Author: has written 250 posts for this blog.

Return to: Homepage | Blog Index

32 Responses

  1. Kristen J.
    Kristen J. October 23, 2011 at 11:40 pm |

    Ah yes…reminds me law school…what with all the archaic definitions that treat women like cattle…I mean chattel…But, cattle is also accurate.

  2. Jadey
    Jadey October 23, 2011 at 11:42 pm |

    Sadly, even in places where the official definitions are quite broad and flexible, sex crimes are still among the most under-reported crimes (if not the most under-reported, for oh-so-many reasons, societal and institutional douchebaggery among them), so while this will help official crime stats in the US become *more* accurate, they will still be a long way off from the actual number of rapes that occur. The best guess we often get is from victimization surveys, which include assaults that were never reported or did not make it into the official police statistics for whatever reasons, but even these have some unknown degree of error.

    But this is still an important change, for both the stats and also the official recognition of a much more appropriate definition. God, anything would be better than that 1927 definition – what an embarrassment. Still, the focus on penetration (“no matter how slight”) is… interesting.

  3. Stephanie
    Stephanie October 24, 2011 at 12:01 am |

    … Did I read that wrong or is a male forcing fellatio on a woman not rape, but a male forcing cunninglus on a woman is rape? Or is it vice versa? Or am I just wrong?

    While there are some obvious ways to defend yourself from forced fellatio, I think it still counts as rape, and while no sex organs get damaged, it’s still painful and traumatizing!

  4. matlun
    matlun October 24, 2011 at 12:29 am |

    It is a question of semantics what the “correct” definition is. Ie what should be classified as rape and what as for example sexual assault (or under some other label).

    Question to the forum: What would be the perfect definition?
    Is it possible to find some objective definition that everyone would agree on?

  5. Lex HT
    Lex HT October 24, 2011 at 12:58 am |

    “Against her will” doesn’t just exclude statutory rape, but like the “forcibly” component, excludes situations where the victim does not resist (alcohol, intimidation, asleep, etc). It means that you weren’t raped if you didn’t really fight your rapist.

    I’m so glad to see the “without consent” part of the new definition (along with all the other parts of it). Although, in Victoria, a High Court appeal decision has just decided that the prosecution has to prove the defendant did not have honest belief (however unreasonable that belief might be) that the complainant was consenting, even when honest belief in consent is not raised as part of the defence.

  6. Anon21
    Anon21 October 24, 2011 at 1:36 am |

    matlun: It is a question of semantics what the “correct” definition is. Ie what should be classified as rape and what as for example sexual assault (or under some other label).

    Yeah, this is an interesting (and problematic) question, both in terms of which survivors get to claim the term “rape” (and have that be backed up by legal and social norms), and in terms of what the appropriate punishments are. Obviously, punishment doesn’t need to be tied to the terminology in any direct or obvious way, and also obviously, social meanings of terms don’t perfectly correspond to legal definitions.

    For purposes of crime reporting, I think it’s probably helpful to be pretty granular if possible–that is, we should aspire to find out what proportion of rapes or sexual assaults involve “force” or “violence” as those terms are popularly understood, what proportion involve drugs or alcohol, what proportion involve a stranger perpetrator, what proportion involve a family member perpetrator, what are the age ranges of survivors, etc. In that sense, the FBI’s new definition is obviously a positive, but I also hope that they’re casting their net broadly and specifically enough to collect information on sex crimes that aren’t necessarily covered by their new definition.

  7. FourColouredStripes
    FourColouredStripes October 24, 2011 at 3:05 am |

    Stephanie, I think you are misreading it.

    Both nonconsensual cunnilingus and fellatio would be included in this definition. Cunnilingus as the penetration of the vagina with any object, and fellatio as oral penetration with a sex organ.

  8. Sarah Jane
    Sarah Jane October 24, 2011 at 8:30 am |

    I think what Stephanie is saying is that the definition appears to involve only penetration of the victim. A man forcing a woman to perform fellatio would count as rape, but a woman performing fellatio on a man who has not consented would not appear to count as rape by this definition.

