Estimating the Incidence of Rape and Sexual Assault (2014)

2


Legal Definitions and Context

For any national survey measuring rape and sexual assault victimizations, uniform definitions of those victimizations are needed. Because the Bureau of Justice Statistics (BJS) focuses specifically on criminal victimization, these definitions need to conform as much as possible to existing legal definitions. Because the crimes of rape and sexual assault fall mostly under state rather than federal criminal statutes and these statutes are not uniform across jurisdictions, this presents an immediate difficulty. The panel thus decided to review the statutes of 50 states and U.S. territories, examine their differences, and extract the commonalities that may be important to include in an operational definition for BJS. For this task, the panel was able to draw on the work of the Women’s Law Project and AEquitas¹ (AEquitas, 2012; Tracy et al., 2012), whose reports are the major source of the information in this chapter.

HISTORICAL CONTEXT

Historical context has greatly influenced the formation and enforcement of current laws regarding rape and sexual assault, and any review of these laws and definitions must begin by examining that context. Tracy et al. (2012, p. 1) note:

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¹The Women’s Law Project is a Pennsylvania-based nonprofit law firm that worked with the Federal Bureau of Investigation (FBI) to develop an updated definition of rape in 2012. AEquitas is a nonprofit organization that provides prosecutors with support, training, mentorship, and resources in cases involving violence against women.

Rape and sexual assault laws are complex and evolving. Rape originated as a crime against property, not a crime against a person. As such, the crime related to patriarchal inheritance rights and a female’s reproductive capacity and therefore was limited to a crime against unmarried virgins and included only forcible penile/vaginal penetration. These laws have evolved but retain vestiges of their archaic origins. The result is inconsistency and variability in sex crime terminology and elements from state to state as well as anomalies.

American jurisprudence was developed on these foundations, creating the basic elements of laws regarding rape. As laws developed, the Model Penal Code, first promulgated in 1962 by the American Law Institute, provided state legislatures with the then best thinking on how to develop criminal codes. The model code defines rape as “sexual intercourse with a female not his wife” by force or threat of severe harm (Model Penal Code, 1980, as cited in Tracy et al., 2012, p. 5). To be a felony of the first degree, the code says that the rape must be accompanied by serious bodily harm and that the victim and offender could not have been social companions or had a history of sexual activity.

Coupled with these basic elements were procedural requirements that are not included for other types of assault, and they appear to have been based on the belief that women lie about being raped:

•   a need for a prompt complaint to police,

•   a requirement for independent corroboration of the victim’s testimony or evidence of serious injury, and

•   the admittance of testimony regarding the victim’s sexual history and character.

This basic approach to state laws regarding rape and sexual assault began to change in earnest in the 1970s, partially in response to feminist activism (Belknap, 2001). As Tracy et al. (2012, p. 6) write:

As a result of this activism, most states have expanded the definitions of sex crimes to eliminate disparities based on gender and marital status. They have also rescinded the requirements of resistance, corroboration, and reporting requirements and prohibited introduction of a woman’s past sexual history. It is now well established that penetration of orifices other than the vagina is a felony. Issues of force and consent continue to change but clear trends in the evolution of the law are identifiable. The definition of force is broadening beyond overt physical force alone to include other modes of coercion. There is an increasing recognition that penetration without consent or any additional force beyond penetration is a serious sexual offense.

Even with the changes that have been made since the 1970s, the current laws on sex crime do not reflect the dynamics of rape and sexual assault as they actually occur. In the 2010 National Intimate Partner and Sexual Violence Survey (NISVS), Black et al. (2011) found that

•   the majority of both female and male victims knew their offenders,

•   most rapes do not involve physical force or use of a weapon, and

•   rape does not generally result in serious physical injury other than the rape itself.

The legal history and underlying beliefs about sex crimes have continued to influence the way police handle reports of these crimes and how prosecutors pursue these cases (Brunson and Miller, 2006; Tracy et al., 2012). That constellation of laws and beliefs contributes to the lack of willingness by many victims to report the crime to law enforcement (Carbone-Lopez, Slocum, and Kruttschnitt, forthcoming; Felson and Pare, 2005; Meloy and Miller, 2011). A special government report (Bureau of Justice Statistics, 2012b) estimated that only 35 percent of these crimes are reported to the police. Kilpatrick, Edmunds, and Seymour (1992) estimated an even lower percentage of police reports, between 16 and 33 percent.

