Racing the closet

Stanford Law Review

Volumn 61, Issue 6, 2009, Pages 1463-1533

  Robinson, Russell K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 66849117042     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (409)

1. See Chandra L. Ford et al., Black Sexuality, Social Construction, and Research Targeting 'The Down Low' ('The DL'), 17 ANNALS OF EPIDEMIOLOGY 209, 209 (2007) ("The DL gained considerable notoriety from publicity surrounding the publication of popular books and news features on the phenomenon." (citation omitted)). Numerous media sources have covered the down low, including the New York Times, Los Angeles Times, San Francisco Chronicle, Village Voice, Vibe, and Essence magazines and The Oprah Winfrey Show. See, e.g., infra notes 19-32.
2. See Ford et al., supra note 1, at 209. Sixty-nine percent of women diagnosed with HIV/AIDS are black. Id. at 210.
3. This term was first adopted by public health scholars and workers who recognized the significant community of men who have sex with men but do not identify as gay. See KEITH BOYKIN, BEYOND THE DOWN LOW: SEX, LIES, AND DENIAL IN BLACK AMERICA 80 (2005). I use "MSM" as an umbrella term for gay-identified men and men who have sex with men while declining to identify as gay. However, i also attend to salient differences between and among these two types of men.
4. See Richard N. Pitt, Jr., Downlow Mountain?: De/Stigmatizing Bisexuality Through Pitying and Pejorative Discourses in Media, 14 J. MEN'S STUD. 254, 255 (2006) ("Of 140 articles written about this movie in mainstream newspapers, none referred to the Jack and Ennis characters as bisexuals, let alone as men living on the down-low."); infra text accompanying notes 77-79. Some may see the comparison to Brokeback Mountain as inapt. They might say that Jack and Ennis are fictional characters, while DL men are real. But as i describe more fully in the text, it remains unclear how many real DL men exist. Like the "welfare queen," the DL man may loom large as a fictional boogeyman whose media representations are out of step with actual DL prevalence.
5. For other examples of white men on the DL, see BOYKIN, supra note 3, at 69-71 (discussing politicians Michael Huffington and Edward Schrock, and entertainment mogul David Geffen); David Amsden, Married Man Seeks Same for Discreet Play, N.Y. MAG., July 23, 2007, available at http://nymag.com/news/features/34985/ (describing Wall Street professional men meeting other men for sex on Craigslist.org); James E. McGreevey, The Making of a Gay American, N.Y. MAG., Sept. 18, 2006, available at http://nymag.com/news/politics/21340/ (describing a secret enclave of white married men who meet for sex, including "power brokers and backroom operatives and future leaders of America"). More recently, Senator Larry Craig and Pastor Ted Haggard were caught living what appear to be down low lifestyles. See Eric Gorski, Haggard Says He's Not Gay, DENV. POST, Feb. 6, 2007, at A1; Dan Popkey, More Gay Men Describe Sexual Encounters with U.S. Sen. Craig, IDAHO STATESMAN, Dec. 3, 2007, available at http://www.idahostatesman.com/eyepiece/story/226703.html.
6. See infra note 36.
7. See infra note 50.
8. The view that blacks are more homophobic than whites appears to have become more widespread in the aftermath of California voters' decision to pass Proposition 8 to strip lesbian, gay, bisexual, and transgendered (LGBT) people of the right to marry. Several media commentators, including Dan Savage and Andrew Sullivan, blamed the success of Prop. 8 on the tiny percentage of black voters in the state and President obama. See, e.g., Posting of Dan Savage to The Slog, http://slog.thestranger.com/2008/11/black-homophobia (Nov. 5, 2008, 09:55 PST) (postelection commentary blaming blacks); The Daily Dish, http://andrewsullivan.theatlantic.com/the-daily-dish/2008/10/obamas-moment-o. html (oct. 20, 2008, 10:11 EST) (preelection commentary demanding that Obama more forcefully oppose Prop. 8 and predicting that he would be to blame if Prop. 8 passed). Gregory Lewis's research shows that black views on homosexuality and LGBT rights are much more complex than whites like Savage and Sullivan think. See Gregory B. Lewis, Black-White Differences in Attitudes Toward Homosexuality and Gay Rights, 67 PUB. OPINION Q. 59, 66 (2003) (stating that "blacks appear to be more likely than whites both to see homosexuality as wrong and to favor gay rights laws"). The moral opposition to homosexuality in the black community seems to stem in large part from the influence of the black church. See id. at 66 ("Blacks are substantially more religious than whites, more likely to be fundamentalist Protestants, and more likely to believe in a God who sends misfortunes as punishments."); see also BOYKIN, supra note 3, at 263 ("The church is the arbiter of moral decency in the black community."). Although the media frequently cited an exit poll suggesting that 70% of black voters supported Prop. 8, see, e.g., Karl Vick & Ashley Surdin, Most of California's Black Voters Backed Gay Marriage Ban, WASH. POST, Nov. 7, 2008, at A03, a subsequent study found that that poll was an outlier, see PATRICK J. EGAN & KENNETH SHERRILL, CALIFORNIA'S PROPOSITION 8: WHAT HAPPENED, AND WHAT DOES THE FUTURE HOLD? 9 (2009), http://www. thetaskforce.org/downloads/issues/egan-sherrill-prop8-1-6-09.pdf. The best evidence suggests that black support for Prop. 8 was about 58%. See id. at 3. Moreover, once the authors of the study controlled for religion, there were no significant racial differences. See id. at 11.
9. I discuss below an empirical study of a popular MSM dating website. See infra text accompanying notes 249-52. This study documented that users of the website prefer white men over black and Asian men with identical profiles. other manifestations of racial exclusion and fetishization include the use of the term "dinge queen" to apply to white men who date blacks, see DWIGHT MCBRIDE, WHY I HATE ABERCROMBIE & FITCH 122 (2005), and the embrace of Shirley Q. Liquor, a white gay man who dresses in drag and blackface and plays at gay venues. Shirley Q. serves up virtually every black female stereotype-she has many "baby daddies," is obese, and is incapable of speaking proper English. See Shirley Q. Liquor, http://www.shirleyqliquor.com/ (last visited Mar. 27, 2009); Chuck Knipp, WIKIPEDIA, http://en.wikipedia.org/wiki/Chuck-Knipp (last visited Mar. 27, 2009).
10. See infra text accompanying notes 242-46.
11. See BOYKIN, supra note 3, at 126-30 (characterizing King as ill-informed and self- serving). An exception is the Oprah episode on the DL, which I discuss below. See infra text accompanying notes 32-35. That episode featured two men said to be on the DL, but their identities were cloaked. it is questionable whether the show, which does not appear to abide by the standards of a network news program, confirmed that these men actually engage in the DL lifestyle.
12. See infra text accompanying note 20.
13. See BOYKIN, supra note 3, at 100-01.
14. See id. at 15-16 (noting men adopt DL identity to reject the whiteness associated with the terms "gay" and "bisexual," to assert their masculinity, and to indicate they are closeted).
15. For example, contrary to public health scholars' assumption that coming out helps reduce HIV risk among white men, black MSM "who disclose their sexual orientation have a higher HIV prevalence (24% vs. 14%) and engage in more unprotected anal sex (41% vs. 32%) than nondisclosers." David J. Malebranche, Black Men Who Have Sex with Men and the HIV Epidemic: Next Steps for Public Health, 93 AM. J. PUB. HEALTH 862, 863 (2003). Studies also suggest that DL- identified and nongay- identified men have fewer male sex partners than out men. See, e.g., Richard J. Wolitski et al., Self-Identification as "Down Low" Among Men Who Have Sex with Men (MSM) from 12 US Cities, 10 AIDS & BEHAV. 519, 522 (2006) ("DL- identified MSM were less likely than non -DL MSM to have had seven or more male partners in the past 30 days."). in most other respects, the sexual practices of the DL- identified and non -DL -identified men in the Wolitski study were similar, but the former were more likely to report having had unprotected insertive sex (i.e., in the "top" role) with a partner whose HIV status they did not know. See id. at 524; see also Lisa Bond et al., Black Men Who Have Sex with Men and the Association of Down-Low Identity with HIV Risk Behavior, 99 AM. J. PUB. HEALTH SUPP. 1, 3 (2009) (finding that DL- identified black MSM were more likely than non -DL- identified men to report sex with women, but that the two groups engaged in unprotected sex with women at comparable rates).
16. See, e.g., Ryan Lee, Experts Debate the New Face of AIDS, WASH. BLADE, Dec. 1, 2006, available at http://www.washblade.com/2006/12-1/news/national/national.cfm.
17. Further, to argue that some women know that their male partners are having sex with men, as i do below, is not to claim that such women deserve to become infected with HIV.
18. on intersectionality, see Kimberle crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991) [hereinafter Crenshaw, Mapping the Margins]; Kimberle 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.
19. See Lucia Moses, MMR Studies Most-Read Mags by Race, Ethnicity, MEDIAWEEK.COM, Feb. 21, 2007, http://www.mediaweek.com/ mw/news/print/article-display.jsp?vnu-content-id=1003548288 ("African- Americans' three most-read magazines were black-interest titles Ebony, Jet and Essence."); Audit Bureau of Circulations, Newspaper, http://abcas3.accessabc.com/ecirc/newsform.asp (Sort by: "Daily- Descending"; then follow "Title Search" hyperlink) (last visited Sept. 30, 2008) (listing New York Times as having the widest circulation of city-based newspapers).
20. Wolitski et al., supra note 15, at 519 (citing news stories about DL MSM).
21. See, e.g., id.
22. See, e.g., Ford et al., supra note 1, at 210 ("More complete population-based information ⋯ is necessary ⋯ before the DL can be linked epidemiologically to HIV/AIDS racial disparities."); id. (criticizing media for frequently suggesting that the DL is "new and limited to blacks"); Vickie M. Mays et al., HIV Prevention Research: Are We Meeting the Needs of African American Men Who Have Sex with Men?, 30 J. BLACK PSYCHOL. 78, 84 (2004) (recognizing that while "scientific literature has firmly established that African American MSM should be a focus of HIV prevention[,] .⋯ the connection between the risk of disease and the unique circumstances of African American MSM is in its infancy"). Eighty percent of women who contracted HIV through sex with a man in 2002 did not know or report whether their male sexual partners were in a high-risk group, such as men with multiple partners, MSM, or IV drug users. Ford et al., supra note 1, at 210. In a 2003 study, "[o]nly 2% of heterosexually infected Black and Hispanic women had a male partner who was known to be bisexual." Wolitski, supra note 15, at 520.
23. See BOYKIN, supra note 3, at 41, 44 (citing songs by TLC, Salt -N- Pepa and Brian McKnight).
24. R. KELLY FEATURING THE ISLEY BROTHERS, Down Low (Nobody Has to Know), on R. KELLY (Jive Records 1995). As in the TLC song Creep, this narrative depicts a woman as violating her commitment to a partner, unlike current DL discourse, which depicts male infidelity. See TLC, Creep, on CRAZY SEXY COOL (LaFace Records 1994). Around the same time, black gay author E. Lynn Harris published his first of many successful novels about black men who sleep with men and women. See ELynnHarris.com, Bookshelf, http://www.elynnharris.com/bookshelf.htm (last visited July 24, 2008). Harris' books, as well as J.L. King's ON THE DOWN LOW, represent the DL as cutting across social classes and including middle class black men. See J.L. KING, ON THE DOWN LOW: A JOURNEY INTO THE LIVES OF "STRAIGHT" BLACK MEN WHO SLEEP WITH MEN (2004).
25. See, e.g., Linda Villarosa, AIDS Education Is Aimed 'Down Low,' N.Y. TIMES, Apr. 3, 2001, at F5. Keith Boykin observes that an important transition occurred in the transformation of "down low" from a general term for secret practices in the black community to a description of black men who have sex with women and men: "The down low was not a description of who [certain black people] were, it described something that they did." BOYKIN, supra note 3, at 42. The extent to which the media produced the link between "down low" and men who sleep with both women and men, as opposed to merely reflecting an emerging understanding in the black community, is unclear.
