The FBI, Sandusky, and How We Think About Rape

@HuffingtonPost

On Tuesday December 6, the Federal Bureau of Investigation's Criminal Justice Advisory Policy Board voted in favor of changing its rape definition, which currently dates back from 1929. The old definition covered only female victims and archaically -- and imprecisely -- referred to intercourse as "carnal knowledge," whereas the proposed change is gender-neutral, contains a relatively objective description of sex, and does not require physical force. If the director of the FBI approves this change, it has the potential to change how we think about rape.

At least in part. Another equally important part is the definition of rape in the American Law Institute's Model Penal Code which remains unchanged.

Here is why that matters.

As a society, the way we think about most social phenomena -- including sexual assault -- is influenced both by facts and morals. Neither is immovable or entirely objective. Facts depend on how you study and define them, and morals depend on who you are. But in the United States, the way we think about rape has, for decades, been operating with an outdated version of both.

With regard to the facts, the FBI's rape definition determines what gets counted as rape in national crime statistics. These figures are used, among other things, to decide on government use of resources for rape prevention, and to determine the success of government efforts to prosecute this crime. A restricted definition is likely to lead to underestimates, which, in turn, leads to the assignment of insufficient resources to deal with rape. And, because government efforts to prosecute for rape often are judged by comparing number of rapes to numbers of cases filed, investigated, and prosecuted, FBI's definition also affects the evaluation of justice system effectiveness in this regard.

Of course, even if we use the current, potentially underestimated, figures for rape, resources allocated for prevention and prosecution of rape are insufficient and sometimes misused, and prosecution percentages appallingly low. However, a more accurate count of when and how rape happens can at least provide arguments for policy change.

With regard to criminal law -- the ultimate guide on what society believes is "right" and "wrong" -- our moral compass has been equally obsolete. The U.S. Model Penal Code, which was adopted in 1962 by the American Law Institute to provide guidance for state criminal law reform, does not reflect what we have learned over the past 4 decades about rape through service delivery and care. Unlike FBI's rape definition, unfortunately, change to the Model Penal Code is not imminent (though explorations of a potential project to do so are underway) and the deficiencies are potentially more glaring.

Over the years, scholars have explored many problems with the various sexual offence definitions in the model code. The four most conspicuous are these:

• The need for an "objective manifestation" of force - -that is, visible signs of physical force -- before forced intercourse counts as rape in the eyes of the law (we now know that threats, verbal violence, and other forms of non-physical coercion are equally if not more effective in subduing a victim).
• The definition of rape as always having a male perpetrator and female victim (the recent allegations of rape of boys by Penn State coach Sandusky have made abundantly clear that rape can happen across the board);
• The deliberate exclusion of marital rape from any criminal sanctions (it is now hopefully beyond discussion that spouses don't owe each other sex--even the Mexican Supreme Court has now acknowledged this); and
• The focus on the victim's sexual past and previous behaviour towards the perpetrators and others.

This latter part is particularly worrisome.

The Model Penal Code explicitly excludes date rape and rape of former partners or even those the perpetrator has casually dated or maybe just kissed or held hands with (the victim must not be the "voluntary social companion" of the perpetrator at the time of the crime, and should not have "previously permitted him sexual liberties.") This would also exclude rape against sex workers, which is a relatively frequent occurrence in part because many people believe sex workers automatically have consented to having sex with everyone because they make a living out of having sex with some.

At a time where the use of date rape drugs reportedly are on the rise, and where police officers already believe women are much more likely to lie about rape than victims of any other crime, there is no room for legal ambiguity.

Forced intercourse is rape whoever committed it, whatever the victim wore or said, and wherever it occurred. The American Law Institute should follow the lead of the FBI and update its definitions to reflect reality.

Rape in war: No more excuses

@chicagotribune

Last month, the first woman ever was convicted of genocide by an international tribunal. The International Criminal Tribunal for Rwanda found Pauline Nyiramasuhuko, Rwanda's former minister for family and women's affairs, guilty of genocide, war crimes and crimes against humanity, including rape, for her role in planning and ordering others to carry out these crimes during the country's 1994 genocide.

Some, including some feminists, might find it uncomfortable to deal with the fact that women can plan and direct violence. But Nyiramasuhuko's conviction, in particular for rape, should be celebrated as a giant step forward for women's rights.

There are two main reasons for this.

First, it contributes directly to justice for sexual violence.

Sexual violence is perhaps one of the least prosecuted crimes in the world. While most people agree that rape is bad, many carve out excuses. The alleged victim was drunk, silent, suspected of criminal activity or just plain married to the rapist. The perception in the general public — and more troubling, with police officers — is that a high percentage of rape allegations are false, even when research shows this to be untrue.

