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"The Challenge of Defining Rape"

on Monday, 13 October 2014. Posted in Front Page Headline, Media Updates

New York Times

LAST month it was California, this month New York. States across the country are trying to figure out how to address the problem of sexual assault more effectively, and more often than not, they are looking to redefine the scope of sexual misconduct.

California’s new law requires universities receiving state funding to switch from a “no means no” approach to a “yes means yes” standard, requiring partners to make an “affirmative, unambiguous and conscious decision” before having sex, and making clear that silence or a lack of resistance cannot be interpreted as consent. Gov. Andrew M. Cuomo of New York announced that the State University of New York would similarly define consent as an affirmative act on all its campuses, one that requires “clear, knowing and voluntary” participation.

With an effort also underway by the American Law Institute to reconsider when an assault becomes rape, some legal experts predict that changes to criminal laws in many states may not be far off.

As a social issue, sexual assault has seen a significant uptick in attention over the past year or so. There have been a flurry of federal actions, for example, aimed at countering rape in the military, prisons, immigration detention centers and on campuses.

But there is still little uniformity on how to define rape, which makes counting rapes, and countering and even discussing the issue, difficult. In many contexts, such as the major federal law on prison rape, “sexual assault” is used instead of “rape” because it covers nonconsensual acts like kissing and groping that fall short of many people’s definition of actual rape. Until 2012, the Federal Bureau of Investigation still considered rape a crime committed solely against women, a definition that has since been expanded.

Over all, states have broadened the definition of rape and assault more than the federal government, according to a survey of the legal system conducted by AEquitas, a nonprofit group that provides prosecutors with resources on violence against women.

Clarifying consent is a common stumbling block. “Is the fact that the victim murmured, whispered, cried or moaned ‘no’ sufficient to establish nonconsent that a reasonable sexual partner should understand to be nonconsent?” asked Mary D. Fan, a professor at the University of Washington School of Law. The role of alcohol in rape cases is another subject of scrutiny, especially since drinking is often voluntary.

Stephen J. Schulhofer, a New York University law professor, said many states still require proof of physical aggression, though a growing number no longer do. Instead, they focus on the need for consent and therefore include situations such as assaults of people too intoxicated to give consent. Even so, most of these states do not specifically define genuine consent.

Some states, like New York, ask whether a reasonable person would believe that intercourse was consensual, considering all the surrounding circumstances. Meanwhile, some states follow the “no means no” rule, while others — including New Jersey — have adopted standards requiring affirmative, freely given permission by each person. ...

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