It’s no secret that the world has a rape problem. A quarter of men in Southeast Asia have admitted to raping at least one woman. A study in 2011 showed that nearly 1 in 5 women in the United States had either been raped or someone had attempted to rape them. While criminologists warn against comparing the rates of sexual assault from country to country (a lot can depend on how the crime is defined), it’s pretty clear that women from every corner of the globe are at risk of sexual assault.
Because this is a worldwide problem, the United States is not immune. One massive problem is the law itself. While kids are taught that “no means no,” laws throughout the country haven’t kept pace.
According to The Guardian, a simple no will not suffice in a majority of states. The use of force is a requirement. On the other hand, affirmative consent plays a minor role in rape statutes. Women are often assumed to have said yes simply by not saying no. It’s weird and appalling how often we look at how hard the victim refused in order to show she was actually raped:
Related to the force requirement is the law’s traditional insistence that a woman could not be raped if she did not resist her rapist. Although this obligation has been softened or eliminated, depending on the jurisdiction, a woman’s resistance remains a marker of whether enough force was used for sex to count as rape. This reality can explain the provision used to prosecute the Steubenville defendants: it is a crime to engage in sexual conduct with a person whose “ability to resist or consent is substantially impaired because of a mental or physical condition”. In other words, the young men were not convicted because the victim did not consent; they were convicted because she could not consent.
Because prosecutors had evidence that this young woman was passed out at the time she was penetrated, the case for rape was an easy one. She could not resist, and she could not consent. Had she been less drunk, though, the prosecution would have had a far tougher time of it. The woman’s non-consent, even if the jury believed her, would not have been enough to prove rape.
Fortunately, we have an opportunity to change how state legislatures look at rape. The American Law Institute — an organization of influential judges, practicing lawyers and legal scholars — put out something called the Model Penal Code. If you’ve been to law school, this is very familiar. It doesn’t have the force of law, but when drafting criminal legislation, state legislatures tend to take it very seriously. And it just so happens that the Model Penal Code’s rape statute is under revision for the first time in 50 years.
This is definitely an important development. The law has a way of normalizing certain things and making taboo other things. So while the law definitely needs updated, much still needs to be done to make people take rape seriously.
For example, look at what’s happening in Missoula, Mont., which is known as the “rape capital of the country.” The Justice Department recently investigated the county’s handling of 350 sexual assault cases from January 2008 to May 2012. The findings, as reported in Mother Jones, are disturbing:
In May 2013, the Justice Department released findings from its investigation, indicating officials in Missoula were indeed discriminating against female victims in sexual-assault cases. For example, according to the Justice Department’s report, one Missoula detective allegedly told a woman who said she was vomiting during her sexual assault—she was allegedly raped by several people—that “she might have had a case if if she had been unconscious during the rape rather than merely incapacitated.” In another case where a woman reported vaginal and anal rape, a detective reportedly asked her why she hadn’t fought harder, saying, “Tell me the truth—is this something we want to go through with?” (Van Valkenburg says, “Both our office and the police are very much aware of what is necessary to legally prove that a woman who is incapacitated by alcohol and/or drugs did not consent to a sexual act. Local prosecutors fully understand these issues.”) The Justice Department also determined that the Missoula attorney’s office provides “no information” to local police as to why it declines to prosecute sexual assault cases and police are “frustrated” with the “lack of follow-up and prosecution.” (Missoula Police Captain Mike Coyler says, “As a general rule, I disagree with this.”)
The University of Montana, the Missoula Police Department, and the Department of Justice have entered an agreement to increase resources for combating rape. However, the Missoula County Attorney is refusing to make the recommended changes.
“No prosecutor wants to admit that they have shortcomings, especially on such a sensitive issue,” says Sarah Deer, who worked for the Justice Department’s Office on Violence Against Women in the Clinton and George W. Bush administrations. “But there is a culture in some offices that sexual assault is sort of overstated or victims tend to lie. That might be what’s going on here–a culture of indifference.”
It’s not just one town in Montana that has trouble with rape. Rape kits by the thousands are left floundering, untested, in storage. This “culture of indifference” reaches far and hurts those the legal system is supposed to help.
This is why a change in law must be the first step, but by no means the last. The law needs to show that, collectively, we want to stop rape. But we also need to convince law enforcement and lawyers of that, as well.
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