Friday, November 2, 2012

“Field de Calzon”: sexual violence where crops grow taller than people

[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?”


KB said...
This comment has been removed by the author.
Jihan A. Kahssay said...

Thank you for your comment.

U-visas (for victims of crimes) and T-visas (for victims of trafficking) are seemingly great resources for undocumented farmworker women who have been sexually assaulted in the workplace. It would especially seem so since these visas were created by the Violence Against Women Act. Sadly, Congress created these visas primarily as tools for law enforcement – not for victim empowerment.

The primary intention of Congress was to equip officers with the power to incentivize victim cooperation with law enforcement and prosecution. To that end, immigration agents will award U- and T- visas only if a qualifying law enforcement agency has certified that the petitioner (victim) helped with the investigation or prosecution of the underlying crime. Worse still, law enforcement agents enjoy absolute and unreviewable discretion in certifying U- and T- visas – even if the victim has in fact cooperated with the investigation and prosecution of the underlying crime. Congress’s reluctance to prioritize ending the plight of victims – combined with increasing national mobilization against immigrants – has resulted in a very sad reality for female farmworker victims of sexual violence: law enforcement often refuses to certify petitions for U- and T- visa because they can.

This scheme does not empower the undocumented victim of sexual violence. Indeed, the law keeps the victim in her place of disempowerment and merely switches the identity of her captor from the sexual perpetrator to the law enforcement agent. The law enforcement agent holds her liberty in his hands, just as the sexual perpetrator did before him. The aim of the U- and T- visa is widely believed to be (and should have been) to deliver her liberty back to her.

MC said...

I agree that U-visas and T-visas are seemingly great resources for undocumented victims of crime and trafficking, and that they really do serve the interests of law enforcement. I'm really not a fan of the requirement that undocumented folks who are eligible to apply for either visa, be willing to comply with law enforcement in investigating and prosecuting their perpetrators. However, the T-visa is slightly more flexible on this point than the U visa. Where the U visa requires a law enforcement agency (LEA) endorsement, the T-visa does not. The LEA endorsement will certainly strengthen the application, however, it is not absolutely required.

This summer I encountered a field worker who ultimately decided that applying for the U visa was not worth the risk of deportation and loss of employment. Like so many of the women described in this post, she was sexually assaulted multiple times, and finally decided she could no longer live with this disgusting form of abuse against her. However, her heartbreaking reality is that she is unwilling to go to the police, and her perpetrators will continue probably mistreating women until someone develops the courage to report them.

KB said...

Thank you Jihan and MC for providing more information on this topic. I am always impressed by your knowledge and advocacy on behalf of immigrant women! MC, I can only imagine how difficult it was to hear the account of a sexually abused farmworker first-hand.

It is very disheartening to have law enforcement requirements thwart a form of immigration relief that has the potential to be victim-oriented. While I am sure some sexual assault victims have received the benefits of a U-visa, the odds are against them. I wonder how often law enforcement agencies use women in investigations, and then will not certify their U-visas. You put it well Jihan- this scheme only changes who holds the undocumented woman’s liberty. Undoubtedly we need a new scheme.

KB said...

Thank you for creating greater awareness about the abuse that female farmworkers face, especially if they are undocumented immigrants. I agree that we need to alter the laws to prevent these abuses before they happen.

In the meantime, one option for undocumented women may be the U visa, which grants immigration relief to crime victims if they cooperate in the investigation and prosecution of a crime. (See However, these visas are limited (only 10,000 per year throughout the U.S.) and barriers remain. The existence and availability of these visas my not be well known in the community. There are also cultural and linguistic barriers to informing immigrant populations about the U visa. Even with the requisite knowledge, some women may still be afraid to come forward because they fear exposure to a system that has the power to deport them. Finally, as Jihan mentioned, reporting such a crime could risk the only economic opportunity these women have. While a U visa does come with work authorization, a worker may still not be able to find a different job.

While a U visa may be helpful for some women, we need to expand its provisions and availability to ensure greater protection for vulnerable farmworker women. Otherwise, women will continue to suffer in silence in this male-dominated industry.