal H. Weston, Orenthal James Simpson and Gender, Class and Race: In that Order, 6 HASTINGS WOMEN'S L.J., 223, 228 (1995) ("I've orown weary of hearing the charges that O.J. Simpson is being targeted because he's Black, and that his alleged persecution is yet another in line of recent attacks on famous Black males, such as Mike Tyson, Michael Jackson, Clarence Thomas, and Ben Chavis.").
172. Susan Sward The Color of Justice, S.F. CHRON., Apr. 30, 1995, at 3, Z7 (emphasis added). See also EARL OFARI HUTCHINSON, THE ASSASINATION OF THE BLACK MALE IMAGE 24 (1994) (quoting Mike Tyson as saying "Michael Jackson and Michael Jordan-like myself and many other black entertainers and celebrities with high profiles - are under attack and every black in the world should offer support. White society hates us just as much as they hate ordinary blacks.").
173. Susan Sward The Color of Justice, S.F. CHRON., Apr. 30, 1995, at 3, Z7 (emphasis added). See also EARL OFARI HUTCHINSON, THE ASSASINATION OF THE BLACK MALE IMAGE 24 (1994) (quoting Mike Tyson as saying "Michael Jackson and Michael Jordan-like myself and many other black entertainers and celebrities with high profiles - are under attack and every black in the world should offer support. White society hates us just as much as they hate ordinary blacks.").
174. Shipp, supra note 117, at 40.
175. There is the question of whether Hill, given her conservative politics, was an appropriate figure to represent Blackness, and more specifically, the subordination of Black women. Joy James raises a similar question - namely, whether it was appropriate for the feminist community to "recreate" Anita Hill as "feminist icon." Joy James, Anita Hill: Martyr Heroism and Gender Abstractions, in COURT OF APPEAL, supra note 23, at 110. Given Clarence Thomas's political conservatism, this question is not terribly interesting in the specific context of the controversy surrounding his confirmation. Both Hill's and Thomas's political ideology was at odds with that of Black establishment civil rights organizations such as the NAACP and the Urban League. Based on their political ideology, neither had a greater claim to the Black community's support. The question, then, is why Thomas, and not Hill, got the bulk of the Black community's support? I believe Thomas received the majority of the Black community's support because gender is negotiated in Black liberation struggles so that racial subordination is understood mostly in male terms.
176. See Ronald W. Walters, Clarence Thomas and the Meaning of Blackness, in COURT OF APPEAL, supra note 23, at 215, 223 ("Anita Hill became another character of the Southern past . . . the Black woman as castrating bitch, as available sex object for any male, especially White males.").
177. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
178. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
179. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the
180. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
181. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
182. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
183. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
184. Slavery institutionalized sexual aggression against Black women. See Kimberlé Crenshaw, Whose Story is it, Anyway? Feminist and Antiracist Appropriations of Anita Hill, in RACE-ING JUSTICE, supra note 10, at 402, 418 ("To the limited extent that sexual victimization of Black women is symbolically represented within our collective memory, it is as tragic characters whose vulnerability illustrates the racist emasculation of Black men."). See also ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 175, 176 (1983) ("One of racism's salient historical features has always been the assumption that white men - especially those who wield economic power - possess an incontestable right of access to Black women's bodies."). Rape was used to torture Black women and was a constant reminder of their lack of sexual autonomy. See BELL HOOKS, AIN'T I A WOMAN: BLACK WOMEN AND FEMINISM 18, 24 (1981); DRUCILLA CORNELL, What Takes Place in the Dark, in TRANSFORMATIONS: RECOLLECTIVE IMAGINATION AND SEXUAL DIFFERENCE, at 170, 190-91 (1993). Black women were sexually vulnerable not only to white men but to Black men as well. See Jennifer Wriggins, Rape, Racism, and the Law, 6 HARV. WOMEN'S L.J. 103, 118 (1983); see also A. Leon Higginbotham, The Anita Hill Hearing - What Took Place and What Happened: White Male Domination, Black Male Domination, and the Denigration of Black Women, in RACE GENDER AND POWER IN AMERICA 26, 31-32 (Anita Faye Hill & Emma Coleman Jordan eds., 1995). Higginbotham cites an 1859 Mississippi Court of Appeals case, George (a slave) v. The State, 37 Miss. 306 (1859), as one example of Black women's sexual vulnerability. George, a Black slave, was convicted of raping a nine-year-old Black girl. Persuaded by the following arguments made by George's counsel, the Court of Appeals reversed the conviction: The crime of rape does not exist in this State between African Slaves. Our laws recognize no marital status as between slaves; their sexual intercourse is left to be regulated by their owners. 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. Higginbotham, supra, at 31 (citation omitted). For a discussion of the strategies Black women employed to fight against sexual exploitation, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 46 (1984); HARRIET A. JACOBS, INCIDENTS IN THE LIFE OF A SLAVE GIRL, BY LINDA BRENT 26-29 97-107 (L. Maria Child ed., Harcourt Brace Jovanovich 1973) (1861).
185. See Lubiano, supra note 10, at 348 ("[W]hen the chips were down, and blackness from this common-sense perspective equals only black manhood, Hill's race became both hypervisible and invisible at the same time.").
186. CORNEL WEST, RACE MATTERS 37 (1993).
187. See id.
188. See id. at 37-42. Some scholars have suggested that, as a factual matter, Hill was treated much more poorly by the Senate Judiciary Committee than Thomas was, and that to the extent the investigation constituted "high tech lynching." it was Hill and not Thomas who was the victim. See, e.g., Adrienne D. Davis & Stephanie Wildman, Gender, Race, and The Politics of Supreme Court Appointments: The Import of the Anita Hill/Clarence Thomas Hearings: The Legacy of Doubt: Treatment of Sex and Race in the Hill-Thomas Hearings, 65 S. CAL. L. REV. 1367, 1391 (1992) ("Justice Thomas certainly did not emerge from this process 'hanging from a tree.'") (citation omitted); G.M. Bush. Law Professor Speaks on the Hill Hearings, S.F. DAILY J., Nov. 19, 1991, at 3 (quoting Professor Kimberlé Crenshaw: "The Democrats' neutral fact-finding position left Anita Hill swinging in the wind."). See also Calvin Hernton. Breaking Silences, in COURT OF APPEAL, supra note 23, at 86, 87 (referring to the Clarence Thomas confirmation hearing as the "televised gang rape of Anita Hill"). 132 His approval rating among Blacks increased from 57% to the mid 1970s. Walters, supra note 23, at 215.
