Finally, the FBI’s outdated and problematic definition of rape has been updated for the first time since its original creation in 1929. This change in language took a painstakingly long 83 years, and comes after many states and police jurisdictions changed their definitions of rape to more inclusive of cases that are reported. The outdated and limited nature of the 1929 definition is extremely problematic both in theory and practice.
The original definition of rape is the “carnal knowledge of a female forcibly and against her will”. Let’s parse that out a bit. “Carnal knowledge” is defined as the “act of a man having sexual bodily connections with a woman” and can occur if the penis penetrates the vagina, however slight. “Against her will” is defined as “any instances in which the victim is incapable of giving consent because of her temporary or permanent mental or physical incapacity (or because of her youth)”. It is specified that individuals don’t mature at the same rate and that girls as young as 10 or 12 are capable of giving consent in some situations. The examples that are written in the FBI Uniform Crime Reporting Handbook on page 26 include instances of gang rape, stranger rape, and the use of weapons by the perpetrators.
Where does one start to point out the numerous problems with this definition and is it possible to do it succinctly? This definition only recognizes that only females can be raped and that only males can be perpetrators as it specifies that the action must include a penis penetrating a vagina. Therefore it excludes male and transgender survivors. It also does not recognize that females and transgender people can be perpetrators. This definition excludes the intentional use of legal substances, such as alcohol, to rape someone. It stipulates that some girls aged 10-12 are able to give consent, despite the fact that research on child development does not support that. Additionally, the FBI has a very limited definition of how sex can occur against a woman’s will specifying that there has to be a level of physical force. This idea is further cemented in the examples of rape the FBI provides as they all have an element of excessive force or a weapon. The examples that the FBI provides (gang rape, stranger rape, and use of a weapon) represent the small minority of incidents of rape. Because of all these errors, the FBI misses many survivors of rape when conducting national studies. Even if states or police jurisdictions define rape more liberally they are only allowed to report the instances of rape that fit into the FBI definition. As a result, the FBI seriously undercounts the instances of rape as CDC estimates over one million occurred in 2010 but FBI only reported approximately 84,000.
The new definition is more inclusive and states that rape 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.” Obviously this definition has come a long way from the previous definition and has a lot of positive changes. However, there are still several problems with it as well.
First off, if a male or transgender person is forced to have penile-vaginal sex it is still not explicitly rape. It only recognizes that men can be raped by other men. This language still focuses on the male as the perpetrator (which is most common) rather than acknowledging that a woman is capable of raping a man as well. Males have various barriers to reporting rape, including that they are supposed to want sex all the time and that they should be able to defend themselves, and this definition reinforces these ideas but excluding the possibility of penile-vaginal rape by a woman. Therefore, the statistics will still not be reflective of all the survivors of rape nationwide.
Its improvements are numerous. It now includes penetration of the vagina, anus or mouth as counts of rape. This allows for many more people - females, males, and transgender - to be counted. The definition now includes instances where the survivor was incapacitated - whether due to alcohol or drugs - and can not legally give consent. It also includes the possibility of being raped by an object or a body part other than a penis. This is an important distinction as it removes some of the assumptions of how rape is inherently a male-female penis-vagina crime. It removes the necessity of force and turns rather to a lack of consent. This removes the stipulation of physical force or a weapon in order to be classified as rape. This is more reflective of the majority of rapes as perpetrators are typically known to the survivor and do not need to use extreme physical force or a weapon.
The new definition will make statistical nationwide reports about rape to be more accurate and reflective of what is actually happening. This can lead to increased financial support for rape crisis centers and other organizations that work with survivors or policy dealing with rape. I don’t believe it should be the final definition of rape as it still excludes some cases but it is far more inclusive than the previous one.
Written by: Stacey