By Sherry Colb
In my column for this week, published today on Justia's Verdict, I discuss the competing visions of reality that, respectively, animate supporters and opponents of "Stand Your Ground" laws. These are laws of the sort that police cited for their initial failure to arrest George Zimmerman for killing Trayvon Martin. In the column, I focus on the fear that typically precedes violence in self-defense and the sorts of situations that are likely to give rise to that fear.
In this post, I want to take up a related issue concerning people who experience some strong feeling -- whether it is fear or sexual arousal -- in response to another person's clothing. The issue is how we ought to respond when the person who experiences that feeling goes on to act on the feeling in a manner that would ordinarily represent violence in violation of the criminal law.
About a month ago, Geraldo Rivera reportedly stated the following: "I am urging the parents of black and Latino youngsters particularly to not let their children go out wearing hoodies. I think the hoodie is as much responsible for Trayvon Martin’s death as George Zimmerman was." Though Mr. Rivera has reportedly apologized to Trayvon Martin's parents for this statement, part of what interests me about it is its similarity to the comments people have historically made about some of the women who accused men of rape. Regardless of what Geraldo Rivera really thinks, in other words, many people view clothing as legally binding provocations or invitations of one sort or another.
In both kinds of situation, someone is accused of committing a violent act against another but claims that the victim of the violent act in some way "asked for it" by dressing in a particular way and thereby inspiring feelings (respectively, of fear and of lust) in the accused perpetrator of the violence. The purported compliment "You look ravishing!" helps illustrate the idea that a woman's appearance was once (and may sometimes still be) seen as legitimately provoking forcible sex (the meaning of "ravish").
Sometimes, moreover, defenders of the violence in question -- against the hoodie-wearer and against the scantily clad woman -- have also suggested that the clothing in question not only reasonably triggered the allegedly violent conduct that followed but that the clothing also made it likely that the victim's story was a lie -- that the victim actually did something concrete (beyond the clothing) to initiate an attack that ended in his own killing and that the alleged rape victim actually did something to initiate sexual contact with her alleged rapist and was not in fact raped. The clothing (the hoodie and the sexy outfit) thus function in two ways: as itself provoking the violence, and as evidencing an intention on the part of the wearer to act in other ways (by attacking someone and by initiating sexual contact, respectively) that would call for and justify the allegedly violent behavior that followed.
These two moves are invidious and destructive for a number of reasons. By contrast to words, clothing almost never represents an unambiguous communication of a particular message by the wearer to the public. It is obviously possible (and quite common, in fact) for a person who intends no harm or violence to anyone to wear a hoodie, and it is also possible for a woman who has no intention of having sex to wear a revealing outfit. People wear the clothing they wear for many reasons, including its comfort and their own aesthetic enjoyment of how they look in it. It is not safe to draw communicative inferences from clothing.
It is accordingly inappropriate to infer from the fact that a person is wearing a particular outfit that he or she is interested in or planning to engage in violence or in sexual activity. It is unreasonable to regard the shooting of a young man as self-defense because the young man was wearing a hoodie (or any other outfit that makes some people uncomfortable). And it is similarly unreasonable to regard forcible sexual intercourse with a woman as consensual because the woman was wearing a "provocative" dress.
What Geraldo Rivera's comment and the inference of sexual consent from clothing share is the notion that the "real" victim is the person who perpetrated violence against another person rather than the person who dressed in a manner that gave rise to desires and "expectations" on the part of the alleged perpetrator. On this approach, it is the job of members of minority groups and of women to dress in a manner that conforms to the wishes of white people and of men, respectively. Trayvon Martin should have dressed in a non-threatening manner, despite the fact that it was raining at the time and the hoodie helped keep him dry. And women should cover themselves so they do not inspire lust in men (a familiar idea in some religions).
Rather than critically assess their own responses to clothing, then, those who would defend the assailants in each case prefer to impose duties on would-be victims. Ironically, perhaps, the "Stand Your Ground" laws that began this discussion purport to represent a commitment to the principle that would-be victims have no duty to retreat from an assailant but that they can instead stand their ground if they have a right to be where they are. This principle ought, at the very least, to confer a privilege on minority men and on women (and on everyone else too) to wear whatever they like without thereby becoming "legitimate prey." Otherwise, we effectively impose a "duty to retreat" on the less powerful sectors of our society in the form of dress codes that hold that by wearing a hoodie, a low-cut shirt or revealing dress, or some other prohibited outfit, a person can be said to have forfeited the right to be free of violent predation.
Posted by Sherry Colb