189. See id. at 37-42. Some scholars have suggested that, as a factual matter, Hill was treated much more poorly by the Senate Judiciary Committee than Thomas was, and that to the extent the investigation constituted "high tech lynching." it was Hill and not Thomas who was the victim. See, e.g., Adrienne D. Davis & Stephanie Wildman, Gender, Race, and The Politics of Supreme Court Appointments: The Import of the Anita Hill/Clarence Thomas Hearings: The Legacy of Doubt: Treatment of Sex and Race in the Hill-Thomas Hearings, 65 S. CAL. L. REV. 1367, 1391 (1992) ("Justice Thomas certainly did not emerge from this process 'hanging from a tree.'") (citation omitted); G.M. Bush. Law Professor Speaks on the Hill Hearings, S.F. DAILY J., Nov. 19, 1991, at 3 (quoting Professor Kimberlé Crenshaw: "The Democrats' neutral fact-finding position left Anita Hill swinging in the wind."). See also Calvin Hernton. Breaking Silences, in COURT OF APPEAL, supra note 23, at 86, 87 (referring to the Clarence Thomas confirmation hearing as the "televised gang rape of Anita Hill"). 132 His approval rating among Blacks increased from 57% to the mid 1970s. Walters, supra note 23, at 215.
190. Id.
191. See Crenshaw, supra note 127, at 438 n.7.
192. Hernton, supra note 131, at 90-91 (arguing that the negative treatment of Hill by some members of the Black community reflects a "race first sex second ideology." which "has always rendered black women on the bottom of the power structure in America"); Trellie L. Jeffers, We Have Seen: We Have Heard: Do We Believe? The Clarence Thomas-Anita Hill Hearing, in COURT OF APPEAL, supra note 23, at 116, 117 (arguing that "[Hill] could not possibly have expected to enjoy the success that Thomas enjoyed because she suffered a double jeopardy: she was black and female"); Susan Howard, Beware of Backlash, NEWSDAY, Feb. 12, 1992, at 48 (suggesting that the lack of support for Anita Hill in the Black community is another example of racism trumping sexism in Black political agendas).
193. Hernton, supra note 131, at 90-91 (arguing that the negative treatment of Hill by some members of the Black community reflects a "race first sex second ideology." which "has always rendered black women on the bottom of the power structure in America"); Trellie L. Jeffers, We Have Seen: We Have Heard: Do We Believe? The Clarence Thomas-Anita Hill Hearing, in COURT OF APPEAL, supra note 23, at 116, 117 (arguing that "[Hill] could not possibly have expected to enjoy the success that Thomas enjoyed because she suffered a double jeopardy: she was black and female"); Susan Howard, Beware of Backlash, NEWSDAY, Feb. 12, 1992, at 48 (suggesting that the lack of support for Anita Hill in the Black community is another example of racism trumping sexism in Black political agendas).
194. Crenshaw, supra note 127, at 438 n.7. See also Anna Quindlen, Attack on Hill Has Familiar Ring to Successful Women, ST. PETERSBURG TIMES, Oct. 17, 1991, at 18A (describing the confirmation battle as "[t]he race card vs. the gender card," and arguing that Thomas manipulated "liberal guilt about racism that remains stronger than guilt about the routine mistreatment of women," distracting attention from his harassment of Professor Hill).
195. Shipp, supra note 117, at 39 (commenting that many Blacks "blamed Nicole Brown Simpson for O.J.'s downfall").
196. See, e.g., Arthur Burnett, Permeation of Race, National Origin, and bender Issues From Initial Law Enforcement Contact Through Sentencing: The Need for Sensitivity Egalitarianism, and Vigilance in the Criminal Justice System, 31 AM. CRIM. L. REV. 1153 (1994); Kathleen Daly, Criminal Law and Justice System As Racist, White, and Racialized, 51 WASH. & LEE L. REV. 431 (1994); Tracey L. McCain, Note, The Interplay of Editorial and Prosecutorial Discretion in the Perpetuation of Racism in the Criminal Justice System, 25 COLUM. J. L. & Soc. PROBS. 601 (1992).
197. See, e.g., Arthur Burnett, Permeation of Race, National Origin, and bender Issues From Initial Law Enforcement Contact Through Sentencing: The Need for Sensitivity Egalitarianism, and Vigilance in the Criminal Justice System, 31 AM. CRIM. L. REV. 1153 (1994); Kathleen Daly, Criminal Law and Justice System As Racist, White, and Racialized, 51 WASH. & LEE L. REV. 431 (1994); Tracey L. McCain, Note, The Interplay of Editorial and Prosecutorial Discretion in the Perpetuation of Racism in the Criminal Justice System, 25 COLUM. J. L. & Soc. PROBS. 601 (1992).
198. See, e.g., Arthur Burnett, Permeation of Race, National Origin, and bender Issues From Initial Law Enforcement Contact Through Sentencing: The Need for Sensitivity Egalitarianism, and Vigilance in the Criminal Justice System, 31 AM. CRIM. L. REV. 1153 (1994); Kathleen Daly, Criminal Law and Justice System As Racist, White, and Racialized, 51 WASH. & LEE L. REV. 431 (1994); Tracey L. McCain, Note, The Interplay of Editorial and Prosecutorial Discretion in the Perpetuation of Racism in the Criminal Justice System, 25 COLUM. J. L. & Soc. PROBS. 601 (1992).
199. See, e.g., VIOLENCE IN THE BLACK FAMILY: CORRELATES AND CONSEQUENCES (Robert L. Hampton ed., 1987); BLACK FAMILY, VIOLENCE: CURRENT RESEARCH AND THEORY (Robert L. Hampton ed., 1991); see Sharon L. Washington, Letter to the Editor, WASH POST, Feb. 22, 1992, at A18 ("[L]et us [Black people] stop crying racism, blaming the victim; and let us start demanding that Mike Tyson and others like him take responsibility for their actions.").