26. See BOYKIN, supra note 3, at 15-16; cf. Wolitski, supra note 15, at 519 (noting that in general black and Hispanic men are "less likely than Whites to describe themselves as gay").
27. See, e.g., Ford et al., supra note 1, at 210.
28. See, e.g., id.; Wolitski, supra note 15, at 519 (stating that DL discourse is "largely based on anecdotal reports and externally applied labels").
29. See Brian Dodge et al., Beyond the Down Low: Sexual Risk, Protection, and Disclosure Among At-Risk Black Men Who Have Sex with Both Men and Women (MSMW), 37 ARCHIVES SEXUAL BEHAV. 683, 683 (2008) (discussing findings suggesting that black men are significantly more likely to engage in sex work than white men); Gregorio A. Millett et al., Explaining Disparities in HIV Infection Among Black and White Men Who Have Sex with Men: A Meta-Analysis of HIV Risk Behaviors, 21 AIDS 2083, 2084 (2007); J.P. Montgomery et al., The Extent of Bisexual Behaviour in HIV-Infected Men and Implications for Transmission to Their Female Sex Partners, 15 AIDS CARE 829, 833 (2003) (referring to prolonged incarceration, particularly among black and Hispanic men, as one explanation for their bisexual behavior); Rucker C. Johnson & Steven Raphael, The Effects of Male Incarceration Dynamics on AIDS Infection Rates Among African-American Women and Men 5-8 (U.C. Berkeley Ctr. on Insts. and Governance, Working Paper No. 47, 2006), available at http://igov.berkeley.edu/workingpapers/series2/No47-Johnson.pdf. I analyze sexuality between men in prison and its legal and cultural implications in a work-in- progress. See Russell K. Robinson, Masculinity as Prison (Mar. 11, 2009) (unpublished manuscript, on file with author).
30. See Nicholas Wade, Gene Variation May Raise Risk of H.I.V., Study Finds, N.Y. TIMES, July 17, 2008, at A12.
31. An exception to this trend appeared in Ebony in 2004. Zondra Hughes, Why Sisters Are the No. 1 Victims of HIV and How You Can Avoid It, EBONY, July 2004, at 64 (expressing concern that obsession with DL will distract from other contributing factors).
32. The Oprah Winfrey Show (CBS television broadcast Apr. 16, 2004) (transcript on file with author); see KING, supra note 24.
33. The Oprah Winfrey Show, supra note 32.
34. Id.
35. Id.
36. Man #1 failed even to recognize the humanity of the people he harmed: "I didn't protect myself or anything else." Id. (emphasis added). in general, studies show that black MSM are no more promiscuous than white MSM. See, e.g., Millett et al., supra note 29, at 2086 (concluding, based on meta-analysis of 53 studies, that "black MSM reported significantly fewer sex partners across studies than white MSM" and engaged in no more unprotected anal sex than white MSM); Montgomery et al., supra note 29, at 832-34 (concluding, with respect to HIV-positive men with male and female partners, that "[t]here were no significant differences in the distribution of number of partners by race/ethnicity").
37. The Oprah Winfrey Show, supra note 32.
38. Benoit Denizet-Lewis, Double Lives on the Down Low, N.Y. TIMES, Aug. 3, 2003, (Magazine), at 31.
39. Lynn Norment, The Low-Down on the Down-Low, EBONY, Aug. 2004, at 34; see also id. ("So the DL man is sleeping with his men and his women and not using protection with anybody, and putting the entire Black community at risk of AIDS, just because he can't face the fact that he is gay?" (emphasis added)).
40. See infra Part IV.
41. See Ford et al., supra note 1, at 209 ("Most [articles] framed [the DL] as black men's deviant immoral sexual behavior and focused on implications for 'innocent' women partners ⋯.").
42. See Taigi Smith, Deadly Deception, ESSENCE, Aug. 2004, at 148.
43. Id.
44. See Norment, supra note 39, at 34 ("The down-low Brother is yet another reason so many good and worthy Sisters can't find suitable mates."). On the hegemony of marriage and its shadow, see Katherine M. Franke, Longing for Loving, 76 FORDHAM L. REV. 2685 (2008) (seeking to unsettle hegemonic nature of marriage by focusing on friendship); Angela onwuachi- Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post -Bellum Control, 93 CAL. L. REV. 1647, 1694 (2005) (discussing how the law of marriage has been used in the United States as a "cure for the social ills that are assumed to be the fault of racial minorities, specifically of Blacks").
45. Cathy J. Cohen notes a similar trend in black media coverage of AIDS: Less successful black women, those who were perceived as having brought AiDS upon themselves through bad behavior- namely, injection drug users, sex workers and 'promiscuous' black women- rarely found their way into the pages of Essence. instead, they remained the voiceless comparative framework from which ['respectable' women] could tell their distinguished story of victimization. CATHY J. COHEN, THE BOUNDARIES OF BLACKNESS: AIDS AND THE BREAKDOWN OF BLACK POLITICS 226 (1999);
46. see also Evelynn Hammonds, Black (W)holes and the Geometry of Black Female Sexuality, 6 DIFFERENCES: J. FEMINIST CULTURAL STUD. 126, 132-34 (1994) (describing efforts of middle class black women to police sexuality of poor and working class black women).
47. The Oprah Winfrey Show, supra note 32.
48. Id.
49. Kevin Chappell, The Truth About Bisexuality in Black America, EBONY, Aug. 2002, at 158.
50. See, e.g., id. at 158 ("I think other people knew what was going on. I just didn't know. I didn't know about anything until it was too late. And all along, I thought my husband was my best friend." (quoting HiV-infected woman, ida By thersmith)).
51. Smith, supra note 42, at 148. This passage reflects the widespread sentiment that black MSM are aligned with "drug users, men in prison, men who date non-black women, and the other groups of 'unfit' men who shirk their supposed racial duty to marry black women and raise 'strong black families.'" Russell K. Robinson, Uncovering Covering, 101 NW. U. L. REV. 1809, 1821 (2007) (review essay);
52. see also ANITA L. ALLEN, WHY PRIVACY ISN'T EVERYTHING: FEMINIST REFLECTIONS ON PERSONAL ACCOUNTABILITY 98 (2003) (noting that in black media, "[b]lack men are criticized for abandoning black women for white partners"); cf. also BOYKIN, supra note 3, at 57-58, 197 (analyzing a song describing DL man as a "waste" and "just a queen ⋯ that thought he was a king").
53. Smith, supra note 42, at 148. Smith's use of the word "syndrome" is also troubling in that it suggests a medical pathology.
54. Id. at 150. To her credit, Smith recognizes that "many Black folks still believe that men who have sex with men are somehow less masculine." Id.
55. Id.
56. These depictions carry forward a long tradition of stereotyping black men, and their sexuality, as dangerous. See, e.g., Crenshaw, Mapping the Margins, supra note 18, at 1253 (discussing stereotype that black men are "uncontrollably violent").
57. ESSENCE, Aug. 2004, at cover.
58. See, e.g., ByronCrawford.com, How to Spot a DL Brother, http://www.byroncrawford.com/2006/09/how-to-spot-a-d.html (Sept. 26, 2006, 12:33 CST). Blogger Byron Crawford offers such inane tips as checking to see whether your boyfriend owns any CDs by Maxwell (an R&B artist with a huge female following). He also asks "[h]as he taken you to the California Pizza Kitchen?" because "[t]here's a lot of shit a straight man just doesn't do, and eating a pizza with 15 different types of shit that's not made out of pork would have to be chief among them." Id. The unanswered question, however, is how the presumably straight Crawford gained such intimate knowledge of DL men's habits.
59. Linda Villarosa, AIDS Fears Grow for Black Women, N.Y. TIMES, Apr. 5, 2004, at A1.
60. See id.
61. See Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of 'Sex,' 'Gender,' and 'Sexual Orientation' in Euro-American Law and Society, 83 CAL. L. REV. 1 (1995).
62. See Denizet-Lewis, supra note 38, at 31 ("You don't hear black people say, 'Oh yeah, he's gay, but he's still a real man, and he still takes care of all his responsibilities.' What you hear is, 'Look at that sissy faggot.'" (quoting Rakeem, a young black man interviewed for the article)).
63. See, e.g., John Weir, Like a Virgin, DETAILS, Aug. 1996, reprinted in POMOSEXUALS: CHALLENGING ASSUMPTIONS ABOUT GENDER AND SEXUALITY 39, 52 (Carol Queen & Lawrence Schimel eds., 1997) (commentary by gay man who wanted to sleep with a woman "so i can see myself, even briefly, even just in Nick's [his heterosexual male friend] eyes, as a man"); see also David France, The Science of Gaydar, N.Y. MAG., June 25, 2007, at 34, available at http://nymag.com/news/features/33520 ("[W]e're a third sex- or a third sex and a fourth sex, gay men and lesbians. Today, there's scientific documentation behind this." (quoting statement by gay neuroscientist, Simon LeVay)).
64. See, e.g., Mays et al., supra note 22, at 94 (describing "homo thugz" as black men who may wear "do-rags, Fubu jackets, platinum and gold necklaces, Timberlands or neonerd Wallabies, sideway knotted bandannas, and army fatigue trousers that hang off the hips").
65. Because the DL man is unidentifiable as such, he destabilizes the very notion of heterosexuality as a hard-wired construct. No man can be categorized as conclusively heterosexual because his performance in bed and in society may be an illusion. Cf. EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF THE CLOSET 8-9 (1990) (making a similar point about conceptions of homosexuality in general).
66. See, e.g., Tamala Edwards, Men Who Sleep with Men, ESSENCE, Oct. 2001, at 76 ("Brothers on the down low pose a serious AIDS risk to Black women."); Scott Jaschik, A New H.I.V. Alarm, N.Y. TIMES, Jan. 16, 2005, at 34; Norment, supra note 39, at 34. Chandra Ford and her coauthors' systematic review of DL scholarly and public literatures identified this trend. See Ford et al., supra note 1, at 210 (reviewing all relevant sources obtained from Lexis/Nexis, Medline, CINAHL, Sociological Abstracts, and Google from 1998-2004).
67. The Oprah episode on the DL illustrates this tendency. See The Oprah Winfrey Show, supra note 32.
68. The sample of disclosing individuals comprised 4952 men. See HIV/STD Risks in Young Men Who Have Sex with Men Who Do Not Disclose Their Sexual Orientation-Six U.S. Cities, 1994-2000, 52 MORBIDITY & MORTALITY WKLY. REP. 81, 81, 84 (2003) [hereinafter HIV/STD Risks].
69. See id. A different study found that just 28% of DL-identified men had unprotected vaginal sex in the prior thirty days. See Wolitski et al., supra note 15, at 522.
70. See Wolitski et al., supra note 15, at 523;
71. see also Dodge et al., supra note 29, at 684 (stating that studies of bisexually behaving men have reported rates of disclosure to female partners ranging from one-tenth to one-third). The Wolitski study's sample of 455 MSM, which was one-third black, one-third Latino and one-third white, yielded only 12 DL- identified men with a main female partner.
72. See Wolitski et al, supra note 15, at 523. In addition, 13 non-DL-identified men reported primary relationships with women and having sex with a man within the prior 6 months.
73. See id. at 520, 522. As suggested in the introduction, studies that focus on DL identity must be interpreted with caution. The practices of men who cooperate with researchers and identify themselves to researchers as DL may not track the practices of men whose behavior fits the media definition of DL but who may not identify as such to researchers or cooperate with them.
74. See Wolistki et al., supra note 15, at 526;
75. see also Montgomery et al., supra note 29, at 834 (finding that most HIV-positive men who had sex with men and women reported one to five male and one to five female partners in prior five years, contrary to "common belief that bisexual men often are in a committed relationship with a woman and have many male sex partners").