  9. Marissa123
    Marissa123 October 24, 2011 at 8:52 am |

    FourColouredStripes:
    Stephanie, I think you are misreading it.

    Both nonconsensual cunnilingus and fellatio would be included in this definition. Cunnilingus as the penetration of the vagina with any object, and fellatio as oral penetration with a sex organ.

    I don’t think you are misreading it, Stephanie. I was wondering that when I read it too. It never said oral penetration _with_ a sex organ, only oral penetration _of_ a sex organ. Fantastic…

  10. Glass
    Glass October 24, 2011 at 8:53 am |

    The FBI UCR NIBRS Data Collection Guidelines lists this as the definition for sex offenses: “Any sexual act directed against another person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent.”

    It then breaks down each crime further, for example rape is defined: “The carnal knowledge of a person, forcibly and/or against that person’s will or not forcibly or against the person’s will in instances where the victim is incapable of giving consent because of his/her temporary or permanent mental or physical incapacity. ” http://www.fbi.gov/about-us/cjis/ucr/nibrs/nibrs_dcguide.pdf

    But if you look at the 2004 UCR Manual it still has the old definition. http://www.fbi.gov/about-us/cjis/ucr/additional-ucr-publications/ucr_handbook.pdf

    I’m fairly sure most of the real UCR data now comes from the NIBRS system so I’m curious why it took them so long to make the guides match?

    “How did NIBRS start?
    Over the years, a broad utility for UCR data evolved, and law enforcement expanded its capabilities to supply crime information. In the late 1970s, the law enforcement community called for a thorough evaluation of the UCR Program to recommend an expanded and enhanced data collection system to meet the needs of law enforcement in the 21st century.” http://www2.fbi.gov/ucr/faqs.htm

    /Data Nerd

  11. Dan
    Dan October 24, 2011 at 9:33 am |

    Stephanie:
    … Did I read that wrong or is a male forcing fellatio on a woman not rape, but a male forcing cunninglus on a woman is rape?Or is it vice versa?Or am I just wrong?

    While there are some obvious ways to defend yourself from forced fellatio, I think it still counts as rape, and while no sex organs get damaged, it’s still painful and traumatizing!

    Pretty sure that would meet the “slight penetration” criterion.

  12. Fat Steve
    Fat Steve October 24, 2011 at 10:35 am |

    Has anyone informed Whoopi Goldberg about the new definition of ‘rape-rape’?

  13. annak
    annak October 24, 2011 at 11:01 am |

    ““Against her will” doesn’t just exclude statutory rape, but like the “forcibly” component, excludes situations where the victim does not resist (alcohol, intimidation, asleep, etc). It means that you weren’t raped if you didn’t really fight your rapist.”

    I would also say the original definition excluded rape of an unconscious person and a person who could not consent due to mental disability/insanity (not that every such person can’t consent, but there are some who don’t understand the concept of sex/aren’t in touch with reality enough to consent.)

  14. annak
    annak October 24, 2011 at 11:02 am |

    ““Against her will” doesn’t just exclude statutory rape, but like the “forcibly” component, excludes situations where the victim does not resist (alcohol, intimidation, asleep, etc). It means that you weren’t raped if you didn’t really fight your rapist.”

    I would also say the original definition excluded rape of an unconscious person and a person who could not consent due to mental disability/insanity (not that every such person can’t consent, but there are some who don’t understand the concept of sex/aren’t in touch with reality enough to consent.)

  15. annak
    annak October 24, 2011 at 11:04 am |

    Sorry for the double post! Anyway this redefinition isn’t perfect but it’s good news.

  16. Brandy
    Brandy October 24, 2011 at 12:11 pm |

    2. of a female – excluding anyone not a cis female (the definition actually explicitly classifies male rape victims as

    As what?

  17. Jacobtk
    Jacobtk October 24, 2011 at 2:19 pm |

    Did I read that wrong or is a male forcing fellatio on a woman not rape, but a male forcing cunninglus on a woman is rape? Or is it vice versa? Or am I just wrong?

