Analysis Violence

The Daniel Holtzclaw Trial and the Systematic Silencing of Black Women

Kanya D’Almeida

The Daniel Holtzclaw trial entered its third week Monday, with over two dozen out of an estimated 175 witnesses for the prosecution having testified so far, and yet local residents are still waiting for the story to grab nationwide attention.

Read more of our articles on the Daniel Holtzclaw trial here.

When local activists learned last August that a 27-year-old Oklahoma City police officer had been arrested on 16 charges of sexual assault against multiple Black women, they expected the case to garner national headlines.

“It was unheard of,” Grace Franklin, co-founder of OKC Artists for Justice, told Rewire in a phone interview. “Thirteen Black women on the east side of Oklahoma City saying they’d been raped by a police officer? That wasn’t just shocking to the Black community, it shook up the entire city, the entire state.”

But as Daniel Holtzclaw’s trial entered its third week Monday, with over two dozen out of an estimated 175 witnesses for the prosecution having testified so far, residents like Franklin are still waiting for the story to grab nationwide attention.

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Advocates who’ve been closely following the case say the lack of media coverage reveals a pattern erasing the specific experiences of Black women from conversations around race and police brutality, which the Black Lives Matter movement propelled into national prominence last year.

“There is a long legacy in this country of Black women being systematically silenced, and this legacy continues to this day as we see in the Daniel Holtzclaw trial,” Rachel Anspach, senior staff writer at the African American Policy Forum (AAPF), told Rewire.

“While it’s a sign of progress that the case has gone to trial at all, the silence of the media and the fact that the trial is being conducted with an all-white jury are prime examples of the erasure of Black women from dominant perceptions of who can be a victim in American society,” she said.

Holtzclaw currently faces 36 charges, including rape, forced oral sodomy, and sexual battery. He has pleaded not guilty to all of them.

During his three-year tenure with the Oklahoma City Police Department, he patrolled a low-income neighborhood located in the northeast of the state capital between 4 p.m. and 2 a.m.

While on this beat, he is said to have repeatedly targeted women he believed to have been in possession of drugs, or were otherwise embroiled in the justice system. As Rewire has previously reported, Holtzclaw frequently called in to the police station to check on outstanding warrants or criminal records, which later he allegedly used to coerce the women, and one 17-year-old girl, into sexual acts that ran the gamut from fondling to rape.

Some women say he coerced them into his patrol car, drove to deserted parts of town, and forced them to perform oral sex on him. Others say they were made to strip so he could perform “body searches” that included touching their breasts and penetrating them with his fingers.

Unlike other cases of police violence that have captured widespread attention, Holtzclaw has largely escaped public scrutiny. Researchers and advocates say this is partly due to taboos around sexual abuse and partly a refusal, even within activist communities, to examine the specific forms of violence Black women experience.

Anspach, who contributed to a report for AAPF detailing police brutality against Black women, which inspired the #SayHerName hashtag, said she was shocked to learn how many people couldn’t recognize the names or faces of the dozens of Black women murdered by police “in the same way that they did or would come to know names like Eric Garner and Mike Brown.”

AAPF’s research indicates that much of the data on police violence—even when disaggregated—is used exclusively in relation to Black men.

The report points to the findings of Operation Ghetto Storm, a Malcolm X Grassroots Movement study that showed law enforcement agents and vigilantes killed 313 Black people in 2012, or one person every 28 hours. While the research pertained to both Black men and women, AAPF notes that the study is most often cited to suggest that a Black man is killed every 28 hours, which contributes to the erasure of Black women’s experiences.

Sexual violence, Anspach said, does not come easily to the fore of movements like Black Lives Matter, which has galvanized widespread outrage primarily over fatal encounters with the police. Yet sexual misconduct is the second-most frequently reported complaint against law enforcement personnel, according to a report by the Cato Institute, accounting for 9.3 percent of all complaints recorded in 2010.

As they attempt to mobilize support for the women in the case who are facing off in court against what reporters have called an “aggressive” defense, Oklahoma City activists say they have experienced firsthand how sexual assault tends to be marginalized within the larger movement for Black lives.

