When a disabled person of color is victimized, too often the courts don’t know what to do.
By David M. Perry
(Photo: Jenni C/Flickr)
In October of 2015, in Dietrich, Idaho, a young, intellectually disabled black man was in his high school locker room with other friends, all white, on the football team. He thought his friend was going to give him a hug. Instead, the “friend” grabbed him and held him, according to a civil suit. A second boy, an 18-year-old, allegedly inserted a plastic coat hanger into the young man’s rectum. Then the third attacker started to kick the hanger, driving it into the victim’s body, the family says.
The boys were arrested, and the two who inserted then kicked the hanger were charged with felony sexual assault, which carries a 10- to 20-year prison sentence. But then the charges started being reduced. First, an adult charge was dropped and replaced with only a juvenile one. Then the other boy, whose kicking did terrible damage to the victim, was permitted to make an Alford plea, where he asserts innocence despite evidence to the contrary. Unless he violates probation, he won’t serve a minute in jail, and his record might even be expunged.
In Idaho, disability was used to shield violent attackers from significant consequences of their racist acts.
Sexual offenders being treated lightly by the courts is not unusual, of course, but in this case, disability played a role that I haven’t seen before. The prosecutor used the victim’s status as a disabled individual to shield his attackers from felony charges. Alex Riggins, a local reporter who has been covering the case since it began, and who was present at the courthouse as Deputy Attorney General Casey Hemmer explained the plea deal to the judge, describes the exchange:
Stoker [the judge] also asked Hemmer [the District Attorney] whether prosecutors planned to argue the attack was racially motivated.
“Your honor, based on what we’ve had, no,” Hemmer responded. “I will say that there are things that we found going around that school and that locker room involving a lot of the parties here that had racial undertones. But it’s not our belief that this was a racially motivated crime. This was more of a vulnerable-victim motivated crime. I think it probably would have happened to anybody that was in the same kind of circumstances and mental state as the victim here.”
I talked to both Riggins and attorney Lee Schendler, who is representing the family in an ongoing civil case. Both agreed that Hemmer was telling the judge the violence had been entirely about bullying the disabled kid, and therefore had been neither sexual nor racial in essence. And thus the charges were reduced.
A spokesman from the Idaho Attorney General’s office informed me that the judge has issued a gag order until sentencing in February, and therefore could not comment.
Yet despite the district attorney’s decision here, the evidence for “racial animus” is overwhelming. The civil case filed by the family, for example, alleges multiple acts of racial discrimination, including this damning paragraph:
In the summer of 2015, at the beginning of the football season, in the presence of several of the Defendants, the Plaintiff was taunted and called racist names by other members of the team which names included “Kool-Aid” “chicken eater” “watermelon” and “nigger”. … On the school grounds and especially during football practices various football players would subject the Plaintiff to aggressive “humping”, jumping on him from the back and simulating anal sex.
Furthermore, the victim is suffering. It was never easy being one of the only black people in an Idaho school, let alone having his disability-related needs met. But he was succeeding. Now, he’s tried to commit suicide, been in and out of psychiatric wards, and still has blood in his stool. According to Schendler, the young man now has post-traumatic stress disorder, and a doctor’s affidavit in the civil case deems it likely the victim will spend most of the rest of his life in an institution.
If we take this district attorney at his word, bullying disabled classmates seems to be such a normal occurrence that anal rape with a plastic coat hanger could have happened to anyone “in the same kind of circumstances and mental state.” Any disabled child would have been a victim. Therefore, it’s not rape; it’s just bullying — criminal, but apparently not a higher-level offense.
This isn’t normal. I got in touch with Samuel Bagenstos — Frank G. Millard Professor of Law at the University of Michigan, former principal deputy assistant attorney general for civil rights at the United States Department of Justice, and one of America’s leading experts on disability law. As Bagenstos told me, “the prosecutor’s analysis seems dubious to me. First off, it’s totally possible to have both a racial and a disability-based motivation at the same time. So they targeted a black kid with a disability because of both racial bias and the perceived disability-based vulnerability of the victim.” Bagenstos made it clear that he’s basing his opinion only on media reports and that he isn’t an expert in the facts of the case. Still, he did hold out some hope that the assailants could be punished more severely. The Department of Justice could bring federal hate crime (on the basis of race, not disability, based on the statute’s limitations) law to bear. “The evidence of racial animus seems very strong here,” Bagenstos said. “I would think, on that basis, a federal hate crimes prosecution would be appropriate. But I don’t know all the facts.”
What the prosecutor either didn’t understand or pretended not to understand is that racial animus, ableist bullying, and sexual violence are not mutually exclusive — nor so easily disentangled. Instead, we need to view the case as resulting from intersecting forms of oppression, coming together in the brutal act of violating a black, disabled body. This dynamic was first described by the scholar Kimberlé Crenshaw in her theory of intersectionality, where Crenshaw examined the ways that oppressive forces intersect and magnify each other. Crenshaw, a black woman, was focusing on racism and sexism, but the theory has much broader implications, as made painfully evident by this case in Idaho. Ableism, rather than the excuse for “bullying,” emerges as one of a spectrum of bigotries that can unite, cascade, and strike with unerring savagery, wounding the body and scarring the mind.
In early January, four black youths in Chicago abducted and tortured a disabled white young man, whom at least one of them knew from school, broadcasting part of it live over Facebook. The assailants made inflammatory statements — “fuck white people” and “fuck Donald Trump” — while complaining that their video wasn’t getting many views. Hate crime charges have been brought. Reports on the crime, though, have been exclusively (if understandably) on the racial and political context. Disability — despite the overwhelming data about the ways that disabilities heighten one’s risk of experiencing violence — quickly became a sideline beneath the wave of racial and political denunciations. In fact, it seems likely that the assailants —much like the ones in Idaho — took advantage of the victim’s reliance on others in order to isolate and abuse him.
Our legal system and the media that covers it often seem designed to categorize acts of violence as one type or another. In Chicago, a lack of intersectional awareness erased disability in favor of the frenetic pursuit of a race-based narrative. In Idaho, disability was used to shield violent attackers from significant consequences of their racist acts. But bigotries and oppressive forces overlap, finding homes in the bodies of vulnerable people and wreaking terrible havoc. Our legal system, our media outlets, and the rest of us need to learn to see these dangerous intersections even as we organize to unravel them.
