How the laws governing rape fail everyone

The aftershocks of the recent Rolling Stone article, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA,” once again enable the interpretive dance performance of rape anxiety and rape denial.

The stage was set with accounts of rape at its most horrifying, followed by university wagon-circling, hand-wringing, and angry discussions of campus rape culture.

Journalists began to peck away at one another, and eventually the Washington Post reported that the story’s centerpiece, an account of a violent gang rape, was filled with inconsistencies.

Media attention has now turned from “rape,” to “what went wrong with the reporting on rape” (a more comfortable topic).

Supreme Court via Shutterstock

Supreme Court via Shutterstock

The specter of a false rape accusation can create bewilderment and confusion. What is rape? How do we know when it happens? Some men worry they might “accidentally” rape someone. Women sometimes define “consent” in fuzzy ways. Others wax on about “affirmative consent,” or asking for, and receiving, a verbal “yes” at each step in a sexual encounter. Then there’s the fact that a media focus on heterosexual rape glosses over the fact that men also rape men, women rape women, and, less frequently, women rape men—both on college campuses and off.

My own question has been “why is rape so confusing?”

As I posed this to lawyer friends, my answer emerged. The way the law defines and prosecutes rape makes confusing something that should be pretty straightforward: A rape happens when one person forces another person to have sex.

Rape laws vary by state, but it’s always a felony. In most felonies the perpetrator must intend to commit the specific crime (have a criminal intent). However, because rape is considered a crime of “general intent,” the prosecutor’s first job is to establish that the perpetrator wanted to have sex, which the state doesn’t even consider a crime. That is, the state begins its prosecution of rape by questioning whether a crime has taken place at all.

Now, this is different from considering someone innocent until proven guilty. With other felonies, the state begins its prosecution with the assumption that a crime has taken place, the question being, is the defendant the person who committed the crime? That’s innocent until proven guilty.

As the law continues to parse its way to an actual crime, the next issue the prosecutor must establish is whether or not consent took place. If consent were obtained, then there was no crime. If not, a crime occurred. While lawyers might grasp this waffling logic, reasonable people don’t think that way. If a felony were committed, someone must have had a criminal intent to begin with, or developed criminal intent along the way. Who is a rapist? We’d all like to know.

Because the law takes a pass on establishing a criminal intent for rape, the perpetrator’s motivations cannot be taken into account—the law treats “intent” and “motivation” separately. The law’s first reaction to a felony like homicide is to collect and consider evidence, including state of mind. The first reaction of the law to rape is to say: Whoa, wait a second, was there even a crime? In homicide, the alleged killer’s state of mind (part of motivation) would be evidence. With rape, state of mind is generally not admissible because the statutory intent assigned to rape is not necessarily criminal. Anyone can formulate an intention to have sex. So does that mean anyone can be a rapist?

The more you parse the law of rape into terms a reasonable person would understand, the more circular and inexplicable the standards become. The standard for determining whether or not a rape happened isn’t physical or motivational evidence—it’s “consent,” another legally murky term. This is the “he said/she said” part (or he said/he said, she said/she said). But the law doesn’t specify whether one person is supposed to obtain consent or whether the other person is supposed to grant it. The law just speaks of “non-consensual” sex, as though we can somehow know what rape is by talking about what it is not.

No wonder men freak out about the possibility of “accidentally” raping someone: The law suggests they can. The responsibility for consent isn’t specified, so, yes, a victim can, hypothetically, define the crime. But good luck with that, because the law doesn’t allow much in the way of evidence to enter the courtroom. Unless a rape has been extremely violent, rape kits tell little about what happened, other than identifying who had sex with the victim. With all violent crimes, police advise victims not to resist, but credible physical evidence of a rape often depends on the level of resistance. Inside this legal vacuum, prosecutors have little choice but to consider a victim’s credibility.

Victims don’t report rape because the law is written, by default, to make questioning their credibility an issue in prosecution and defense, rather than collecting or establishing evidence. Over 60 percent of rapes go unreported as a result. Comment threads on articles about rape far-too-often fill with hostile, misogynistic words by men who feel threatened by the perceived power women have to define rape. And all of this is because the law doesn’t really define what rape is, or why a rapist might rape.

The law fails everyone by defining rape as a crime of general intent. The solution may be to treat rape like other felonies, by assigning it a criminal intent: to inflict physical and/or emotional damage on another person by forcing that person to engage in sexual acts.

I’ll expand on this more in a second article coming up.

Jeneva Burroughs Stone is an essayist, poet, blogger of the rare & unknown, practical g/i nurse, interpreter of EOBs, queen of medical-necessity letters, unlicensed PT, knowledgeable wheelchair mechanic. She has a PhD in Renaissance literature with a focus on gender and sexuality, has taught high school and college students, and worked on Capitol Hill and as an editor in higher education policy.

