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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