Conservatives slam expanded definition of rape

WASHINGTON – “It’s vulgar and it’s annoying” that women get groped all the time, Christina Hoff Sommers acknowledged. It was something she herself had experienced in younger days. But it wasn’t worthy of the term “sexual assault.”

“For me, sexual assault, sexual violence, is life-changing,” she said.

At the Thursday panel, “Straight Talk: An Honest Conversation About ‘Rape Culture’ and Sexual Violence,” hosted by the right-leaning Independent Women’s Forum, all the panelists agreed that rape is a serious problem. But a common theme was that labeling experiences rape that weren’t “real” rape was a serious problem too.

Historically, state laws required rape victims to prove that they had physically resisted “to the utmost” – pleading, crying and screaming weren’t enough.  But decades of research have shown that this isn’t how most rape works. Women are usually raped by someone they know, and they often freeze up and submit out of fear, shame or incapacitation.

And thanks to the rise of women in law and the work of advocates, our laws have been evolving: Since the 1970s, it’s become illegal for a man to rape his wife; a woman’s sexual history has been banned as evidence; victims no longer need to prove they didn’t consent with bruises and broken bones; and states have included unwanted sex with an incapacitated person into the ranks of sex crimes.

In 2012, the FBI removed “force” as a requirement in its definition of rape.

But the idea of sexual assault as a violent, sneak attack by a stranger is still pervasive, which is why the researchers in the most recent 1 in 5 survey didn’t use the term sexual assault when asking students questions.

“Rape and sexual assault conjure up violent images of someone attacking me, that someone is often a stranger… and they’re beating me, they’re hurting me,” Chris Krebs, a senior researcher at RTI International, and the lead author of the study, told America Tonight. “…We did what we thought would give us the most accurate estimate of what met the legal definition for rape and sexual assault.”

Instead, researchers asked students specific questions about their experiences. Most of the rape victims in the study, when later asked, didn’t actually define their own experiences as rape. Sommers compared that to asking people if they’d ever been hit or kicked by a sibling growing up and then publishing it as a statistic on family abuse. 

But Krebs said these “less-real” assaults, which didn’t involve penetration or an additional physical pummeling, can still be extremely damaging.

“There are plenty of women who experience lesser forms of sexual violence and are seriously impacted,” he said.

Laura Dunn, a leading activist on college sexual assault, agreed. “As someone who was first forcibly groped in high school before they were gang-raped in college, it does have an effect,” said Dunn, adding that she cried the entire night after she was groped. “It’s your first realization that you’re unsafe in this world.”

But the majority of victims in the 2007 study weren’t just groped – around three-quarters were penetrated. One in 29 college women reported that they had been forcibly raped. One in 12 reported that they were raped when they were incapacitated and unable to consent.

The fact that huge percentages of assault victims say their offenses weren’t serious enough to report to the police, or that they were partly to blame for it – particularly in cases involving alcohol, and not force -- is further painful proof to Dunn that women learn to expect or accept violations that fall beneath that “utmost resistance” bar.

Dunn said that when she was carried up the stairs by two classmates and raped, the abuse continuing even as she vomited, she didn’t think it was a crime. (Dunn was right. It was 2004, and Wisconsin law didn’t yet consider alcohol an “intoxicant” that would make a person unable to consent.)

There is the possibility that an incapacitated rape victim gave signals that made it unclear to the other person that she was so intoxicated and the sex was unwanted. But a landmark study – one of the few to focus on rapists, rather than victims – found that serial rapists commit more than 90 percent of college rapes, and that they often target vulnerable women, deliberately getting them drunk.

In practice – in courtrooms, in school hearing boards and in studies -- the two aren’t conflated. But many victims and activists say that rape is still rape, whether it began as a kidnapping or a date, or the person was frightened into submission or fought tooth and nail.

And in a significant leap from the old “utmost resistance” punch-and-kick model, college misconduct codes are pioneering  an “affirmative consent” approach to sexual assault. To prove they didn’t consent, victims simply have to prove that they didn’t overtly consent through words or actions. In cases with little physical evidence and no witnesses,  these policies can often be the only way for a college to make a judgment on responsibility.

But some criticize the standard as heavy handed, and warn that under these policies, there’s a higher risk that men could be railroaded by false accusations, or that a man could have sex with a women who lies frozen, or says no but keeps touching him, or says no weakly, or is extremely drunk, or just cries, and then the next day could blindside him with an accusation of rape. 

“College males might be prudent to tape record their partners consent at every state of the encounter,” half-joked panelist Stuart Taylor, a senior fellow at the Brookings Institution and author of “Until Proven Innocent” on the Duke lacrosse scandal.

Studies show that between 8 and 10 percent of rape allegations are false. And the fear of false claims is one of the reasons rape laws, historically, have been so unique. (For example, victims of robbery were never required to show they physically resisted to prove they didn't consent.)

But rape, in one major way, is also an incredibly unique crime: The vast majority of incidents aren’t reported at all.

In the latest 1 in 5 study, just 5.8 percent of victims of forcible rape pursued criminal charges, and 0.6 percent filed an official report with their school. In alcohol-enabled cases, only 1 in 500 did either.

And that was the main point made by the panel’s final speaker, Andrea Bottner, the former director of the International Women’s Issues Office at the State Department during the most recent Bush administration. She didn’t even dip a toe into the muddy waters of the “real rape” debate.

Instead, she described the women she met in Saudi Arabia, who counseled rape victims in secret, in fear of their safety, never even dreaming of justice. She described how there were girls in Nigeria who were too afraid to go to school because they could be jumped and raped on the way. And then, there were the little girls she met in Vietnam, repeatedly raped and broken – and blamed by their guardians for their abuse.

The crowd hushed, even the other panelists. There was no need to hand-wring over language or tout personal responsibility. No need to slice and dice the semantics of consent.