Abstract

Excerpted From: Jasmine Marchbanks-Owens, Don't Forget About Me: The Epidemic and Erasure of Violence Against Black Women and the Power of the Enforcement Clause of the Thirteenth Amendment, 8 Howard Human & Civil Rights Law Review 163 (2023-2024) (270 Footnotes) (Full Document Requested)

Black women and girls experience disproportionate rates of violence in the United States. This violence is something that I, as a Black woman, have both witnessed and personally experienced throughout my life in the United States. One example of this happened in eighth grade when a friend of mine was almost abducted while heading home from our bus stop. A van pulled up beside her, and a man jumped out and tried to grab her. It was not until I grew older that I began to grasp how these incidents would shape my sense of safety and my perception of the world as a Black woman.

During my college years, pivotal events deepened my understanding. As I matured, I came to recognize not only the violence directed towards me but also towards the women around me. I came to learn that both of my grandmothers were victims of the Eugenics Movement and, consequently, underwent hysterectomies. Shockingly, one of my grandmothers was just twenty-five years old at the time, younger than I am now.

In graduate school, I experienced the disillusionment and inequity of not being taken seriously when I reported my third death threat to the local police. Their response was, “This could be a Jussie Smollett situation.” This reference by the officer resulted in the dismissal of my experience and drew a disconcerting parallel between my genuine assault and a situation that had garnered public condemnation. Tragically, later that year, my stepmother's sister was fatally shot by her husband after she decided to leave him. Acts of violence towards Black women, such as these, are regrettably not uncommon-- another recent example, though closer to home, happened just last month. My little cousin fell victim to a senseless act of violence; she was tragically shot and killed by the father of her children within the sanctity of her own home.

For Black women, these experiences are not anecdotal. Black women face elevated rates of abuse in areas such as domestic violence, rape, homicide, punishment, police brutality, and institutionalized racism. Due to the Federal Bureau of Investigations (FBI) and other national law enforcement agencies failing to investigate and address this issue adequately, many governmental and nonprofit agencies who work directly with Black women victimized by violence have picked up the responsibility of collecting and reporting accurate data.

Congress has the authority to create legislation to address violence against Black women at the federal level through the Enforcement Clause of the Thirteenth Amendment. Yet, unlike their white counterparts, Black women and girls are rarely seen as victims but are often seen as needing less protection. For example, in the United States, Black women are four times more likely to die from violent acts than white women. Worse, in some cases, Black women “are seen as deserving of harm or unable to be harmed.” Dating back to the Antebellum period, Black women continue to be dehumanized and sexualized, with no legal recourse. This culture of invalidity has increased their likelihood of being targeted for abuse and violence. Moreover, it has facilitated an environment where Black women and girls are more reluctant to seek help and resources.

The racialized and negative perceptions from society and lack of legal recourse have created a culture of silence as a method of survival among Black women who have endured violence for centuries. Black women who speak out about the abuse they experience are frequently dismissed or face even greater levels of violence as a result of their efforts to seek justice. Compared to any other female subgroup, Black women face stark realities, thus, it is Congress' responsibility to address the ongoing epidemic of violence against Black women.

This note argues that Congress has the power and duty through the Enforcement Clause of the Thirteenth Amendment to address violence against Black women because their ill-treatment is a “badge and incident” of enslavement. Part I will show the importance of the Enforcement Clause of the Thirteenth Amendment and how it can be used as a tool to prevent violence towards Black women. Part II and Part III will discuss the violence inflicted on enslaved women during the Antebellum period and identify its current badges and incidents. Part III will analyze the existing policies used to protect women against violence and illustrate the ways in which they have failed to protect Black women. Lastly, Part IV will present solutions and potential legislation that Congress can use under the Enforcement Clause of the Thirteenth Amendment to help eradicate and prevent the increasing rates of violence against Black women.

[. . .]

The legacy of slavery and persistent systemic racism have created substantial hurdles for Black women in their pursuit of full citizenship. These hurdles impede their active engagement in social, political, and civil rights, all the while denying them equal protection under the law. Regrettably, the mistreatment and aggression directed towards Black women has endured beyond the era of emancipation. Furthermore, this violence has been particularly directed at enforcing the badges and incidents of enslavement. The violence against Black women has functioned as a linchpin in perpetuating a “racial capitalist state.” Government regulations across various domains, including public welfare, education systems, neglect policies, and the criminal justice system, have entrenched stereotypes as the primary criteria for assessing, judging, and penalizing Black women. Continued efforts are crucial to confront and redress these deeply rooted issues.

Throughout this note, I conducted an examination of the various forms of violence inflicted on Black women during and after enslavement. I carried out a comprehensive analysis, presenting a compelling case for considering the violence against Black women as a badge and incident of enslavement within the framework of the Thirteenth Amendment's Enforcement Clause. Additionally, I drew parallel connections between various forms of violence that persist in today's society, underlining the enduring relevance of these issues and their historical continuity from the Antebellum period to the present day. These connections were illustrated through various forms of violence, including homicide, rape, sexual assault, police abuse, uninvestigated disappearances, and sex trafficking.

It's imperative to recognize that this discussion provides only a glimpse into the larger, complex landscape of racial inequality and gender-based violence. As we navigate a new era marked by bans, restrictions, and censorship, it becomes increasingly clear that many rights once available to my mother as a Black woman are now denied to me. In light of these disparities, nurturing a new generation of innovative social engineers is of paramount importance, as they possess the potential to confront the widespread challenges present in our society effectively.

The Thirteenth Amendment's Enforcement Clause legitimizes legislation created to eradicate the incidents and badges of enslavement. While the Thirteenth Amendment is not the sole remedy for addressing the ongoing challenges that systemic racism has posed for Black women in their quest for full citizenship, it does offer a promising start. Many of the issues related to the insufficient resources available for protecting the well-being of Black women, as well as the stereotypes and lack of concern for their protection, can be directly traced back to the legacy of enslavement. Further, this constitutional power can be used as a means to bypass the stringent scrutiny mandated by the Fourteenth Amendment and to transcend the economic limitations of  the Commerce Clause. As a result, legal action and innovative legal strategies can manifest and carve a path for pursuing litigation against private entities that adversely affect Black women's safety.

Congress has the authority to create legislation to address violence against Black women at the federal level through the Enforcement Clause of the Thirteenth Amendment. Under the rational determination test, Congress must (1) identify the conduct as a badge or incident of enslavement and (2) ensure the legislative action is rationally related to eliminating the badges and incidents of slavery. My personal experiences have profoundly shaped my perspective and ignited my commitment to advocate for justice and equity for women who share my most salient identity. I hold a fervent hope that this note will serve as a catalyst for potential legislation and inspire meaningful dialogues regarding the transformative potential inherent within the Enforcement Clause of the Thirteenth Amendment. It is through this clause that I believe we can dismantle the deep-seated systems of racial prejudice and address gender-based violence inflicted on Black women. But even more, I recognize that this forgotten clause possesses the transformative potential to secure a future where the violence inflicted upon me and the women in my life will no longer persist as a common experience faced by Black women.

Jasmine Marchbanks-Owens is a 2024 graduate of Howard University School of Law.