On Tuesday last week, the Federal Bureau of Investigation‘s Criminal Justice Advisory Policy Board voted in favor of changing its definition of rape. The current definition, established in 1929, covered only female victims and archaically—and imprecisely—referred to intercourse as “carnal knowledge,” whereas the proposed change is gender-neutral, contains a relatively objective description of sex, and does not require physical force.
If the director of the FBI approves this change, it has the potential to change how we think about rape. At least in part. Another equally important part is the definition of rape in the American Law Institute’s Model Penal Code which remains unchanged.
Here is why that matters.
As a society, the way we think about most social phenomena—including sexual assault—is influenced both by facts and morals. Neither is immovable or entirely objective. Facts depend on how you study and define them, and morals depend on who you are. But in the United States, the way we think about rape has, for decades, been operating with an outdated version of both.
With regard to the facts, the FBI’s rape definition determines what gets counted as rape in national crime statistics. These figures are used, among other things, to decide on government use of resources for rape prevention, and to determine the success of government efforts to prosecute this crime. A restricted definition is likely to lead to underestimates, which, in turn, leads to the assignment of insufficient resources to deal with rape. And, because government efforts to prosecute for rape often are judged by comparing number of rapes to numbers of cases filed, investigated, and prosecuted, the FBI’s definition also affects the evaluation of justice system effectiveness in this regard.
Of course, even if we use the current, potentially underestimated, figures for rape, resources allocated for prevention and prosecution of rape are insufficient and sometimes misused, and prosecution percentages appallingly low. However, a more accurate count of when and how rape happens can at least provide arguments for policy change.
With regard to criminal law—the ultimate guide on what society believes is “right” and “wrong”—our moral compass has been equally obsolete. The US Model Penal Code, which was adopted in 1962 by the American Law Institute to provide guidance for state criminal law reform, does not reflect what we have learned over the past four decades about rape through service delivery and care. Unlike FBI’s rape definition, unfortunately, change to the Model Penal Code is not immediately imminent (though explorations of a potential project to do so are underway) and the deficiencies are potentially more glaring.
Over the years, scholars have explored many problems with the various sexual offence definitions in the model code. The four most conspicuous are these:
- The need for an “objective manifestation” of force—that is, visible signs of physical force—before forced intercourse counts as rape in the eyes of the law (we now know that threats, verbal violence, and other forms of non-physical coercion are equally if not more effective in subduing a victim);
- The definition of rape as always having a male perpetrator and female victim (the recent allegations of rape of boys by Penn State coach Sandusky have made abundantly clear that rape can happen across the board);
- The deliberate exclusion of marital rape from any criminal sanctions (it is now hopefully beyond discussion that spouses don’t owe each other sex—even the Mexican Supreme Court has now acknowledged this); and
- The focus on the victim’s sexual past and previous behaviour towards the perpetrators and others.
This latter part is particularly worrisome.
The Model Penal Code explicitly excludes date rape and rape of former partners or even those the perpetrator has casually dated or maybe just kissed or held hands with (the victim must not be the “voluntary social companion” of the perpetrator at the time of the crime, and should not have “previously permitted him sexual liberties.”) This would also exclude rape against sex workers, which is a relatively frequent occurrence in part because many people believe sex workers automatically have consented to having sex with everyone because they make a living out of having sex with some.
At a time where the use of date rape drugs reportedly are on the rise, and where police officers already believe women are much more likely to lie about rape than victims of any other crime, there is no room for legal ambiguity.
Forced intercourse is rape whoever committed it, whatever the victim wore or said, and wherever it occurred. The American Law Institute should follow the lead of the FBI and update its definitions to reflect reality.