200. See, e.g., VIOLENCE IN THE BLACK FAMILY: CORRELATES AND CONSEQUENCES (Robert L. Hampton ed., 1987); BLACK FAMILY, VIOLENCE: CURRENT RESEARCH AND THEORY (Robert L. Hampton ed., 1991); see Sharon L. Washington, Letter to the Editor, WASH POST, Feb. 22, 1992, at A18 ("[L]et us [Black people] stop crying racism, blaming the victim; and let us start demanding that Mike Tyson and others like him take responsibility for their actions.").
201. See, e.g., VIOLENCE IN THE BLACK FAMILY: CORRELATES AND CONSEQUENCES (Robert L. Hampton ed., 1987); BLACK FAMILY, VIOLENCE: CURRENT RESEARCH AND THEORY (Robert L. Hampton ed., 1991); see Sharon L. Washington, Letter to the Editor, WASH POST, Feb. 22, 1992, at A18 ("[L]et us [Black people] stop crying racism, blaming the victim; and let us start demanding that Mike Tyson and others like him take responsibility for their actions.").
202. DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 46-47 (1987).
203. See id. at 47.
204. Id. at 210-11.
205. GIRARDEAU A. SPANN, RACE AGAINST THE COURT: THE SUPREME COURT AND MINORITIES IN CONTEMPORARY AMERICA (1993).
206. See id.
207. W. at 121.
208. Id.
209. "Thirty-one percent of Black families live below the poverty level" in comparison with 11% of white families, and "44 percent of black children live in conditions of poverty while only 16 percent of white children live in poverty conditions." Id.
210. The Mike Tyson rape trial illustrates this proposition. As Professor Brown points out, [R]acial subordination generally will trump the fight against the sexual subordination of African-American women in the Black community. Although it is true that a Sister had been raped by a Brother, Tyson was now a victim of racism in the criminal justice system. Despite the fact that Brothers certainly want to support Sisters, concerns about the Sisters must wait until after we have dealt with the Man (resolved the racial issue). Let us not forget, we have been trying to resolve the racial issue for over 370 years. Brown, supra note 53, at 1002. See also Fletcher, supra note 42 ("In rallying around Mr. Tyson to the exclusion of Desirée Washington, the 18-year-old woman whom he was convicted of raping, the National Baptist Church sent a signal that the charge of injustice by one-half of the black community does not count."); Allan Johnson, Tyson Rape Case Strikes a Nerve Among Blacks, CHI. TRIB., Mar. 29, 1992, at A1 (identifying sexism in the Black community as a reason the Black community supported Mike Tyson).
211. See Kenneth L. Karst, The Pursuit of Manhood and the Desegregation of the Artned Forces, 38 UCLA L. REV. 499, 505 (1991) (describing the ideology of masculinity, and how it requires the "ability to dominate and to avoid being dominated").
212. See Diane K. Lewis, A Response to Inequality: Black Women, Racism, and Sexism, in BLACK WOMEN IN AMERICA: SOCIAL SCIENCE PERSPECTIVES 43 (Micheline R. Malson et al. eds., 1990). See also Clyde W. Franklin II, Men's Studies, the Men's Movement, and the Study of Black Masculinities: Further Demystification of Masculinities in America, in THE AMERICAN BLACK MALE: HIS PRESENT STATUS AND HIS FUTURE, at 3, 5 (Richard G. Majors & Jacob U. Gordon eds., 1994) ("the concubinage of Black women . . . undermined the Black male efforts to become a 'man.'") (emphasis in the original).
213. See Diane K. Lewis, A Response to Inequality: Black Women, Racism, and Sexism, in BLACK WOMEN IN AMERICA: SOCIAL SCIENCE PERSPECTIVES 43 (Micheline R. Malson et al. eds., 1990). See also Clyde W. Franklin II, Men's Studies, the Men's Movement, and the Study of Black Masculinities: Further Demystification of Masculinities in America, in THE AMERICAN BLACK MALE: HIS PRESENT STATUS AND HIS FUTURE, at 3, 5 (Richard G. Majors & Jacob U. Gordon eds., 1994) ("the concubinage of Black women . . . undermined the Black male efforts to become a 'man.'") (emphasis in the original).
214. See Franklin, supra note 143, at 5.
215. I place "emasculation" in quotes here not to deny or minimize the impact that white supremacy in its many forms - slavery, Jim Crow, segregation and institutional racism - has had on Black men, but to question the idea of emasculation itself to the extent that it is premised on the inability of Black men to control Black female sexuality. See Crenshaw, supra note 54, at 1273 ("To the extent rape of Black women is thought to dramatize racism, it is usually cast as an assault on Black manhood, demonstrating his inability to protect Black women. The direct assault on Black womanhood is less frequently seen as an assault on the Black community."). See also HOOKS, supra note 6, at 76 ("When words like castration, emasculation and impotency are the commonly used terms to describe the nature of Black male suffering, a discursive practice is established that links Black male liberation with gaining the right to participate fully within patriarchy."). This questioning of "emasculation" leads us to consider a construction of Black male identity that is not based on controlling Black women's sexuality.
216. Briggs & Davis, supra note 38, at 54 (quoting Kimberlé Crenshaw). See also Bell, supra note 28, at 146 ("While slavery is over, a racist society continues to exert dominion over black men and their maleness in ways more subtle but hardly less castrating than during slavery.").
217. REED, supra note 44.
218. ROBERT STAPLES, Black Masculinity, Hypersexuality and Sexual Aggression, in THE BLACK FAMILY: ESSAYS & STUDIES 58 (1994).
219. Shipp, supra note 117, at 41. 157 HOOKS, supra note 127, at 113.
220. See Ronald Smothers, Cacophony of Reaction: From One Woman's Cries to a College's Shouts of Joy, N.Y. TIMES, Oct. 4, 1995, at A13 ("Because he was a black man in the limelight and married to a white woman, the police had him in their sights. But they messed up."); From a Texas Jail to New York City, Plenty of Room for Views, WASH. POST, Oct. 4, 1995, at A32 ("They set the brother up . . . . He's a black man and she's a white woman."). For a discussion of how racial imagery permeates the criminal justice system, see Johnson, supra note 100; Daniel J. Abbott & James M. Calonico, Black Man, White Woman - The Maintenance of a Myth: Rape and the Press in New Orleans, in CRIME & DELINQUENCY: DIMENSIONS OF DEVIANCE 141, 147-149 (Marc Riedel & Terence P. Thornberry eds., 1974) (discussing the role of the press in legitimizing the mythology of the Black male rapist and innocent white woman).