Franklin, who has been following the case closely since late last year, said that with the exception of a handful of groups, it was not until the announcement that Holtzclaw’s case would be heard by an all-white jury that the larger racial justice community rallied to fill the benches of the Oklahoma County Courthouse. It was almost as if, she said, people needed a bigger and broader cause than the mere fact of sexual assault.

She said she was “frustrated by the taboos around rape culture and the abuse of Black women,” adding that some community members actually pushed back against reporters who included graphic details of one alleged victim’s experience in their news reports.

“But that’s what this is, it’s a rape trial, it is graphic … and we’ve got to speak about it,” Franklin said. “And it has to be as important as any other issue, because what we have here is a blatant abuse of authority against the most vulnerable members of the African-American community—poor Black women who have had contact with the justice system.”

Activists who have sat through hours of testimony and cross-examinations that are now entering their tenth day say Defense Attorney Scott Adams’ questioning of the witnesses—focusing largely on their criminal histories and, in some cases, substance dependency—highlights the ways in which poverty heightens Black women’s vulnerability to police brutality.

As KOCO 5 News reporter Patty Santos pointed out in a tweet from inside the courtroom Thursday, one witness who claims Holtzclaw fondled her breasts while searching her for drugs, said in response to a query about why she didn’t speak out sooner, “I am an African female. I didn’t have anything, who would believe me?”

As several studies have shown, street vendors, homeless people, and otherwise economically marginalized communities are more likely to be affected by the policing of poverty, while paradigms like broken windows policing have effectively enabled law enforcement personnel to punish economic deprivation under the guise of maintaining “order.”

Given that Black women were the only demographic whose unemployment rates did not improve last year, according to an analysis by the National Women’s Law Center, and since Black women typically earn less than even their male counterparts, they are more vulnerable to being policed solely as a result of poverty.

And AAPF’s research has shown how the intersections of race, gender, and class not only make women more susceptible to violence, but also death at the hands of the police, as in the case of Shelly Frey who was shot and killed in 2012 in Houston, Texas, under suspicion of shoplifting from Walmart.

Commentators have been quick to point out that the first woman to report Holtzclaw to the authorities, a 57-year-old who says she was pulled over in a routine traffic stop and then orally sodomized, was in fact the only one of his alleged victims who had some economic and social capital.

She had no outstanding warrant or criminal record that he could leverage against her—Holtzclaw allegedly routinely threatened his victims with arrest if they didn’t submit, or promised to make pending charges go away if they “cooperated” with him—and was quick to make a statement to the police, something the other witnesses have testified they were too frightened to do.

With a long list of witnesses yet to take the stand, the trial could last as long as a month, the BBC reported last week. As it proceeds, activists like Franklin are still hoping for a surge in media attention of the kind that has inspired national movements around issues of racism.

Referring to the media storm that surrounded the recent resignation of the University of Missouri’s president Timothy Wolfe following a major student movement, she said, “That is the type of support and media coverage and outrage from Black people across the country that should happen around this case.”

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

Commentary Race

Black Lives Matter Belongs in Canada, Despite What Responses to Its Pride Action Suggest

Katherine Cross

Privileging the voices of white LGBTQ Canadians who claim racism is not a part of Canada's history or present ignores the struggles of Canadians of color, including those who are LGBTQ.

As I walked the streets of Toronto last month, it occurred to me that Pride Week had become something of a national holiday there, where rainbow flags and the Maple Leaf banners flying in honor of Canada Day on July 1 were equally ubiquitous. For the first time in my many years visiting the city—the place where I myself came out—the juxtaposition of Pride and the anniversary of Confederation felt appropriate and natural.