76. Cf. Crenshaw, Mapping the Margins, supra note 18, at 1270 (noting that in the context of rape prosecutions "[p]ast sexual conduct as well as the specific circumstances leading up to the rape are often used to distinguish the moral character of the legitimate rape victim from women who are regarded as morally debased"); id. at 1274 (describing black- community criticism of Desiree Washington, who accused Mike Tyson of rape, because she "had no business in Tyson's hotel room at 2:00 a.m.").
77. of course not all women want to be married, and some may enjoy temporary sexual relationships.
78. See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 613 (1990) ("[T]he story of woman as passive victim denies the ability of women to shape their own lives, whether for better or worse."). i recognize that, unlike white women, black women have rarely had access to the role of victim. See COHEN, supra note 45, at 202 (contrasting stories of respectable black women in the context of media coverage of AIDS with "many dominant narratives of black communities structured around the strong, black matriarch protecting or destroying, depending on your perspective, her family, and black men in particular"); Eugene Robinson, Editorial, (White) Women We Love, WASH. POST, June 10, 2005, at A23 (identifying the media's obsession with white "damsel[s] in distress," such as Natalee Holloway, Laci Peterson, and JonBenet Ramsey).
79. See, e.g., Hortensia Amaro, Love, Sex, and Power: Considering Women's Realities in HIV Prevention, 50 AM. PSYCHOLOGIST 437 (1995) (arguing that scholars seeking to reduce HiV transmission to women must pay greater attention to gender dynamics in sexual relationships).
80. See Danny Hakim & Trymaine Lee, New Governor and Wife Talk of Past Affairs, N.Y. TIMES, Mar. 19, 2008, at A1. It is perhaps unfortunate that the first such announcement by a politician involved a black husband and wife, which precluded Michelle Paterson from enjoying the sympathy often heaped on white wives, such as Senator Hillary Rodham Clinton, whose fidelity is assumed. On the other hand, one could view Mrs. Paterson as asserting her agency and rejecting the victim role.
81. Hence, basketball superstar Earvin "Magic" Johnson faced skepticism about his sexuality when he claimed that he contracted HiV through sex with one of his sundry female sex partners. See BOYKIN, supra note 3, at 226-29.
82. The presumption of heterosexuality, coupled with the myth that all "gay" men are identifiable, may lead women to assume that there is no need to question a man's sexual orientation if he appears masculine. See supra text accompanying note 58.
83. The authors of a small qualitative study of black men who have sex with men and women found that "because of the anonymous, emotionally detached nature of some sexual encounters, many of our participants simply did not feel obliged to disclose to some male partners." Dodge et al., supra note 29, at 694.
84. See Katy Butler, Many Couples Must Negotiate Terms of 'Brokeback' Marriages, N.Y. TIMES, Mar. 7, 2006, at F5.
85. See id.
86. See id.; see also Chappell, supra note 48, at 162 ("Some women confront the issue, and stay in the relationship with a belief that their partner will never again commit a bisexual act.").
87. See Butler, supra note 78, at F5.
88. See id.
89. Id. in a similar vein, the wife of one gay man compared men like her husband to reckless teenagers discovering their sexuality who do not "really realize how much they're hurting their spouse." Id.
90. Id.
91. The statement said: "My fiance and I have discussed all relevant parts of our personal histories. We are satisfied that we know everything we need to know about each other's pasts and are looking forward to our future together." Lynn Norment, Star & Al, EBONY, Dec. 2004, at 172, 173.
92. See Jeane Macintosh, I Was McG and Wife's Three-Way Sex Stud: Ex-Driver, N.Y. POST, Mar. 17, 2008, at 6. In explaining his decision to testify, Pedersen stated: "She's framed herself as a victim-yet she was a willing participant. She had complete control over what happened in her relationship ⋯ . She was there, she knew what was happening, she made the moves. We all did. It's disgusting to watch her play the victim card." Id.
93. See id.
94. Cf. ALLEN, supra note 50, at 98 (stating that black women are urged to "give older, younger, and lower-income black men a chance before giving up on the possibility of finding a suitable black mate").
95. Dodge et al., supra note 29, at 691.
96. The chief distinction is that a married man who secretly has sex with a man is more likely to increase his wife's exposure to HIV than a married woman who secretly has sex with a woman. This is especially so if the married man engages in receptive anal sex or performs the "bottom" role when he is with men. See id. at 692.
97. See, e.g., William D. Mosher et al., Sexual Behavior and Selected Health Measures: Men and Women 15-44 Years of Age, United States, 2002, 362 ADVANCE DATA FROM VITAL & HEALTH STAT., (Nat'l Ctrs. for Health Statistics), Sept. 15, 2005, at 1, 13.
98. See Michael W. Ross et al., Concordance of Sexual Behavior and Sexual Identity in Street Outreach Samples of Four Racial/Ethnic Groups, 30 SEXUALLY TRANSMITTED DISEASES 110, 110, 112 (2003).
99. See id. at 112 tbl.2 (reporting that concordance rate was 43.1% for black men and 33.4% for black women); see also Lisa M. Diamond, Female Bisexuality from Adolescence to Adulthood: Results from a 10-Year Longitudinal Study, 44 DEVELOPMENTAL PSYCHOL. 5, 9 (2008) (finding that over a ten-year period "67% of [female] participants had changed their identities at least once since [year one], and 36% had changed identities more than once"). The women in Diamond's study, who had already "come out," switched labels from "bisexual" to "heterosexual" to "lesbian" to "unlabeled" in various, nonlinear directions over a ten-year span. Id. at 9, 13.
100. Research on file with author.
101. For a scholarly analysis of media representations of female sexuality, see, for example, Lisa M. Diamond, 'I'm Straight, but I Kissed a Girl': The Trouble with American Media Representations of Female-Female Sexuality, 15 FEMINISM & PSYCHOL. 104 (2005).
102. See EDWARD O. LAUMANN ET AL., THE SOCIAL ORGANIZATION OF SEXUALITY 290 (1994). These rigid conceptions of race and sexuality are inconsistent with many scholarly understandings. See, e.g., Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1262, 1279-85 (2000) (arguing that race is performative and blacks can enhance or reduce their "racial salience" through their conduct); Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994) (reviewing literature demonstrating variance in racial features among people classified as belonging to a single racial group). Even as the dominant popular conceptions of race and sexuality view these traits as fixed, they compete with undercurrents that recognize, and often fret about, the possibility that a heterosexual man could become gay and that a black person might be either "too black" or "not black enough." See, e.g., SEDGWICK, supra note 63, at 8-9 (describing minoritizing and universalizing conceptions of homosexuality); Carbado & Gulati, supra, at 1262 (arguing that employers evaluate employees based on racial performance); Marcus Mabry, Where Whites Draw the Line, N.Y. TIMES, June 8, 2008, at WK1 (analyzing the shifting line of racial palatability and asking "how black can Mr. [Barack] Obama be before he alienates white voters").
103. The recent construction of the "metrosexual" has alleviated some of the pressure on men to perform a pure version of masculinity or be deemed gay. See Warren St. John, Metrosexuals Come Out, N.Y. TIMES, June 22, 2003, at 9-1. Metrosexuals are thought to display "heightened aesthetic senses and exhibit a lifestyle, spending habits and concern for personal appearance close enough to the stereotype of a fashionable urban gay man," even though they are heterosexual. Gaydar, WIKIPEDIA, http://en.wikipedia.org/wiki/Gaydar (last visited Feb. 1, 2009). However, this identity is not an entirely safe or stable one because some suspect that metrosexuals are "pre-gay."
104. Cf. Martha C. Nussbaum, The Prohibition Era, THE NEW REPUBLIC, Mar. 20 & 27, 2006, at 21, 24 (book review) (suggesting that "anti-gay feeling" is driven by "panic" over "sex between men").
105. See generally JUDITH BUTLER, The Lesbian Phallus and the Morphological Imaginary, in BODIES THAT MATTER 57-91 (1993).
106. See New Yorkers on Their Sex Lives at Home ⋯ and on Cheating, N.Y. MAG., May 26, 2008, at 22, 23.
107. See id.
108. See id.
109. The L Word: Labyrinth (Showtime television broadcast Mar. 20, 2005).
110. See, e.g., Christine A. Littleton, Double and Nothing: Lesbian as Category, 7 UCLA WOMEN'S L.J. 1, 1-4 (1996);
111. Susan J. Wolfe & Lee Ann Roripaugh, The (In)visible Lesbian: Anxieties of Representation in The L Word, in READING THE L WORD: OUTING CONTEMPORARY TELEVISION 43 (Kim Akass & Janet McCabe eds., 2006). At least one storyline on The L Word has depicted a closeted woman having sex with women behind the back of her male partner. See Wolfe & Roripaugh, supra, at 49-50.
112. Katy Perry's recent #1 radio hit "I Kissed a Girl" brazenly works this theme. KATY PERRY, I Kissed a Girl, on ONE OF THE BOYS (Capitol Records 2008). Remarkably, Out magazine featured Perry (who is not queer) as the only woman on the cover of its 2008 People of the Year issue. OUT, Dec. 2008/Jan. 2009, at cover, available at http://www.out.com/out100; see also Posting by Richard Lawson to Gawker, Katie Perry Kissed a Girl and Out Magazine Liked It But I Didn't, http://gawker.com/5084483/katy- perry- kissed -a- girl -and -out- magazine -liked -it -but -i -didnt (Nov. 12, 2008, 14:04 EST). Another example is how the media was utterly fascinated when Madonna kissed Britney Spears (and Christina Aguilera) to open the 2003 MTV Video Music Awards. It is interesting that the kiss was staged so that it happened before the threesome was joined by Missy Elliott, a black and relatively masculine hip-hop performer. See Corey Moss, Madonna Smooches with Britney and Christina; Justin, Coldplay Win Big at VMAs, MTV NEWS, Aug. 28, 2003, http://www.mtv.com/news/articles/1477729/20030828/spears-britney.jhtml.
113. The L Word depicted such a scenario in its first season. See Wolfe & Roripaugh, supra note 104, at 50 (describing Jenny's affair with Marina leaving Tim "upset, betrayed, excluded and emasculated").
114. For a discussion of the struggles of men who choose to stay with wives who come out as lesbian or bisexual, see Amity Pierce Buxton, Works in Progress: How Mixed- Orientation Couples Maintain Their Marriages After the Wives Come Out, in CURRENT RESEARCH ON BISEXUALITY 59, 68-69 (Ronald C. Fox ed., 2004) (discussing two wives who continued seeing their female lovers after their husbands found out).
115. See Denizet-Lewis, supra note 38, at 32 ("The easy answer to most of these questions is that the black community is simply too homophobic . ⋯").
116. See, e.g., Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 STAN. L. REV. 353, 377-85 (2000) (reviewing studies of self-reports of sexual desire and concluding that "the incidence of bisexuality was greater than or comparable to the incidence of homosexuality" (emphasis omitted)).
117. See Mosher et al., supra note 91, at tbl.14.
118. See, e.g., Gary Goldbaum et al., Differences in Risk Behavior and Sources of AIDS Information Among Gay, Bisexual, and Straight-Identified Men Who Have Sex with Men, 2 AIDS & BEHAV. 13, 16 (1998) (finding that black men at MSM public sex venues were more likely to identify as bisexual or straight than white men); Gregorio Millett et al., Focusing "Down Low": Bisexual Black Men, HIV Risk and Heterosexual Transmission, J. NAT'L MED. ASS'N, July 2005, at 52S, 53S ("Studies clearly show that black MSM are more likely than MSM of other races and ethnicities to identify themselves as bisexual and to be bisexually active."); Montgomery et al., supra note 29, at 831 (reporting that the following percentages of HIV-positive MSM reported sex with women in the last five years: 34% black, 26% Hispanic, 19% Asian/Pacific Islander, 13% American Indian/Alaska Native, and 13% white). The Montgomery study found that, even though black and Latino men were most likely to report having had male and female sex partners, black and Latina women were least likely to report having had sex with bisexual men. See id. (stating that 14% of white women reported sex with bisexual men, compared to 6% of blacks and 6% of Latinas). Note, however, that the study's five-year window is very broad and many of the men who reported sex with women may have engaged in it before they began having sex with men. Some might think the greater prevalence of bisexual behavior among black men is evidence of greater homophobia in the black community, which coerces such men into having sex with women. See Carlos Ulises Decena, Profiles, Compulsory Disclosure and Ethical Sexual Citizenship in the Contemporary USA, 11 SEXUALITIES 397, 398, 401 (2008) (criticizing public health scholars for uncritical assumptions that "internalized homophobia" among black men produces the DL and can be cured by urging men to come out). However, this interpretation rests on an erroneous assumption that the level of bisexuality among white people is the "correct" level and that there is something necessarily deviant in black behavior that departs from this white baseline.
