R*ape: analyzing damages

In light of current events surrounding male perspectives on RAPE, I would like to revisit the ideas below. REPUBLISHED FROM UNDERCOVER PUNK. Originally posted on October 2, 2011.

The Legitimate Children of Rape, August 29 2012, The New Yorker

Raped, pregnant and ordeal not over, August 23, 2012, CNN

See also, for legal nerds: http://georgetownlawjournal.org/files/pdf/98-3/Prewitt.PDF


There has been some talk recently about the FBI’s archaic definition of rape. The New York Times even covered the story this week. Let’s review.

The FBI provides guidance to states about criminal reporting. As in, what actually happened for the record on a national level. This guidance is published in the Uniform Crime Reporting Handbook (hereafter, the Handbook). The first version of the Handbook was issued in 1929, and the most recent version is dated 2004. Well, dontchyaknow some things never change! Including the definition of Forcible Rape:

Definition: The carnal knowledge of a female forcibly and against her will.

Page 19.

Not-forcible rape does not exist in the Handbook. That’s right sisters, you better fight back or it was. not. rape. As you might expect, this forcibility requirement tops the list of feminist complaints about the FBI’s working definition of rape. But it’s only the beginning.

Another major complaint heard ’round the world is about the exclusion of victims from the definition of rape. By continuing to use the old-fashioned term “carnal knowledge” only females can be victims of “forcible rape.” And only males can perpetrate “forcible rape.” Because it literally. requires. penis. to. vagina. contact.

The Handbook further reads:

Agencies must not classify statutory rape, incest, or other sex offenses, i.e. forcible sodomy, sexual assault with an object, forcible fondling, etc. as Forcible Rape (2a or 2b).

Page 20, emphasis in original.

So you see, according to NATIONAL CRIME STATISTICS, non-PIV sexual violence is. not. rape. Even statutory rape is excluded from the definition of “forcible rape!” This makes a lot of people very, very upset. Understandably, so. Now, me? Yes. And no. Here’s the thing: I don’t believe that rape is rape is rape is the same as all other rape. I would argue in favor of different classifications of “rape” that take into account penetration, exploitation of power (see Chapter 6 of the Swedish Penal Code as example), and potential or incurred damages. But that is not what we have here.

Here, the FBI has created one very narrow, difficult to prove, definition of rape; then dumps everything else into a second category called “Sex Offenses.” A “sex offense” is simply a catch-all description for non-PIV sexual violence:

This classification includes all sex offenses except forcible rape, prostitution, and commercialized vice.

Page 142. As such, this framework of national reporting fails to classify many acts of unwanted sexual penetration as rape. It also fails to account for important differences between the various non-PIV crimes it shoves under the umbrella term “Sex Offenses.”

But guess what? It gets better! Let me tell you what I think this is the most appalling part of the guidance offered in the Handbook:

The ability of the victim to give consent must be a professional determination by the law enforcement agency. The age of the victim, of course, plays a critical role in this determination. Individuals do not mature mentally at the same rate. Certainly, no 4-year old is capable of consenting, where victims aged 10 or 12 may need to be assessed within the specific circumstances.

Page 142, my emphasis.

ARE YOU KIDDING ME? This is in the OFFICIAL FBI MANUAL OF CRIME REPORTING. And guess what? The exact. same. language. is also featured in the section on Forcible Rape (see page 19). So this pedophilic instruction is given by the government not once, but TWICE!

Ten and twelve-year-old children can NOT, as a matter of state law, consent to sexual contact with adults. I’m sorry people, but sometimes getting all BLACK & WHITE on certain egregious behaviors is appropriate. And this is one where I’m willing to risk Laying Down the Law like there are no legit exceptions. The FBI guidance about ten and twelve year old victims being “assessed within the specific circumstances” NEEDS TO GO. There should be a clear prohibition on sexual contact with a child aged sixteen (or younger) by any person two (or more) years older or younger in age than the child. None. End. Teenagers, find people your own age, or WAIT. Yes, that’s how I really feel. And I could probably get even more complicated about the wording, but I won’t. For now.

Articles about the FBI’s current working definition of rape also discuss the statistical increase in crimes that would inevitably occur if the FBI’s antique definition of “forcible rape” were updated. But really, what would the problem be? First of all, we’d know exactly why the increase has occurred. No need for alarm, people! But more importantly, we’d have a clearer picture of reality with a better understanding of all victims’ experiences. And this new accounting of reality just might result in increased resources and funding for the victims of these crimes. Finally, there is considerable difference in state definitions of rape. Most of them look nothing like the “forcible rape” definition used by the FBI. Comparing apples to statistical oranges inevitably produces misrepresentations. Uniform criminal reporting standards that more accurately captured a greater range of sexual crimes would encourage state adoption and therefore, consistency. Women would benefit from shared legal definitions of “rape” and “sexual assault” that better reflect our experiences by making more detailed analyses of the circumstances.

So let’s do that.

I believe that one of our tasks as feminists is to conceptualize new ways of describing women’s experiences. In this case, experiences of sexual violation. That’s why I think this is the most feminist-interesting part of the Handbook’s guidance. The factors mentioned below help inform our task because they legitimize concern for damages:

Sexual attacks on males are included in this classification [Sex Offenses]. However, depending on the nature of the crime and the extent of the injury, the offense could be classified as an assault. (See explanation of assaults on page 23 of this handbook.)

Page 142.

