Thursday, October 31, 2013

Why the Semantics of Rape Matter

In December of 2011, the FBI amended its definition of rape from "the carnal knowledge of a female, forcibly and against her will," to "Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." Phrases like "carnal knowledge" and the insistence that rape victims must be female might suggest the outdated definition’s antiquity—in fact, it had stood since 1927.

How rape is defined is an issue with consequences that go beyond the merely semantic. Consider, for example, this recent post on the gulf between the prevalence of sexual assaults as reported by researchers like Mary Koss (who found that 1 in 4 women are the victims of rape or attempted rape before leaving college) and as reported by the FBI, which, in 2012, reported 26.7 forcible rapes per 100,000 inhabitants. The discrepancy can be attributed, at least in part, to how each study defined terms like "rape" and "sexual assault."

The FBI’s new definition will apply to how it collects and reports statistics like the ones quoted above—those regarding the incidence of rape. According to Attorney General Eric Holder, "This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes." Indeed, an emphasis on penile-vaginal penetration and the use of force limits what acts are counted as rape. With that in mind, it is particularly alarming to realize that for 84 years the FBI was using a definition of rape that didn’t include date rape or rape involving a male victim, perpetuating the myth that rape is only committed by strangers who jump out of the bushes.

The real-world consequences of how rape is defined make the history of the word itself both significant and instructive. Our English word "rape" is derived from the Latin raptus or rapere.  Its first appearance in British law refers not to any sort of sexual assault, but instead to violent theft of property. That linguistic connection is no coincidence. In the 19th century restitution for a rape resulting in pregnancy was paid not to the victim but to her father, and the rape of a woman by her husband was not recognized as a crime until the latter half of the 20th century. The conceptualization of rape as an attack on a woman, instead of the appropriation of the commodity that is her chastity, is a shift that has taken too long to come.

Today, a long-overdue shift in the way we define and conceive of rape is occurring, evidenced by the FBI’s updated definition. The FBI’s old definition bears no small resemblance to the English common law definition of rape: "carnal knowledge of a woman, forcibly and against her will."  Matthew Lyon, writing for the Journal of Criminal Law and Criminology, parses this definition into three elements: "intercourse, force, and lack of consent." Now that women are widely viewed as people instead of property, the most important change in the way we define rape today is the shifting emphasis from the second element of that ancient definition, force, to the third, lack of consent.

That shift is obvious in the new FBI definition, which notably makes no reference to force.  It also has important legal consequences. At one time many states required rape victims to prove a certain degree of physical resistance beyond a reasonable doubt in order to secure a conviction—so as to prove that force was involved in the sexual assault.  Thanks to rape’s shifting definition, many states have loosened or, in some cases, completely removed the requirement for "rigid resistance" on the part of the victim—a positive outcome, given recent research suggesting that for many sexual assault victims, physical resistance of any kind becomes physically impossible once the assault is initiated. 

Similarly, thanks to the new found emphasis on consent (or rather the lack thereof) as opposed to force, certain states have begun to define the post-penetration continuation of intercourse after consent has been withdrawn as rape. Previously, it was widely held that once a woman gave consent and penetration had occurred, there was, at least legally, no turning back. Emphasizing consent over force, however, leads logically to a different conclusion. Consent can be withdrawn at any time and once it has continued intercourse becomes rape.

The blunders of insensitive politicians have brought notoriety and national attention to the issue. In 2008, Tennessee Senator Douglas Henry declared that rape today "is not what rape was." He elaborated, saying that, "Rape, when I was learning these things, was the violation of a chaste woman, against her will, by some party not her spouse." In an even more infamous incident, former Rep. Todd Akin claimed last year that, "If it's a legitimate rape, the female body has ways to try to shut that whole thing down." Such gaffes point to the suspicion with which many still view a definition of rape based on lack of consent as opposed to the use of force.  That such gaffes are being made by people who hold positions of significant power points to what is at stake in this ongoing debate.

In fact, as recently as 2011, the No Taxpayer Funding for Abortion Act, which, as its name might suggest, would have banned federal subsidization of abortions, made exception specifically for cases of "forcible rape." The distinction raised an outcry from women’s group, who pointed out that such language could exclude victims of date rape or statutory rape. "Forcible" was eventually removed from the bill, although it still failed to pass the Senate.

A common refrain of activists opposed to that particular qualification was that "rape is rape." However, even as rape’s meaning has shifted to focus on a lack of consent, a whole host of qualifiers has sprung up, often to make the distinction between rape that involves force and rape that doesn’t.  Date, statutory, legitimate, forcible, gray, the list goes on and on. The question is whether those qualifiers clarify, or merely diminish? To which one might answer that the definition of "rape" is not merely semantic for the victims.

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