Author: dohertyk9

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 number 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.

If we start with radically different premises of what the definition of rape is, then we end up with radically different data. Wikipedia itself admits, “Data on the prevalence of rape vary greatly depending on what definition of rape is used.” This is why the number of reported rape cases varies so greatly between the different sources.

As a result of disparate definitions for rape, data are dissimilar. In the same year, the Centers for Disease Control and Prevention reported nearly 1.3 million incidents of “sexual violence,” while the FBI accounted for only 85,593 incidents of “rape.” If the two had used the same terminology, or if the words, “sexual violence,” and “rape,” shared the same definition, they may have attained very similar numbers. But despite such an enormous difference in number between the two agencies, it can’t be said that either count is wrong.

Until a definition of rape is standardized and universalized, this trend will continue, and none of the statistics across the board will agree with each other. As it stands, few conclusions can be drawn from data, unless we choose to use only one source, with one definition, for our conclusions. Unless we achieve the universal definition, we will never come close to knowing just how many cases of rape truly exist in any given year. However, it is unlikely that such a definition of rape would ever come about, because of the differences in all of the institutions that define rape. 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. Each agency has entirely different interests in its definition for rape, and a universal definition may not best serve the needs of each agency. Take, for example, if the FBI’s definition of “penetration, no matter how slight,” was used for the Centers for Disease Control and Prevention. A person seeking mental health services for “attempted forced penetration,” which would be included in the CDC’s definition, is excluded from the FBI’s definition. The FBI’s definition would therefore be ineffective for the CDC to accommodate all of its patients.

The unreported nature of rape furthers the preexisting disparity in statistics. Some victims are more likely to report the crime than others. This is clear in an article that cites the Department of Justice’s statistics- “New DOJ Data On Sexual Assaults: College Students Are Actually Less Likely To Be Victimized,” by the Federalist Staff, compares the numbers from DOJ statistics and attempts to prove that non-students are more likely to be raped than students. It states,

The full study, which was published by the Bureau of Justice Statistics, a division within DOJ, found that rather than one in five female college students becoming victims of sexual assault, the actual rate is 6.1 per 1,000 students, or 0.61 percent (instead of 1-in-5, the real number is 0.03-in-5). For non-students, the rate of sexual assault is 7.6 per 1,000 people.

However, within the article itself, it admits that, “Unfortunately, according to data from the BJS study, a huge percentage of sexual assaults — upwards of 80 percent for female college students — go unreported, and students who are victimized are far less likely to report the crime than are non-student victims.” It even goes so far as to list that 80% of students do not report rape, compared to 67% of non-students that do not report rape. If students are so much less likely than non-students to report rape, than how can it possibly be determined that non-students are more frequently victims of the crime? The data can be trusted to prove neither that students are more often victims of rape nor that non-students are. In addition, the accuracy of the percentages must be called into question as well; the rapes that are not reported can only be counted through surveys, which may include a greater number of circumstances than police reports. This contributes to increasingly skewed data.

The article, “This Rape Infographic Is Going Viral. Too Bad It’s Wrong.” by Amanda Marcotte seeks to point out the shortcomings of an infograph displaying rape data. Dylan Matthews at the Washington Post published the infographic, created by the Enliven Project, that Marcotte’s article analyzes:

The article notes, “The graphic assumes one-rape-per-rapist,” “The graphic overestimates the number of unreported rapes,” and “The graphic overestimates the number of false accusations.” The impact of unintentionally misinterpreting the data is that it may be further misinterpreted; as the article points out,

Nearly one in five women have been raped, according to the latest substantive government numbers, and infographics like this might make people conclude therefore that one in five men is a rapist. In reality, a much smaller (though still troubling) number—an estimated 6 percent of men—are rapists. Your average rapist stacks up six victims. That’s hard to capture in an infographic, but could be clearer by just labeling the little dudes ‘rapes’ instead of ‘rapists.’

The second stated error with this particular graphic, that “The graphic overestimates the number of unreported rapes,” explains that, “It’s hard to measure how many rapes go unreported, because, duh, unreported.” The article suggests that we use “government numbers” to make the number of unreported rapes more accurate; the only problem with this suggestion is that even the government numbers cannot be trusted because they immensely disagree with each other. Finally, the article mentions, “The graphic overestimates the number of false accusations.” It explains that combining data and assuming that it can be summarized accurately is another way to horribly misinterpret data; the article states,

The problem is that the Enliven Project conflates ‘false reports,’ which only require the claim that a crime has happened, with ‘false accusations,’ which require fingering a supposed perpetrator.

These seemingly minor misrepresentations can result in incredibly inaccurate data; if the original numbers cannot even be trusted, the conclusions drawn from a combination of those numbers, which are not counting the same definition to begin with, are even more inaccurate.