119. See Benedict Carey, Straight, Gay or Lying? Bisexuality Revisited, N.Y. TIMES, July 5, 2005, at F1 (describing a scientific study suggesting that bisexuality in men does not exist).
120. Gerulf Rieger et al., Sexual Arousal Patterns of Bisexual Men, 16 PSYCHOL. SCI. 579 (2005).
121. See id. at 580-81 (describing use of "circumferential strain gauge that reflects the changes in penile girth during erection"). The initial sample included 101 men, including 30 self-identified heterosexuals, 33 bisexuals, and 38 homosexuals. Id. at 580.
122. Id.
123. Id. at 582.
124. Id. at 579.
125. Carey, supra note 112, at F1.
126. See Yoshino, supra note 109, at 395 (noting academic arguments that "all self- identified bisexuals were actually homosexuals in denial" and arguing that such explicit denials of bisexuality's existence are currently outnumbered by implicit denials that speak of heterosexuals and homosexuals as if no intermediate category exists).
127. Recall that the clips were just two minutes in length. Rieger et al., supra note 113, at 580.
128. See id. at 580-81.
129. See NAT'L GAY & LESBIAN TASK FORCE, THE PROBLEMS WITH "STRAIGHT, GAY OR LYING?" (2005), http://www.thetaskforce.org/downloads/reports/NYTBisexuality FactSheet.pdf.
130. Rieger et al., supra note 113, at 580. The study also advertised for subjects in an "alternative" newspaper, id., but the authors did not report how many subjects responded to the advertisements in gay magazines and how many responded to the newspaper. To the authors' credit, their sample was roughly half nonwhite. See id. They did not provide a further racial breakdown.
131. As I describe more fully below, almost four percent of men who responded to a CDC survey described their sexuality as "something else" when the other options were heterosexual, homosexual, and bisexual. See Mosher et al., supra note 91, at 13. By contrast, less than two percent of men identified as bisexual. Id.
132. There are minor exceptions to this rule. Some might discount sexual behavior that happens in prison and during early adolescence.
133. See Edward Stein, Born that Way? Not a Choice?: Problems with Biological and Psychological Arguments for Gay Rights 45 (Benjamin N. Cardozo Sch. of Law, Working Paper No. 223, 2008), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract-id=1104538.
134. Id. at 9 (internal quotation marks removed); see id. at 7.
135. See generally Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argumentfrom Immutability, 46 STAN. L. REV. 503 (1994).
136. See Vickie Mays et al., Preferred Sexual Orientation Labels for African American Men Who Have Sex with Men: Implications for HIV/AIDS Research and Interventions (draft on file with author). These labels could be subdivided based on whether they acknowledge same-sex attraction (e.g., "Same Gender Loving," "bicurious"), deny it ("straight"), or seek not to answer the question at all (those who refuse to label their sexuality).
137. See LAUMANN ET AL., supra note 96, at 296-97 (finding that 2.8% of men self- identify as gay or bisexual while 9% of men report having had at least one male sexual partner since puberty); Ritch C. Savin-Williams, Who's Gay? Does it Matter?, 15 CURRENT DIRECTIONS IN PSYCHOL. SCI. 40 (2006).
138. Sonia Katyal's examination of non-Western conceptions of sexuality provides further evidence that many MSM do not see sex with men as necessitating the adoption of gay identity. See Sonia Katyal, Exporting Identity, 14 YALE J.L. & FEMINISM 97, 156 (2002) (discussing men in India and elsewhere who view "their sexual orientation as heterosexual, and consider their same-sex sexual activities to be a completely separate pastime, rather than a determinative part of their identities").
139. Mosher et al., supra note 91, at 1, 13. This sample included adults in households who were ages fifteen to forty-four. The results from this question focus on those eighteen to forty-four. See id. at 13. A 1994 study found that just 1% of respondents identified as "something else." LAUMANN ET AL., supra note 96, at 293 n.11.
140. Mosher et al., supra note 91, at 13.
141. Id.
142. See supra text accompanying notes 112-18.
143. See Montgomery et al., supra note 29, at 832 (finding that black and Latino MSM who reported only male partners were less likely to self-identify as gay than their white counterparts).
144. Mosher et al., supra note 91, at 13.
145. See Gregory M. Herek, Heterosexuals' Attitudes Toward Bisexual Men and Women in the United States, 39 J. SEX RES. 264, 268 tbl.1 (2002) (reporting results of national survey demonstrating that public attitudes toward bisexuals were lower than any other stigmatized group listed in the survey, except drug users). In general, attitudes toward bisexual male targets were more negative than those toward bisexual women. See id. at 271. The Herek study also found that people of color expressed greater negativity toward bisexuals than whites, but once Herek factored in class, this effect was not significant. However, white women's attitudes remained more favorable than other women and all men. See id. at 270.
146. See, e.g., Yoshino, supra note 109, at 399 (stating that the "'gay community abounds with negative images of bisexuals as fence-sitters, traitors, cop-outs, closet cases, people whose primary goal in life is to retain 'heterosexual privilege,' [or] power-hungry seducers who use and discard their same-sex lovers'") (quoting Lisa Orlando, Loving Whom We Choose, in Bi ANY OTHER NAME: BISEXUAL PEOPLE SPEAK OUT 223, 224 (Loraine Hutchins & Lani Kaahumanu eds., 1991)). An important contributor to bisexual invisibility is that people typically look to a person's current partner to define his sexual orientation. Hence, a man who has a boyfriend is marked as gay even though his last relationship might have been with a woman. See Mary Bradford, The Bisexual Experience: Living in a Dichotomous Culture, in CURRENT RESEARCH ON BISEXUALITY supra note 107, at 14.
147. See Bradford, supra note 138, at 15 ("One man who felt his bisexuality was invalidated by gay men said, "If I tell my gay friends that I'm bi, they immediately say, 'Well, you just have not figured it out yet,' or 'You want to hang onto the straight world,' or 'You're not ready to admit that you're gay.'").
148. See supra text accompanying note 66.
149. See Thomas C. Mills et al., Health-Related Characteristics of Men Who Have Sex with Men: A Comparison of Those Living in "Gay Ghettos " with Those Living Elsewhere, 91 AM. J. PUB. HEALTH 980, 980-81 (2001) (comparing characteristics of MSM in four major cities and finding that those who do not live in gay enclaves are more likely to identify as bisexual).
150. See Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 FORDHAM L. REV. 2787, 2802 (2008);
151. see also Corey W. Johnson & Diane M. Samdahl, "The Night They Took Over": Misogyny in a Country-Western Gay Bar, 27 LEISURE SCI. 331, 337 (2005) (documenting in an ethnographic study the hostility expressed by gay men at lesbians whom they perceived to be invading their space during a bar's sole "Lesbian Night").
152. Cf. Crenshaw, Mapping the Margins, supra note 18, at 1299 (calling "attention to how the identity of 'the group' has been centered on the intersectional identities of a few").
153. See Bradford, supra note 138, at 21 ("To affirm a bisexual identity requires transcending the culture.").
154. of course racial discrimination and sexual orientation discrimination are not experienced as distinct forces. once he discloses his bisexual behavior, a man is likely to find that stereotypes about bisexuals inflect the racial discrimination that he faces and vice versa.
155. See Robinson, supra note 50, at 1819.
156. I use "DL-identified" to refer to men who describe themselves as DL, although studies suggest that some such men are not engaged in relationships with women while secretly having sex with men and failing to use condoms. The term is now used by some black men to signify that they are not out, to reject white gay culture, and to express their expectation of discretion from their male partners. Some Hispanic men use this label, and white men increasingly do as well. See Wolitski et al., supra note 15, at 523 tbl.1 (finding that 41% of black, 17% of Hispanic and 4% of white men identified as "down low"). Moreover, some self-identified DL men depart from the idealized DL man described in the introduction in other respects, such as in their gender performance.
157. My observations here are based on my perusal of personal ads as part of an empirical study on race and sex role preferences on the website adam4adam.com, see Robinson, supra note 142, as well as my own informal research.
158. As one might expect, men who post such ads are often emphatic about preferring blacks only and instructing white men not to e-mail them.
159. See Robinson, supra note 142, at 2805-06.
160. See, e.g., ALLEN, supra note 50, at 99; Michelle Adams, Radical Integration, 94 CAL. L. REV. 261, 279 (2006);
161. Elizabeth F. Emens, Intimate Discrimination: The State's Role in the Accidents of Sex and Love, 122 HARV. L. REV. 1307, 1398-99 (2009).
162. Many such decisions may reflect explicit or implicit bias. See Patrick A. Wilson et al., Race-based Sexual Stereotyping and Sexual Partnering Among Men Who Use the Internet to Identify Other Men for Bareback Sex, J. SEX RES. (forthcoming 2009) (manuscript at 1, on file with author) ("For many, race is a key factor that determines preferences for sexual partners."); id. at 13 ("[T]he belief that Asian and Black MSM take on strikingly different gendered characteristics during sex was pervasive among participants in the study."). Even determinations about what one finds attractive may be intertwined with racial stereotypes, which is not to suggest that one can easily alter such conceptions. See infra text accompanying notes 212-53 (discussing aesthetic racial hierarchy). For a discussion of some legitimate reasons why blacks might prefer to date other blacks, see Robinson, supra note 142, at 2793.
163. See Mosher et al., supra note 91, at 2 (finding that 6% of men ages fifteen to forty-four reported having had oral or anal sex with a man at least once, and just 1.6% reported only male partners in the last twelve months).
164. one could of course alter this hypothetical to make 20% of the community people of color. in some parts of the country, the racial demographics are essentially black-white.
165. See HIV/STD Risks, supra note 66, at 84.
166. See Mills et al., supra note 141, at 981 (finding that MSM who reside in gay enclaves are more likely to be white than those who live elsewhere).
167. In most cities, the black, out man does not have access to a black version of West Hollywood, where there are plenty of out men of the same race for coupling. A rare exception is New York City, where there is a fairly well-developed network of out black men. Yet these networks tend to be more dispersed and less visible than white gay enclaves.
168. See Robinson, supra note 142, at 2815.
169. See id. at 2807.
170. See Wilson et al., supra note 152, at 15-16.
171. Cf. MCBRIDE, supra note 9, at 104 (discussing how interracial depictions in pornography are designed for white viewers).
172. See Mills et al., supra note 141, at 981 (finding that "MSM with incomes below $20,000 were more than twice as likely to live outside gay ghettos").
173. Studies suggest that some HIV positive men have unprotected sex with men whose HIV status is negative or unknown. See Trevor A. Hart et al., Sexual Behavior Among HIV-Positive Men Who Have Sex With Men: What's in a Label?, 40 J. SEX RES. 179, 183 (2003) (finding that "approximately 66% [of HIV positive MSM subjects over a three month span] engaged in unprotected anal intercourse with partners who were HIV-negative or of unknown serostatus").
174. To be clear, I am not arguing that distinct sexual roles necessitate power differentials in the bedroom or the relationship in general. I do not believe that to be the case and argue for detaching sex roles from assumptions about gender performance, outness, and power.
