VARYING DEFINITIONS OF SEXUAL ASSAULT BRING CONFUSION ON CONSENT

If you go onto the U.S. Department of Justice’s website and search “sexual assault,” you’ll find the following definition: “The term ‘sexual assault’ means any nonconsensual sexual act proscribed by Federal, tribal or State law, including when the victim lacks capacity to consent.” Seems relatively innocuous, if a little vague, right?

But as recently as April 5, the DoJ’s official descriptor of what constitutes sexual assault was significantly less vague. A web archive of the April 5 page defines sexual assault as “any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.”

That’s pretty specific, but at first glance it doesn’t seem to be that different from the current iteration. One would assume that the sexual activities listed on April 5 are also proscribed under federal, tribal or state law. Do we really need all those extra words to spell that out?

An astute observer, however, would point to the differing treatment of consent. The old definition mentions “the explicit consent” as crucial to consensual sex. In other words, both parties need to explicitly consent to a sexual activity for it to be considered sex. Advocates of this type of approach to consent typically describe this framework as “yes means yes,” as in it’s only consensual if you hear the word “yes.”

The new wording, however, leaves the definition of consent up to the states, who are anything but in agreement on the topic of consent.

According to RAINN (the Rape, Abuse & Incest National Network), there are eight states with laws currently on the books describing consent using the “yes means yes” scaffolding:  Florida, Wisconsin, New Hampshire, Minnesota, Washington, New Jersey, Illinois, and California.

Pennsylvania, by contrast, does not specifically define consent; Iowa has a tiered system of what constitutes sexual assault, ranging from really bad, to not-as-bad; Alabama’s courts insist that sexual assault consists of “sexual intercourse with a member of the opposite sex…”

Point is, there’s now 50 different definitions of sexual assault and consent as far as the DoJ is concerned, making the assessments of the genuine state of affairs when it comes to sexual assault in America decidedly… confusing.

So, does this change current legislation regarding sexual assault? Does this let would-be rapists off the hook?

Not really. As strange as that may sound, sexual assault isn’t a federal crime. This is actually precisely the logic that supporters of the executive branch’s decision to change the wording point to. Because the feds don’t have jurisdiction, they argue, they should keep their noses out of it!

It also should be noted that this rewording isn’t going to change how judges hear court cases. It’s not like the DoJ’s definition of sexual assault alters any laws on the books. It doesn’t take the place of legislation, it doesn’t change or overturn any convictions, and it doesn’t necessarily impact prosecution of assault.

Fears of undercount

In reality, the most significant impact this relatively inconspicuous change in wording is going to have is with respect to everyone’s favorite subject: statistics.

In 2012, Susan Carbon, then-director of the Office on Violence Against Women, applauded the Obama-era revision of the DoJ’s definition of “forcible rape.” The new definition offered a drastically broader definition than the previous one (written in 1927 and unrevised, if you can believe it). Regarding why the specific language the DoJ used was important, she said, “Even though most states [had] more expansive definitions of rape in their criminal codes, they had to report the smaller number of crimes falling under the more narrow UCR SRS (Uniform Crime Report) definition.

“This meant that the statistics that were reported nationally were both inaccurate and under-counted,” Carbon said.

More focus needed, not less

Well, okay, so some stats were off: That’s sort of the nature of statistics, isn’t it? That stats aren’t ever going to be 100 percent reflective of the data they’re trying to represent.

But these statistics are actually pretty important. According to the FBI’s website, Uniform Crime Report data that is submitted by police departments “serves many purposes. [It] provides law enforcement with data for use in budget formulation, planning, resource allocation, assessment of police operations, etc., to help address the crime problem at various levels.”

In other words, a significant amount of financial allocation is based on this data. A reduction in the reporting of sexual assault equates to a reduction in the amount of money to be dedicated to combating sexual assault.

The real question, then, is whether or not sexual assault can be reined in all by the legal system. Is it up to lawyers and judges to deter rapists? Is it up to police? Is this a battle to be waged culturally? Are those damned feminists just making a huge issue out of nothing?

We at the Advocate firmly believe that reductions in reporting of sexual assault will not reduce sexual assault, and will make the problem worse.

Misuse and abuse of power occurs in the shadows, when facts and realities are obscured. A quick look at Hollywood in the past year or so shows that transparency and accountability are absolutely crucial when it comes to challenging cultural norms and fighting injustice.

This change in the DoJ’s wording is decidedly a step backward in the fight to combat sexual assault.