The underreporting of the crimes of rape and sexual assault to law enforcement is one of the basic reasons that other sources of information, such as data from the National Crime Victimization Survey, are important. However, some of the same fears and feelings of shame and self-blame remain barriers to victims’ reporting of rape and sexual assault incidents on surveys (Rasinski, 2012; Weiss, 2010).

OVERVIEW OF STATE STATUTES

Understanding and measuring the crimes of rape and sexual assault are difficult because statutes related to these crimes differ considerably among the 50 states, the District of Columbia, U.S. territories, federal jurisdictions, and the Uniform Code of Military Justice. AEquitas (2012) provides a very detailed representation for each jurisdiction in its publication. This section attempts to look at several essential elements of those statutes and how they interrelate with each other and with other criminal statutes.

Tracy et al. (2012, p. 14) identify the following essential elements, how they are handled in state statutes, and compares and contrasts them in statutes:

•   penetration, contact without penetration, and noncontact exposure;

•   use of force;

•   absence of consent;

•   victim’s capacity to consent; and

•   whether the conduct was for the purpose of sexual arousal or degradation.

These elements are discussed separately below. The last section of the chapter reviews how different combinations affect decisions about criminality and its severity.

Essential Elements

Penetration, Contact Without Penetration, and Noncontact Exposure

The various statutes that describe penetration crimes use different terminology: rape, sexual assault, sexual abuse, sexual battery, carnal knowledge, sexual intercourse, sexual penetration, sexual act, deviate sexual assault, etc. Any specific term may have a different meaning in a different jurisdiction. Because of these differences, one has to question the use of any of these terms on a survey questionnaire.

Jurisdictions also differ as to whether the description of penetration includes the quantifier of “slight” or “however slight.” There is usually a description of the object that inflicts the penetration (penis, tongue, fingers, other objects) and the part of the victim’s body that is penetrated (vagina, anus, mouth, etc.). Slight variations in the combinations of elements may make a difference as to whether the offense is “criminal” and in the severity of potential punishment.

Penetration by itself is not unlawful. It becomes unlawful if coupled by force, without consent, or if the victim does not have the capacity to consent when the penetration occurs. However, different jurisdictions have differing requirements for these accompanying elements before an act is classified as a crime.

The definition of nonpenetration contact includes incidents that involve touching or fondling the intimate parts of another person. New Mexico requires that such contact be skin to skin, but other jurisdictions include touching through clothing. In some jurisdictions, these crimes may also include urinating or defecating on a person for sexual arousal or degradation (see Table 2-1).

The definition of noncontact exposure involves “forced” viewing of the offender’s body parts or sexual activity, such as exposing one’s genitals in a public place (see Table 2-1).

TABLE 2-1 Contact and Exposure Crimes with Requirements of Sexual Arousal, Gratification, Degradation, or Humiliation

NOTES: The listed jurisdictions include, within their sexual contact and exposure crimes, the requirement that the prohibited activity was done for the purpose of sexual arousal, gratification, degradation or humiliation of the victim or offender. The jurisdictions that are in boldface type under the crime of indecent exposure require that the exposure be done in a public place to be punishable.

*Federal law refers to 18 USC 2241-2247 that applies in special maritime and territorial jurisdictions of the United States or in a federal prison.
SOURCE: Tracy et al. (2012, pp. 29-30).

Use of Force

Jurisdictions have differing characterizations of what constitutes force and what type of force is required to make penetration a crime. “Statutory definitions of force include physical force, violence, force required to overcome victim resistance, or stated or implied threats that place an individual in fear of immediate death or (serious) physical injury to the individual or to a third party, or retaliation” (Tracy et al., 2012, p. 18). Courts have to interpret the relevant statutes and determine if the evidence substantiates

TABLE 2-2 Sufficiency Requirements on the Use of Force for Criminalizing Rape and Sexual Assault, by Jurisdiction

SOURCE: Tracy et al. (2012, p. 20).

the “force” requirement in that jurisdiction. Tracy et al. (2012) indicate that jurisdictions have been moving toward a “more expansive definition” that goes beyond physical force.