175. See, e.g., Bond et al., supra note 15, at 3 (finding that DL -identified men were less likely to report receptive anal sex than non -DL- identified men).
176. Cf. Hart et al., supra note 163, at 186 (reporting that men who identified as tops were more likely to report sex with women and not identify as gay).
177. Malebranche, supra note 15, at 863-64 (emphasis in original).
178. Denizet-Lewis, supra note 38, at 31-32; cf. Mays et al, supra note 22, at 82 (expressing concern that a MSM may adopt a "deferential script that allows one's partner to steer the course of the sexual experience"). i do not mean to suggest the men discussed in the text are utter victims or lack any agency.
179. See Amaro, supra note 73, at 438; see infra text accompanying note 297-98 (explaining per contact risk of HIV infection).
180. See Hart et al., supra note 163, at 180.
181. See Robinson, supra note 50, at 1821.
182. See Robinson, supra note 142, at 2816 (establishing stronger market demand for tops than bottoms with respect to all racial groups except Asians).
183. See Marc Spindelman, Surviving Lawrence v. Texas, 102 MICH. L. REV. 1615, 1665 (2004) ("[T]hat gay relationships are same-sexed does not mean that, by definition, they are relationships where sex is freely and coequally willed or determined- or equal.")
184. Amaro, supra note 73, at 442 (emphasis added).
185. See, e.g., COHEN, supra note 45, at 125; infra Part III.C.
186. Cf. COHEN, supra note 45, at 166-67 (noting that women of color received greater media attention than black gay men in the New York Times' early AIDS coverage and arguing that the ability of women to assume the role of "innocent victim[]" helps to explain this pattern).
187. See id. at 201 (discussing black media's depiction of "black women as the victims of AIDS for whom we should feel most sorry").
188. CTR. FOR DISEASE CONTROL & PREVENTION, CDC HIV/AIDS FACT SHEET: A GLANCE AT THE HIV/AIDS EPIDEMIC (2007), available at http://www.cdc.gov/hiv/resources/factsheets/At-A-Glance.htm.
189. See Ctrs. for Disease Control & Prevention, HIV/AIDS and African Americans, http://www.cdc.gov/hiv/topics/aa/index.htm (last visited Apr. 6, 2009) (stating that in 2005 "41% of men living with HIV/AIDS were black" and that sex with men is the most common route of transmission for black men).
190. See COHEN, supra note 45, at 166-67.
191. it is always important to put the DL in context and not automatically assume that unhealthy practices or ways of thinking are distinctly black. The myth that DL men are "real" men and more desirable than out men is connected to a broader phenomenon in which some gay men of all races think of heterosexual men as forbidden fruit and fantasize about sex with straight-identified men. This mode of thinking is evident in gay pornography, where some of the most popular models are marketed as "gay for pay." Gay men who express a preference for straight-identified men or "straight acting" men may simply mean that they desire masculine men. However, I object to the assignment of masculinity to straight men, and the implicit assumption that gay men are naturally effeminate. Moreover, in some cases, the preference for straight-identified men may reflect internalized homophobia- a belief that straight is inherently better than gay.
192. See PATRICIA HILL COLLINS, BLACK SEXUAL POLITICS: AFRICAN AMERICANS, GENDER, AND THE NEW RACISM 180 (2004).
193. Adaora A. Adimora & Victor J. Schoenbach, Social Context, Sexual Networks, and Racial Disparities in Rates of Sexually Transmitted Infections, 191 J. INFECTIOUS DISEASES S115, S117, S119 (2005); Dorothy Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271, 1279 (2004) ("[M]ass imprisonment inflicts devastating collateral damage on black communities.").
194. See, e.g., MICHAEL COYLE, RACE AND CLASS PENALTIES IN CRACK COCAINE SENTENCING, 7-8, http://www.sentencingproject.org/Admin/Documents/ publications/rd-raceandclass-penalties.pdf.
195. See id. at 4, 6. The U.S. Sentencing Commission recently took steps to reduce this disparity. See Alexandra Marks, As Many Crack Convicts Are Freed, Will Crime Rise?, CHRISTIAN SCI. MONITOR, Apr. 9, 2008, at 1.
196. 347 U.S. 483 (1954).
197. See, e.g., Parents involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2768 (2007) (striking down race-conscious policy that attempted to integrate schools);
198. Milliken v. Bradley, 418 u.S. 717 (1974) (limiting efforts to desegregate that would cross school district lines).
199. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
200. See Erik Eckholm, Plight Deepens for Black Men, Studies Warn, N.Y. TIMES, Mar. 20, 2006, at A1.
201. See, e.g., united States v. Martinez-Fuerte, 428 u.S. 543 (1976) (authorizing racial profiling in Fourth Amendment case).
202. See McCleskey v. Kemp, 481 U.S. 279 (1987) (rejecting black defendant's claim of systemic bias in imposition of death penalty because he failed to prove bias infected his individual case).
203. See City of L.A. v. Lyons, 461 U.S. 95 (1983) (holding that plaintiff that alleged he was victim of illegal choking lacked standing to bring lawsuit because he was unlikely to be victimized again by that practice).
204. Adimora & Schoenbach, supra note 183, at S119.
205. See id.
206. Some women seek to maintain or initiate relationships with men who are incarcerated. Others, however, are opposed to marrying an ex-convict. See Allison Samuels, Time to Tell It Like It Is, NEWSWEEK, Mar. 3, 2003, at 52.
207. Ellis Cose & Allison Samuels, The Black Gender Gap, NEWSWEEK, Mar. 3, 2003, at 46.
208. Adimora & Schoenbach, supra note 183, at S117.
209. See Michael A. Fletcher, At the Corner of Progress and Peril, WASH. POST, June 2, 2006, at A1.
210. See id.
211. Adimora & Schoenbach, supra note 183, at S117-S118.
212. See, e.g., Joy Jones, 'Marriage Is for White People,' WASH. POST, Mar. 26, 2006, at B1.
213. See Fletcher, supra note 198, at A1; Danielle Kwateng, New Study: Black Men Comprise Large Percentage of Nearly 800,000 Homeless in America, HOWARD U. NEWS SERV., Mar. 11, 2007, http://www.blackamericaweb.com/site.aspx/bawnews/homeless312.
214. See Roberts, supra note 183, at 1290.
215. Adimora & Schoenbach, supra note 183, at S118.
216. See Mosher et al., supra note 91, at 3.
217. Adimora & Schoenbach, supra note 183, at S118.
218. See id. at S119 ("Ethnographic research has suggested that 'separational concurrency' is common among people whose partners are frequently incarcerated.").
219. Id. ("The partner entering prison is now at risk of forming new (and sometimes coercive) sexual connections with a pool of individuals among whom the prevalences of high-risk sexual behaviors, HIV infection, and other STIs are high.").
220. See Roberts, supra note 183, at 1290.
221. See, e.g., Villarosa, supra note 57, at A1 (identifying the "shortage of black men" as a factor producing high HIV rates among black women, but never mentioning nonblack men as potential partners).
222. See, e.g., Cose & Samuels, supra note 196, at 46.
223. See KELLINA M. CRAIG-HENDERSON, BLACK MEN IN INTERRACIAL RELATIONSHIPS: WHAT'S LOVE GOT TO DO WITH IT? 5, 79-80 (2006); see also Wilson et al., supra note 151, at 29 (discussing "historical and cultural forces that have for centuries promoted White features as the standard of beauty" in context of MSM romantic preferences and noting whites' preferences for lighter-skinned Latinos and blacks).
224. See COLLINS, supra note 182, at 123 ("Representations of Black women as bitches abound in contemporary popular culture ⋯ ."); Harris, supra note 72, at 599 (noting the historical failure to prosecute the rapes of black women "since black women were considered promiscuous by nature").
225. See Hammonds, supra note 45, at 131.
226. See M. Belinda Tucker & Claudia Mitchell -Kernan, Social Structural and Psychological Correlates of Interethnic Dating, 12 J. SOC. & PERS. RELATIONSHIPS 341, 348 (1995).
227. See id. at 350.
228. Id. These results make sense against the backdrop of racialized conceptions of masculinity. This view posits that black men are the most masculine (and also that they are dangerously "hypermasculine") and that Asian men are the least masculine. See Robinson, supra note 50, at 1821-22; Wilson et al., supra note 152, at 11 (quoting white respondent as stating that sex with black men is "hot" because they have a "voraciousness ⋯ [and] very animalistic quality"); id. at 11-14, 16 (finding that gender stereotypes were most frequently reported about black men and Asian men, that white men were likely to perceive Asian men as "submissive" and "effeminate" and that men of all races expected black men to be "tops" with large penises and Asians to be "bottoms"). While some black men and Asian women may benefit (to some extent) from the stereotyping of an entire race as masculine or feminine, perceptions of black female and Asian male attractiveness suffer from the same stereotype. See id. at 20; cf. Phillip Atiba Goff et al., "Ain't I a Woman?": Towards an Intersectional Approach to Person Perception and Group-Based Harms, 59 SEX ROLES 392, 396, 401 (2008) (finding that "Black faces were rated as more masculine than White faces" and that this perception correlated with rating black females as less attractive).
229. Special Tabulation by Gary J. Gates, Senior Research Fellow, Williams Institute, UCLA School of Law (research on file with author). Gates combined 2005-2006 data from the American Community Survey (ACS), a national survey conducted by the U.S. Census Bureau. American Community Survey (ACS) Home Page, http://www.census.gov/acs/www (last visited Aug. 19, 2008). In this tabulation, "Latino(a)" includes all individuals, regardless of race classification, who indicated that they had a Hispanic/Latino(a) ethnicity.
230. 388 U.S. 1 (1967); see People & Events: Breaking the Color Line at the Pageant, PBS American Experience Website, http://www.pbs.org/wgbh/ amex/missamerica/peopleevents/e-inclusion.html (last visited Mar. 14, 2009). After Vanessa Williams's breakthrough victory in 1984, one could understand the pageant judges to have tried to make up for lost time, picking three black women between 1990 and 1994, and another in 2004.
231. See Russell K. Robinson, Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms, 95 CAL. L. REV. 1, 21-22 (2007).
232. The precise numbers, based on our calculations, are 7.41% for Miss America and 6.45% for Miss USA. Wikipedia contains a list of title holders for each pageant. See List of Miss America Titleholders, WIKIPEDIA, http://en.wikipedia.org/wiki/List-of-Miss-America-titleholders; Miss USA, List of Titleholders, WIKIPEDIA, http://en.wikipedia.org/wiki/Miss- USA#List-of-titleholders. We read the articles for each titleholder and, if necessary, googled images of each of them to determine race.
233. That is, 2% of the Playmates of the Year have been black. This is consistent with the number of monthly Playmates, which approaches 3%. Wikipedia contains an entry listing Playmates that appears comprehensive. See Chronological List of Playboy Playmates, WIKIPEDIA, http://en.wikipedia.org/wiki/Chronological-List-of-Playboy-Playmates. We read the articles for each title holder and, if necessary, googled images of each of them to determine race.
234. The Maxim and FHM sexy women lists are posted on their websites. We went through all of the women who made the lists and researched their racial identities on Wikipedia, unless it seemed clear that they were completely Caucasian.
235. See Robinson, supra note 220, at 26.
236. See, e.g., id., at 23 n.91; Allison Samuels, Why Can't a Black Actress Play the Girlfriend?, NEWSWEEK, Mar. 14, 2005, at 52, 52 (reporting studio's refusal to cast an African American female actor opposite Will Smith in the film Hitch).
237. See Robinson, supra note 220, at 22. This is in contrast to other minorities, where women often fared as well or better than men.
238. See, e.g., COLLINS, supra note 182, at 140-42 (discussing "modern mammies"); Regina Austin, Sapphire Bound!, 1989 WIS. L. REV. 539, 569-70.
