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Reform won’t end police sexual violence

Originally published: Boston Review by Anne Gray Fischer (July 20, 2020)   | 

When photographs of Brett Hankison, one of the officers who murdered Breonna Taylor on March 13, began to make the rounds on social media, at least five women recognized his face. He was the same officer, they said, who had offered them a safe ride home and then sexually harassed or assaulted them. Margo Borders wrote on Facebook that Hankison “drove me home in uniform, in his marked car, invited himself into my apartment and sexually assaulted me while I was unconscious.” Borders did not at the time report the rape because she feared retaliation: “[H]e had the upper hand because he was a police officer. Who do you call when the person who assaulted you is a police officer? Who were they going to believe? I knew it wouldn’t be me.”

The pursuit of justice for Breonna Taylor has been absorbed into a movement driven primarily by the killings of Black men, her name honored among calls to say their names. But there remains an urgent need specifically to say her name. That is—and as the case of Hankison shows—we miss a crucial component of police violence if we only think of it as defined by something that happens to Black men, or as something that happens to Black people regardless of gender. Women’s experiences with police reveal distinct and often overlooked forms of gender-specific violence that are baked into the structure of law enforcement and that need be addressed in those terms as part of any effort to dismantle structural racism.

Police sexual violence is hidden in plain sight. Grossly underreported and understudied, the scant research that does exist reveals that sexual violence at the hands of police is endemic to law enforcement, and that women of color—cis and trans—are especially vulnerable to it. This violence is possible in part because of the extreme power disparity that exists between targeted women and police, which at once enables such violence and shields officers from consequences. But police sexual violence is also possible because it is a legally sanctioned tactic of everyday policing. Women’s bodies are the strategic terrain on which police gain evidence, secure informants, and impose their authority in the name of “public safety” and “border security.”

Indeed, rape is considered a legal and legitimate tool of law enforcement. For example, in prostitution-related misdemeanor policing, undercover police routinely entrap women into engaging in sexual acts to gain “evidence” that they are doing sex work. Because consent is obtained under false pretenses, this practice amounts to legal sexual assault. “It’s incredibly traumatic to be tricked into having sex with someone who stops in the middle and puts you in handcuffs and takes you against your will to be locked up in a jail cell,” one activist said. “Women have told me that years later they still have PTSD symptoms when they see a police car.” Sexual “contact” by police officers to enforce morals laws is legal in all fifty states; when lawmakers in Alaska tried to ban police sexual contact, the Anchorage Police Department quashed the bill.

How did we get to the point where sexual assault is considered valid, necessary police work? The answer lies in the origin story of modern police, and specifically in the history of the discretionary enforcement of public order laws. When we interrogate this past, a central contradiction of modern policing becomes clear: the same violent practices that are now widely considered abuses of power—and which reformists believe can be cleansed from police departments—are also official policies of urban policing.

Gender-specific police violence is not an aberrant corner of law enforcement. It is, instead, a cornerstone of police power. As Black and anti-capitalist feminists in the Wages for Housework movement argued in the 1970s, police power is built on women’s bodies. At a 1979 street action in Boston co-organized by Margaret Prescod and other sex worker activists, the women declared that law enforcement was designed to “uphold men’s power over women in order to uphold their own power over everyone.” In short, the discretionary authority that funds both public order enforcement and police sexual violence is constitutive of police power.

The bulk of police work is and has historically been so-called public order enforcement, now euphemistically called “public safety” work. In the first few decades after the defeat of Reconstruction, policing public order meant vigilantly enforcing racial segregation and protecting white capitalists in rapidly industrializing cities. Police sustained this public order with anti-worker Red Squads and through the enforcement of Jim Crow laws.

But public order enforcement in the early twentieth century was not only white supremacist and capitalist—it was patriarchal, too. Women on city streets were seen as great dangers to urban order. Because of their role as the literal and social reproducers of the next generation, the presumed behaviors and sexual practices of poor white and Black women threatened to unleash social chaos: racial “miscegenation,” urban crime, and civic decay. To contain the threat of so-called disorderly women, poor white women needed to be tamed and domesticated. And Black women, denied the white privileges of domestic motherhood, needed to be brutally confined to segregated neighborhoods. As a result—and particularly in states without Jim Crow laws on the books—public order was (and remains) enforced through vague, broadly worded low-level morals misdemeanors such as disorderly conduct, vagrancy, loitering, and prostitution.

