The word rape conjures up an act, an act of violence. Merriam-Webster says “unlawful sexual activity and usually sexual intercourse carried out forcibly or under threat of injury against a person’s will or with a person who is beneath a certain age or incapable of valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, or deception”.
The Department of Justice has another definition, “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
Both of these are clear and straightforward.
Except it isn’t…
In California, rape is “sexual intercourse with another person who is not the offender’s spouse.” In Alabama for a crime to be first-degree rape, the victim has to be a member of the opposite sex. Oklahoma does not care what sex you are.
In California, it is a less serious crime if you are raped by your estranged, violent husband, and in Alabama, there is no such thing as gay rape. Given the extent of sexual violence in society, it seems harsh that a person should need to choose where they live based on how the state interprets the law.
As a definition, the DoJ’s bald and unforgiving statement provides a sound point of departure for a statewide standard.
No matter how slight
This phrase is the first clue. This is clear legalese, just like a woman cannot be a bit pregnant, rape is a binary situation. There is rape or there is not. No one is a bit raped.
In the past, lawyers have been able to argue that the victim’s history or occupation or sexual orientation somehow negated their ability to express consent. The ‘no means no’ movement has been able to exert enough political power that at least in people’s heads no means no, even if it was yes a moment ag. A person may change their mind.
But some states do not express consent explicitly in their laws. Oklahoma for example outlines circumstances which prevent the victim from being able to express consent, which though helpful, does not actually state what consent is. Consent itself remains nebulous, an idea which we might explain as – we don’t say what consent is, but if you’re drunk, unconscious or under a certain age you can’t give it.
Body parts and objects
Back to California for a moment; digital penetration is not rape. It is sexual abuse. It is not as if this is not still a crime, but the seriousness is considerably less, and the associated penalties considerably lighter.
Whereas the DoJ is clear, penetration of anus, vagina with a body part or something else is out. Penetration of the mouth with a sex organ is in.
Rape victims are male, female, young, old, drugged, sentient, powerful, privileged, weak, defenseless. This violence is perpetrated on anyone. It is time we agreed on what it is.