239. Black women are more likely to find work in supporting parts than in lead roles. Supporting female characters on TV include Vanessa Williams (Ugly Betty) and Chandra Wilson (Grey's Anatomy). Their shows are two of the most diverse on TV and, not coincidentally, are produced by women of color, Salma Hayek and Shonda Rhimes, respectively. Although they do not necessarily qualify as actors, Oprah Winfrey and Tyra Banks are prominent figures on TV.
240. See Guy Trebay, Has the 'Obama Effect' Come to Runway Castings?, N.Y. TIMES, Feb. 15, 2009, http://www.nytimes.com/2009/ 02/15/fashion/13diary.html (stating that some casting notices say "No Blacks" and indicating that black male models face substantial barriers as well); see also Guy Trebay, Runways Fade to White, N.Y. TIMES, Oct. 14, 2007, at 9-1 (stating that some agencies specify "Caucasians only" in their casting notices).
241. See, e.g., Devon W. Carbado, Black Rights, Gay Rights, Civil Rights, 47 UCLA L. REV. 1467, 1477 (2000)
242. See Cheryl I. Harris, Whitewashing Race: Scapegoating Culture, 94 CAL. L. REV. 907, 934 (2006) (review essay); Franklin D. Gilliam, The "Welfare Queen" Experiment: How Viewers React to Images of African-American Mothers on Welfare (Ctr. for Commc'ns & Cmty., Research on Media Coverage, UCLA, Paper No. 007, 1999).
243. The New Yorker magazine featured a cartoon on its cover that depicted Michelle Obama as a gun-toting black nationalist. See Rachel Sklar, Yikes! Controversial New Yorker Cover Shows Muslim, Flag-Burning, Osama-Loving, Fist Bumping, Obama, HUFFINGTON POST, July 13, 2008, http://www.huffingtonpost.com/2008/07/13/yikes- controversial- emnew-n-112429.html.
244. The "baby mama" remark, which was made by Fox News, is the most stunning because it is undisputed that Michelle and Barack Obama were legally married when they had their daughters. See Fox Refers to Michelle Obama as 'Baby Mama,' MSNBC.COM, June 12, 2008, http://www.msnbc.msn.com/id/ 25129598/. On the tendency of black and white observers to interpret race-related events differently, see Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1100 (2008).
245. See Bill Carter & Jacques Steinberg, Off the Air: The Light Goes Out for Don Imus, N.Y. TIMES, Apr. 13, 2007, at C1; The Assassination of Barack Obama Has Come!, THE RUNDOWN, June 9, 2008, http://www.therundown.tv/headlines/say-what/the- assassination- of- barack -obamas -has- come/.
246. See, e.g., Michael Powell & Jodi Kantor, After Attacks, Michelle Obama Looks for a New Introduction, N.Y. TIMES, June 18, 2008, at A1 (suggesting that makeover was intended to respond to perceptions that obama "simmers with undigested racial anger").
247. New York magazine summed up this shift in its cover story entitled "The Power of Michelle Obama: From Fist-Bumper to American Icon in Eight Months Flat." Joseph O'Neill, Democracy and Its Discontents: Why We Crave a Royal Michelle- and Why We Shouldn't, N.Y. MAG., Mar. 23, 2009, at 32.
248. See id.
249. Most surveys comparing black and white attitudes on interracial romance do not draw distinctions based on gender. See, e.g., Tucker & Mitchell -Kernan, supra note 215, at 344. A 2000 New York Times poll on race provided data that we were able to analyze for potential gender differences. We found that 32% of white women disapproved of interracial marriage and 18% of black women disapproved. The difference is statistically significant (chi-square = 28.1, df=1, p>.000). Weighted results are very similar (31% vs. 16%). I thank Joseph Doherty for his assistance with this analysis.
250. See ALLEN, supra note 50, at 97-99 ("African Americans ⋯ actively and routinely struggle with questions about the morality of outmarriage premised on group- specific obligations of solidarity and care."); COHEN, supra note 45, at 24-25 (discussing linked fate).
251. See ALLEN, supra note 50, at 101; Dee DePass, Looking for Mr. White: Interracial Relationship Survey, ESSENCE, June 2006, at 175, 176 (describing black strangers' harassment of a black woman for dating a white man).
252. See Hammonds, supra note 45, at 137 (stating that some blacks view black lesbians as "traitors to the race").
253. Alexandra Chasin quotes a magazine editor who suggested that featuring people of color on covers depresses sales. See ALEXANDRA CHASIN, SELLING OUT 97 (2000).
254. See Rod McCollum, Breakthrough Black and Latino Roles on the Big Screen, AFTERELTON.COM, Nov. 7, 2007, http://www.afterelton. com/movies/2007/11/breakthrough-black-latino-roles?page=0%2C0 ("[T]he current landscape for big-screen presentations of black and Latino gay characters is practically barren.").
255. other films with black male casts but extremely limited distribution include Punks, Ski Trip, and Brother to Brother. According to GLAAD, the Gay and Lesbian Alliance Against Defamation, there were no regular black LGBT TV characters on the broadcast networks during the 2007-2008 season; such characters appeared only on cable networks, which normally draw fewer viewers. See GLAAD, GLAAD's 12th ANNUAL DIVERSITY STUDY EXAMINES 2007-2008 PRIMETIME TELEVISION SEASON 6 (2007-08) http://www.glaad.org/2007/ 2007PDFS/WhereAreWeOnTV0708.pdf. Even these roles tend to consist of small parts in large ensemble casts. The primary exception is Jennifer Beals, who played a central character on Showtime's The L Word, which recently ended its run. Yet Beals' biracial character could, pass for white, and the show rarely mentioned her race.
256. A recent example is the character Lafayette on HBO's True Blood. Lafayette is a muscle-bound drug dealer and prostitute. He also wears makeup and is flamboyant. Remarkably, the show's writers managed to mash up two archetypical black male images (the thug and the queen) into one truly horrifying character.
257. See McCollum, supra note 243 (discussing the "sassy sidekick" and "snap queen," which are typically used for comic relief (internal quotation omitted)). Big screen examples include To Wong Foo, Thanks for Everything, Julie Newmar, which starred Wesley Snipes as a drag queen. TO WONG FOO THANKS FOR EVERYTHING, JULIE NEWMAR (Universal Pictures 1995). My concern is not hat black men should never be portrayed as effeminate, but that the dominant images lack balance and complexity. "We have to fight against our one-dimensional media identity without fighting against the black men who embrace that identity." BOYKIN, supra note 3, at 216.
258. A central problem with these depictions is that the writers rarely bother to explain why the black and white lovers are together. As one black gay critic noted, such relationships are "usually a mismatch, or the black character is simply an object of lust," See McCollum, supra note 243. Examples include the pairing of Keith and David on the otherwise superb Six Feet Under and the casting of Taye Diggs opposite Eric McCormack, who played Will on Will & Grace. Moreover, these storylines may serve as a voyeuristic experience for white men interested in having a sexual relationship with a black man. Cf. MCBRIDE, supra note 9, at 104 (arguing that interracial gay pornography presents black men "as fetish objects for the 'white' gaze").
259. For example, Michael Boatman played political consultant Carter Heywood on ABC's Spin City, and Michael K. Williams played Omar Little, a skilled and ethical gangster who had three relationships with black or biracial men on HBO's The Wire.
260. See Robinson, supra note 142, at 2811. The photos revealed the torso of the model but not his face, which is common on the website, adam4adam.com. Many men use the site primarily for sex. Some men refuse to show face photos online because they consider themselves closeted or DL.
261. For a more in-depth explanation of the methodology, see id. at 2811-13.
262. See id. at 2814. This finding is consistent with a recent study by Patrick A. Wilson, who found that Asian and Black men were generally considered the least sexually desirable among different-race men who were interviewed ⋯ . Interestingly, few Asian men saw men from within their racial group as desirable, which is quite different from Black, Latino, and White participants, who consistently rated same-race men as being one of their most preferred types of sexual partners. See Wilson et al., supra note 152, at 18.
263. Some black men have internalized this stereotype. A major theme of Wilson's study of racial stereotypes among MSM on "bareback" internet websites is the convergence between stereotypes held by white men and men of color about particular minority groups, principally blacks and Asians. See Wilson et al., supra note 152, at 15 ("White and Latino participants characterized Black MSM as generally taking on the hyper-masculine (i.e., 'thug' or 'macho') role and being dominant in sexual relationships, which is very similar to the views Black MSM had of themselves"); id. at 9 (reporting that many black subjects described sex with black men as "'rhythmic,' involving 'more body movements,' 'hot,' and 'aggressive'"); id. at 10 (stating that Asian men "'frequently' described sex with [Asian men] as 'mechanical' or 'reserved' ⋯ [or] 'boring'").
264. See Robinson, supra note 142, at 2813-14.
265. See Darren Lenard Hutchinson, "Gay Rights"for "Gay Whites"?: Race, Sexual Identity, and Equal Protection Discourse, 85 CORNELL L. REV. 1358, 1371 (2000). An analysis by the Williams Institute at UCLA School of Law suggests that black MSM are more likely to live with a nonblack partner than are black women to marry a nonblack men. However, since marriage is not an option in most states, we do not know how many of these cohabitating interracial same-sex couples would commit to marriage if the law permitted that step. Further, the figures suggest that black men are less likely to have an interracial partner than all other minority men: blacks-33% partnered with a man of a different race; Latinos-36%; Asian-51%; and Native American-71%. As with marriage rates for white women (4%), white men with male partners are the least likely to partner with someone of a different race (12%). See Gates, supra note 218.
266. See COHEN, supra note 45, at 124 ("The importance of the CDC as a primary signaling institution in the medical care and health policy industries cannot be overstated."); id. ("Clearly, staff at the CDC played an enormous role in defining this disease: delineating those at greater risk (risk groups); deciding who could be classified and counted as having AIDS (case definition); and communicating to the public the progress of the epidemic."). The CDC is part of the Department of Health and Human Services. Centers for Disease Control, About CDC Organization, http://www.cdc.gov/about/organization/cio.htm (last visited Mar. 14, 2009).
267. See COHEN, supra note 45, at 125.
268. Id. at 166 (finding that only three articles focused on black gay men and AIDS in the New York Times from 1981-1993, and that they received less coverage than drug users).
269. See id. ("Rarely were the intersections of these identities considered.").
270. See id. at 124 ("[T]he CDC task force ⋯ focused much of its attention on the gay lifestyle hypothesis.").
271. Id. at 169 (quoting NBC Nightly News (NBC Television Broadcast June 17, 1982).
272. Cf. Ford et al., supra note 1, at 213 (arguing for a focus on certain risky behaviors instead of sexual orientation); Mays et al., supra note 22, at 93 ("For traditional public health disease eradication to be successful, we need to find ways to meet our needs for categorization while interfacing with individuals in ways that resonate with their own experiences."); Savin-Williams, supra note 130, at 43 (urging researchers to "forsake the general notion of sexual orientation altogether" and instead focus only on components relevant for particular research questions); Wolitski et al., supra note 15, at 520 ("[Nongay- identified] MSM are less likely than gay-identified MSM to have been exposed to some specific sources of HIV information.").
273. COHEN, supra note 45, at 125.
274. See id. at 137 (criticizing the "rigidity of assumptions" about AIDS).
275. Id. at 125.
276. Id. at 137 (quoting RANDY SHILTS, AND THE BAND PLAYED ON: POLITICS, PEOPLE, AND THE AIDS EPIDEMIC 83 (1987)).
277. An interesting study on homophobia among blacks found that blacks who did not include black men in their conceptualization of gay identity were less likely to express favorable attitudes towards gay people than blacks who thought of gay identity as including blacks. See Gregory M. Herek & John P. Capitanio, Black Heterosexuals' Attitudes Toward Lesbians and Gay Men in the United States, 32 J. SEX RES. 95, 99 tbl.1, 102 (1995);
278. see also COLLINS, supra note 182, at 281 (noting that "[l]abeling homosexuality as 'white' suppresses recognition of the range of sexual identities among African Americans"); Allan Berube, How Gay Stays White and What Kind of White It Stays, in THE MAKING AND UNMAKING OF WHITENESS 234, 236 (Birgit Brander Rasmussen et al. eds., 2001) (noting the discrepancy between the racial demographics of the population of gay men and the whiteness of the out gay men who purport to represent the larger group); Carbado, supra note 230, at 1499, 1506 (arguing that mainstream LGBT groups employ interracial analogies and construct icons of victimization that "convey[] the idea that to be black is to be heterosexual; to be homosexual is to be white").