221. See Ronald Smothers, Cacophony of Reaction: From One Woman's Cries to a College's Shouts of Joy, N.Y. TIMES, Oct. 4, 1995, at A13 ("Because he was a black man in the limelight and married to a white woman, the police had him in their sights. But they messed up."); From a Texas Jail to New York City, Plenty of Room for Views, WASH. POST, Oct. 4, 1995, at A32 ("They set the brother up . . . . He's a black man and she's a white woman."). For a discussion of how racial imagery permeates the criminal justice system, see Johnson, supra note 100; Daniel J. Abbott & James M. Calonico, Black Man, White Woman - The Maintenance of a Myth: Rape and the Press in New Orleans, in CRIME & DELINQUENCY: DIMENSIONS OF DEVIANCE 141, 147-149 (Marc Riedel & Terence P. Thornberry eds., 1974) (discussing the role of the press in legitimizing the mythology of the Black male rapist and innocent white woman).
222. See Ronald Smothers, Cacophony of Reaction: From One Woman's Cries to a College's Shouts of Joy, N.Y. TIMES, Oct. 4, 1995, at A13 ("Because he was a black man in the limelight and married to a white woman, the police had him in their sights. But they messed up."); From a Texas Jail to New York City, Plenty of Room for Views, WASH. POST, Oct. 4, 1995, at A32 ("They set the brother up . . . . He's a black man and she's a white woman."). For a discussion of how racial imagery permeates the criminal justice system, see Johnson, supra note 100; Daniel J. Abbott & James M. Calonico, Black Man, White Woman - The Maintenance of a Myth: Rape and the Press in New Orleans, in CRIME & DELINQUENCY: DIMENSIONS OF DEVIANCE 141, 147-149 (Marc Riedel & Terence P. Thornberry eds., 1974) (discussing the role of the press in legitimizing the mythology of the Black male rapist and innocent white woman).
223. See, e.g., Charles M. Madigan, Racial Stereotyping: An Old, Virulent Virus, CHI. TRIB., May 13, 1992, at A1 (discussing how the media focus on Black male crime perpetuates racial stereotyping).
224. See Joel Achenbach, Unanimous Decision Leaves Nation Divided: Verdicts Come Quickly - Court of Public Opinion May Be in Session Forever. WASH. POST, Oct. 4, 1995, at A27 ("[O.J. became] the ultimate crossover hit, an all-purpose celebrity, working as a broadcaster and actor and pitchman for Hertz.").
225. Harris, supra note 9, at 236.
226. Terry McMillan, An Icon, But Not a Hero, N.Y. TIMES, June 25, 1995, at A23 (observing that O.J. "epitomized [white America's] ideal of the All-American Black Male").
227. Id. ("Plenty of folks, white and black, are secretly enjoying the spectacle of a successful black man's fall.").
228. See Harris, supra note 9, at 240 (observing that after his arrest, Simpson "moved from an icon of racial exceptionalism to emblematic savage").
229. Shipp, supra note 117, at 140.
230. For example, Ishmael Reed, a prominent African American essayist, reminds us, "Nicole, you know, also dated Maria hit men." Gates, supra note 101, at 57. Similarly, Cornel West, commenting on O.J.'s culpability, stated: "I think he's innocent. I really do . . . I do think it was linked to some drug subculture of violence. It looks as if both O.J. and Nicole had some connection to drug activity." Id.
231. Brown's image is markedly different from that of Patricia Bowman, the woman who accused William Kennedy Smith of raping her. Bowman was constructed as a woman "who wanted it." Unlike Brown, she was not perceived to be a victim of sexual or physical violence. See infra notes 207-214 and accompanying text.
232. Norma Meyer & Matt Krasnowski, Jurors Say Little but, "We Did the Right Thing," SAN DIEGO UNION-TRIE., Oct. 4, 1995, at A5.
233. Harris, supra note 9, at 242.
234. Id. at 243.
235. Id.
236. See, e.g., GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 60 (Pantheon Books 1975) (1942) (listing six items that constitute the "white man's rank order of discriminations," and arguing that prohibiting interracial relationships was of the first order); Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 GEO. L.J. 49 (1964) (observing that "during the nineteenth century, 38 states had miscegenation statutes at one time or another"); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209 (1995) (discussing the role of white women, as child bearers, in maintaining racial purity). See generally DERRICK BELL, RACE, RACISM AND AMERICAN LAW, 64-96 (1992).
237. See, e.g., GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 60 (Pantheon Books 1975) (1942) (listing six items that constitute the "white man's rank order of discriminations," and arguing that prohibiting interracial relationships was of the first order); Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 GEO. L.J. 49 (1964) (observing that "during the nineteenth century, 38 states had miscegenation statutes at one time or another"); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209 (1995) (discussing the role of white women, as child bearers, in maintaining racial purity). See generally DERRICK BELL, RACE, RACISM AND AMERICAN LAW, 64-96 (1992).
238. See, e.g., GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 60 (Pantheon Books 1975) (1942) (listing six items that constitute the "white man's rank order of discriminations," and arguing that prohibiting interracial relationships was of the first order); Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 GEO. L.J. 49 (1964) (observing that "during the nineteenth century, 38 states had miscegenation statutes at one time or another"); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209 (1995) (discussing the role of white women, as child bearers, in maintaining racial purity). See generally DERRICK BELL, RACE, RACISM AND AMERICAN LAW, 64-96 (1992).
239. See, e.g., GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 60 (Pantheon Books 1975) (1942) (listing six items that constitute the "white man's rank order of discriminations," and arguing that prohibiting interracial relationships was of the first order); Harvey M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, 53 GEO. L.J. 49 (1964) (observing that "during the nineteenth century, 38 states had miscegenation statutes at one time or another"); Dorothy E. Roberts, The Genetic Tie, 62 U. CHI. L. REV. 209 (1995) (discussing the role of white women, as child bearers, in maintaining racial purity). See generally DERRICK BELL, RACE, RACISM AND AMERICAN LAW, 64-96 (1992).
240. See Kendall Thomas, Strange Fruit, in RACE-ING JUSTICE, supra note 10, at 364, 367 ("Most of us [African Americans] can recall being told stories about the horrors of lynching. I will never forget the sad and angry voice of my grandfather as he told me of [the lynching of Emmett Till]."). Till was also "bludgeoned and shot in the head." His accused murderers were acquitted by an all-white jury. Id. For a general discussion of the Till case, see STEPHEN J. WHITHELD, A DEATH IN THE DELTA: THE STORY OF EMMETT TILL (1988).