For some, however, this crescendo of inclusive celebration was threatened by the Black Lives Matter Toronto (BLMTO) protest at the city’s Pride March, often nicknamed PrideTO. The group’s 30-minute, parade-stopping sit-in has since come in for predictable condemnation. The Globe and Mail’s Margaret Wente dubbed BLMTO “bullies,” sniffed that its tactics and concerns belonged to the United States, and asked why it didn’t care about Black-on-Black crime in Canada. The Toronto Sun’s Sue-Ann Levy, meanwhile, called BLMTO “Nobody Else Matters,” also saying it “bullied” Pride’s organizers and suggesting we all focus on the real object of exclusion within the LGBTQ community: gay members of the recently ousted Conservative Party.

There is a lot to learn from this Torontonian incident, particularly around managing polite liberal racism—an especially important civics lesson in light of the past month’s tragedies in the United States. Privileging the voices of white LGBTQ Canadians who claim racism is not a part of Canada’s history or present means ignoring the struggles of hundreds of thousands, many of whom are LGTBQ themselves.

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Pride has always been a thoroughly political affair. It is, thus, hardly an “inappropriate time and place” for such a protest. It began as, and remains, a public forum for the unapologetic airing of our political concerns as a community in all its diversity. We may have reached a new phase of acceptance—the presence of Prime Minister Trudeau at Pride was a beautiful milestone in both Canadian and LGBTQ history—but Pride as a civic holiday must not obscure the challenges that remain. It is not a coincidence that the majority of transgender people murdered worldwide by the hundreds every year are Black and Latina, and that many of them are sex workers. That is part of the reality that BLMTO was responding to—the fact that racism amplifies homophobia and transphobia. In so doing, it was not just speaking for Black people, as many falsely contended, but advocating for queer and trans people of many ethnicities.

Even so, one parade-goer told the Globe and Mail: “It’s not about them. It’s gay pride, not black pride.” The very fact that Black LGBTQ people are asked to “choose” validates BLMTO’s complaint about Pride’s anti-Blackness, suggesting a culture where Black people will be thinly tolerated so long as they do not actually talk about or organize around being Black.

Indeed, BLMTO’s much-criticized list of demands seems not to have been read, much less understood. While drawing attention to the Black Lives Matter collective, it also advocated for South Asian LGBTQ people and those in First Nations communities, whose sense of not-entirely-belonging at an increasingly apolitical PrideTO it shares.

In each paint-by-numbers editorial, there was lip service paid to the “concerns” BLMTO has about Canadian police forces and racial discrimination, but the inconvenience of a briefly immobilized parade generated more coverage. Throughout, there has been a sense that Black Lives Matter didn’t belong in Canada, that the nation is somehow immune to racist law enforcement and, in fact, racism in general.

Yet to listen to the accounts of Black Canadians, the reality is rather different.

Janaya Khan, one of the co-founders of BLMTO, recently spoke to Canadian national magazine MacLean’s about the activist’s views on structural racism in the country. As a native of Toronto, they were able to speak quite forthrightly about growing up with racism in the city—up to and including being “carded” (a Canadian version of stop-and-frisk, wherein officers have the right to demand ID from random citizens) at Pride itself. And last year in Toronto Life, journalist and writer Desmond Cole talked about his experiences being raised throughout Ontario. He told a story of a traffic stop, none too different from the sort that killed Philando Castile earlier this month, after a passenger in his father’s car, Sana, had tossed a tissue out the window onto the highway. The officer made the young man walk back onto the highway and pick it up.

Cole wrote, “After Sana returned, the officer let us go. We drove off, overcome with silence until my father finally exploded. ‘You realize everyone in this car is Black, right?’ he thundered at Sana. ‘Yes, Uncle,’ Sana whispered, his head down and shoulders slumped. That afternoon, my imposing father and cocky cousin had trembled in fear over a discarded Kleenex.”

This story, of narrowly escaping the wrath of a white officer on the side of a motorway, could have come from any state in the Union. While Canada has many things to be proud of, it cannot claim that scouring racism from within its borders is among them. Those of us who have lived and worked within the country have an obligation to believe people like Cole and Khan when they describe what life has been like for them—and to do something about it rather than wring our hands in denial.

