INTRODUCTION I. "DOWN LOW" DISCOURSE: THE DOMINANT STORY II. BLURRING THE PERPETRATOR/VICTIM DIVIDE A. Not All Black Women Are Victims 1. Some women know; some don't care; some prefer bisexual men 2. Women can live "down low" B. Black Men Can Be Victims Too 1. Bisexuality is not an intelligible option 2. The down low harms out black men III. STRUCTURAL CONNECTIONS: WHAT BLACK WOMEN AND BLACK MSM HAVE IN COMMON A. Governmental Policies Reduce the Number of Eligible Black Male Romantic Partners B. Romantic Segregation Limits Romantic Possibilities for Black Women and Black MSM C. The Branding of HIV as a Gay White Disease Disserved Black MSM and Black Women IV. THE FAILURE OF HIV TRANSMISSION LAWS A. Positive Perpetrators and Negative Victims B. Complexity and Culpability C. A Structural Approach to HIV Risk CONCLUSION INTRODUCTION
Recently, the media have brought to light examples of ordinary black men who are said to live on the "down low" (or DL) in that they have primary romantic relationships with women while engaging in secret sex with men. (1) A central theme of this media coverage, which I will call "DL discourse," is that DL men expose their unwitting female partners to HIV, which stems from their secret sex with men. (2) DL discourse warrants examination because it sits at the intersection of three important civil rights movements: (1) the gay rights movement, (2) the black anti-racist movement, and (3) AIDS activism. In this Article, I critique DL discourse in order to reveal important lessons about media framing, gender schemas, and victimization, and the relationship of all three to law. DL discourse tends to conceal several relevant and interconnected groups, including nonblack men who engage in similar practices, down low women, and women whose sexual relationships are not monogamous or "respectable." These erasures permit the media to boil the underlying issues down to a battle between two caricatures--dangerous black men and their innocent wives and girlfriends. However, a close analysis of this framing provides the opportunity to recognize complicating nuances and draw structural connections between black men who have sex with men, or "MSM," (3) and black women. I argue that both of these groups confront structural constraints that push them to the fringes of the black community and the broader society while limiting their romantic possibilities.
The media and the public have applied an insidious racialized double standard to black and white men who engage in similar conduct. The black men who are depicted as having secret sex behind their wives' backs in DL discourse horrify us, yet we see Ennis and Jack, the star-crossed lovers in the Oscar-nominated, box office hit Brokeback Mountain, as victims of the closet. (4) When Governor Jim McGreevey came out as a "gay American," the empathy that the public felt for his wife Dina did not require casting Jim as a villain. Thus, an important point of this Article is that we attend to our tendency to frame black and white men through radically disparate lenses even when they engage in the same underlying conduct. Juxtaposing what I call "white men on the down low" (5) against the stories of all-black depravity featured in DL discourse makes apparent that these media stories race the closet.
To say that the media race the closet is not to say that black and white MSM are identically situated vis-a-vis the closet. But the major differences may not be the ones suggested by the media, such as the association of DL with promiscuity. (6) First, black men face not just homophobia but also racism, and these two oppressive forces intertwine in vexing ways. For instance, black men who identify as gay may face accusations that they have let down the black community, which often views "good black men" as an endangered species. (7) Jim McGreevey can come out without anyone fretting about the white community lacking strong male leaders or linking such a problem to his sexual identity. To the extent that black men do not "come out" as frequently as white men, one explanation is that they face greater pressure to shun an additional stigmatizing identity. Importantly, this pressure arises not just from the black community and its purported greater homophobia, (8) but also from white people.
The very white gay men who bemoan the internalized homophobia of black men and suggest that coming out is a cure-all often contribute to the closet that confines black men by excluding and marginalizing black MSM in gay spaces and public representations. (9) As I describe below, (10) white gay men have dominated public images of gay men, which makes it hard for many men of color contemplating coming out to understand where they would fit in. To the extent that black men see black gay images in the media, such representations are likely to be caricatures--like the DL--that fail to reflect how black men see themselves.
