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 But in the United States, the way we think about rape has, for decades, been operating with an outdated version of both.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.

Penny-Wise and Pound-Foolish: Proposed Funding Cuts for Response to Violence Against Women

@RHRealityCheck

This week, Senators Leahy and Crapo introduced a bill to reauthorize and amend the Violence Against Women Act (VAWA), a federal law first enacted in 1994.

This is mostly good news. The VAWA mandates federal funding for victim assistance and transitional housing, strengthens provisions to penalize offenders, and requires states to provide a certain level of services with a view to preventing violence from occurring in the first place.

The bad news is that the proposed bill substantively slashes the funding for the implementation of the bill, reducing the authorized funds by more than $144 million (almost 20 percent) of 2005 levels over 5 years.

To be sure, the federal government has to save quite a lot more than $144 million to overcome its spending deficit, and Senator Leahy justified the cuts by reference to heightened efficiency through the consolidation of services.  But if it is indeed possible to consolidate services and do more with less, would it not have been appropriate to ask, first, if the current funding levels adequately cover current needs?

To start with, it is clear that violence against women in the United States has not gone away these past 20 years.  The Centers for Disease Control estimate that 25 percent of women in the United States experience domestic violence some time in their lives, and that adult women experience over 5 million instances of violent assault annually.

Adolescents—even young adolescents—are also affected.  Over 70 percent of our 7th and 8th graders report they are “dating,” and in a 2009 survey published by the Centers for Disease Control about 10 percent of students overall reported being physically hurt by someone they were dating.

In addition, the economic downturn has substantially affected women’s ability to leave abusive relationships. In the best of times, women who want to leave an abusive partner worry about finding employment and housing, especially if they also need to provide for children.  During economic crises, these concerns increase dramatically and are exacerbated by the fact that governmental and non-governmental service providers usually face funding crises of their own and may have had to cut services. 

In 2008, the National Network to End Domestic Violence found that, on one day alone, almost 9000 requests for services went unmet because of lack of resources.  In 2009, that number had increased by 300.

The National Domestic Violence Hotline, set up by VAWA, reported that calls to the hotline increased by over 19 percent in the 12 months after the September 2008 market crash.

The director of the government’s Office on Violence Against Women testified before the Senate Committee of the Judiciary in May 2010 that, between the first quarter of 2008 and the first quarter of 2009, one shelter alone reported a 44 percent increase in persons sheltered, a 74 percent increase in crisis response, and a 124 percent increase in calls requesting shelter

But most pointedly, domestic violence costs society a lot more than the $144 million the introduced bill would save by downsizing responses to it.  Those 5 million assaults on women annually resulted in nearly 2 million injuries, of which more than half a million required medical attention, the Centers for Disease Control estimated in 2003.  Victims of domestic violence lost nearly 8 million work days and 5.6 million days of productivity due to violence.

In all, assaults on women cost almost $6 billion every year. Because these estimates are based on rates of violence before the current economic crisis, the true cost may well be higher today

In other words: the bill proposes to cut $144 million over 5 years from services that seek to remedy a problem which, even with the current government involvement, will cost society about $30 billion over that same period.

Some might say that estimates about the cost of intimate-partner violence are notoriously unpredictable, that the federal government truly is broke, or that the proposed cuts really do reflect a consolidation of services that will result in more efficient use of funds. But even if they were right, that would not take away from the fact that domestic violence is a continuing, costly, and consistently underserved problem.

Cutting federal funds for dealing with it is not only bad news, it is a bad idea.

Sexual Harassment: Not Really About Sex At All

@RHRealitycheck

This week, a national study found that sexual harassment affects about half of the students in grades seven to 12. Some might see this as an indication that there is too much talk about sex in our schools. They would be wrong. Others have chalked it up to teenage hormones and suggested that we leave well enough alone. They would be equally wrong.

Sexual harassment is nothing new. In 2008, a study found that just over a third of middle and high school students had been sexually harassed. The National Coalition for Women’s and Girls Education put the percentage at almost 90 in 1997. And, indeed, discrimination based on gender has been an actionable offence under Title IX of the Education Amendments since 1972, and since then the courts have applied Title IX to various types of sexual harassment.

But the motivation for sexual harassment seems to be shifting. Bill Bond, a school safety expert for the National Association of Secondary School Principals, notes that attempts to exploit fellow students sexually have become less common, and that now students seem to use sexual remarks to degrade or insult someone else.

This sense, that sexual harassment nowadays is more about hostility than about sex, was validated by the study published this week as well as by the study published in 2008. Both concluded that most sexual harassment in middle and high schools in the United States is directed at girls and at children suspected of being gay or lesbian.

Where straight girls are targeted, the harassment is generally about their level of sexual activity, which is either deemed too much (they are “sluts”) or too little (they are “prudes”). In the case of youth who are thought to be gay, it is the mere fact that they might even want to have sex that is “wrong.”

In other words, the more frequent type of harassment suffered by children today—and the one they report as affecting them the most negatively—is expressing hostility at children who do not fit into some preconceived notion of what “normal” sexuality is. Normality in this connection apparently means that girls must display a level of sexual activity that can go unperceived (neither too much nor too little), and that everyone should be straight.

Or to be a bit more blunt about it: sexual harassment in middle and high schools today is motivated by either misogyny or homophobia. Neither has to do with sex. And neither would be helped by treating sexual harassment between children as a result of overactive hormones to be dismissed.

In fact, the solution is just the opposite: active and broad engagement about sexuality and sex roles. Because misogyny and homophobia are fuelled by ignorance and fear. And ignorance and fear can be fought with knowledge.

Unfortunately, broad knowledge-building is not generally the objective of sex education in US middle and high schools. At best, sex education deals with sexuality as a matter of biology: how do male and female bodies engage in (heterosexual and procreative) sex. At worst, the message is that all sex is bad unless you are married and want to procreate. These types of sex education do not transfer much needed tools to our children as they grapple with their evolving sexuality. Indeed, by ignoring (or vilifying) sexuality altogether, limited sex education may instead feed the fear that expresses itself as sexual harassment.

Comprehensive sex education, on the other hand, provides the broader knowledge our children need and want. At its best, comprehensives sex education engages children on their own level of comprehension in a conversation about what sexuality means, how to relate to ourselves and each other with respect, and how to make responsible and informed choices about our sexual and reproductive lives. Comprehensive sex education not only combats the fear and stereotypes that fuel sexual harassment, it also works in terms of delaying the age of sexual initiation and lowering the number of teenage pregnancies.

All children have a right to comprehensive sex education. Giving them the information they need and are entitled to has obvious benefits for their reproductive and sexual health. It is also a way to reduce the chances that they will subject their peers to sexual harassment.

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.