Let’s start with extent of the injury, which of course is about actual damages. A feminist analysis of rape and sexual assault would take into account all kinds of injuries and their severity/extent, including (but not limited to):

  • emotional distress
  • bodily injury
  • disease transmission; symptoms and curability
  • impregnation

I know it’s hard for some people to read impregnation as a form of injury but, particularly in the context of rape, framing unwanted impregnation as a unique kind of personal damage/injury should be understandable to most. Separate consideration should be made for each of the different kinds of injuries that a person sustains as a result of rape and/or sexual assault. Including pregnancy. Including pregnancy.

In addition to kind and extent, potential injury is also relevant to criminal severity. At least when it comes to aggravated assault, potential counts. The Handbook advises law enforcement agencies:

It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon that could cause serious personal injury is used.

Page 24.

Here, potential injury from a weapon becomes relevant to the aggravated classification of the crime. Aggravation could therefore provide support for the feminist claim that PIV and/or Male-on-Female penetration has a similar quality of increased “deadliness”– by way of impregnation and disease. Aggravation analysis increases the criminal severity of an act because of the potential damage created by the presence of something in particular: death or severe bodily harm in the case of assault with a weapon, and impregnation and/or disease transmission in the case of sexual assault with a penis (against a female body).

Aggravated assault also recognizes that not all weapons are created equally. The Handbook has sub-sections describing different kinds of weapons commonly used in the commission of assault (4a- firearm; 4b- knife or cutting instrument; 4c- other dangerous weapon; 4d- hands, fists, feet, aggravated injury). Unfortunately, the federal government does not recognize the danger of impregnation as a potential, or even actual, harm. And even more unfortunately, according the FBI, female victims of “forcible rape” -and victims of all “sexual offenses”- do not have an aggravated classification for reporting the sexual crimes committed against them.

Further, transmission of disease by non-sexual methods such as biting or spitting is specifically addressed in the Handbook’s discussion of aggravated assault (see page 24). Yet disease transmission is a conspicuously absent from guidance about Forcible Rape and Sexual Offenses (see page 19-20 and 142-143, respectively).

A feminist analysis of sexual violence and potential injury would review the nature of the crime and consider aggravating circumstances such as:

  • a [structural] power differential/relationship between the parties, including age and threat of retaliation
  • a physical size or ability differential
  • the use of physical force or threat thereof
  • use/threat of a weapon; kind of weapon (deadly or otherwise)
  • PIV/reproductive violation
  • exchange of bodily fluids (disease transmission)

The presence of any one of these factors justifies an increase in the severity of the crime being reported. Combined consideration for actual and potential damages should be built into our nationally recognized standards of reportable sex-crimes. Most of this is already being done for assaults. Why not sexual crimes too?

13 thoughts on “R*ape: analyzing damages

  1. Brilliantly bringing the American legal rape discussion all together, in a work of laborious detail and sparkling clarity. History. Analysis. The way forward. THANK YOU, Bess Hungerford. ♥

  2. Sometimes it’s simple, sometimes it’s more complicated. Of course the wisdom of intelligent, ethical, good-hearted people who are using common sense and who respect the rights of women and children must be brought to bear in analyzing each case.

    A 27-year-old man preying on a 12-year-old child is obviously statutory rape and should be counted as rape in FBI statistics, even if it’s “only” oral/digital and does not involve penis-in-vagina penetration.

    However, I remember a case where a father in Louisiana bided his time until the week his “rebellious” not-quite-16-year-old daughter’s boyfriend turned eighteen (I believe they were 26 months apart in age, had been “going steady” for more than a year and attended the same high school) and had the boy arrested and charged as an adult with statutory rape. Of course she was white and the boy was black. It didn’t go well for him.

    In that case, I don’t think the FBI or anyone else should consider their underage sexual relationship to be rape of any kind, and many states have passed so-called “Romeo and Juliet” modifications to their statutory rape laws to try to address these cases of rebellious young love.

    This article raises excellent points and I am very happy to see these issues being discussed widely. Maybe this is the silver lining to the current iteration of the War on Women? That we will redouble our efforts, revitalize our dialog and push for much-needed advancements? I hope so.

  3. Well, that’s the core problem with (the philosophy of) LAW: how much leniency do we allow? Who decides? Based on what considerations? What if injustice is served no matter how many safeguards we put into place? We are imperfect humans trying to construct perfect guidelines– LOL! NOTHING will ever ever ever be perfect. But I am in favor of rule-making as a general matter. Yes, I am.

    This FBI reporting structure is especially awful, but most particularly because it lacks depth and detail. A friend mentioned to me the Minnesota statutory structure regarding sex with people under 18. These charts are interesting:



  4. Bess Hungerford Oh, I have some communications from Brennan questioning other women’s lesbianism. But I generally don’t publish private emails in public, so….that would be petty.
    4 minutes ago

    Bess, please feel free to publish whatever you are talking about. I am very sorry you took my ending of our friendship so badly. I have never talked shit about you, nor would I. I am assuming your feelings must have been very hurt. Take care.

  5. Also, although commenting here is delightful, I am unsure as to what I lied about. If you want to continue to personally attack me, that says tons about you, not me. Cheers.

  6. JEALOUS!?! Lol! Let them be.

    Thank you so much, mAndrea. Your brain is pretty awesome yourself, so I take that as a very high compliment. Also, I changed my comment settings so that you can more easily flatter me in the future. Thanks again. 😉

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