[W]omen’s material desperation, through being relegated to categories of jobs that pay nil, [combines] with the massive amount of rape.
— Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 41 (1987).
For a woman alone, there is much danger… A man can catch you in the fields where the plants are taller than you.
— Human Rights Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 23 (2012) (quoting Rosario E. (pseudonym), North Carolina farmworker, July 2011).
Rape is so common on California farms that one farm laborer referred to work as the “field de calzon,” or “field of panties.” Human Rights Watch, supra. An alarming number of farmworker women – most of whom are undocumented immigrant laborers – are victims of sexual assault. Some estimate that 80 percent of farmworker women in California’s Central Valley have been sexual harassed. Id. Often, perpetrators are male supervisors upon whom the women are dependent for job security. While perpetrators are undeniably culpable for preying on female farmworkers, little has been done to recognize or address the systematic disempowerment of those women in the first place. The structure and substance of American laws leave most female farmworkers impoverished, isolated, and dependent upon their perpetrators for subsistence. Crucially, the women’s victimhood is tied in large part to their “material desperation.” MacKinnon, supra.
Many factors make undocumented farmworker women extraordinarily vulnerable to sexual violence. These women live in economic desperation. Imagine the average farmworker woman. She earns about $11,250 a year, which is 69% of the annual income for her male coworkers. Id. at 17. Generously assuming that she has no other mouths to feed, she “manages” to live just $45 above the federal poverty level. Unless she has a working partner, she cannot afford to get pregnant (which, by the way, can be impossible to avoid if she is raped – unless, she espouses her perpetrator). Imagine, however, that she does not have a working partner, but that she does have a child. Suddenly, our hypothetical farmworker woman and her newly born infant live 25% below the poverty line.
On her salary, a person who works 40 hours a week for 50 weeks per year would earn an hourly wage of about $5.63. Our hypothetical farmworker, however, likely works 12 hour-days, which reduces her effective hourly wage. Id. at 29. This also means it would not be feasible to increase her income by working more hours. On such an impoverished income, she cannot afford to stop working – not even for a day. Moreover, without documentation, her job mobility is severely limited, thereby rendering any prospect of escaping an abusive employer financially disastrous. Her need to work endlessly and her limited access to alternative employment make her desperately dependent upon her employer for exiguous sustenance. Despite the great likelihood that a supervisor has already sexually assaulted her, reporting sexual abuse of any kind is tantamount to economic ruin and impoverishment.
Additionally, noneconomic factors deepen our farmworker's dependency on her employer, further limiting her ability to report sexual crimes. Farmworkers are geographically and linguistically isolated from community and government services. Id. at 17, 32. These services include law enforcement, sexual violence counselors, legal services, and government employment agencies.
Great psychological barriers, including fear and severe trauma, id. at 41, also hold at bay reports of abuse. Id. at 32. Fear of employer retaliation is widespread. She may fear being fired, id. at 36; being detained, id. at 2; or being killed or otherwise physically harmed, id. at 27.
Her unauthorized immigrant status makes her both vulnerable and invisible. An overwhelming majority of farmworkers in California are immigrants, with an estimate of 75 to 80 percent being unauthorized. Id. at 16. Unauthorized workers are vulnerable to abuse and exploitation because they work under the fear of deportation. Id. At 53.
In addition to the barriers faced by our imagined (but representative) farmworker, women with unique vulnerabilities – such as young girls, and LGBT workers – face even greater challenges vis-à-vis sexual violence. Id. at 32-41. Their special vulnerabilities render them more vulnerable to sexual attack, and less capable of securing legal redress.
When a farmworker woman does manage to report sexual assault to the authorities, she faces difficulty gaining meaningful protection within the current legal framework. Id. at 58.
National labor laws are written in gendered terms that exclude farmworker women from protection against sexual violence at work. Farmworkers are explicitly excluded from worker protection laws. Section 2(3) of the National Labor Relations Act (NLRA) protects the rights of “any employee”, but “shall not [protect] any [worker] employed as an agricultural laborer.” (Emphasis added.)
In describing the workers excluded from protection, the NLRA imagines the exclusion of male farmworkers. The NLRA employs masculine pronouns, such as “his”, imagining the concerns normally associated with men in the fields. Such masculinization of the unprotected farmworker eclipses the concerns of female farmworkers. This includes neglecting to consider the serious risk of sexual attack that female farmworkers face on a daily basis. Surely our society condemns workplace sexual violence against all women without exception. Our labor laws ought to do the same.
There are some government agencies that are mandated by certain laws to protect and prosecute sex crimes. Anti-discrimination laws, for instance, provide some protection against sexual violence for farmworker women. Under Title VII, sexual harassment is a prohibited form of sex discrimination. These offices, however, tend to be overburdened and underfunded. Id. at 60. Additionally, effective criminal prosecution is challenged by delayed inaction, loss of evidence, and cultural, gender and nativist biases of juries. Id. at 79.
While those working to protect farmworker women have made impressive strides, their efforts are severely limited by the legal framework within which they are forced to operate. Overall, the response of our legal system to the rampant sexual violence against female farmworkers is distressful. At best, the law has permitted protection efforts to become underfunded, reactive and limited attempts to help victims. We only manage to help a few of the women who have already been sexually attacked. America’s male-coded legal structure was not designed with the concern of farmworker women in mind. As such, the law is ill equipped to address those concerns now. There is only one meaningful way to end the intolerable raid against farmworker women. The law must create an environment of economic mobility and opportunity around women so that they may realize their power. This would require breaking down the economic, psychological, social, legal and cultural barriers that effectively block farmworker women from acquiring and exercising the power to protect themselves.
No state in the world should tolerate or ignore sexually violence against women. The United States is no exception. American soil should not be fertile for the complete (economic, psychological, sexual and physical) domination of any woman. No woman, regardless of her immigration status, should be as vulnerable to sexual predators as farmworker women have been for years. Nothing can justify or excuse a state’s inaction or tolerance of such cruelty. Her immigration status should not stand between her and her safety; and neither should her impoverishment, her political invisibility, her ethnicity, her gender, her isolation, nor the height of the crops she harvests.
The United States’ effort to eradicate such abuse cannot continue to rely on a male-coded legal system that was developed without concern for the different vulnerabilities of women. The time for structural change is overdue as gender equity is inseparably weaved together with the protection of economic, social and cultural rights. In the fields, where crops are taller than people, a farmworker woman has no better ally than herself. Instead of struggling to remedy her victimization after she comes back from the fields, American laws should equip her with power before she goes out to the fields. The vital question to ask is no longer “what can we do for a rape victim?” Rather, it is “what can we do for a potential rape victim?”