It’s time to modernize our rape laws

All citizens would be better served if felony rape were changed from a general intent crime to one of criminal intent.

My suggested definition — to inflict physical and/or emotional damage on another person by forcing that person to engage in sexual act — is only a place to begin. Without a criminal intent, prosecutors cannot legally examine an alleged rapist’s mindset.

(This is a follow-up to my earlier piece about the problems surrounding the current legal definition of “rape.”)

Researchers such as David Lisak have been studying rape mentality for years, including a study of college students. Lisak’s 2002 paper, “Repeat Rape and Multiple Offending Among Undetected Rapists,” suggests that a small number of men may be responsible for a disproportionate number of rapes, rape defined to include threats and/or physical violence. This in turn suggests that rapists have a criminal intent. Lisak cites possible motivations: high levels of anger at women, the need to dominate women, hypermasculinity, lack of empathy and psychopathy and antisocial traits. These can also be applied to non-heterosexual rapes.

It’s time to stop speculating that all men are capable of rape, when research suggests otherwise. Most adults have been in a sexual situation in which we’ve asked our partners to stop altogether or stop doing a certain thing. A normative response is to stop. An abnormal response is to continue. A rape happens when force or threats are used by the rapist in order to continue. “Consent,” as victims know, is beside the point.

Victims don’t decide when crimes happen; criminals do.

Giving rape a criminal intent would allow prosecutors to examine the accused’s background, leveling the credibility issue. For example, in 2010, Yale fraternity pledges marched around campus shouting, “No means yes, yes means anal” — a slogan that suggests a need to dominate and intimidate others, as well as a lack of empathy. The fraternity called it a “joke.”

Under current law, if one of the fraternity members had been later accused of rape, participating in that group chant could not have been used as evidence against him. If rape had a criminal intent, it could. If you publicly joke about murder, even in general, and someone connected to you turns up dead, those statements, while not proof of the actual crime, are suspect as they go to motive. Oddly, free speech allows anyone to talk about committing a crime, but it doesn’t excuse you if you’re accused of a crime — unless the crime you’re accused of is rape.

While the above example helps victims, the use of criminal intent might also slow down accusations that stem mostly from misunderstanding. While women talk more openly now about feeling pressured to have sex with upper classmen or pleading partners (baby-you’re-so-beautiful-I-want-you), these regrets are a cultural problem, not a legal one. Unless the person you hooked up with threatened you to comply or used force, more than likely, you were not raped. Women have trouble being assertive. Men need to know that. Men aren’t stupid, and they can sense a partner’s discomfort. Rather than continue to plead, a man should directly ask a sexual partner if she or he would rather stop.

Using the criminal justice system to settle these gray areas does a disservice to people who have been raped using force and threats. Rape victims don’t suffer regrets only. They’re subject to post-traumatic stress disorder, fear and anxiety disorders, and feelings of worthlessness. A recent Washington Post article connects these problems with economic losses, such as tuition and wages. As far as rape disproportionately victimizes women while in college, the government has an obligation to conduct Title IX investigations to ensure equal access to education. (Of course, this does little to address men who have been raped.)

If colleges and universities want to use affirmative consent guidelines to help students better understand one another and prevent miscommunication, that’s fine. But deans and administrators should never attempt to resolve rape. The Higher Education Act requires postsecondary institutions to collect and make public crime statistics, so administrators have an obvious conflict of interest.

So why are we stuck with a justice system that treats rape as a crime of desire gone wrong?

Rape law has a distant origin in property crime. Until the mid 1800s, U.S. women were considered the “chattel” (property) of their male relatives or husbands; meaning they had no legal standing, nor a right to own property after marriage. Going further back, the property crime of rape amounted to the general “ruin” or impregnation of a person who belonged to another. So rape prosecution addressed the lost “value” of the victim to her owner, not to the victim herself. “Consent” was a method of determining whether the victim should be punished along with her rapist: was she innocent or guilty of having sex outside of marriage, etc.?

It’s time for rape law to catch up with the emancipation of women.

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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