241. See Kendall Thomas, Strange Fruit, in RACE-ING JUSTICE, supra note 10, at 364, 367 ("Most of us [African Americans] can recall being told stories about the horrors of lynching. I will never forget the sad and angry voice of my grandfather as he told me of [the lynching of Emmett Till]."). Till was also "bludgeoned and shot in the head." His accused murderers were acquitted by an all-white jury. Id. For a general discussion of the Till case, see STEPHEN J. WHITHELD, A DEATH IN THE DELTA: THE STORY OF EMMETT TILL (1988).
242. For an excellent account of how the images of Black male and white female sexuality affected the civil rights of young Black men in a specific legal and historical context, see JAMES GOODMAN, STORIES OF SCOTTSBORO (Vintage Books 1995) (1994).
243. GARY D. LAFREE, RAPE AND CRIMINAL JUSTICE: THE SOCIAL CONSTRUCTION OF SEXUAL ASSAULT 48-49 (1989).
244. See Carl T. Rowan, They Had to Acquit, BALTIMORE SUN, Oct. 5, 1995, at 25A (reporting that Mr. Fuhrman openly deplored interracial marriages); see also California v. Simpson, No. BA-097211, 1995 WL 15924, at *6, *7 (Cal.Super.Trans.) (defense counsel arguing that evidence of Fuhrman's views on interracial relationships is admissible as relevant to the credibility of the witness).
245. See BELL, supra note 172, at 83-84.
246. Id. at 84 (observing that Black women "see the black man's choice of a white woman as a rejection of them"). 179 Id. at 78.
247. Id.
248. See McMillan, supra note 162.
249. BELL, supra note 172, at 78 (observing that Black male/white female liaisons provided the Black man with the opportunity to '"conquer[ ]' the white man through the white woman").
250. FRANTZ FANON, The Man of Color and the White Woman, in BLACK SKIN, WHITE MASKS 72, 72 (1967).
251. In 1931, nine Black teenage boys were accused of raping two young white women in Scottsboro, Alabama. They were convicted and sentenced to death. Eventually, their convictions were overturned on procedural grounds. For a complete account of the facts underlying this case, see GOODMAN, supra note 174.
252. While evidence suggests that Simpson abused Brown for a period of years and that the police were called eight times, only once out of these eight times was he arrested. See Jim Mulvaney, In Defense of '89 Ruling: Judge: Prosecutors Asked for No Jail for O.J., NEWSDAY, June 23, 1994, at A21. One reason Nicole Brown Simpson did not report her abuse more often may be because she came to the conclusion that the police would do nothing to help her. See Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 ALB. L. REV. 1119, 1137 (1995). See also Andrea Dworkin, Disorder in the Court: The Abuse - In Nicole Brown Simpson's Words, L.A. TIMES, Jan. 29, 1995, at M1 (discussing the accounts of abuse detailed in Nicole Brown Simpson's diary).
253. While evidence suggests that Simpson abused Brown for a period of years and that the police were called eight times, only once out of these eight times was he arrested. See Jim Mulvaney, In Defense of '89 Ruling: Judge: Prosecutors Asked for No Jail for O.J., NEWSDAY, June 23, 1994, at A21. One reason Nicole Brown Simpson did not report her abuse more often may be because she came to the conclusion that the police would do nothing to help her. See Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 ALB. L. REV. 1119, 1137 (1995). See also Andrea Dworkin, Disorder in the Court: The Abuse - In Nicole Brown Simpson's Words, L.A. TIMES, Jan. 29, 1995, at M1 (discussing the accounts of abuse detailed in Nicole Brown Simpson's diary).
254. While evidence suggests that Simpson abused Brown for a period of years and that the police were called eight times, only once out of these eight times was he arrested. See Jim Mulvaney, In Defense of '89 Ruling: Judge: Prosecutors Asked for No Jail for O.J., NEWSDAY, June 23, 1994, at A21. One reason Nicole Brown Simpson did not report her abuse more often may be because she came to the conclusion that the police would do nothing to help her. See Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 ALB. L. REV. 1119, 1137 (1995). See also Andrea Dworkin, Disorder in the Court: The Abuse - In Nicole Brown Simpson's Words, L.A. TIMES, Jan. 29, 1995, at M1 (discussing the accounts of abuse detailed in Nicole Brown Simpson's diary).
255. Zook, supra note 2, at F86.
256. Crenshaw, supra note 54, at 1258. 188 See supra note 48 (highlighting certain statistics of Black women in the areas of poverty, income and education that demonstrate their subordination).
257. In an earlier workshop, Professor Kimberlé Crenshaw had started her talk on sexism in the Black Community by discussing this very issue. In large part, her talk was intended to disabuse us of the idea that Black women and young girls were doing fine, and that we should focus our attention on Black men. She insisted that we must strive to ameliorate the social and economic conditions of Black women and men and Black boys and girls simultaneously.
258. DINESH D'SOUZA, THE END OF RACISM 286 (1995).
259. Charisse Jones, Nicole Simpson, in Death, Lifting Domestic Violence to the Forefront as National Issue, N.Y. TIMES, Oct. 13, 1995, at A28.
260. Lewis, supra note 150, at 41, 45 (observing that "[b]lack women, due to their membership in two subordinate groups . . . are in structural opposition with a dominant racial and a dominant sexual group").
261. Crenshaw, supra note 54, at 1258. 194 Id. at 1260 (quoting 137 CONG. REC. S 622 (daily ed. Jan. 14, 1991) (statement of Sen. Boren)) (emphasis added).
262. Id.
263. See id. at 1261. Professor Crenshaw observes that "[t]okenistic, objectifying, voyeuristic inclusion is at least as disempowering as complete exclusion." 197 One could certainly argue that the NOW representative was being a political realist in the tradition of Derrick Bell. See Derrick A. Bell, Jr., Brown v. Board of Education and she Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980) (arguing that Brown was the result of the interests of the majoritarian structure converging with the interests of minority groups). Recognizing the racism and sexism that pervade the legislative process, she was simply suggesting that the only way white male political figures will respond favorably to the fact of domestic abuse in the Black community and other communities of color, is if some white self-interest is being furthered. Therefore, Black women should modify their stories so that they comport with white women's stories. The problem with this argument is that it is based on a pragmatic but narrow view, that oppressed groups will only benefit from discourse that mollifies dominant groups. Oppressed groups gain both emotionally and tactically from coming together to identify and relate their stories, as they did in the Conference. In this way, they can identify the machinery of oppression in order to fight it, as well as rescue a sense of autonomy from it.