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20 Responses to “How the laws governing rape fail everyone”

  1. caphillprof says:

    I get the feeling you lack actual sexual experience.

  2. Zorba says:

    Thank you. This is perhaps one of the most cogent explanations and ruminations on “intent” and “was there a crime?” that I have read.

  3. Jonathan Kaplan says:

    But there are of course criminal cases where the questions “was there a crime?” and “was there consent?” matter, which are *not* considered so confusing.

    Consider arson. If a building burns down, and the fire was set deliberately, it is a crime. (If someone dies, it is murder.) If a building burns down, and the fire wasn’t set deliberately, it isn’t a crime (to a first approximation, and ignoring gross negligence, etc.). So faced with a “suspicious” fire, the question simply is “is there in fact a crime here?” and generally, if the answer is “yes,” than who committed the crime is obvious (most arson cases only have one plausible suspect). So the first step here simply is trying to answer the question “was there in fact a crime?” and yet there isn’t anything weird or confusing about arson cases, I think. So the claim that with “other felonies, the state begins its prosecution with the
    assumption that a crime has taken place, the question being, is the
    defendant the person who committed the crime?” is over-broad, I think. There are other cases where the question “was there a crime?” is primary, and if the answer is “yes,” then the guilty party is obvious.

    Now, consider gifts versus theft. If I give you something of mine, it is a gift. If you take it without my permission, it’s theft. My consent is all that determines whether your removing my TV (say) from my house is theft or not. And yet, we don’t think of theft as some baffling mystery of competing narratives. We don’t generally worry when people give us things that we will later be accused of theft. And when someone steals something of yours, you don’t generally expect that they will be able to defend themselves by claiming that you consented to their taking it. Despite the fact that “consent” is at the heart of distinguishing gifts from thefts.

    The material on “intent” I’m more compelled by, but I’m not as clear about. Do prosecutors really spend much time establishing “intent” in most crimes? I like the idea of pushing harder on intent in these cases — if it is the case (as it seems to be) that most rapists are serial rapists and know full well what they are doing, establishing intent could be a powerful tool — but I worry that this hides the fact that most criminal cases, I think, don’t push hard on the ‘intent’ issue. (Did you ‘intend’ to sell drugs? “Intend” to rob the house? No one spends any time in court establishing this, beyond establishing that one did those things…)

    Put another way, in a comment it is noted that “until the law figures out how to separate an intent to rape (whether
    premeditated or arising during the course of an action) from an intent
    just to have sex, the victim’s credibility will always be the issue.” Why isn’t this true in cases of theft? “Until the law figures out how to separate intent to steal TVs from just intent to get a TV, the victims credibility will always be an issue.” Because of course, the thief can always claim that they thought they had permission to take the TV..? Why does that sound stupid in this case? Shouldn’t it sound just as stupid in cases of rape?

    So I think while the above is onto something, I suspect that other things are at play (rape culture, including the fact that women seem to be regarded as unreliable within the legal system and by jurors, etc.).

  4. Silver_Witch says:

    It is a sad statement about woman who have been so acculturated by society to believe any woman that is raped did something to cause it. Even as a very wee child (age 8) – I knew my father raping me was my fault, knew it was a shameful thing that would cause people to point at me as the one who caused it. When my sister finally spoke of our father’s actions (she was a grown woman), almost all of the women she spoke too said one of two things (1) you shouldn’t have been bad; or (2) But your mother was so pretty – I can’t believe he would do that to you.

    So never underestimate how a group of women can do more damage to other women. Look at Anne Coulter or Phylis Shyfly if you need examples.

  5. Hue-Man says:

    The issue I was raising was no consent. Two people have sex without either one saying yes or no explicitly – days or weeks later, one party decides it wasn’t consensual.

  6. jenevastone says:

    Many rape victims begin deciding for themselves (after having been traumatized) whether they think their case would stand up in court–without even seeking help or advice. Often, they may be wrong. However, by waiting a few days to gather the courage (which the system shouldn’t make them feel they have to have), rape victims are often confused with persons who have regrets and a more complex story of violation.

    I’m not certain most people really understand laws governing rape–and that impacts timely reporting. In addition, you bring up the sex ed issue. In a country where we have difficulty deciding on the content of sex ed classes in high school, it’s not a wonder that we have not prepared young men and women for the real-world problems associated with rape and reporting.