To be sure, there is more empathy surrounding sexual violence in war, often because victims are genuinely seen as "innocent." But even so, it took decades from the adoption of the Geneva Conventions, in which sexual violence was defined as an attack on a person's dignity, to the adoption of the Rome statute of the International Criminal Court, in which the many different types of sexual violence in war were given context and detail.

While only a fraction of war crimes may ever be prosecuted, commentators have noted that rape continues to be underprosecuted for a number of reasons, including the reluctance of rape victims to speak up, and the general difficulties in collecting information and proving coercion.

And so thoughtful jurisprudence on rape in war — and indeed, including it on an equal basis with the other crimes Nyiramasuhuko was accused of — helps to overcome this gap and should be celebrated.

Second, Nyiramasuhuko's conviction counters the most overused and dangerous justification for rape in war: "Boys will be boys."

The basic idea behind this notion is that male soldiers rape female civilians because of an uncontrollable genetic impulse to have sex. Sometimes the boys-will-be-boys excuse gives rise to well-meaning, but misguided, recommendations that soldiers be allowed to visit their wives or girlfriends more frequently. At other times, it is used as a justification to shrug off sexual violence in conflict as inevitable: Regardless of our efforts, boys will continue to be boys.

Nyiramasuhuko's conviction, and everything we know about sexual violence as a weapon of war, tells us just how wrong this concept is. Systematic rape is an effective way to terrorize a civilian population and destroy the social fabric that might later lead to reconstruction. It is used as a weapon of war, and, as such, it is ordered or willfully ignored by commanders and superiors. Even if those commanders and superiors are women, as in the case of Nyiramasuhuko.

If Nyiramasuhuko's conviction indeed contributes to overcoming the boys-will-be-boys nonsense, perhaps one long-lasting contribution of the case would be an end to the insulting notion that men just can't control themselves. I have never understood why male experts on war so blithely propagate the idea that men essentially are animals that cannot be stopped.

Surely, until we all accept responsibility for our actions, as conscious, thinking human beings, there can be neither peace nor justice.

With reported rapes, the DSK case is the exception

@LATimes

The charges filed recently against former IMF chief Dominique Strauss-Kahn have perpetuated a myth: that the U.S. justice system moves swiftly and effectively to resolve allegations of sexual assault.

In the wake of Strauss-Kahn's arrest, the media, particularly in Europe, have highlighted the perceived equality and fairness of a justice system that allows an immigrant single mother with relatively few financial resources to challenge an internationally renowned politician who is able to post a $1-million cash bail. To be sure, this is a remarkable situation, but unfortunately it is not the experience of the vast majority of those who report rapes in this country.

Strauss-Kahn may or may not be guilty, but we do know that every two minutes someone is sexually assaulted in the United States, according to the Department of Justice's Crime Victimization Survey. We also know that an estimated 60% of these assaults go unreported.

So the question is, do the 40% who are not reluctant to contact the authorities for help actually see justice done?

The answer: It depends.

Nationally, police arrest a suspect in only half of the sexual assault complaints they receive. Most of those arrested are prosecuted, but fewer than two-thirds of those prosecuted are convicted. Moreover, not all those convicted are sentenced to incarceration. In the end, an estimated 1 out of 16 rapists spends time in jail.

Some jurisdictions have better records than others. In 2009, Human Rights Watch published a report about the appalling response to sexual violence in Los Angeles County, where arrest figures had been declining and — more to the point — the physical evidence taken from rape victims that might have helped lead to a DNA match and a prosecution was systematically filed away without being sent for testing. The situation in Los Angeles has improved since then, but there are other places where this isn't the case. In 2010, we published a report about Illinois, showing similar problems.

In fact, the prevailing failure to try to convict rapists is directly related to the way police and prosecutors treat victims, their testimony and the evidence. It is telling that the media description of the alleged victim in the Strauss-Kahn case highlights her religious devotion and life struggles — factors that in many people's eyes would make her a more credible witness. But victims without those attributes are often perceived very differently. Police officers sometimes abandon a rape case because, based on initial interviews and context alone, they don't believe the alleged victim is a credible witness.

Research suggests that 3% to 8% of rape complaints are false — similar to the proportion of other crime complaints. But researchers have found that police officers are much more likely to mistrust an alleged rape victim than they are to mistrust other victims, particularly if the woman alleging sexual assault doesn't conform to police notions of how a woman should act.

