In America alone, another instance of sexual violence occurs every few minutes. Astonishingly, as reported by The National Intimate Partner and Sexual Violence Survey (NISVS), which was conducted by the Centers for Disease Control and Prevention, “Approximately 1 in 5 women in the U.S. (19.1% or an estimated 22,992,000 women) experienced rape at some point in life.” This stems from, among other things, a lack of understanding as to what rape is, because no one knows what it is.
In the article, “The Latest: Cosby jury ends Day 1 without a verdict” by the Associated Press, the jury asks the judge what consent is:
The jury returned to a suburban Philadelphia courtroom less than two hours into its deliberations to ask for the legal definition of consent. Judge Steve O’Neill said he wasn’t able to answer it, telling jurors they’ve already been given the definitions of the charges they are considering.
It’s frightening to consider that even judges, the people we put in charge of determining criminal charges, don’t know what consent is. Although rape has existed since the beginning of humanity, and continues to exist worldwide, it does not have a standard, universal definition. Even within one country, and within the same system of government, the definition varies.
The Bureau of Justice Statistics defines rape as,
Forced sexual intercourse including both psychological coercion and physical force. Forced sexual intercourse means vaginal, anal, or oral penetration by the offender(s). This category also includes incidents where the penetration is from a foreign object, such as a bottle. Includes attempted rape, male and female victims, and both heterosexual and same sex rape. Attempted rape includes verbal threats of rape.
The FBI’s definition of rape as defined by the Department of Justice is,
Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
The Centers for Disease Control and Prevention website defines “sexual violence,”
Sexual violence is defined as a sexual act committed against someone without that person’s freely given consent.
These are only a few of the myriad of existing definitions, but they illustrate just how different rape is based on the agency that is considering it. The Bureau of Justice Statistics defines rape to provide a count for the number of instances a crime has occurred. The FBI defines rape to explain under what circumstances a crime has been committed. The Centers for Disease Control and Prevention define rape to provide better assistance to their patients. It would be difficult to argue that any one of these definitions is wrong, because there is no proof of a “right” definition. It is not the responsibility of simple observers of this phenomenon to provide the “right” definition.
Governments have struggled with the question of how to define rape since their beginning. In around 1780 B.C., laws stated that rape of a virgin was property damage against her father. In 1290, women who became pregnant from rape were not raped. In the 1300s, whether or not a woman was raped was affected by how promiscuous the woman was; a sexually active woman’s charges were less legitimate. After the 1300s, girls younger than 12 could not consent. In 1670, it was concluded that a man can legally rape his wife, because the marriage contract forfeited his wife’s right to consent. In 1814, it was decided once again that rape could be determined by pregnancy. In the 19th century, it was agreed that if the woman did not actively resist her rapist, she was not raped.
More inclusive definitions of rape have been created over time; the FBI’s definition listed above, for example, is an update from a older and less encompassing definition. Yet despite having a myriad of more inclusive definitions, we are still far from perfect in determining what sexual contexts can be characterized by these definitions. This is clear in the case of Bill Cosby’s retrial for the alleged sexual assault of Andrea Constand. The article, “Bill Cosby’s Defense and Its Twisted Argument About Consent,” by Jia Tolentino, states,
Everyone agrees that, on the night in question, Cosby invited Constand over to his home; that he gave her three pills; that he digitally penetrated her without obtaining any sort of affirmative consent; that he left her passed-out body on the couch and went to bed.
This case is demonstrative of the power of terminology; according to the FBI’s definition, this situation is clearly rape: “Penetration, no matter how slight…without the consent of the victim.” Yet the entire argument of Cosby’s defense is not that he did not commit this act, but rather that it was in a “romantic” context, that Constand was lying as to the nature of her and Cosby’s relationship, that there was full consent given in the situation in question. However, regardless of whether or not the relationship was romantic, Constand was unconscious at the time of the penetration and therefore could not give consent, which is rape by all three aforementioned definitions above. The refusal to call the situation what it was according to the definitions of several reputable sources-rape-has allowed Cosby’s defense to formulate an argument that is at best absurd and at worst completely wrong. However, the nature of the definition of rape is that it will always be different based on who is defining it. If the legal system rules that in romantic contexts, penetration of an unconscious partner is in fact consensual, the system has merely created another definition of rape, which cannot be considered wrong, only different. In such a case, if Cosby could prove that his relationship with Constand was “romantic,” he would be innocent of that definition of rape.
Another case, that of former NFL cheerleader Kristan Ware, illustrates this same confusion of terminology that leads to ambiguity in consent. It is never specifically outlined that to be an NFL cheerleader, a girl must be open to sexual objectification, sexual harassment and molestation. Yet the situation of Kristan Ware conveys that our culture expects just that; the article “Another Former N.F.L. Cheerleader Files a Complaint,” by John Branch, states,
Ware said some Dolphins cheerleading coaches mocked her after other cheerleaders learned that she was a virgin, planning to wait for marriage to have sex. At a 2016 rehearsal for a fashion show at which cheerleaders modeled bikinis, Ware claims, she was dressed with angel wings — something Ware believes was a poke at her virginity — and then physically grabbed and verbally harangued by Grogan as she exited the runway.
If this response is expected, accepted even, then the NFL should create its own definition of consent. This new definition would state something similar to, “In accepting the job of cheerleader in the NFL, a female consents to the receipt of all forms of sexual language and sexual touching.”
Granted, the definitions created in this paper would likely never be adopted by any institution, but they serve to demonstrate how even the most clear situations can be skewed with unclear language. Because the legal system has not altered the definition of rape to exclude “romantic contexts,” it should be clear that by the existing scholarly definitions, Cosby has committed rape, yet actors in the criminal justice system still struggle with their determinations. It should also be clear that because the NFL has no contract explicitly stating that cheerleaders consent to “sexual language and sexual touching,” Ware’s case was one of illegal sexual harassment. Unfortunately, the number of definitions of consent and rape in existence serve to further confuse an already difficult concept.
An Updated Definition of Rape. (n.d.). Retrieved from https://www.justice.gov/archives/opa/blog/updated-definition-rape
Branch, J. (2018, April 12). Another Former N.F.L. Cheerleader Files a Complaint. Retrieved from https://www.nytimes.com/2018/04/12/sports/football/nfl-cheerleaders.html
Bureau of Justice Statistics (BJS) – Rape and Sexual Assault. (n.d.). Retrieved from https://www.bjs.gov/index.cfm?ty=tp&tid=317
Definitions|Sexual Violence|Violence Prevention|Injury Center|CDC. (2018, April 10). Retrieved from https://www.cdc.gov/violenceprevention/sexualviolence/definitions.html
Eichelberger, E. (2017, June 25). Men Defining Rape: A History. Retrieved April 16, 2018, from https://www.motherjones.com/politics/2012/08/men-defining-rape-history/
NISVS Summary Reports|National Intimate Partner and Sexual Violence Survey|Funded Programs|Violence Prevention|Injury Center|CDC. (2017, September 25). Retrieved from https://www.cdc.gov/violenceprevention/nisvs/summaryreports.html
The Latest: Cosby jury ends Day 1 without a verdict. (2018, April 25). Retrieved from https://abcnews.go.com/Entertainment/wireStory/latest-cosby-courthouse-jury-start-deliberations-54717264
Tolentino, J. (2017, June 14). Bill Cosby’s Defense and Its Twisted Argument About Consent. Retrieved from https://www.newyorker.com/culture/jia-tolentino/bill-cosbys-defense-and-its-twisted-argument-about-consent