Redefining Rape: A dangerous development

This blogpost comes with a trigger warning as I understand that there are a group of people who are upset by this discussion continuing and would not wish to read anything more about it.  Consequently,  I would suggest that anyone who personally affected and is likely to be upset by reading further stops reading now.

I personally have no issues with who sees this post and am happy for anyone who wishes to read this to do so, provided that they take personal responsibility and heed the warning above.

Last year, I noted that there were moves within MRA circles to redefine the definition of rape to exclude the requirement of penetration.  In the (extensive) discussion that followed, I warned of the dangers of a move, which some feminists supported, which would remove the legal requirement for penetration as a distinguishing point between rape and sexual assault.  The first bill attempting to do just that has now been brought to the New York State Senate.

New York has a particularly bad reputation with regards to the prosecution of rape cases.  Currently 800 rape cases which were investigated between 2001 and 2011 are now being reviewed for mistakes.  The aquittal of two policemen who raped a woman in her apartment in 2008 caused a national scandal, and another case, also involving a police officer has also recently shocked the nation.

In August 2011, Lydia Cuomo was attacked by Micheal Pena.  He admitted to forcibly penetrating her anally and orally, and was convicted in March of sexual assault, but because he denied vaginal penetration, which is the legal definition of rape in New York state, he was not convicted of rape.  In the appeal against the lack of a rape conviction, although it was accepted that Cuomo had been penetrated, the defence argued that although she gave evidence stating that she knew she had been penetrated, as she could not recall the colour of a car, she would be unable to state with certainty that she had been vaginally penetrated, and given the admission of anal penetration, it would be unsafe to convict him of rape.

A Republican New York Senator, Catharine Young, drafted a bill to redefine rape as forced oral, anal or vaginal contact, removing the requirement for vaginal penetration, holding a joint press conference with Cuomo to present the bill entitled “Rape is Rape”.   Just hours after that press conference, Young redrafted the bill prior to formal presentation removing the references to oral and anal contact.  The bill now reads…

The Act amends the penal law by defining rape as any contact between the penis and the vagina.

“Rape is Rape” Bill

It should be noted Cuomo’s support for the bill was primarily based on the extension of rape to anal and oral violation, in this particular case, the violation was penetrative.  Under the bill, as Young has pointed out, Pena could still be convicted of rape as there was vaginal/penal contact, however non-consensual anal and oral penetration would still be considered sexual assault.  This bill does nothing to address the anomaly in New York State law which does not accept non-consensual anal or oral penetration as rape, meaning that men cannot be raped, neither does it consider contact between anything other than a vagina and a penis as rape.  But … most worryingly…this “contact” between a vagina and a penis, which would become the legal standard, is presented as neutral.

Under this law, a man would be enabled to have a woman charged with rape should he claim that he did not consent to any penile/vaginal contact that occurred between them and beyond that, any woman who states that she did not consent to such contact with a man could be faced with a counter-claim that he did not consent to the sexual contact with her.

This has to be looked on in the general context of the War on Women, with major attacks going on at the moment over reproductive rights.  The availability of contraception and abortion is declining in the US, its expensive and hard to come by, while abortion in particular, but also contraception, carries with it a great deal of stigma.  We could see women being charged with rape by men who have impregnated them, where the foetus is considered criminal evidence.  At present that change has already been proposed, however it is generally considered repugnant to force a rape victim to continue with a pregnancy as a consequence of being a rape victim.  Were the pregnant woman to be facing charges of rape themselves, that view might well soften.

This is something that Mens Rights Activists have been pushing for some time now, claiming that women rape men at (almost) the same rate as men rape women, and it is only the penetrative requirement for rape that means that men are prosecuted.  Twenty-five states in the USA have no crime of rape at all, instead they have crimes of “sexual abuse,” “sexual assault” and “criminal sexual conduct” legally eradicating rape out of existance, but this is the first attempt to redefine rape in a manner which would allow a woman to be charged with the rape of a man who has penetrated her.  This is an incredibly dangerous bill, and it risks becoming law in New York because of the outcry over the Pena case with which it has been associated.

Rape is indeed rape, and rape is non-consensual penetration.

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