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Criminal Justice

New Laws Protecting Sexual Assault Survivors Don’t Bring Justice for All

Particularly for Black survivors, juries can pose another major hurdle when they decide to seek financial compensation, one expert says.

Hundreds of people marched through New York's Times Square in 2020 in support of Black women. While some states have taken steps to assist victims of sexual assault in seeking justice, some say the laws may not help many Black women. (Ira L. Black/Corbis via Getty Images)

There has been a gradual wave of reform efforts across the country granting sexual assault survivors more time to sue their alleged abusers. With New York’s Adult Survivor Act taking effect last month, about half of states have either eliminated or expanded their statute of limitations on sexual offenses, including five states just this year.

But for some Black survivors, seeking justice through financial compensation may not be a realistic route, legal and sexual assault advocates say. For many, their abuser is an acquaintance, intimate partner or relative who doesn’t have the money to pay a significant judgment. For others, if the attack was connected to their work, the abuser’s employer might avoid investigating or conceding that a crime occurred to mitigate the company’s liability. Survivors also shy away from reporting their assault to avoid the trauma of retelling their experience. 

Because Black women in particular rarely report their assaults to police, laws like New York’s have limited benefit, said advocate Kalimah Johnson.

“Let me be clear about Black folks, we don’t go to the police just for anything. We don’t go to the criminal justice system for anything because our communities are already over policed,” said Johnson, founder of Sexual Assault Services for Holistic Healing and Awareness (SASHA Center), an organization that provides resources for individuals who experienced sexual violence. “Because of that, this bill, to be honest with you, will not impact Black people no more than it has in the past, no more than any other law that has passed.” 

The new sexual assault civil litigation laws have been applauded by many survivor advocacy groups for expanding the legal options available to victims and for recognizing that it can take victims years to remember or report their attacks. But racial justice advocate L’Tomay Douglas calls them a “Band-Aid approach,” saying that many were written with a focus on powerful institutions, so they don’t apply to the majority of cases for Black survivors.  

“If you were assaulted in the Boy Scouts of America, or by the diocese, or by someone who works for an institution and the institution covered it up, you can sue. How many of that will be the case for Black women?” said Douglas, who works as a social worker and restorative equity educator. “It’s the same thing with the #MeToo movement. It really helped those on a higher socioeconomic status than those who are just in blue-collar jobs.”

Studies show that Black girls and women experience rape at higher rates than their white counterparts. According to The National Center on Violence Against Women in the Black Community, 1 in 4 Black girls has experienced sexual violence before their 18th birthday, and 35% of Black women survived some form of sexual violence in their lifetime. That’s particularly true when it comes to intimate partner violence, and women are more likely to remain silent if their abuser is an immediate relative with financial responsibilities within their home. The hours, days, months, and years to follow while keeping one or more violent attacks a secret weighs on a survivor emotionally, mentally and physically, advocates said. 

“They’re wearing the weight of their entire family on their shoulders,” Douglas said, and they’re fearful that they won’t be believed by law enforcement, which often fails to recognize Black survivors as victims.

Prioritizing prevention

To better help victims, advocates say that sex crime laws should fund therapy and other trauma support, while using education and “restorative justice” practices to treat perpetrators. Restorative justice practices are an alternative to incarceration for admitted abusers that helps treat their trauma. 

“The people who are mostly impacted by all of this are Black women, and the people who are less likely to have resources or access and even support are Black women. So there needs to be something that’s embedded in all of these laws … to raise awareness with a call to action for all to participate in prevention,” Douglas said. “This can be done by increasing funding to grassroots organizations, especially those that serve Black communities where the code of silence was learned from enslavement and passed down.”

New York’s Adult Survivors Act, which took effect on Thanksgiving Day, allows survivors to file a lawsuit against their alleged perpetrator as well as the company or institution that the alleged perpetrator was employed by or associated with at the time. As a result of the new law, more than 750 mostly Black people who were incarcerated in a New York state prison sued the state for failing to protect them from sexual assault during their sentences. Sixty percent of rapes against incarcerated women were committed by jail or prison staffers, according to an analysis by The Rape, Abuse & Incest National Network (RAINN) of Justice Department data.

Instead of focusing on providing financial restitution to victims, officials should work on preventing the assaults from happening in the first place, said Angela Allen-Bell, an associate professor with Southern University Law Center.

“If we were to address those documented problems, then we don’t need to create a pathway into court for people to fight for rapes that should have never happened, because statistically we’ve been warned that they’re happening,” Allen-Bell said.

While Allen-Bell applauds the New York law for acknowledging that the trauma of sexual assault may cause a delay in a survivor’s memory, there are other challenges to seeking legal recourse, she said. Particularly for Black survivors, juries can pose another major hurdle.  

Racial stereotypes and implicit biases about Black women can cloud jurors’ perceptions of Black women as victims, Allen-Bell said, reducing chances that they are awarded appropriate compensation for their pain and suffering or a unanimous guilty verdict.  

“When that jury has to make a determination of how much your life is worth, how much your pain and suffering is worth, race always covers that, as well. We know Black people have a shorter lifespan, so the dollars are going to show you to be worth less,” Allen-Bell said. “Many people don’t understand that pain and suffering is shaped by that jury, who decides those things based on the racial hierarchy that we’ve been socialized under. And this country does not see Black people as people who experience pain, people who need to be protected from others — that is not the perception.”

Expanding the statute of limitations

Johnson, the founder of SASHA Center, said she witnessed racial disparities in how law enforcement responds to sexual assault or rape allegations during her tenure at the Detroit Police Department, which ended in 2005. There wasn’t a sense of urgency to investigate for Black victims, she said, unless the attacks were connected to a high-profile person, agency, or family.

“I had officers tell me — Black male officers tell me — I’m not going to take pictures of her bruises because she’s too dark. But if a lighter skinned woman came in there, they’re pulling out all the stops,” said Johnson, who experienced sexual violence. “So there was light skin privilege happening, white privilege happening, male patriarchy happening; all of that is what’s happening in the system. So I literally quit.”

A year before SASHA Center received its nonprofit status in 2010, a Wayne County, Michigan, assistant prosecutor discovered more 11,000 untested rape kits that dated back to 1984 in an abandoned building that was scheduled to be demolished. Thirteen years later, all of the abandoned kits have been processed, and 81% of the DNA collected were from Black survivors within the Detroit area. Wayne County Prosecutor Kym Worthy’s office secured 239 convictions and identified 841 suspected serial offenders whose alleged actions spanned 40 states. 

Earlier this year, Michigan lawmakers proposed a series of bills that would expand the statute of limitations for survivors to file a civil lawsuit against their abuser. “Michigan’s civil statute of limitations is among the narrowest in the country,” according to a March press release announcing the bills.

The bill would allow sexual assault survivors to file a claim against their alleged abuser up until their 48th birthday, 10 years from the date of the sexual assault or seven years after discovering they were abused, “depending on which deadline is latest,” according to the press release by the state’s House Democrats. If the bill passes, those whose sexual assault resulted in a conviction will have unlimited time to file a lawsuit.  

Douglas urges lawmakers to go further to reform the criminal justice system by implementing rehabilitation and trauma treatment policies for sexual assault perpetrators and other incarcerated individuals to help address what put them behind bars in the first place. 

“These laws are not helping us in the long run. It’s not helping us feel safe in our bodies, even after we get money. It’s not helping us feel like we have our worth back because someone actually goes to prison,” Douglas said. “It needs to be something that’s further than just saying, ‘Here, you can file a claim to get justice.’ I think that’s a disservice.”