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Stern, "The NAACP's Rape Docket and the Origins of Criminal Procedure"

Scott W. Stern (independent scholar) has posted "The NAACP's Rape Docket and the Origins of Criminal Procedure," which appears in the University of Pennsylvania Journal of Law and Social Change (2021). Here's the abstract:

This Article provides the definitive account of the surprisingly voluminous docket of rape cases argued by the National Association for the Advancement of Colored People (NAACP). It argues, for the first time, that the NAACP’s rape docket was central to the development of modern criminal procedure — to the establishment of the right to counsel, the right to remain silent, the right to a trial free from mob violence or influence, the right to not have a coerced confession used against you, and the right to a jury of your peers selected without discrimination. Drawing on original archival research, this Article demonstrates that all of these rights have their origins in the hundreds of cases argued by the NAACP on behalf of Black men accused of sexual assault by white women.

This Article also argues that these cases were central to the development of the NAACP’s legal department, the relationships between local branches and the national office, and the careers of the famous civil rights attorneys — from Charles Hamilton Houston to Jack Greenberg — who rose to national prominence with the NAACP. Thus, these cases were central to the development of civil rights litigation itself. Indeed, the first significant Supreme Court case argued for the NAACP by a Black attorney was an interracial rape case. The first Supreme Court case ever argued by a Black woman, Constance Baker Motley, was an interracial rape case. The first case that Thurgood Marshall ever argued before the Supreme Court was an interracial rape case. Several scholars have noted how individual rape cases were pivotal in the careers of individual NAACP lawyers, but no scholar has argued that these cases together constituted a significant docket that was pivotal to nearly all of their careers.

Finally, this Article examines cases in which the NAACP advocated for Black women who accused white men of sexual assault. Throughout its history, the national office of the NAACP advocated for Black female rape survivors only rarely. In contrast, the local branches of the Association did advocate for dozens of Black women who had been raped by white men, often pushing the police to investigate, the prosecutors to bring charges, and sometimes even hiring their own attorneys to aid in prosecutions. Yet at no point did NAACP attorneys ever challenge the rape laws that placed punitively high demands on assault survivors and impeded countless prosecutions. This was largely because NAACP attorneys embraced the very politics of respectability that justified sexist rape laws; indeed, NAACP attorneys capitalized on the gendered aspects of these laws in their representation of Black men accused of rape. Many Black women throughout the decades demanded the NAACP engage more often in anti-rape work — demands that usually met with deaf ears. Had the NAACP acceded to these demands and pushed for a criminal procedure focused not just on protecting rape suspects but also on protecting rape survivors, the greater protections for these survivors that are written into modern rape laws could have come about much sooner.

The full article is available here.

-- Karen Tani

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