At the Situationist (a blog associated with the Project on Law and Mind Sciences at Harvard Law School which is co-authored by a classmate of mine in law school), there is a post about Amnesty International report about the higher rate of rape against Native American women that I blogged about here. From the Situationist:
Seventeenth-century English Chief Justice Sir Matthew Hale wrote, rape “is an accusation easily to be made and hard to be proved.” At least since then, that sort of thinking has been a major impediment to protecting women against sexual violence.
Of course, the impediments are many. In fact, one social psychologists have discovered that one of the biggest challenges is in the way we categorize an occurrence. There is a “rape prototype” that influences what counts as a “rape” and what counts as something else — say, consensual sex or a seduction. (Legal scholar Martha Chamallas has a compelling article on that topic.) The purest form of the rape prototype, complete with racial details, includes a brutish man (usually black), unknown to the victim, bounding out of the bushes or breaking into a home and violently forcing himself on a young, innocent, white (probably blonde) woman.
Elements of this prototype can be found throughout our culture, from the cinema (see above) to political ads (see below). And that same prototype, many have argued, has interfered with our ability or willingness to recognize or respond to the harms associated with atypical forms of sexual violence, such as marital rape, date rape, same-sex rape, prison rape, and party rape.
Amesty International has just published a disturbing study about the sexual violence against Native American women in the U.S. To be sure, there are Amnesty International Report Cover numerous causal factors (including jurisdictional ambiguity, budgetary constraints, and bureaucratic indifference) behind the trends described. But, in additon to those situational factors, a less obvious causal contributor, we suspect, is the rape prototype.
In the eyes of many Americans, the brutalization of Native American women, because they do not match the prototypical victim, does not seem quite as bad and the perpetrators do not seem quite as heinous as they might, were the similar trends occuring to women in a midwestern suburb. In fact, the legacy of cultural stereotypes and historical practices might well contribute to the sexual violence against Native American women, or so the Amnesty International Report suggests. To paraphrase Justice Hale, in many contexts, rape is easily proved, but rarely prosecuted.
I think this observation is spot on. I would quibble with the idea that this observation is unique to social psychologists. Many legal scholars (myself included) have explored in great detail how rape myths and narratives as well as gender roles shape legal outcomes in criminal rape cases. That this myth has racial aspects has been thoroughly examined in the work of Andrew Taslitz. But I think the Situationist post is right to apply these general themes to the context described in the Amnesty International report. The issue of rape against Native American women illustrates a common pattern that affects the difficulties in constructing a functioning rape law in America.
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