Table 2-2 provides a summary of the force requirement across jurisdictions. As shown in the table, all jurisdictions include provisions that criminalize penetration if it is accompanied by force or the threat of force to the victim, although nine jurisdictions and the military require that the force actually inflict physical injury. All but 17 jurisdictions also consider force (or threat of force) against a third party as sufficient.

Absence of Consent

The victim’s consent or nonconsent to the penetration is another critical element in determining whether that penetration is criminal (see Box 2-1). In defining what expressing consent means, statutes include such factors as conveying permission, positive cooperation in the act, an attitude that expresses that cooperation, or with knowledge of the nature of the act. Some jurisdictions have additional requirements regarding the offender’s knowledge—that he or she knew or had reason to know that the victim did not consent. In contrast, however, a number of statutes specifically state that a prior social relationship between the victim and the offender does not constitute consent. If consent is obtained through fraud, then some statutes still consider it consent; others do not. A minority of statutes requires words or overt actions to indicate consent.

Capacity to Consent

Another component of criminality is the capacity of the victim to give consent for penetration. The age of both the victim and offender affect this determination in most jurisdictions. Table 2-3 provides the minimum age of consent of the victim by jurisdiction. The youngest such age is 10, in Georgia. The oldest age is 18, in both Oregon and the Northern Mariana Islands. Most ages fall between 13 and 16, with 13 years as the most common age. Many states also look at the age difference between the underage victim and the offender in assessing criminal liability.

Most statutes provide special protection regarding “consent” for individuals with mental disabilities, but it does not mean that the court will automatically determine that such an individual does not have the capabil-

TABLE 2-3 Minimum Age of Consent for Sexual Penetration, by Jurisdiction

NOTES: “Minimum age of consent” means that younger individuals are deemed not to have the capacity to consent. Boldface type indicates that there are multiple ages of consent within the state or jurisdiction.
SOURCE: Tracy et al. (2012, p. 20).

ity to give consent. Similarly, several jurisdictions define as an “aggregating factor” the sexual assault of a victim of advanced age.²

A broad and sometimes controversial reason for a victim’s inability to consent includes conditions, such as physical disability, physical incapacity, and unconsciousness. These conditions include victims who are impaired or unconscious as a result of intoxication. As explained by Tracy et al. (2012, p. 26):

[In] all but two jurisdictions rape and sexual assault statutes criminalize nonforcible rape and sexual assault of victims who are intoxicated. These intoxication statutes address drug and alcohol-facilitated rape and sexual assault in two ways: either by focusing on the cause (i.e., intoxication) of a victim’s inability to consent or by focusing on the effects of a victim’s inability to appraise the circumstances of an incident, i.e., inability to consent, regardless of the cause. In addition, some jurisdictions specify criminal conduct based on the manner in which the victim became intoxicated. A victim’s intoxication may be voluntary (i.e., an offender takes advantage of a victim’s pre-existing intoxication) or involuntary (i.e., an offender surreptitiously or forcefully causes the victim’s intoxication).

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²No state has a specific age identified at which a senior no longer has the capacity to consent.

TABLE 2-4 Intoxication and the Incapacity to Consent for Criminalizing Rape and Sexual Assault, by Jurisdiction

NOTE: Georgia has long-standing case law that covers intoxication.
SOURCE: Tracy et al. (2012, pp. 24-27).

Only 10 jurisdictions have statutes that cover victims who are voluntarily intoxicated, while 40 jurisdictions require that a victim was involuntarily intoxicated. However, 38 of those 40 states have other statutes with such language as “inability to appraise” or “inability to control conduct,” which can be used without specifically addressing intoxication. Some jurisdictions additionally have statutes that also require that the offender knows that the victim is unable to consent due to intoxication (see Table 2-4).

A final category related to a victim’s incapacity to consent is that the offender is in a “position of authority” over the victim. This relationship may be due to blood (incest) or other duty relationships, such as teacher/student; correctional officer/inmate; medical professional/patient; employer/employee.

For Purpose of Arousal or Degradation

There are 14 jurisdictions (Alabama, Arkansas, California, Colorado, District of Columbia, Idaho, Maryland, Montana, Nevada, Utah, West Virginia, Wyoming, and federal and the military) that require that a crime of penetration be perpetrated for the purpose of arousal of the offender (thus excluding such activities as medical examinations). Five of these jurisdictions (District of Columbia, Montana, West Virginia, and federal and the military) allow that degradation of the victim can be a substitute purpose for arousal.

