How We Think About Rape: Change at the FBI Is Only One Step in the Right Direction


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 But in the United States, the way we think about rape has, for decades, been operating with an outdated version of both.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.

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  • julie-watkins

    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.

    I’m so tired of rape apology & rape culture apology … and, as you mention, digging into the rape victims past.

  • carolrhill814

    To me this is not far enough not near to rape to me is MANSLAUGHTER because once a person be them male or female that person changes to the point that nobody knows them as they were one second before the rape.

    That person might look the same but they aren’t no way no how they become this other person always scared always protecting themselves and the family from the embarrasement of what just happened because you think it was your fault.

    The fact of the matter the person who raped always threatens the person who he or she raped you had better not speak about what he or she did or that person will kill family members so that secret ramains for sometimes for years like in my case.

    I became a person with a horrible temper always afraid of talking so I didn’t allow anybody to close because of speaking of what he did to me and and that went on for so many years I can’t count. Another thing that happens to people that have been raped the inability to sleep because everytime you close your eyes you can see the attack over and over again. Me personally speaking I woke up 7 to 10 times a night screaming and would walk all over the house running away from the rapist and of course your partner can’t sleep so it makes it rough all around because you are still afraid of speaking about what happened to you.

    There is something else that is NOT been spoken about rape victims lose a lot of jobs because of your temper because let’s say you don’t like the way someone looked at you because that might have been the way he looked at you “I’ll see you tonight” when in fact they are just looking at you.

    When I finally got help so many years later and he was gone away from the family I told my family and one of my sisters told me I was a liar and the other one that brought that animal in our home told me I messed up her life so I know first hand what it is like to be called liar.

    That is why people who are older and it happened when they were a child just don’t speak about what happened and who did it.

    This is why the law rape has to change to MANSLAUGHTER but I need help for this to happen.

     

  • carolrhill814

    Hi Julie Watkins,

    I couldn’t agree with more if I tried the person has nothing to apologise for the one that has to say their sorry is rapist but they aren’t sorry because they wouldn’t have done it in the first place.

    What I would like to know is why do they look in the rape vicims past it has NOTHING to do with what happened it as though they aer saying their past had something to do with the attack.

    I was only twelve (12) when my brother-in-law started raping me and he finally stopped when I was twenty-one (21) because I got married.

    Please read what I wrote to see what all of side effects of getting raped for so long and it is horrible.

  • wildthing

    As long as we enable the use of wars of dominance and submission and war in our institutions as the adversarial juducial system and the Bully Market economic system we are going to have a climate of force. I have also known of women who demand or instigate physical force as foreplay. Regarding date rape we need a sexual ed and licensing to experiment as teenagers rather than the attempt to force frigidity and fear until adulthood. With surrogate adults and confidential advice for paraphilias and discussion of foreplay alternatives and for all teenagers who want at their pace not just the popular and attractive ones. Our society is permeated by sexual repression and religiously promoted anti-sex work laws where alternatives aren’t available in acceptable environments controlled by the women.  It is a focus of hysteria as well and an attitude that someone is damaged goods only makes the stigmatization worse. The toxic nucler family of ove-consumptionas a prerequisite to sexual activbity is also out of touch with our society trying to protect the dogmas of the dark age institutions.

  • ondelette

    While your article asks for a change of the definition with regards to the gender of the victim, it manages only to say this about it:

    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);

    But the statistics from the study gave a full 2/3 of a percent of the male population who had experienced rape — not sexual assault, rape — during their lives, as adults.  Given that most cannot even conceive of the crime — it must have happen in jail, or the victim should be dead or have fought to the death or what is he doing here, or — the most insidious — the victim is somehow homophobic and uncomfortable with himself sexually, it really isn’t surprising that the only way many people can empathize or conceive of this crime is the statutory version where an adult preys on a defenseless child.

    That being the case, one assumes the percentage is an underreport. Shall we say that then there are perhaps a million men out there, who have been raped as adults? And no one, in this society, can even clearly picture the crime of which they’ve been a victim, much less keep it in mind when writing an article on the subject, because deep down, the ancient and unconscious social norm is that those victims were supposed to be willing to die defending themselves?

    Not a very pretty comment on compassion and society.