    The definition counts both as rape. However, the definition does not count a woman forcing cunnilingus on a male or female, a male or female forcibly performing fellatio on a male, a woman forcing a male to penetrate her vaginally or anally, or a male forcing another male to penetrate him anally as rape. The definition essentially still excludes all female-perpetrated rape and most rape against males.

  18. Hershele Ostropoler
    Hershele Ostropoler October 24, 2011 at 3:09 pm |

    Where the new definition says “penetration … of the vagina or anus … without the consent of the vicitm” it doesn’t actually specify which party is the victim. So one could — though I doubt many will — read it as including cases where the one doing the penetrating is the victim.

    Though, overall I agree that it doesn’t do a very good job, when an incident involves acts popularly seen as A doing something to B, of allowing for A to be the victim.

  19. saurus
    saurus October 24, 2011 at 3:22 pm |

    What I learned from this post is that Atticus, in To Kill A Mockingbird, was being true to his legal roots (instead of using elegant phrasing as I originally thought) when he tells Scout, in answer to her question of what rape is, that it’s “a carnal knowledge of a female by force and without consent”. And that if that was the definition of rape when To Kill a Mockingbird was set and written, it’s really quite sad that it’s remained that definition for so long…

  20. FourColouredStripes
    FourColouredStripes October 24, 2011 at 6:43 pm |

    I read it the same way as Hershele Ostropoler, with neither the victim nor the perpetrator being defined as performing or being performed upon.

    Marissa123 I’m interested to know, what is your interpretation of “oral penetration of a sex object” if not fellatio or cunnilingus? If a mouth and a sex organ is involved, what else could it mean?

  21. PM
    PM October 24, 2011 at 7:54 pm |

    “Where the new definition says “penetration … of the vagina or anus … without the consent of the vicitm” it doesn’t actually specify which party is the victim. So one could — though I doubt many will — read it as including cases where the one doing the penetrating is the victim.

    Though, overall I agree that it doesn’t do a very good job, when an incident involves acts popularly seen as A doing something to B, of allowing for A to be the victim.”

    I agree- to include non-penetrative rape in which the rapist does not penetrate the victim, you have to twist the sentence around a bit. Penetration is generally seen as something done by an ACTOR. Only in very ambiguous terms does it include victims who are raped by a non-penetrating aggressor. The wording is so ambiguous that I think the authors never intended to include those victims at all.

  22. pdxlawyer
    pdxlawyer October 25, 2011 at 12:53 am |

    Wow, you really should consult a criminal lawyer before you try to make a point about reports of sexual assault.

    First, the other crimes you mention (penetration with other object and/or in other orifices; statutory rape; etc.) are not included in the definition of the federal crime of “rape” because they are included in the definitions of OTHER crimes. Yes, believe it or not, there is a separate section of criminal law for sodomy and statutory rape. It isn’t necessary for the definition of “rape” to include those two crimes as well.

    In addition, the “against her will” language that you cite as somewhat improper, really isn’t. It raises the issue of consent. The law provides that persons of diminished capacity (underage, drunk, high on drugs, etc.) are legally unable to consent. Thus, even though they may arguable consent while drunk, the law doesn’t accept that. So in addition to a separate crime for statutory rape, this definition INCLUDES persons of diminished capacity from whom consent cannot be legally valid due to that diminished capacity.

    Finally, you are so mistaken regarding the effect that this particular definition has on the statistics of persons who report (or don’t, as the case may be) sexual assualts. The people who gather these statistics (if they are competent) are wholly unconcerned with the legal definitions of various crimes when they are gathering statistics, much in the same way that they should be wholly unconcerned with which “degrees” of crimes the alleged perps are charged with. e.g., it is completely irrelevant to the statistics whether a defendant is charged with “first degree sexual assualt” which would be stranger-to-stranger, physically forcible intercourse with aggravating circumstances to include other physical violence OR “third degree sexual assault” which would be otherwise consensual intercourse in which the woman is legally unable to consent due to intoxication. Both are “sexual assault” crimes and are thus properly counted in terms of whether the incident has been reported.