This course of action may seem logical: Few would want the police to waste valuable resources on investigations of crimes that didn't really happen. However, experience from jurisdictions such as New York — where all rape kits, as the physical evidence is called, are processed — reveals that a subjective analysis of victim credibility can be wrong. After New York decided to test every rape kit, and not just the ones from cases in which the police officer subjectively felt the allegation was likely to be true, the arrest rate rose over five years from 40% to 70% of complaints filed, and the proportion of convictions grew too. The point here is not that New York's response to sexual violence is perfect but rather that the decision to pursue rape cases — whether or not police find the victim credible by subjective measures — can result in more prosecutions.

The U.S. justice system deals unevenly with sexual violence. A state-by-state analysis of relevant legislation, policies and crime statistics would most likely show that the record is better where victim rights are a priority and where "tough on crime" rhetoric is backed by across-the-board action.

But let's go back to the broader issue of sexual violence and that fact that a woman is sexually assaulted in the United States every two minutes. Whatever the outcome of the proceedings against Strauss-Kahn, this high-profile case has brought the subject of sexual assault into the realm of public discussion, and that is a good thing. But as long as rape and sexual assault are so common in the United States, we can hardly say the system is working just fine.

Ending Impunity for Rape

(Originally published in the Washington Post)

I have a project for Joseph Biden and Hillary Clinton to work on together: ending impunity for rape. Rape-conviction rates are appallingly low across the globe. I don't mean only in countries that many would think of as lacking good justice systems: Conviction rates hover just above 10 percent of complaints filed in the United States and are a measly 6 percent in Britain. Because the vast majority of rape victims don't file complaints, it does not take precise studies or statistics to conclude that most sexual assaults in most parts of the world end without punishment for the perpetrators. 

Over the years, in the course of my work at Human Rights Watch, I have spoken with dozens of rape victims around the world, read rape-related court files from many countries and scrutinized legislation. Although most people agree that rape is bad, legislation and government action on sexual crimes are not always that clear. Indeed, rape seems to be graded on a scale from "unconscionable" through "bad luck" to "much deserved." Exactly where a particular incident falls on that scale often seems to depend on factors that include family status, sobriety and ethnicity. In all too many cases, laws and judicial systems have determined that forced sex is not really rape.

To understand this better, consider this short list of successful defenses:

It's not rape if she is my wife. Marriage is perhaps the most commonly used cover for rape, so internalized that many women themselves seem to accept it. When I asked a woman in the Dominican Republic in 2004 if her husband ever forced her to have sex, she shrugged and said: "I guess he is a bit violent. He rapes me at times." Unfortunately, this atrocity is often sanctioned by law. Some countries, such as Ethiopia and Indonesia, define rape as something that happens only outside of marriage. In many others, rape is defined more broadly but is interpreted by courts and police as excluding marital rape. The logic can be applied after the fact, too: Several countries, including Brazil and Libya, exonerate a perpetrator of rape if he agrees to marry the victim.

It's not rape if she is my daughter. Though unconscionable to many, incest is seen in some countries as either unfortunate or not all that forced. In Mexico, for example, the rape of a teenage girl by her father is defined as voluntary until it is proved otherwise. Under most state criminal codes in Mexico, incest is considered a crime against the family, not against the physical integrity of the victim, and the underage victim is initially considered as much a criminal as the adult perpetrator.

It's not rape if she was drunk. Over the years, Human Rights Watch and other organizations have documented how prosecutors and courts are likely to treat testimony by rape victims with more suspicion than testimony regarding other types of crimes. Routinely, women are aggressively questioned about whether the intercourse was really involuntary, whether the victim somehow provoked or deserved the assault, and whether the assault even occurred. The mistrust is particularly pronounced when the victim admits to being anything other than completely sober before or during the attack. The frenzied media coverage in England last year of a controversial proposal to change the burden of proof in rape cases appeared to perpetuate the belief, which seemed to be widely held, that a drunk rape victim "had it coming."

It's not rape if my culture mandates intercourse. When the presumed next president of South Africa, Jacob Zuma, stood trial on rape charges in 2006, he bolstered his defense with references to tradition and culture. Zuma testified that his accuser had signaled her arousal by wearing a knee-length skirt to his house and sitting with her legs crossed. He said that it is unacceptable in Zulu culture not to proceed to a sexual encounter once a woman is aroused. Zuma was acquitted, but regardless of the outcome, it is troubling that a high-level politician in any country, much less a country with epidemic levels of sexual violence, peddles the notion that women may mean yes even when they say no.

Joe Biden and Hillary Clinton can change this. During his time in the Senate, Biden has championed draft legislation that would make violence against women a foreign relations priority for the United States, through, for example, supporting legislative reform abroad and a victim-centered approach to violence. As a senator, Clinton supported this legislation. As vice president and secretary of state, Biden and Clinton could make central to U.S. foreign policy the fight against perpetrators' getting away with rape and other forms of violence against women. They should start by creating a coordinating office at the State Department to build on this work. Rape is bad no matter what country it takes place in, whatever the age or marital status of the victim. There is no other way to look at it.