279. See COHEN, supra note 45, at 160-61.
280. Id. at 162.
281. Amaro, supra note 73, at 438.
282. See, e.g., Mays et al., supra note 22, at 80.
283. See COHEN, supra note 45, at 139 ("African Americans came to see this disease as something they did not need to be concerned about, something completely outside of their communities."); see also SEDGWICK, supra note 63, at 5 n.8 (noting the obsessive focus on gay men and "discursive erasure" of other vulnerable groups, including "intravenous drug users, sex workers, wives and girlfriends of closeted men").
284. See COHEN, supra note 45, at 129 (stating that "[t]his population most often received their care from 'Medicaid mills' or ⋯ emergency rooms").
285. See id. (noting that drug users were likely to depend on emergency rooms for care); id. at 135 (stating that drug users, many of whom were of color "never received the attention they deserved from the CDC, in part because of systemic biases that made them invisible to the official record keeping of the CDC, but also because of the personal attitudes of researchers who viewed this population as ⋯ unworthy victims").
286. Id. at 135;
287. see also Herek, supra note 137, at 268 tbl.1 (finding that public attitudes toward iV drug users were significantly lower than any other stigmatized group listed in the survey, including blacks, Mexican Americans, homosexuals, bisexuals, and people with AIDS).
288. See COHEN, supra note 45, at 129-30.
289. See id. at 130.
290. See id. at 127 ("[W]e are left to wonder how the response of African Americans and Latinos/as in particular would have evolved if faced from the very beginning with the framing of AIDS as a disease of black and Latino communities.").
291. See Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, in BLACK QUEER STUDIES 21, 31, 36 (E. Patrick Johnson & Mae G. Henderson eds., 2005); see also Berube, supra note 266, at 257 ("Some gay white men explicitly reject, as nongay, this broader goal of joining activists who stand and work at the intersections of the many struggles to achieve social justice and to dismantle interlocking systems of domination.").
292. See COHEN, supra note 45, at 137 (noting "the lack of power and influence possessed by the heterosexual population thought to be at risk"); cf. Cohen, supra note 278, at 26 (discussing sexual regulation of women on welfare).
293. See COHEN, supra note 45, at 182.
294. See id.; see also id. at 313 (discussing efforts by black representatives to downplay connection between AIDS in black community and homosexuality and focus on "those respectable and innocent segments of communities of color-women and children"); id. at 201 (noting that black newspapers "often used [the stories of unsuspecting black women] as a respectable way to bring along 'the black community' in the fight against AIDS").
295. See Carol L. Galletly & Steven D. Pinkerton, Toward Rational Criminal HIV Exposure Laws, 32 J. L. MED. & ETHICS 327, 327-28 (2004);
296. Zita Lazzarini et al., Evaluating the Impact of Criminal Laws on HIV Risk Behavior, 30 J. L. MED. & ETHICS 239, 241 (2002).
297. Preexisting general state criminal laws also would have permitted prosecution of HIV transmission in certain instances. Cf. Lazzarini et al., supra note 282, at 241 (noting that whether HIV would be covered by statutes criminalizing exposure to communicable or sexually transmitted diseases would depend on the definition of relevant terms in the statute).
298. See Jennifer Frey, Jamestown and the Story of 'Nushawn's Girls,' WASH. POST, June 1, 1999, at C1. The Williams case spawned over 700 media articles-far more than any other case of HIV transmission. See Lazzarini et al., supra note 282, at 246 (finding that the Williams case produced 727 articles and next most popular case generated 335 articles).
299. See Frey, supra note 284, at C1.
300. See CARLOS ULISES DECENA, Infectious Lives, 11 GLQ: J. LESBIAN & GAY STUD. 635, 635 (2005) (book review) (noting "the media's insistent effacing of complexity for the sake of creating a narrative of 'good' versus 'evil'"); id. at 636 (indicating that Williams was described as an "AIDS monster").
301. See Frey, supra note 283, at C1. (suggesting that Williams had sex with six of the thirteen sex partners who became HIV-positive before he was diagnosed).
302. See Lazzarini et al., supra note 282, at 246-47.
303. See Galletly & Pinkerton, supra note 282, at 328.
304. See id.; Lazzarini et al., supra note 282, at 241 ("Only two laws distinguish between protected sex (when a condom is used during intercourse) and unprotected sex.");see also infra text accompanying note 300.
305. See, e.g., State v. Gonzalez, 154 Ohio App. 3d 9, 2003-Ohio-4421, 796 N.E.2d 12, at 1 97 ("It was not necessary to decide whether the victim developed HIV . ⋯ As soon as the sexual conduct occurred without disclosure, the crime was committed.").
306. See United States v. Morris, 30 M.J. 1221, 1228 (A.C.M.R. 1990). This case was brought under general military law, not an HIV -specific statute. The court interpreted the law to forbid a positive person from engaging in unprotected sex, rather than merely requiring disclosure prior to sex, like most HIV- specific statutes. See id.
307. See, e.g., Gonzalez at 1 32 (quoting Ohio statute prohibiting "without privilege to do so, the insertion, however, slight, of any part of the [positive person's] body or any instrument, apparatus, or other object into the vaginal or anal cavity of another" (citation omitted)); see also Galletly & Pinkerton, supra note 282, at 329 (analyzing Arizona and Michigan statutes).
308. Galletly & Pinkerton, supra note 282, at 328.
309. See id. Factors that increase the risk of infection include cuts or sores in the receptive partner's mouth. Scholars know less about transmission through oral sex than they do about anal and vaginal transmission in part because most subjects engage in oral and vaginal sex, oral and anal sex, or all three. Thus, it can be challenging identifying subjects who engage in only oral sex. See Sex Research Update, 15 CAN. J. HUM. SEXUALITY 47, 49 (2006).
310. See id.
311. See id.
312. See id.
313. See id.
314. See id.
315. Id.; see also Guevara v. Superior Court, 73 Cal. Rptr. 2d 421, 424 (Ct. App. 1998) (finding no "evidentiary basis" for claim that it is likely that "one or two individual incidents of unprotected sex between an HIV-positive male and an uninfected female would result in transmission of HIV to the female"). Of course the likelihood of infection increases if one is having regular, unprotected sex with a positive partner.
316. See Lazzarini et al., supra note 282, at 241, 247.
317. See id. at 245 tbl.2, 247. including other modes of potential transmission, such as biting, the total number of prosecutions was 316. Id. at 245 tbl.2.
318. Id. at 247.
319. Id.
320. See id. at 244-45.
321. Scott Burris et al., Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial, 39 ARIZ. ST. L.J. 467 (2007).
322. See id. at 490.
323. 720 ILL. COMP. STAT. 5/12-16.2 (2006).
324. Id. (quotation marks omitted).
325. See Burris et al., supra note 307, at 490-91.
326. See id. at 492-94.
327. See id. at 495. About one-third of the sample reported being HIV-positive; many did not know whether they were positive. See id. at 495-96.
328. See id. at 496 ("As a group, the respondents strongly agreed that it was morally right for people with HIV to use condoms and disclose their status to partners.").
329. Id. at 497. The authors did find a significant interaction between state of residence and condom use, that is, "people from Illinois were more likely than people in New York to report condom use during their most recent episode of vaginal sex." Id. at 501. The same did not hold for anal sex. Although the correlation regarding vaginal sex creates the possibility that the law has some effect, there are also many other reasons that could explain the difference. Since beliefs about the law did not correlate with condom use, the authors were not persuaded by the interaction between state of residence and condom use. See id. at 502-03.
330. Id. at 503. Some might argue that HIV transmission laws have expressive value in establishing a moral baseline for society. However, these findings suggest that the role of law in creating moral standards in this context is uncertain.
331. Clearly, there are other factors that also explain the low prosecution rate. Principal reasons likely include stigma and norms of sexual privacy/shame. Most states appear not to protect the identity of a victim of HIV transmission as they would a rape victim. A person who learns that he was infected by a partner might blame himself for failing to use protection or ask about HIV status. Even if he does not accept any blame and sees his partner as the sole wrongdoer, he may be ashamed about his sexual orientation, the particular sex acts he engaged in (i.e., "bottoming"), that he chose a partner that infected him, and/or having HIV. A person who was exposed to the risk of HIV but ended up negative may feel lucky to be alive and may see prosecuting his HIV-positive ex-partner as pointlessly cruel.
332. Cf. COHEN, supra note 45, at 129-30.
333. Of course, the laws also apply to women who infect men and women who infect women, but these modes of transmissions are not as common. See supra text accompanying notes 297-99 (explaining that the risk of a positive man infecting a negative woman during vaginal or anal sex exceeds the risk of a positive woman infecting a negative man during those sexual acts).
334. As noted earlier, a study found just 211 prosecutions of men and women alleging sexual exposure. See supra text accompanying note 303.
335. See Perry N. Halkitis, Understanding the Sexual Lives of HIV-Positive Gay and Bisexual Men: An Overview of the Seropositive Urban Men's Study, in HIV+ SEX: THE PSYCHOLOGICAL AND I NTERPERSONAL DYNAMICS OF HIV-SEROPOSITIVE GAY AND BISEXUAL MEN'S RELATIONSHIPS (Perry N. Halkitis et al., eds., 2005) [hereinafter "HIV+ SEX"]. Men of color made up 70% of the sample. Over 80% of the men identified as gay/queer/homosexual, 10% identified as bisexual, and 6% did not identify with any of these labels. See id. at 11.
336. See Ann O'Leary, Guessing Games: Sex Partner Serostatus Assumptions Among HIV-Positive Gay and Bisexual Men, in HIV+ SEX, supra note 321, at 121-23, 125, 129.
337. See id. at 122-23
338. See id. at 125-26.
339. See Nicolas Sheon & G. Michael Crosby, Ambivalent Tales of HIV Disclosure in San Francisco, 58 SOC. SCI. & MED. 2105, 2116 (2004) (quoting one survey participant's conclusion that "[i]f a partner is willing to 'bottom' they must already be positive or willing to take the risk").
340. See O'Leary, supra note 322, at 126 (quoting one individual as saying "I assume everybody in the Castro's HIV-positive").
341. For an example of an extensive national list of swingers clubs, see http://www.swinger.net/ (last visited Mar. 25, 2009).
342. See Kathleen M. Sullivan, Male Self-Disclosure of HIV- Positive Serostatus to Sex Partners: A Review of the Literature, J. ASS'N NURSES IN AIDS CARE, Nov.-Dec. 2005, at 33, 36 ("Some men choose not to reveal their HIV-positive status because they did not want to elicit suspicions about their sexual orientation.").
343. See Ronald A. Brooks et al., Sexual Risk Behavior Has Decreased Among Men Who Have Sex with Men in Los Angeles but Remains Greater Than that Among Heterosexual Men and Women, 20 AIDS EDUC. & PREVENTION 312, 321 (2008) ("For many heterosexual men and women, HiV may not be perceived as a real threat. in many communities, people still perceive of HiV as primarily a gay disease and may therefore not see the need to concern themselves with practicing safer sex." (citation omitted)); see also Constance J. Pilkington et al., Is Safer Sex Necessary with a "Safe" Partner? Condom Use and Romantic Feelings, 31 J. SEX RES. 203, 205 (1994) (finding that 87% of college students who used condoms cited contraception, rather than AIDS, as the most important factor in deciding to use condoms).