  7. jenevastone says:

    Thanks. I’ve read the Slate article. My impression is that prosecutors fear bringing a case to trial because they must rely so much on the perceived credibility of a victim in front of a jury. By establishing a specific intent (a criminal intent) for rape, prosecutors would be able to examine the accused’s background, statements, prior behavior, etc., which would enable collection of more evidence that a crime took place, benefiting victims and also starting to separate what some women are beginning to refer to as “gray area” incidents from rape itself (rapists come from all walks of life–it’s not a matter of broad brush association of rape with the general perception of a “criminal”). That separation would, I hope, enable a better public discussion. Women are right to begin talking about “gray area” incidents, trying to sort out what happens, how it happens and where the feeling of violation occurs, etc. Yet at the same time, many of those incidents are not necessarily rape. We need balance: more victims need to be able to come forward because they’re willing to trust the criminal justice system, and making an accusation needs to be clearer in its definition. Do remember that “force” and “threats” do not have to be extreme cases–simply using the power of a strong body to hold a vicim underneath a perpetrator is enough that to any reasonable person, the situation would be considered rape. I.e., if the person you want to have sex with is struggling underneath you, maybe you’d better STOP or face rape charges. The question of the credibility of the victim needs to be better balanced with consideration re: the credibility of the accused. One last thing–colleges should never be charged with adjudicating rape charges, period.

  8. jean dumas says:

    It gets even more complicated in college when the definition of sexual assault can differ from the legal one and potentially from one college to the next.

    For example the policy below probably go unenforced for the vast majority of student

    The University uses the terms “Non-Consensual Sexual Contact” and “Non-Consensual Sexual Intercourse” within the Policy and Procedures for Student Sexual Misconduct Complaints (the “Sexual Misconduct Policy”) to describe incidents often captured under the umbrella term “sexual assault.”
    “Incapacitation” means the physical and/or mental inability to make informed, rational judgments. States of Incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol is involved, one does not have to be intoxicated or drunk to be considered Incapacitated. Rather, Incapacitation is determined by how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. The question is whether the accused student knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was Incapacitated. Because Incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; i.e., when in doubt, assume that another person is Incapacitated and therefore unable to give Effective Consent. Being intoxicated or drunk is never a defense to a complaint of Sexual Misconduct under this Policy.
    .These definitions from the Sexual Misconduct Policy differ from those used by the Commonwealth of Virginia to define sexual assault for the criminal justice system. In some cases, the University’s definitions include behaviors that, while not codified as criminal under the Virginia statutes, still violate the Standards of Conduct to which all University students are held. Conduct may also be both punishable under the criminal statutes and University policy

  9. Baal says:

    Many good points in this post. There is also an interesting article in Salon about some aspects related to this, and in particular the problems that using Title IX to address this problem at universities.

  10. Hue-Man says:

    1. Plain vanilla vs BDSM issues

    2. Does “no consent” = YES or NO?

    The possibility for historical revisionism is frightening; if your sober willing partner decides the morning after that having sex was a huge mistake, this shouldn’t lead to criminal prosecution. It’s certainly not something that was ever discussed in Sex Ed class.

  11. jenevastone says:

    Jim, I think you point to a significant issue: until the law figures out how to separate an intent to rape (whether premeditated or arising during the course of an action) from an intent just to have sex, the victim’s credibility will always be the issue. And women are tougher on other women in general. Lots of state attorneys don’t want to bring to trial a case they don’t think they can win. If rape has, under the law, motivations beyond sex drive or in addition to it, then the accused’s state of mind becomes an issue, helping to validate in many cases, the victim’s claims, or more easily weed out false accusations. Without a criminal intent (i.e., specific intent to rape), an intent to have sex as the instigating factor precludes examining the accused’s mind set–as that mind set wasn’t criminal to begin with–only if the victim consented or not–which then becomes the focus of the investigation/trial.

    The media has become a virtual courtroom because victims are so reluctant to come forward to the state–they know their credibility will be the central issue (not necessarily the credibility of their assailant because the assailant’s legal intent is “to have sex”, and any victim can think of several possible indicators that can be twisted to mean “consent” when that victim knew “no” had been said. I’m parsing this awkwardly because I don’t want to exclude male victims.

  12. jenevastone says:

    Yes–it does come down to that. No one can make this a perfect world and convict everyone who’s guilty. But note that your perpetrator took the stand in his own defense, allowing some of his past history to be brought in. By changing or shifting “intent” to go BEYOND the issue of consent to also include motivation to cause harm (physical and/or psychological), you can always examine the accused’s history and background. The way intent is written now, even if different states include forcible compulsion, it’s difficult to examine motivation beyond “I wanted to have sex.” That suggests that rape is a normative impulse.