Moral misdemeanors gave police astonishing discretionary authority. Police officers, rather than local civilians, were the primary complainants pressing charges of public morals laws. What’s more, a police officer did not even have to witness any particular act to make a morals arrest. When giving evidence in court, police testimony typically hinged on the officer’s appraisal of a woman’s appearance, reputation, the company she allegedly kept, and the neighborhood in which she was apprehended. Officers had the ultimate power to determine which women would be criminalized—and their individual decisions were necessarily bound up with the racist, sexist, and classist logics that structured their work. This unilateral power to target impoverished and marginalized women was ready made for police exploitation.

The Prohibition era (1920–33)—when local police departments were knitted into a national policy of public order enforcement—brought to the attention of the white middle class what poor white and Black women already knew: morals policing was a license for police to engage in bribery, graft, extortion, abuse, and sexual violence. In the early 1930s, federal and state commissions that were formed to reckon with the scandalous failure of Prohibition issued broad indictments of the police. In his 1931 report for the National Commission on Law Observance and Enforcement (known as the Wickersham Commission), leading criminologist August Vollmer acidly summed it up: “Law enforcement is one of our national jokes.” The same year, Ernest Hopkins, a member of the commission, wrote in his popular chronicle of its findings, Our Lawless Police (1931), “in no previous period of our national life has a general popular antagonism toward public authority, and distrust of it, been more prevalent through the United States.”

Though the period saw a torrent of reports and articles protesting law enforcement, women, much like today, were rarely mentioned as victims of police violence. This was a major failing, then as now, because these cases revealed the full range of police practices made possible under the cover of morals enforcement: entrapment, frame-ups, shake-downs, brutality, and sexual assault. For example, New York’s 1931 Seabury investigation reported on two undercover vice squad officers, “Lewis and McFarland,” who set up “Mrs. Potocki,” a single mother who worked as a night janitor and sold alcohol to friends on the side. One night in 1930, the men appeared at her door asking for drinks, assuring her that they were “all right.” After they had been drinking in her kitchen for two hours, she told them it was time to leave. Instead, “Lewis struck her first on one side of the jaw . . . and demanded $500. Lewis then fell upon her and ripped off her clothing.” Lewis was interrupted by knocking. When McFarland opened the door to a visiting friend, he “struck her . . . with such terrific force that blood spurted from her mouth.” The two women were beaten and later dragged to the police station.

In the wake of Prohibition, many observers rejected bad-apple explanations for the violence of officers such as Lewis and McFarland: the problem was not individual but systemic. Criminologists, popular journalists, and even some law enforcement authorities recognized that morals policing—then called vice policing—was designed to produce violence, and therefore inherently unreformable. A former Department of Justice agent who served as a grand jury investigator in San Francisco concluded that officers’ power to determine who would be targeted for which laws led to the “unenforcibility of laws against prostitution, gambling, and other alleged vices.” Selective arrests, abuse, and corruption were the invariable byproducts of such laws. Leonard Harrison, the lead author of a 1934 Harvard study of the Boston Police Department, wrote that “vice control is the chief menace to police departments.” He recommended the total abolition of police vice squads.

But in the intervening century, the law enforcement lessons of the post-Prohibition era were ignored. Police leadership at the national and local levels launched new propaganda campaigns arguing that police were not criminals but rather the white public’s best and only defense against criminals. Beginning in the 1930s and accelerating after World War II, law enforcement steadily amassed unprecedented levels of political power. Departments adopted “reforms” that, rather than shrinking police power, sanitized and legitimized it: professionalization and training programs, diversity hiring, and community-oriented police strategies.

Police discretion was an elusive target of twentieth-century reform, notoriously difficult to standardize and supervise. But more importantly, because discretion was a key source of unchecked police power, police leaders jealously guarded it and resisted any reforms. Despite some efforts to restrain police discretion through revisions to status laws such as those against vagrancy, the seething heart of police violence—discretionary public order enforcement—remained untouched. Through police discretion, officers maintained their stranglehold on street-level power.

Between the 1930s and 1960s, police sexual violence was unsurprisingly buried in a political culture where white men raped Black women with impunity, white women’s sexual assault was only taken seriously if the alleged perpetrator was Black, and husbands could legally rape their wives.

A second major round of protests surged against police violence in the late 1960s and ’70s. Sex workers and their feminist and queer allies harnessed their experiences to prove the unbreakable connection between discretionary morals policing and police sexual violence. They described the ways police extorted sex from women in exchange for non-arrest. “They take you in the paddy wagon and say, ‘If you blow me, I’ll let you go,’” one sex worker activist told a reporter. In Boston, police sexual violence in the 1970s featured a cruel racist twist: the Boston Globe reported that after sexually assaulting Black women in lieu of arrest, white police officers would release them to all-white South Boston, the raging center of the anti-busing campaign, and pull them out of the car “honking the horn of their patrol car to draw the terrified women to the attention of local thugs.” Through activists’ efforts, the abolition of morals laws appeared on the national agenda.