344. See, e.g., Sullivan, supra note 328, at 38.
345. See Pilkington et al., supra note 329, at 206-07.
346. Sullivan, supra note 328, at 38 (citation omitted).
347. Wolitski et al., supra note 15, at 526; see also Montgomery, et al. supra note 29, at 834 (finding that most HiV-positive men who had sex with men and women reported one to five male and one to five female partners in prior five years, contrary to "the common belief that bisexual men often are in a committed relationship with a woman and have many male sex partners").
348. See, e.g., Michael J. Stirratt, I Have Something to Tell You: HIV Serostatus Disclosure Practices of HIV-Positive Gay and Bisexual Men with Sex Partners, in HIV+ SEX, supra note 321, at 101, 104.
349. See, e.g., Sheon & Crosby, supra note 325, at 2112, 2116 (discussing perceptions that bringing up HlV "ruin[s] the mood").
350. See id. at 2114 ("Substance abuse during sex provided many respondents with a justification for their risk behavior.").
351. See, e.g., Gary Marks et al., Estimating Sexual Transmission of HIV from Persons Aware and Unaware that They Are Infected with the Virus in the USA, 20 AIDS 1447, 1447 (2006). Indeed, these laws could create the perverse incentive not to get tested because only those who know they are positive are subject to the law's disclosure requirement. However, in practice, it appears that few know about such laws and they have little impact on sexual decision making. See supra text accompanying notes 314-15.
352. See Marks et al., supra note 337, at 1447.
353. See, e.g., id. at 1448-49; see also Rachel Smith et al., Beyond the End of Exceptionalism: Integrating HIV Testing into Routine Medical Care and HIV Prevention, 5 EXPERT REV. ANTI INFECTION THERAPY 1, 1 (2007).
354. See Marks et al., supra note 337, at 1447.
355. See id. at 1448.
356. Gary Marks et al., Meta-Analysis of High-Risk Sexual Behavior in Persons Aware and Unaware They Are Infected with HIV in the United States, 39 J. ACQUIRED IMMUNE DEFICIENCY SYNDROME 446, 448 (2005).
357. See Jennifer L. Lauby, Sexual Risk Behaviors of HIV- Positive, HIV -Negative, and Serostatus -Unknown Black Men Who Have Sex with Men and Women, 37 ARCHIVES SEX. BEHAV. 708, 717 (2008). This study likely uncovered more men meeting the standard media definition of down low than other studies because it used respondent-driven sampling, drawing on personal networks to identify subjects, instead of relying on men found at gay- identified venues. See id.
358. See id.
359. See id. at 709 ("The prevalence of unrecognized HIV infection is highest among Black persons compared with all other racial and ethnic groups, and unrecognized HiV infection rates are particularly high among Black MSM." (citation omitted)); David Malebranche, Adverse Health Outcomes Among Black Americans, POSITIVELY AWARE, Nov./Dec. 2005, at 26, 27 ("African Americans ⋯ are less likely to receive HAART."). There are many reasons that contribute to this disparity; they include cultural differences which may impact communication between black patients and nonblack doctors, doctors' stereotypical beliefs that black patients will not follow their advice, and "pervasive distrust of medical and public health messages and personnel, combined with widespread support of HIV conspiracy theories." Id. at 28; see also Robinson, supra note 233, at 1110-11 (discussing support in black community for conspiracy theories).
360. Ctrs. for Disease Control & Prevention, Unrecognized HIV Infection, Risk Behaviors, and Perceptions of Risk Among Young Black Men Who Have Sex with Men-Six US Cities, 1994-1998, 51 MORBIDITY & MORTALITY WKLY. REP. 733 (2002), reprinted in 288 J AM. MED. ASS'N 1344, 1347 (2002). The Lauby study, which focused on men who have sex with men and women found a lower, but still disturbing prevalence rate of 39%. See Lauby, supra note 343, at 717.
361. Although blacks are more likely to report being tested for HIV than whites, see Shahul H. Ebrahim et al., Race/Ethnic Disparities in HIV Testing and Knowledge About Treatment for HIV/AIDS: United States, 2001, 18 AIDS PATIENT CARE & STDs 27, 32 (2004), that does not establish whether testing among blacks is sufficient because HIV prevalence is much higher among blacks. It also does not tell us whether there are subsets of the black community that are at high risk yet not being tested. As the CDC noted in a report, "since 1994, the annual number of cases among blacks, members of other racial/ethnic populations, and persons exposed through heterosexual contact has increased." BERNARD M. BRANSON ET AL., CTR. FOR DISEASE CONTROL & PREVENTION, REVISED RECOMMENDATIONS FOR HIV TESTING OF ADULTS, ADOLESCENTS, AND PREGNANT WOMEN IN HEALTH-CARE SETTINGS 2 (2006), available at http://www.cdc.gov/mmwr/pdf/rr/rr5514.pdf; see also id. ("Persons tested late in the course of their infection were more likely to be black or Hispanic and to have been exposed through heterosexual contact ⋯ ."). As of 2002, between 38 and 44% of adults in the United States had been tested for HIV. See id.
362. See BRANSON ET AL, supra note 347, at 7.
363. Id. at 4 (citation omitted).
364. Id. at 5 (citations omitted)
365. Id. (citation omitted).
366. Id. (citations omitted).
367. KAISER FAMILY FOUNDATION, HIV/AIDS POLICY FACT SHEET: HIV TESTING IN THE UNITED STATES 1, (2004) http://www.kff.org/hivaids/upload/ Updated-Fact-Sheet-on- HIV-Testing-in-the-U-S.pdf.
368. See Lawrence O. Gostin, HIV Screening in Health Care Settings: Public Health and Civil Liberties in Conflict?, 296 J. AM. MED. ASS'N 2023, 2024 (2006) (arguing that universal testing is "less stigmatizing because it does not single out vulnerable populations and applies equally to all socioeconomic classes and racial groups").
369. See Decana, supra note 111, at 401-02 (criticizing authors of influential study on MSM [HIV/STD Risks, supra note 66] for adhering to coming out demand even though their data suggested that coming out increases sexual risks for black men).
370. See Robinson, supra note 50, at 1838 ("Under certain circumstances, failing to pass or cover could expose a person to violence or otherwise cause countervailing harm.").
371. See Decana, supra note 111, at 403, 405-06 ("The 'cure' is that MSM of color will disclose and consequently stop having sex with women altogether. The point is ⋯ to quarantine [MSM] from heterosexuality.").
372. See supra Part II.A.1.
373. See supra text accompanying note 66.
374. See HIV/STD Risks, supra note 66. Even if coming out decreases a MSM's likelihood of having sex with women, we should be concerned if it increases his likelihood of having unprotected sex with men.
375. See Ryan C. Burke et al., Why Don't Physicians Test for HIV? A Review of the US Literature, 21 AIDS 1617, 1622 (2007).
376. See BRANSON ET AL., supra note 347, at 7-8.
377. See id. There is significant confusion about the prevalence of HIV testing. A number of people seem to think that opt-out testing is already the norm. See KAISER FAMILY FOUNDATION, supra note 353, at 1 (reporting that nearly a quarter of survey respondents who reported having been tested for HiV "were under the impression that the test was done as a routine part of an exam").
378. See BRANSON ET AL., supra note 347, at 13 (noting that CDC recommendations might be trumped by state law and regulations); Smith et al., supra note 339, at 2 ("[R]isk- based testing and not universal testing remains the norm in most of the USA.").
379. Burke et al., supra note 361, at 1620.
380. There is precedent for this. For example, New York has mandated HIV testing for all newborns since 1996. See Gostin, supra note 354, at 2024;
381. see also DAVID W. WEBBER, AIDS AND THE LAW § 2.2, at 52-55 (3d ed. 1997) (discussing history of mandatory testing). In contrast to mandatory testing, my proposal simply requires that health-care providers offer testing.
382. Federal law should also establish uniform regulations to protect the privacy of persons with HIV. Otherwise, people might refuse to be tested because of the risk of discrimination and other adverse consequences.
383. See Gostin, supra note 354, at 2023.
384. See WEBBER, supra note 366, at 53.
385. See Gostin, supra note 354, at 2023; Smith et al., supra note 339, at 5.
386. See Gostin, supra note 354, at 2023; Smith et al., supra note 339, at 3 (noting that 30% of Americans who get tested fail to return for their results).
387. See Gostin, supra note 354, at 2023; Smith et al., supra note 339, at 2.
388. See WEBBER, supra note 366, § 2.20, at 40-41; Burke et al., supra note 361, at 1621 ("Separate written consent and pretest counselling [sic] were standards established at a time when HIV was unbeatable and highly stigmatized."); Gostin, supra note 354, at 2024; Smith et al., supra note 339, at 5 ("Today, the initial safeguards of confidentiality and civil liberty developed with regards to HIV infection in the late 1980s have turned into public health roadblocks."). For example, some states require posttest counseling even for patients whose results are negative. See Gostin, supra note 354, at 2024.
389. See Burke et al., supra note 361, at 1621; id. at 1622 (discussing other possible innovations such as creating materials for physicians to distribute to patients and instituting a reminder system for HIV testing).
390. See id. (noting that in New York, "there is a legislative push to change the informed consent requirement for HIV testing from separate written consent to documented oral consent").
391. See Gostin, supra note 354, at 2024 ("State law reform ⋯ is critical if the CDC is to fully achieve its objectives.").
392. Smith et al., supra note 339, at 5.
393. See David Malebranche, Adverse Health Outcomes Among Black Americans, 16 POSITIVELY AWARE, Nov.-Dec. 2005, at 26, 27-28.
394. It is also critical that governments expand HIV testing and treatment in jails and prisons, whose populations are disproportionately black. See Smith et al., supra note 339, at 6.
395. See id.
396. POW! Center Takes Free Testing Where It's Needed, VANGUARD MONTHLY NEWSL. (Gay & Lesbian Center, L.A. Cal.), Nov. 2008, at 1, 8.
397. Kaiser Family Foundation, Health Insurance Coverage and Access to Care among African Americans, Medicaid and the Uninsured 1, (2000), http://www.kff.org/uninsured/upload/Health-Insurance-Coverage-and-Access-to- Care-Among-African-America ns.pdf ("African Americans are less likely to have job-based coverage at all income levels compared to whites.").
398. See Malebranche, supra note 378, at 27-28; Robinson, supra note 233, at 1111 (discussing Tuskegee syphilis study); id. at 1110 ("Roughly 60% of blacks [in one survey] stated that that it might be or is definitely true that 'the virus that causes AIDS was deliberately created in a laboratory to infect Black people'");
399. see also GARY ALAN FINE & PATRICIA A. TURNER, WHISPERS ON THE COLOR LINE: RUMOR AND RACE IN AMERICA 158 (2001) ("Many prominent African-Americans, including Louis Farrakhan, Spike Lee, Grace Jones, and Bill Cosby, as well as doctors, lawyers, and professors, have expressed the belief that AIDS might have been deliberately created.").
400. See, e.g., Paul Robert Appleby et al., The Paradox of Trust for Male Couples: When Risking is a Part of Loving, 6 PERS. RELATIONSHIPS 81, 89 (1999) (study of male couples found that "feelings of love, trust, and commitment were associated with risky behaviors more often than with safer sexual behaviors"); Peter E. Thomas et al., HIV Testing at Historically Black Colleges and Universities, PUB. HEALTH REP., 2008, at 1115 (survey of mostly heterosexual black college students finding that people in committed relationships were less likely to report being tested for HiV).
401. See supra text accompanying note 307-15.
402. See supra text accompanying note 282.
403. See supra text accompanying note 314.
404. See supra text accompanying note 342-42.
405. See supra text accompanying note 302-05.
406. See supra text accompanying note 300.
407. This change would entail recognizing that different sexual acts/positions carry different levels of risk, an issue which is glossed by some HIV- transmission statutes. See supra text accompanying note 293-301.
408. See supra text accompanying note 320.
409. See, e.g., Robinson, supra note 72, at A23.