  13. Jim says:

    My best friend is a Det for Major Crimes in a large Florida county meaning he deals with sexual assaults, murders and other major felonies. He tells me that its the Woman State Attorneys that are the hardest by far to convince to take a sexual assault case and basically believe that all of them are a woman that changed her mind.

  14. jenevastone says:

    No, I’m talking about shifting the intent from just wanting to have sex to using the act of sex to physically and/or psychologically harm someone. Rape is the use of sex to cause intentional harm. If you have said no and someone compels you to have sex with them, that is inflicting psychological distress. I’m concerned that rape is hard to prove because the perpetrator’s full motivations vis-a-vis the victim cannot be examined. I don’t see how this would criminalize sex.

  15. TheOriginalLiz says:

    Women can be incredibly brutal towards other women. They trash each other in school, backstab each other at work, and just generally behave terribly towards each other.

  16. nicho says:

    Why is rape so confusing? Because, very rarely are there witnesses. So, it comes down to a he-said/she-said situation, and it’s left to the jury to decide who’s telling the truth.

    I’ve been on a rape jury, and it was very instructive. It was an acquaintance-rape situation. A 19-year-old guy is at a party and asks a former classmate if she wants a ride home. He’s a very boyish, very good-looking dude. The woman is plain. On the way to his car, on a dark street, he pushes her against a parked car and rapes her on the hood of the car. He claims it was consensual. She claims it was rape. There were no witnesses. Who to believe?

    In this case, it worked in the woman’s favor. She immediately ran to a neighboring house screaming and asking them to call the police. He also made blunder after blunder after blunder. First, he drove to a friend’s house at 2 a.m., got the friend out of bed, and said, in the presence of the friend’s mother, “Man, did I fuck up.”

    He also — and this came out at trial — went with two of his uncles to a cabin in the woods for the weekend to work on his side of the story, which they wrote down.

    His biggest blunder was taking the stand in his own defense. Previously, the defense attorney had, predictably, tried to humiliate the woman. He paraded her shredded panty hose around the courtroom and peppered her mercilessly about her previous sexual experiences.

    So, when douchebag got on the stand in his own defense, he claimed that the panty hose were shredded during “foreplay,” a statement that actually got a laugh from the courtroom. You could tell this was a guy who wasn’t given to foreplay, plus the rape took place on the hood of a car, in February, In New England.

    He also claimed that his remark about fucking up was because he had run into his old high school coach that night who, he said, informed him that it was too late to apply to the college of his choice. Another laugh from the courtroom.

    Also, by his taking the stand, he allowed prosecutors to inform us that he was already serving time for two armed robberies — at age 19. Given his demeanor and his community background, that was infinitely more believable than the college or the foreplay stories. Also, one of his buddies took the stand as a character witness and lied through his teeth. It was obvious. As he left the stand and went by the defense table, he gave the defendant a big wink and a thumbs-up. WTF?

    So, we go to deliberation. There were five men and seven women. We immediately took a straw vote. All five men were in favor of conviction and only three of the women. One of the women against was a grandmotherly type and she was afraid of what a conviction “would do to his life.”

    We discussed and discussed and finally got it to 10 for conviction and 2 against. The two holdouts were two women. They were adamant that “she wanted it and changed her mind.” It took two days and exhaustive arguing to come to a guilty verdict.

    Had the woman not run for help immediately and had waited until the next day to report the rape, it would have been much harder to convince those holdouts. Our main argument was that she ran screaming for help immediately. Also, his series of self-incriminating blunders worked in the victim’s favor. Had he just done nothing and maintained that it was consensual, and had she waited hours to report the rape, there might have been a hung jury.

    The thing I found most interesting was that the five guys on the jury — mid-20s to 40 year olds — were convinced he was guilty and the holdouts were women.

    In the end, it was not so much about the law or even the physical evidence, which was pretty much limited to the panty hose. It was about whose story was more believable.

  17. caphillprof says:

    Sex between consenting adults is legal. You must take that into account before you rewrite the sexual abuse codes, If you presume that sex is a crime but only have to show intent, then you will end up criminalizing sex between consenting adults and at the same time fail to make a case against those who would be guilty under the existing dispensation.

  18. jenevastone says:

    I forgot to hit reply specifically to your comment. Non-consent would already be built into the law. Of course you would say, no. The moment a person proceeds without your consent is still rape. “Fighting back” isn’t the issue. You can be pinned down with force without it leaving much of a mark. But that’s still force. If you’ve said, no, why would you allow sex to happen? Are you unable to leave the room? That’s a threatening situation.

  19. jenevastone says:

    Saying no is already built into the criminal or specific intent. If you are forced using physical or psychological threats, you have, by default, not consented. I think you’re missing the point.

  20. 2karmanot says:

    It seems to me that saying ‘NO’ should be the only issue.

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