Although DL discourse has convinced many readers that the DL is a real and significant phenomenon in the black community, no one has ever proved the prevalence of this practice in black communities or elsewhere. Indeed, it may be impossible to do so since the very conception of the practice entails secrecy. Asking a man whether he is down low may not produce a reliable answer since DL men, by definition, are perceived as hiding their sexual relationships with men and denying the relevance of their involvement in such sex. Many media stories on the DL fail to quote any actual men on the DL beyond J.L. King, the one man who has built a career on acting as a media spokesperson for the group. (11) Thus, the media set up the DL as a "phenomenon" whose existence can neither be proved nor refuted. In my view, the blossoming of the DL story in major media outlets, despite the lack of identifiable DL men and minimal empirical evidence, speaks to the background stereotypes about black pathology that enable the story to bypass normal expectations of verification.
Despite these verification challenges, some public health scholars who have also been intrigued by the DL story as a possible explanation for high HIV rates among black women have attempted to study DL men. I report the results of some of these studies throughout this Article. Although these studies shed some light on men who fit at least some of the characteristics of the typical media definition of down low, (12) they are subject to important limitations. First, it is possible that there is a group of DL men who would not talk to researchers, despite rigorous procedures intended to protect their identities. (13) Such men are obviously not included in the studies I describe, although we do not know how many such men exist. Second, some studies select subjects by asking men whether they identify as "down low" and thus sweep in some men who do not sleep with women and men simultaneously, but nonetheless subscribe to DL identity for reasons that may include a rejection of the whiteness of gay identity and the view that DL is a trendier term for the closet. (14) These limitations mean that the studies do not enable me to prove that the pervasive assumptions about DL men are correct or incorrect. They do, however, allow me to raise skepticism about assumptions which may amount to nothing more than stereotype. (15)
This Article begins in Part I where I describe the main themes of DL discourse, laying the foundation for Part II, which deconstructs the framing of this discourse. While the media tend to pit black MSM against black women, framing the former as perpetrators and the latter as passive victims, I reveal often ignored subgroups that destabilize the discourse's simplistic binary. I also reveal that the victimization of black men is masked by the assumption that only women can be victims. Such frames conceal the common ground of marginalization that black MSM and black women share. In Part III, I examine several mechanisms that specifically harm black women and black MSM. These governmental policies and social norms include "romantic segregation," mass incarceration, and the branding of HIV/AIDS as a disease of gay white men--not black men and their female partners. The increasingly black face of HIV today (16) is in part a byproduct of the government's initial focus on gay white men to the exclusion of others affected by the virus.
One might expect HIV-specific transmission statutes, which were partly motivated by news reports of a black man infecting numerous white women, to offer a solution to the down low because such laws punish people who know they are HIV-positive and have sex with another without disclosure. Yet many DL men currently live beyond the reach of HIV transmission statutes and under the radar of the HIV testing regime because they do not see themselves as belonging to the risk group of gay men and thus do not know their HIV status. Instead of simply trying to identify individual perpetrators, an approach that has had minimal impact, the government could protect individuals by establishing regular HIV testing as a norm for all sexually active people, not just those who fit a flawed profile of those at risk. Studies show that most people who receive an HIV-positive diagnosis alter their behavior and engage in less unprotected sex with HIV-negative partners.
Although I attack media conceptions of black men on the "down low," and their links to government policies, I do not mean to excuse or justify the behavior of a man (of any race) who lies to his wife or female partner about his sexual relationships with men and exposes her to HIV. (17) While there surely are some men who fit the DL caricature, media discourse on the DL contains little of the complexity, personal struggle, and humanity apparent in the lives of many black men who have sex with men and women and refuse to identify as gay. It also tends to distract us from the structural forces that contribute to individual decision...