Combining the Elements to Determine the Severity of the Crime

Crimes that do not include penetration (touching, groping, exposing) are classified as misdemeanor offenses in every jurisdiction. The seriousness of crimes that include penetration varies by jurisdiction (see Table 2-5). Penile penetration with force into the vagina, anus, or mouth is a serious crime in every jurisdiction. In 10 jurisdictions (California, Connecticut, Delaware,

TABLE 2-5 Crimes of Penetration with Degrees of Severity

SOURCE: Tracy et al. (2012, p. 31).

Georgia, Missouri, New York, North Carolina, Oregon, American Samoa, and Puerto Rico), penetration by an object is criminalized, but the classification of the crime is of a lesser severity than penile penetration. Eight other jurisdictions consider penetration with an object as a different but equally serious crime as penile penetration. Only two jurisdictions—Louisiana and the Northern Mariana Islands—do not criminalize object penetration.

Penetration by a body part (not a penis), such as a finger, is generally viewed as less serious than penile penetration. Seven jurisdictions (Idaho, Kentucky, Louisiana, Maine, Wisconsin, American Samoa, and the Northern Mariana Islands) do not criminalize penetration by nonpenile body parts. In 15 jurisdictions, a body part (not a penis) is considered a foreign object and subject to statutes for such objects.

Several other issues may affect the criminalization of certain sexual assaults. Rape of a married partner by a spouse was not legally recognized until the 1970s. By 1993, rape and sexual assault of one’s spouse was criminal to some degree in all jurisdictions, but a marital relationship may still affect the severity of the crime in some jurisdictions.

Some jurisdictions have specific statutes regarding “gang rape.” These statutes may identify these acts as ones of criminal conspiracy and thus connect them to other statutes covering accomplice liability.

CONCLUSION

The statutes that make up current laws on rape and sexual assault—what those terms mean, whether they are criminal offenses, and the seriousness of the crime—are built on origins that conceived of these as offenses against patriarchal inheritance rights and a female’s reproductive capacity. These statutes have changed significantly since the 1970s but have changed at different times and in somewhat different ways in different jurisdictions. The language and concepts are confusing, and in trying to understand survey results, it is critical to keep in mind that victims cannot be expected to respond “accurately” to questions using that language.

In reviewing the state statutes on rape and sexual assault, the panel identified a number of commonalities that would be important to include in uniform definitions of rape and sexual assault for a national survey:

•   The victimization is not restricted by gender: both a male or female can be victimized, and the offender can be either male or female.

•   “Rape” involves a broad range of penetrations, including penetration of the vagina, anus, or mouth, and with a penis, tongue, fingers, or another object.

•   The purpose is for sexual arousal or degradation.

•   The offender uses force or threat of force, against either the victim or another person.

•   The victim does not consent to the sexual activity or does not have the capacity to consent.

•   “Sexual assault” includes a fairly wide range of victimizations that involve unwanted nonpenetration sexual contact.

The panel uses the information presented in this chapter to assess the current definition used by BJS in the NCVS and recommend an expanded definition (see Recommendation 10-7). The panel also uses the components listed above to help assess the current wording of survey questions and to devise improved wording about potential victimizations. Tracy et al. (2012, p. 35) stress the importance of wording questions for victims in ways that will allow the victims to better reveal their experiences, which in turn can help improve the justice systems’ responses to those crimes:

Although some jurisdictions’ laws have evolved to incorporate our ever-expanding knowledge of rape and sexual assault and offender behaviors, in other jurisdictions, the laws remain sadly outdated in either language or content. The disconnect between the law and reality can play a crucial role in individual victims’ perception of whether or not they were victims of a crime and whether they believe they will receive some measure of justice in the legal system. As a result, the ability to develop questions

that will most accurately and successfully reveal a victim’s experience will be invaluable to understanding the incidence and prevalence of rape and sexual assault. It will also play an important role in helping allied criminal justice professionals improve their understanding of rape and sexual assault, their responses to reports of such crimes, and their ability to stop serial predators.