264. The effect of the O.J. Simpson trial on domestic violence awareness in the United States operates on several different levels. Most obviously, the case has heightened awareness of the problem of domestic violence. In 1991, 57% of Americans thought domestic abuse was a serious problem. In 1995, the number jumped to 96%. Alfred Lubrano, Nicole's Legacy: Shedding Light on Domestic Violence, NEWSDAY, June 12, 1995, at 16. Many commentators, though, doubt that the heightened awareness will survive after the trial dies. See, e.g., Sergio Bustos, Domestic Abuse Stays at Forefront: Simpson Case Brings Awareness, Action, FORT LAUDERDALE SUN-SENTINEL, July 5, 1995, at 1B. Bustos further argues that the legacy of the Simpson case is a new understanding that domestic violence is not simply a particular woman's problem, but that it affects entire communities as well. Id. But see William March, Cops, Courts Get Tough on Abuse: The Movement is Toward More Prosecution, More Counseling After Domestic Violence, TAMPA TRIB., Feb. 8, 1995, at 1 (arguing that domestic violence is still seen as an issue affecting only the couple involved).
265. The effect of the O.J. Simpson trial on domestic violence awareness in the United States operates on several different levels. Most obviously, the case has heightened awareness of the problem of domestic violence. In 1991, 57% of Americans thought domestic abuse was a serious problem. In 1995, the number jumped to 96%. Alfred Lubrano, Nicole's Legacy: Shedding Light on Domestic Violence, NEWSDAY, June 12, 1995, at 16. Many commentators, though, doubt that the heightened awareness will survive after the trial dies. See, e.g., Sergio Bustos, Domestic Abuse Stays at Forefront: Simpson Case Brings Awareness, Action, FORT LAUDERDALE SUN-SENTINEL, July 5, 1995, at 1B. Bustos further argues that the legacy of the Simpson case is a new understanding that domestic violence is not simply a particular woman's problem, but that it affects entire communities as well. Id. But see William March, Cops, Courts Get Tough on Abuse: The Movement is Toward More Prosecution, More Counseling After Domestic Violence, TAMPA TRIB., Feb. 8, 1995, at 1 (arguing that domestic violence is still seen as an issue affecting only the couple involved).
266. The effect of the O.J. Simpson trial on domestic violence awareness in the United States operates on several different levels. Most obviously, the case has heightened awareness of the problem of domestic violence. In 1991, 57% of Americans thought domestic abuse was a serious problem. In 1995, the number jumped to 96%. Alfred Lubrano, Nicole's Legacy: Shedding Light on Domestic Violence, NEWSDAY, June 12, 1995, at 16. Many commentators, though, doubt that the heightened awareness will survive after the trial dies. See, e.g., Sergio Bustos, Domestic Abuse Stays at Forefront: Simpson Case Brings Awareness, Action, FORT LAUDERDALE SUN-SENTINEL, July 5, 1995, at 1B. Bustos further argues that the legacy of the Simpson case is a new understanding that domestic violence is not simply a particular woman's problem, but that it affects entire communities as well. Id. But see William March, Cops, Courts Get Tough on Abuse: The Movement is Toward More Prosecution, More Counseling After Domestic Violence, TAMPA TRIB., Feb. 8, 1995, at 1 (arguing that domestic violence is still seen as an issue affecting only the couple involved).
267. According to Professor Christo Lassiter, the feminist anti-domestic abuse battle cry, at least in the press, was racialized: "The columnists who took up the domestic violence theme were White, almost exclusively women, and their central thesis was to complain about the hierarchy of victimhood, which placed Black victimization from police abuse above spouse-related abuse." Lassiter, supra note 73, at 87-88.
268. Jones, supra note 191, at A28.
269. Id.
270. Id.
271. Id. One indication of the nature of this "crisis" is that "[e]ven organizations that disagree with NOW's positions on other issues are donating money to the chapter's 'No O.J. Project,' .which plans to educate the public about domestic violence." Id.
272. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
273. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
274. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's
275. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
276. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
277. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
278. Linda Feldmann, Domestic Violence Cases Gain Prominence on Police Blotters, CHRISTIAN SCI. MONITOR, Oct. 10, 1995, at 3. The last two years have witnessed a growth in the commitment of law enforcement resources to combatting domestic violence, though some of the laws were passed before the Simpson case. David Lightman, Budget Deliberations Threaten Retrenchment on Domestic Violence, HARTFORD COURANT, June 28, 1995, at A3. At the state and local level, some jurisdictions are expanding the legal definition of domestic violence to facilitate more convictions. Bustos, supra note 198. At least three states have passed legislation to make it first degree murder to kill one's spouse after a pattern of domestic abuse; one of the states, Tennessee, had its law struck down. Donna Halvorsen, Domestic Homicide Law Faces Challenge: Attorney Says It's Unconstitutionally Vague, STAR TRIB., Feb. 8, 1995, at 1B. Senator Paul Wellstone (D-Minn.) has sponsored a bill that would protect victims of domestic violence against discrimination by insurance companies, though the bill has not yet emerged from the Senate Labor and Human Resources Committee. Victims of Abuse Access to Health Insurance Act, S. 524, 104th Cong. (1995). Finally, the newest trend in the enforcement of domestic violence laws is a move toward "zero-tolerance," which requires the district attorney to prosecute all domestic violence crimes regardless of whether the victim cooperates with law enforcement officials. March, supra note 198; but see David B. Mitchell, Contemporary Police Practices in Domestic Violence Cases: Arresting the Abuser: Is it Enough?, 83 J. CRIM. L. 241 (1992) (challenging the effectiveness of the "zero-tolerance" approach). The degree to which O.J. Simpson's case acted as a catalyst for these reforms is not clear. New York and California are two of the states that have adopted such provisions. New York adopted The Family Protection and Domestic Violence Intervention Act of 1994 (changing the procedures for issuing protective orders in domestic violence cases, providing for the immediate arrest of the abuser in certain circumstances, extending the duration of protective orders, requiring notice to be given to victims of domestic violence when the abuser is released from custody, requiring the abuser to participate in a batterer's education program in certain situations, ordering the development of extensive police training procedures for intervention in domestic violence cases, and adding new categories of crimes). 