[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?”
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ReplyDeleteThank you for your comment.
ReplyDeleteU-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.
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.
ReplyDeleteThis 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.
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.
ReplyDeleteIt 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.
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.
ReplyDeleteIn 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 http://www.immigrationpolicy.org/just-facts/violence-against-women-act-vawa-provides-protections-immigrant-women-and-victims-crime) 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.