Not only do these differing definitions produce different statistics, but also, the data can only measure rapes that are reported; they can say nothing about the rapes that aren’t reported. Even with the standardized and universalized definition of rape previously mentioned, we would still be unable to achieve completely accurate statistics. To do so, we would need to ensure that every case of rape is reported, and the data would start there, not accounting for previous years where this was not the case. If this was somehow possible, the data could then be trusted.

The Centers for Disease Control and Prevention would argue that it can accurately and reliably account for 1.3 million incidents of “sexual violence.” The Centers for Disease Control and Prevention’s website even outlines a number of specific circumstances that fall under its definition of “sexual violence,” namely:

Completed or attempted forced penetration of a victim, Completed or attempted alcohol/drug-facilitated penetration of a victim, Completed or attempted forced acts in which a victim is made to penetrate a perpetrator or someone else, Completed or attempted alcohol/drug-facilitated acts in which a victim is made to penetrate a perpetrator or someone else, Non-physically forced penetration which occurs after a person is pressured verbally or through intimidation or misuse of authority to consent or acquiesce, Unwanted sexual contact, Non-contact unwanted sexual experiences.

This definition is clear and indisputable; instances of sexual violence can easily be determined on its basis. Statistics can be generated based on the rape counted by this definition.

But the clarity of the definition isn’t the problem; the problem is that there are many more definitions than this one by the CDC. Each definition is just as likely to be reliable when compared to itself, but equally unreliable when compared to others. Any data that sums up rape and draws conclusions using a variety of different sources is inaccurate, because the different sources are not even counting the same thing. CDC’s “sexual violence” is different than the FBI’s “forcible rape,” or simply “rape,” which is also different from the Bureau of Justice Statistics’ “Forced sexual intercourse.” An additional problem arises when people attempt to count the CDC’s 1.3 million incidents of “sexual violence” as rape and compare it as such; the CDC includes in its definition instances of “unwanted sexual contact” that may not require penetration, which makes it astronomically different from the BJS’s and the FBI’s definitions. Wikipedia explains the problem in its own terms even as it reports rape data in its article titled “Rape Statistics,”

Inconsistent definitions of rape, different rates of reporting, recording, prosecution and conviction for rape create controversial statistical disparities, and lead to accusations that many rape statistics are unreliable or misleading. In some jurisdictions, male-female rape is the only form of rape counted in the statistics. Countries may not define forced sex on a spouse as “rape.”

The disparity in definitions often results from differences among agencies. The CDC is concerned with defining rape as it relates to public health, while the FBI is concerned with defining rape in relation to crime. If patients report rape to the CDC seeking medical attention, the CDC is unlikely to discount the patients’ claims of rape. Thus, the number of counted instances of sexual violence may be higher simply because the patients may consider a broader definition of rape, which the CDC inadvertently adopts by accepting patients’ claims. The Bureau of Justice Statistics’ National Crime Victimization Survey (NCVS) asks very specific questions related to rape that suggest a narrower consideration of circumstances that constitute rape. The BJS’s National Crime Victimization Survey 1 asks its participants,

Have you been forced or coerced to engage in unwanted sexual activity by:

(a) Someone you didn’t know before
(b) A casual acquaintance
OR
(c) Someone you know well

The survey does not include the BJS’s definition of rape, or any examples of situations that would fall under its category of “forced or coerced,” “unwanted sexual activity.” Participants may underreport their instances of rape simply because they do not understand which situations fall under this category. The BJS is concerned with counting rape only to understand how many instances of crime are unreported, not to charge a person with the crime or to improve the victim’s health. This led to the simplified, “forced or coerced to engage in unwanted sexual activity” definition in its survey. This is radically different from its specific, official definition on its website:

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.

Because agencies that define rape have entirely different considerations in their definitions, they utilize different terminology, account for different numbers, and come up with different statistics. Attempting to summarize data from several different agencies will only result in inaccurate data.

References

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/

Marcotte, A. (2013, January 8). This Rape Infographic Is Going Viral. Too Bad It’s Wrong. Retrieved from http://www.slate.com/blogs/xx_factor/2013/01/08/the_enliven_project_s_false_rape_accusations_infographic_great_intentions.html

Matthews, D. (2013, January 7). The saddest graph you’ll see today. Retrieved from https://www.washingtonpost.com/news/wonk/wp/2013/01/07/the-saddest-graph-youll-see-today/?noredirect=on&utm_term=.88a8618f65b1

NCVS 1 [survey]. (n.d.). Retrieved from https://www.bjs.gov/content/pub/pdf/ncvs104.pdf

New DOJ Data On Sexual Assaults: Students Are Less Likely To Be Raped. (2014, December 11). Retrieved from http://thefederalist.com/2014/12/11/new-doj-data-on-sexual-assaults-college-students-are-actually-less-likely-to-be-victimized/

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

Rape statistics. (2018, April 3). Retrieved from https://en.wikipedia.org/wiki/Rape_statistics#United_States

The Enliven Project – Sarah Beaulieu. (n.d.). Retrieved from http://sarahbeaulieu.me/the-enliven-project

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