1994 N.Y. LAWS 222. California has passed a wide range of new legislation. It has appropriated $11.5 million for development of battered women's shelters and $3.5 million for the "Spousal Abuser Prosecution Program." Courts in the state are now prohibited from issuing a mutual protective order unless both parties appear in court, and the court finds that both parties were primary aggressors. Police are encouraged and in some circumstances required to make arrests of domestic violence offenders. Courts now can issue certain protective orders against stalking conduct. The statute of limitations in wrongful death actions arising out of domestic violence has been extended to three years from the date of the last act of violence. Insurers are prohibited from discriminating against domestic violence victims for coverage of their injuries. California prohibits pretrial diversion as an option for defendants in domestic violence cases, and has detailed requirements for attendance in a batterer's program as a condition of probation in domestic violence cases. It has coordinated state and local efforts to handle fatal domestic violence, and has mandated police trainine for police officers handling domestic violence cases. 1994 Cal. Adv. Legis. Serv. 140 (Deering); 1995 Cal. Adv. Legis. Serv. 246, 598, 602, 603, 641, 710, 905, 907, 965 (Deering). California also has enacted legislation that authorizes judges to disarm subjects of protective orders. Stop the Battering, ATLANTA J. & CONST., Oct. 11, 1995, at 12A. Recently, the state has repealed a law that formerly allowed "first-time wife beaters to escape criminal sanction by agreeing to counseling sessions. Bill Stall, Law Stiffened for First-Time Wife Beaters, L.A. TIMES, Oct. 6, 1995, at A3. Yet many maintain that the focus in the Simpson case on O.J. as a victim of a corrupt criminal justice system has obscured the domestic violence issue. Bustos, supra note 198; Lubrano, supra note 198. Some have argued that the "not guilty" verdict will lessen the incentive for victims to report domestic violence, it can only reinforce their feelings of powerlessness. See, e.g., Adam Pertman, Reverberations: A Year of Simpson. BOSTON GLOBE, June 11, 1995, at A1. Others point out that despite the supposed heightened awareness of domestic violence, the level of abuse in America has not decreased.
279. Id.
280. The construction of victims in the context of the politics of domestic abuse is not unlike the construction of victims in the context of the politics of AIDS. In both cases victimhood is normalized for some people (either because they are seen as having caused their own predicament or because the victimhood is believed to be fundamentally associated with such people in a biological or cultural sense) and exceptionalized for others. For an example of how victimhood is evaluated in the politics of AIDS, see Barry Came & Nancy Wood, Innocent Victims, MACLEAN'S, Aug. 2, 1993, at 18-19 (title signifying that some victims are innocent and others are not: presenting the outrage of a man who contracted AIDS from tainted blood products); David Dunlap, Different Faces of AIDS Are Conjured Up By Politicians, N.Y. TIMES, July 8, 1995, at A7 (comments of Senator Jesse Helms opposing funding of the Ryan White Comprehensive AIDS Resource Emergency Act of 1990 because it would benefit gay people who "deliberately engag[e] in unnatural acts" and thus have nothing but their own "disgusting, revolting conduct" to blame for the disease).
281. The construction of victims in the context of the politics of domestic abuse is not unlike the construction of victims in the context of the politics of AIDS. In both cases victimhood is normalized for some people (either because they are seen as having caused their own predicament or because the victimhood is believed to be fundamentally associated with such people in a biological or cultural sense) and exceptionalized for others. For an example of how victimhood is evaluated in the politics of AIDS, see Barry Came & Nancy Wood, Innocent Victims, MACLEAN'S, Aug. 2, 1993, at 18-19 (title signifying that some victims are innocent and others are not: presenting the outrage of a man who contracted AIDS from tainted blood products); David Dunlap, Different Faces of AIDS Are Conjured Up By Politicians, N.Y. TIMES, July 8, 1995, at A7 (comments of Senator Jesse Helms opposing funding of the Ryan White Comprehensive AIDS Resource Emergency Act of 1990 because it would benefit gay people who "deliberately engag[e] in unnatural acts" and thus have nothing but their own "disgusting, revolting conduct" to blame for the disease).
282. Patricia Williams, NEWSDAY, Mar. 16, 1995, at A32 (emphasis added).
283. See bell hooks, When Brothers are Batterers, ESSENCE, Sept. 1994, at 148 ("Every time I see the image of Nicole Brown Simpson, I stare past it, seeing the faces of Black women who have suffered her fate whose stories we never know . . . . These women are nameless. Mass media does not turn the spot light on their pain."). The Simpson case resulted in various interest groups, including NOW, invoking statistics concerning the pervasiveness of domestic abuse. One of the common statistics cited is that, "domestic violence is the leading cause of injury to women [between the ages of] 15 to 44." Joe Hallinan, Facts Get Tangled in Grapevine, STAR TRIB., July 8, 1994, at 4A. This statistic is based on research conducted by Linda Saltzman and her associates. One of the interesting things about Saltzman's project, which was rarely ever mentioned in the press, was that "the subjects were almost entirely poor, inner-city black women and that separate research has shown black women are far more likely to be abused than white women." Id.
284. See bell hooks, When Brothers are Batterers, ESSENCE, Sept. 1994, at 148 ("Every time I see the image of Nicole Brown Simpson, I stare past it, seeing the faces of Black women who have suffered her fate whose stories we never know . . . . These women are nameless. Mass media does not turn the spot light on their pain."). The Simpson case resulted in various interest groups, including NOW, invoking statistics concerning the pervasiveness of domestic abuse. One of the common statistics cited is that, "domestic violence is the leading cause of injury to women [between the ages of] 15 to 44." Joe Hallinan, Facts Get Tangled in Grapevine, STAR TRIB., July 8, 1994, at 4A. This statistic is based on research conducted by Linda Saltzman and her associates. One of the interesting things about Saltzman's project, which was rarely ever mentioned in the press, was that "the subjects were almost entirely poor, inner-city black women and that separate research has shown black women are far more likely to be abused than white women." Id.