    The point here ought to be whether or not there is a defined crime associated with the behaviors, NOT whether those behaviors are included within the definition of “rape.” To change the definition of the crime of “rape” without simultaneously understanding and acknowledging that the other criminal behaviors are already illegal under different crimes is very poor reasoning in public policy.

  23. Rebecca
    Rebecca October 25, 2011 at 1:56 am |

    Well, as a victim of sexual assault within the last year I am pleased there is finally progress being made. Because one step in the right direction is FAR better than no steps, or even worse, a step in the wrong direction. So we should take time to celebrate this small victory, then continue the fight until it is inclusive of everything.

  24. matlun
    matlun October 27, 2011 at 1:27 am |

    Caperton: When it comes to statistics and reporting, which I hope you’ll acknowledge are important to effective law enforcement, it becomes even more important that all of these crimes are properly classified

    Surely that cuts both ways?

    If you make the “rape” category overly broad you will also get incorrect statistics. So for many sub categories it is rather subjective if they should be included in the definition or not, and wider definitions are not by necessity better.

    I would for example argue that it is better to have underage sex (statutory rape) as a separate item in the statistics, but again this is all subjective.

    (Note from Swedish law: There is a single crime “rape against children” that is used for all cases where the other party is under the age of consent. That often makes it confusing when reading about it in the news since it is hard to know if perhaps both parties thought it consensual. IMO: Different crimes would have been better)

  25. Emily Guy Birken
    Emily Guy Birken October 27, 2011 at 3:57 pm |

    The original 1927 definition is exactly the definition that Atticus Finch gives Scout in To Kill a Mockingbird when she asks him what rape is. It’s interesting that Harper Lee had her lawyer give the exact legal definition. I always assumed that Atticus was simply defining something so his daughter wouldn’t really understand what he was talking about. –a former English teacher

  26. anonymous
    anonymous October 28, 2011 at 12:10 am |

    Stephanie: Steph

    The definition written in the Slate article actually says “…oral penetration by a sex organ of another person…”, while the one written in this article says “…oral penetration of a sex organ…”.

  27. anonymous
    anonymous October 28, 2011 at 12:15 am |

    Stephanie: …Did I read that wrong or is a male forcing fellatio on a woman not rape, but a male forcing cunninglus on a woman is rape? Or is it vice versa? Or am I just wrong?

    I think that’s a typo. The definition in the slate article reads says “…oral penetration by a sex organ of another person…” while the definition in this article reads “…oral penetration of a sex organ…”.

  28. Katherine
    Katherine October 28, 2011 at 8:36 pm |

    Wow, because men are men they can’t be raped; having the Y chromosome next to the X automatically means consent!

  29. Avida Quesada
    Avida Quesada October 29, 2011 at 4:44 am |

    Jacobtk: female

    I believe that by design, if not completely accurate. A women inserting an object on the anus of a men will be rape.

    The objective of the proposed change are:

    1. Increasing the number of crimes reported as rape (stats).

    2.In doing so, don’t increase the number of women that are reported as rapists.

    The change is motivated by feminist activist, and us, as a group, are centered on the way women experience violence.

    People tend to believe that rape is the worse form of sexual violence.
    That mean people consider rape as far worse than female sexual mutilation. (don’t get me started on male sexual mutilation that is seen as a joke, or deserving for cheaters).

    So from the political point of view is important to have all the rapes agains women reported.

    Do I agree with the second objective: No. But is the way it is.
    If men want to have there sexual abuse experiences be recognized as rape they need to organize themselves because feminism is not about them.

    regards,

    Avida

  30. Vaginal Obsession – TSA, you’re doing it wrong « The Legal Satyricon

    [...] misdeeds, and calling the agent’s actions “rape.” Filipovic herself reports that even the FBI would agree with this assessment.  Unlike Filipovic, Alkon did not (so far) find out that her tormentor was fired. Ms. Alkon [...]

Comments are closed.

The commenting period has expired for this post. If you wish to re-open the discussion, please do so in the latest Open Thread.