But beginning in the mid-1970s, law enforcement authorities, criminologists, and business elites fought back with the perverse logic of what we now call “broken windows” policing. They argued that sexually profiled Black women were not victims of police violence. On the contrary, cities were the victims of Black women. “Prostitutes,” overwhelmingly marked as Black in the media, were smeared not only as violent criminals themselves, but also as the cause of larger-order crimes. For example, in 1979 the general manager of a downtown Atlanta hotel angrily wrote to his city council president, without evidence, that “90% of the violent crime problem we have here at the Marriott is related to the prostitution problem.” Worse yet, the crime these women allegedly produced frightened off urban investors and white tourists and suburbanites. More officers and more misdemeanor policing was upheld as the key to urban wealth.

Despite attempts in some cities to dismantle the broken windows regime—New York’s has been perhaps the most widely publicized—we continue to live in a society shaped by its logic, which prizes white capitalist visions of social order over the lives of Black people. Lethal, militarized officers are deployed to secure “public safety” through aggressive, low-level misdemeanor policing. They are crowned as the arbiters of urban order, the only solution to what scholar Clare Sears calls “problem bodies.” It is within this context of breathtaking police discretion and authority that policing to promote public safety is structured as an inevitable and unaccountable breeding ground of state-sponsored sexual coercion, extortion, and force.

Legal niceties—such as Michigan’s 2017 ban on police engaging in penetrative sex with women targeted for morals enforcement—fail to shield women from police who are free to exploit their tremendous power. Women do not have to be sexually profiled in order to be vulnerable to police sexual violence. In fact, the criminalization of women for other low-level misdemeanors, such as drug offenses, exposes them to police assault because officers know that women with prior records have the least access to legal standing, political clout, or material resources. Notable exceptions of officers called to account—such as Daniel Holtzclaw, the Oklahoma City officer who serially raped Black women, or Henry Hollins, the New Orleans officer who kidnapped and raped a woman “with his gun and Taser at arm’s length”—belie the untold instances of officers who continue to work, armed and with the full authority of the badge.

Police continue to extort women for sex in exchange for non-arrest, just as sex worker activists argued nearly fifty years ago. A Black woman interviewed in 2007 said that “I had one cop who was like, ‘Well, if you do this sexual favor for me, then I won’t take you to jail.’ And I was like, ‘Take me to jail, ’cause I am not for free.’” A Washington, D.C., study found that nearly one in five sexually profiled people were “asked to provide sexual favors or services to police officers.”

Public order laws justify these practices as legitimate police work. Trans women of color are particularly terrorized by police, who are backed up by laws such as New York’s loitering-prostitution law, which is widely derided as a “walking while trans” law. Searches, frisks, and pat-downs are daily sources of violence as officers seek “[to assign] a gender, to punish and humiliate trans people, to satisfy their curiosity, or for sexual gratification,” legal scholar Andrea Ritchie writes. “There’s notions that we’re not supposed to exist,” said Bamby Salcedo, founder of the Trans Latina Coalition.

The police have also internalized all of that and perpetrate that [violence]. So because we have to survive in some type of way, because we’re not supposed to exist in this world, we’re criminalized simply because of who we are.

Women’s experiences of state violence expose the lie that police provide safety and protective services. On the contrary, police create violence and danger. Public order enforcement gives police the mandate—and the excuse—to harass, arrest, and assault sexually profiled women simply for being on city streets. Women may occasionally report helpful and positive encounters with individual offers, but decency is up to the officer’s own discretion—and while violence is written into the legal repertoire of police tools to secure urban order, decency is not. Morals laws make punishment, not protection, the job of police. As one anonymous Washington, D.C., resident said,

I feel less safe with the police than without them.

When we center women’s experiences with police, we see that arguments about the unreformability of police have been building for nearly a century. Like police brutality targeting Black men, investigators and activists have known about police sexual assault for decades. But unlike police brutality, there was never a sustained faith that such violence could be reformed out of departments.

Women’s abolitionist activism, fueled by their encounters with police, has consistently led the way to dismantle the inherent and inescapable violence in law enforcement. To meaningfully reduce police violence, officers must be denied their discretionary authority over women’s bodies. This would in turn deny officers their authority to enforce a predatory vision of public order, one that is hostile to difference, poverty, and disability. The enormous sums of money that are currently dedicated to stings, crackdowns, raids, and street clearance arrest drives should be redirected to social welfare, housing, education, and health care—with an impermeable barrier separating police from the distribution of these resources. This gender-centered approach to defunding police departments is the essential next step in the unmaking of police power.

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