Rape in War: Will the United Nations Walk Its Talk?

(Originally posted on RH Reality Check)

On June 19, 2008, the United Nations Security Council made history by declaring that rape in war is such a bad idea they plan to do something about it.

That's right. After decades of reports on vicious sexual violence in conflicts across the globe, the highest decision-making body of the United Nations has decided that it is time to act. In fact, no other international actor has as much power to do something about rape in war, and as disappointing a record, as the United Nations Security Council.

It is not that the Security Council hasn't talked about the issue before. In 2000, the Security Council -- under intense pressure from women's groups and UN field personnel -- established a link between the Council's mandate and the way in which women and girls are affected differently by conflict than men and boys. This link is contained in a resolution, known mostly by its number (1325/2000), which includes an urgent call to end impunity for sexual violence and for the United Nations system to gather information on issues related to women and girls in conflict and report these to the Security Council.

Action to back up these good intentions has, however, been scarce. Every year in October since 2000, the Council has celebrated the anniversary of resolution 1325 by announcing the importance of the gender perspective in its work, and then proceeded to largely ignore it for the rest of the year.

Up until last Thursday, that is. On Thursday, the Security Council declared its readiness to act on sexual violence in a resolution that contains three key components:

1. The resolution establishes sexual violence in conflict and post-conflict as a topic within the purview of the Council's work. "Obviously!" you might say, and you'd be right. There is no conflict in recent history where women and girls have not been targeted for sexual violence, whether as a form of torture, as a method to humiliate the enemy, or with a view to spreading terror and despair. If that's not potentially relevant to the protection of international peace and security, what is? But the inclusion of this clause is essential because some members of the Security Council, in particular Russia and China, at times have portrayed rape in war as an issue that doesn't deserve the Council's attention. With the new resolution, they will no longer be able to do so.
2. The resolution creates a clear mandate for the Security Council to intervene, including through sanctions, where the levels or form of sexual violence merit it. Again, this might seem self-evident. The Security Council is mandated under the UN Charter to address situations that present a threat to international peace and security. It has the power to chastise countries waging war without proper cause -- notably, not in self-defense -- or by illegal methods, such as the use of child soldiers and, indeed, using rape as a weapon of war. Despite this mandate, the Council has so far done little to prevent or punish states for rape in war. In fact, it would seem it at times has consciously avoided doing so. This was, for example, the case during the July 2007 discussions regarding the mandate-renewal for the UN mission in Côte d'Ivoire. Despite having received information regarding intolerably high levels of sexual and gender-based violence in that country, the Council did not empower its field staff to address the violence.
3. The resolution asks the Secretary-General to provide a comprehensive report on the extent to which the resolution has been implemented, as well as on his views on how to improve information flow to the Council on sexual violence. This is tremendously important. In the past, the prevalence and patterns of sexual violence have barely featured in the reports the Council commissions and receives from the field offices of the United Nations. This is in part because the Security Council until now more often than not didn't ask for such information to be included in the reports. This crucial failure has been addressed in last Thursday's resolution, which asks for information on sexual violence to be included in all reports. Still, the UN system may in many cases not be equipped to gather information on sexual violence in conflict-affected situations in a consistent and ethical manner. This is a root cause of the lack of Security Council attention to sexual violence. And last Thursday's resolution asks the UN Secretary-General to propose a lasting solution.

Thursday's debate and the resulting resolution also added a new word to the Council's sometimes dusty vocabulary: never before has a Security Council resolution called on parties to "debunk" myths that fuel sexual violence. But the historic contribution of Thursday's debate was to "debunk" the Council's own and self-perpetuating myth that sexual violence in conflict simply didn't happen because it didn't feature prominently in UN reports to the Council -- which, in turn, had been commissioned without seeking to elicit any information or insights on rape in war.

Of course, any UN resolution is only as good as its follow-up. In fact, it is possible that the Security Council's until now tepid attention to sexual violence in conflict-affected situations is a symptom of a more onerous problem: a deep-seated reluctance to address rape at all, mirroring the failure of national governments to prosecute and address violence against women more generally. Moreover, the UN system cannot change overnight: while it is now legally empowered to provide information on sexual violence in conflict situations, it still needs to be appropriately structured and resourced to do so. This requires investment in training and service-provision, and it requires the prioritization of this issue at the highest level: field missions, UN agencies, and peacekeeping troops should be evaluated, amongst other things, on the effectiveness and ethics of their approach to sexual violence. It is incumbent upon UN members states, Security Council members, UN agencies, and civil society to make sure this happens. The road was paved last Thursday. Now it's time to see if the United Nations can walk the walk.