285. The effect of the race of the defendant and the race of the victim on guilt and sentencing in criminal proceedings is well documented. See, e.g., Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REV. 1016 (1988) (arguing that the Supreme Court has not grappled with the effects of unconscious racism on the substantive and procedural rights of Black criminal defendants); BALDUS ET AL., supra note 33 (examining death penalty sentencing during the 15-year period between Furman v. Georgia 408 U.S. 238 (1972) and McCleskey v. Kemp, 107 S. Ct. 1756 (1987)); S. GROSS & R. MAURO, DEATH & DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING (1988). All of this, of course, relates to the fact that many whites believe that Black people are more likely than white people to engage in criminal conduct. See Johnson, supra note 100, at 1751.
286. The effect of the race of the defendant and the race of the victim on guilt and sentencing in criminal proceedings is well documented. See, e.g., Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REV. 1016 (1988) (arguing that the Supreme Court has not grappled with the effects of unconscious racism on the substantive and procedural rights of Black criminal defendants); BALDUS ET AL., supra note 33 (examining death penalty sentencing during the 15-year period between Furman v. Georgia 408 U.S. 238 (1972) and McCleskey v. Kemp, 107 S. Ct. 1756 (1987)); S. GROSS & R. MAURO, DEATH & DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING (1988). All of this, of course, relates to the fact that many whites believe that Black people are more likely than white people to engage in criminal conduct. See Johnson, supra note 100, at 1751.
287. See Harris, supra note 9, at 243 (arguing that "[t]he continued vitality of racist/sexist narratives about sexual violence heightened attention on the case as it involved a black man's assault on a white woman's body").
288. Id. at 243.
289. See Harry Stein, Pretty Faces, PSYCHOL. TODAY, Jan. 1992, at 32. Stein discusses how many of the prospective jurors seemed to like Smith, and suggests that "Smith's very bearing cast instant doubt on the likelihood that he had committed the heinous crime that was alleged." Id.
290. Janet Wilson & Jim Finkelstein, Tyson Rape Case Adds to the Debate on Race, Rape, DETROIT FREE PRESS, Feb. 12, 1992, at 1A (quoting Kata Assari of the University of Michigan Sexual Assault Prevention and Awareness Center as saying that the stereotype exists that '"educated white upper-class men don't rape'").
291. Asa Baber, A Cultural Lynching, PLAYBOY, Sept. 1991, at 41 (arguing that Smith was "charged, convicted, jailed - and hanged by a lynch mob from the highest tree," that Smith's rights were violated and that his case shows how all men are in danger). See also Dick Haws, A Qualitative Study: The New York Times, Patricia Bowman and William Kenneth Smith, 14 NEWSPAPER RES. J. 137, 137-41 (1993) (comparing the New York Times' profile of Patricia Bowman and its profile of Smith; the author concludes that while Times' profile of Bowman created a negative impression of her, its profile of Smith created a positive impression of him by using a "reverential tone" and mentioning his high standing among friends, relatives and professors").
292. Asa Baber, A Cultural Lynching, PLAYBOY, Sept. 1991, at 41 (arguing that Smith was "charged, convicted, jailed - and hanged by a lynch mob from the highest tree," that Smith's rights were violated and that his case shows how all men are in danger). See also Dick Haws, A Qualitative Study: The New York Times, Patricia Bowman and William Kenneth Smith, 14 NEWSPAPER RES. J. 137, 137-41 (1993) (comparing the New York Times' profile of Patricia Bowman and its profile of Smith; the author concludes that while Times' profile of Bowman created a negative impression of her, its profile of Smith created a positive impression of him by using a "reverential tone" and mentioning his high standing among friends, relatives and professors").
293. Asa Baber, Men, PLAYBOY, Apr. 1992, at 30. For other indications of how this case was used to dramatize the gender fault line between men and women, see John Taylor, Men On Trial, NEW YORK, Dec. 19, 1991 at 22, 24 (situating the Smith case in the context of what the author refers to as "the sweeping repudiation of the male sex [in the feminist agenda]").
294. Asa Baber, Men, PLAYBOY, Apr. 1992, at 30. For other indications of how this case was used to dramatize the gender fault line between men and women, see John Taylor, Men On Trial, NEW YORK, Dec. 19, 1991 at 22, 24 (situating the Smith case in the context of what the author refers to as "the sweeping repudiation of the male sex [in the feminist agenda]").
295. Baber, supra note 216, at 30.
296. Id. (emphasis added).
297. For an account of these allegations, see Dominick Dunne, The Verdict, VANITY FAIR, Mar. 1992, at 210, 212.
298. Harris, supra note 9, at 242.
299. Allan Johnson, Tyson Rape Case Strikes a Nerve Among Blacks, CHI. TRIB., Mar. 29, 1992, § 4, at 1.
300. Shipp, supra note 117, at 41.
301. HOOKS, supra note 127, at 7.
302. Mari J. Matsuda, Beside My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183, 1189 (1991).
303. Painter, supra note 27, at 204 (observing that Hill became the "black woman-as-traitor-to-the-race"); Brown, supra note 58 (discussing how Desirée Washington was viewed negatively by many African American men); see also Lubiano, supra note 10, at 345 (discussing "'Sapphire' - black female emasculator and betrayer of black men"); Johnson, supra note 221, at 4 ("It is sexism, some analysts say, that lead many in the Black community to take the sides of Thomas, Barry, and Tyson. Anita Hill was characterized as a jilted woman. Rasheeda Moore, who testified against Barry during his drug trial, was painted as a paid traitor who lured the mayor into crime. And Desirée Washington was dismissed as a gold digger.").
304. Smolowe, supra note 114, at 24. 227 Zook, supra note 2, at 86.
305. Briggs & Davis, supra note 38, at 52.
306. Crenshaw, supra note 5, at 163 (discussing the controversy over the movie The Color Purple, which was based on Alice Walker's book of the same name) (citations omitted). See also Valerie Burgher, The Song Remains the Same: Twenty Years of Black Women Speaking Out - and Being Silenced, VILLAGE VOICE, July 25, 1995, at 17 (comments of Professor Leroy Clark that the film adaptation of The Color Purple is "a lie to history . . . [and] reinforces the notion of black men as beasts").
307. Briggs & Davis, supra note 38, at 54.
308. Pasternak & Seymour, supra note 60, at 26.
309. Id. (quoting Hutchinson) (emphasis added).
310. Crenshaw, supra note 5, at 163.
311. Id.