The Law and Definitions of Rape

In the feminist classic Against Our Will, Brownmiller (1975, p. 18) declares that a female definition of rape can be contained in a single sentence: "If a woman chooses not to have intercourse with a specific man and the man chooses to proceed against her will, that is a criminal act of rape." While this may suffice in cases of bride-capture or the rape of conscious women, it does not protect children, men, or victims who are unable to protest acts of sexual aggression against themselves. Many legal definitions of rape are narrower. The Czech legal code defines rape as the use of violence, the threat of immediate violence, or the misuse of a woman's inability to defend herself to force her to consent to sexual intercourse (Siklova & Hradlikova, 1994, p. 112). Not protected by this definition are men and victims of domestic and child sexual abuse and violence.

FBI's Definition of Forcible Rape. The definition of forcible rape used by the U.S. Federal Bureau of Investigation (FBI) excludes many victims of rape and sexual abuse:

The carnal knowledge of a female forcibly and against her will. Assaults or attempts to commit rape by force or threat of force are also included; however, statutory rape (without force) and other sex offences are excluded (Federal Bureau of Investigation, 1998, p. 25).

With this definition, children and adolescents who are forcibly raped qualify for inclusion in FBI rape statistics. As Russell and Bolen (2000, p. 21) point out, since carnal knowledge is understood to refer to penile-vaginal sexual intercourse, the FBI's definition excludes oral and anal penetration and penetration when a woman is unable to consent because she is unconscious, drugged, or incapacitated. It also excludes forcible rape by males on males, females on females, and females by males. Statutory rape is intercourse with a female who is below the age of consent. Although the inhabitants of different states are subject to state and not federal rape laws, the FBI's definition of rape determines which cases are included in their national crime statistics.

Searles and Berger's More Inclusive Definition.

Encouraged by feminists in the 1970s and 1980s, state level reforms include redefinitions of rape in line with the more inclusive definition of rape proposed by Searles and Berger (1987, p. 26):

Rape is defined as nonconsensual sexual penetration of an adolescent or adult obtained by physical force, by threat of bodily harm or when a victim is incapable of giving consent because of mental illness, mental retardation, or intoxication. Included are attempts to commit rape by force or threat of bodily harm.

This definition omits child rape, but uses sex-neutral terms and covers domestic rape and the inability to protest. States still disagree on how to define rape and its victims. In 1987, the cut-off age for statutory rape varied from 13 to 18 years with 16 years being the age of consent in 61% of states; 26% of states defined rape as sexual assault involving penetration, and another 20% as sexual assault that includes sexual touching as well as penetration. Such differences make statistical comparisons impossible (Russell & Bolen, 2000, p. 23).

Other Definitions. Researchers disagree over the sex-neutral terms in the Searles and Berger definition. Koss and Harvey (1991) argue that rape is applicable to men only when penetration occurs. They believe that an assault by a woman using a weapon to force a man to have sex with her should be disqualified as rape because she is the one to be penetrated. Russell and Bolen (2000, p. 23) disagree, asserting that the full range of rape offenses should be included regardless of how rare women's rape of men is, pointing out that women can rape men anally with fingers, hands, or foreign objects. Researchers also differ over the use of the term sexual assault instead of or in combination with rape. Many definitions of sexual assault include less severe nonpene-trative acts, such as forcible touching of the genitals, than are covered by the Searles and Berger definition. Russell and Bolen argue that lumping rape with sexual assault results in the noncomparability of survey findings.

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