We should hardly be surprised that the United States and Canada, with parallel histories of violent colonial usurpation of Native land, should be plagued by many of the same racist diseases. There are many that Canada has shared with its southern neighbor—Canada had a number of anti-Chinese exclusion laws in the 19th and early 20th centuries, and it too had Japanese internment camps during the Second World War—but other racisms are distinctly homegrown.

The Quebecois sovereignty movement, for instance, veered into anti-Semitic fascism in the 1930s and ’40s. In later years, despite tacking to the left, it retained something of a xenophobic character because of its implicit vision of an independent Quebec dominated by white francophones who could trace their ancestry back to France. In a blind fury after narrowly losing the 1995 referendum on Quebecois independence, Premier Jacques Parizeau, the then-leader of the independence movement, infamously blamed “money and ethnic votes” for the loss. More recently, the provincial sovereigntist party, the Parti Quebecois, tried to impose a “Values Charter” on the province aimed at criminalizing the wearing of hijab and niqab in certain public spaces and functions. Ask Black francophones if they feel welcome in the province and you’ll get mixed answers at best, often related to racist policing from Quebec’s forces.

Speaking of policing and the character of public safety institutions, matters remain stark.

A 2015 Toronto Star special investigation found hundreds of Greater Toronto Area officers internally disciplined for “serious misconduct”—including the physical abuse of homeless people and committing domestic violence—remained on the force. In 2012, the same outlet documented the excessive rate at which Black and brown Torontonians were stopped and “carded.” The data is staggering: The number of stops of Black men actually exceeded the number of young Black men who live in certain policing districts. And according to the Star, despite making up less than 10 percent of Toronto’s population, Black Torontonians comprised at least 35 percent of those individuals shot to death by police since 1990. Between 2000 and 2006, they made up two-thirds.

Meanwhile, LGBTQ and Native Ontario corrections officers have routinely complained of poisonous workplace environments; a recent survey found anti-Muslim attitudes prevail among a majority of Ontarians.

Especially poignant for me as a Latina who loves Canada is the case of former Vancouver firefighter Luis Gonzales. Gonzales, who is of Salvadoran descent, is now filing a human rights complaint against Vancouver Fire and Rescue Services for what he deemed a racist work environment that included anti-Black racism, like shining a fire engine floodlight on Black women in the street and joking about how one still couldn’t see them.

One could go on; the disparate nature of these abuses points to the intersectional character of prejudice in Canada, something that BLM Toronto was quite explicit about in its protest. While anti-Black racism is distinct, the coalition perspective envisaged by Black Lives Matter, which builds community with LGBTQ, Muslim, South Asian, and First Nations groups, reflects an understanding of Canadian racism that is quite intelligible to U.S. observers.

It is here that we should return again to Margaret Wente’s slyly nationalistic claim that BLMTO is a foreign import, insensitive to progressive Canadian reality. In this, as in so many other areas, we must dispense with the use of Canadian civic liberalism as a shield against criticism; the nation got this far because of sometimes intemperate, often loud protest. Protests against anti-LGBTQ police brutality in the 1980s and ’90s, for example, set the stage for a Toronto where the CN Tower would be lit up in rainbow colors. And any number of Native rights actions in Canada have forced the nation to recognize both its colonial history and the racism of the present; from Idle No More and the Oka Crisis to the 2014 VIA Rail blockade, that movement is alive and well. Indeed, the blockade was part of a long movement to make the government acknowledge that thousands of missing and murdered Indigenous women constituted a crisis.

If we must wrap ourselves in the Maple Leaf flag, then let us at least acknowledge that peaceful protest is a very Canadian thing indeed, instead of redoubling racist insults by insinuating that Black Lives Matter is somehow foreign or that institutional racism is confined to the United States. Canada has achieved little of worth by merely chanting “but we’re not as bad as the United States!” like a mantra.

Far from being a movement in search of a crisis, Black Lives Matter and its intersectional analysis is just as well-suited to Canada as it is to the United States. In the end, it is not, per the national anthem, God who keeps this land “glorious and free,” but its people.