February 18, 2013

New York's "rape is rape" bill.

The New York penal code only uses the word "rape" for forced vaginal penetration. Crimes involving anal and oral penetration are punished just as severely, but the statutory name for the crime is "sexual assault."  There's a current effort in the NY legislature to extend the term "rape" to all 3 forms of forced penetration. This effort arose out of a case involving a victim named Lydia Cuomo (who is not related to the NY governor, Andrew Cuomo).
Lydia Cuomo... said the difference in terminology can lead to a rape victim’s attacker being convicted of a crime other than rape — as happened in her case last year. She said such an outcome makes it harder for the victim to heal.
The word "rape" conveys more emotional meaning than "sexual assault," which is the supposedly modern terminology found in the Model Penal Code. It's like changing from "murder" to "homicide." But whether you prefer the old words that convey our culture's deep moral condemnation or the new bureaucratic style that organizes everything into a big catalog, pick one approach and stick to it. It's terrible to say to a woman who was raped 3 ways — as Cuomo was — that only the vaginal penetration is — for official purposes — called "rape." In Cuomo's case, the jury failed to convict on the rape charge but convicted on the sexual assault charges, conveyed the unintended but outrageous message that she was not raped.

Now that the problem is plainly exposed, you'd think the fix is simple:
Assemblywoman Aravella Simotas (D-Queens) submitted the “rape is rape” bill...

Hours after Lydia Cuomo and Simotas held a press conference last week, a co-sponsor of the bill, state Sen. Catharine Young (R-Cattaraugus County), withdrew her support and filed an alternative measure. Young’s bill is backed by prosecutors across the state, who fear the change Lydia Cuomo is seeking could make it both harder to convict rapists and more difficult for judges to apply sentences consecutively, thereby maximizing prison time.
Young’s alternative would no longer require that penetration of any sort be proven for a rape conviction. Prosecutors instead would have to meet a less onerous standard of vaginal contact, which is the same threshold used for criminal sexual act.
The suddenly obvious need for one thing creates the momentum to try to get other things. The will to legislate is unleashed and the prosecutor's wish list pops out.

106 comments:

rhhardin said...

Rape is not rape rape, though.

Nonapod said...

Does statutory rape fall under "rape is rape" (or as Whoopi Goldberg delineated rape-rape)?

Ann Althouse said...

@rh and nonapod If you are genuinely interested in the "rape rape" aspect of it, please connect it to what Sen. Young is proposing and what the prosecutors here want.

Nonapod, this post is not about statutory rape. We are talking about something that is not consensual and it's also not funny.

rhhardin said...

The idea of X is Y is that Y is the right handle to take hold of both X and Y with, even though X and Y are different.

I'd say rape ought to be changed to assault unless feminine modesty is back in style now. If so, it ought to be made clear how in college indoctrinations.

Rape emotion is from a pre-feminist era.

We're all as neuter as pine boards.

Shouting Thomas said...

We are talking about something that is not consensual and it's also not funny.

It's hard to get a handle on the appropriate level of solemnity here.

Has it ever occurred to you, Althouse, that one of the keys to this "equality" thing that you natter about eternally might be that women should accept the bumps, bruises and beatings of life with the same equanimity as men do?

I can remember absorbing incredible beatings when I was a young man, both in ambush fights and on the football field. My father and the other men in my community did think that this was a source of humor.

The attitude was "You take your beating and learn from it. Unless something is seriously broken, stop bitching!"

How are women going to function in combat with your attitude?

rhhardin said...

"rape is rape" bill

It's not a tautology.

The first rape is taken broadly and the second is taken narrowly.

She said such an outcome makes it harder for the victim to heal

Women are such sensitive creatures. How do they survive?

Erika said...

I read the article and I'm not seeing an explanation for why Young wants the definition of rape to be broadened to include vaginal contact without penetration. Doesn't that cheapen the heinousness of what happens to people like the brave Ms. Cuomo if it's defined the same as groping, only without clothes?

Erika said...
This comment has been removed by the author.
SeanF said...

Prosecutors instead would have to meet a less onerous standard of vaginal contact, which is the same threshold used for criminal sexual act.

Wait a second. The problem was defined as being that oral and anal penetration weren't classified as rape, and the solution offered is to change the legal definition from "vaginal penetration" to "vaginal contact"?

Lem said...

I'm reading a theme coming on.

The Drill SGT said...

Interesting. If the cop who assaulted Cuomo had been convicted of both assaulting her vaginally and anally under the law she prefers he gets convicted of 1 count of rape, rather than a count of rape and an additional one of sexual assault.

i don't see reduced sentences as encouraging victim healing, even if the attacker was a rapist.

YMMV.

PS: THe Whoopi thing deserves to be made fun of, though the topic is not ammusing. Whoopi parses words for political advantage. and for laughs. humiliate her with her own weapons.

Shouting Thomas said...

One of the most interesting things my late wife, Myrna, a Filipino, said to me was:

"Why do Western women think a sexual injury is so much more important than any other kind of injury?"

She asked me this quite often, since we lived part time in Woodstock, where Western women talk just about endlessly about their real and perceived sexual injuries.

Ann Althouse said...

"I'd say rape ought to be changed to assault unless feminine modesty is back in style now. If so, it ought to be made clear how in college indoctrinations."

Well, this is the source of the anomaly in the code, which was a product of a particular time and is outmoded today. It was thought that the vaginal orifice ought to be set apart from the other 2 orifices.

Note how this makes men unrape-able.

It suggests that vaginal penetration has special meaning. It is different in that it can result in pregnancy (and in a virgin, there is a hymen that can be broken).

betamax3000 said...

Touch me in the morning
Then just walk away
We don't have tomorrow
But we had yesterday

SGT Ted said...

Yes, it is not funny that certain rape is ok when celebrated artistes with the correct politics rape little girls.

It is no joke when influential women on talk shows dismiss actual rape victims conserns and fears and inability to heal in order to protect the rapist, soley based on his film artistry creds and leftist politics.

Other, ordinary schlubs are to be subject to harsher standards with no consideration as to their politics or occupation.

Its why the jokes are made. Because modern liberal women on talk shows have already made a rape into a joke law to only be applied to non-PC perpetrators in their defense of scumbags like Roman Polanski.

Its a toxic combination of bullshit like the "war on women" propaganda meme and female supremacist laws, like the Violence against Women Act.

I bet far more men are victims of assault and murder than women, but we're supposed to get all extra emotional when its a crime against the girls.

But, really, fuck that. You want equality ladies, then crimes against you are not more important than those against men. Don't expect a chivalric consideration of your sensibilities with a goal of legal equality.

Lem said...

We are talking about something that is not consensual and it's also not funny.

That knocks out the Starr Report as an authoritative volume.

Mary Beth said...

Does their rape law just require penetration or does it require penetration of the victim? If a women rapes a man, vaginal intercourse, no penetration of him, does NY consider that rape?

If they make "vaginal contact" = rape, I can imagine circumstances where a jury might not want to label someone as a rapist even if there was unwanted contact.

bagoh20 said...

"We are talking about something that is not consensual and it's also not funny."

Please remember that when the subject of ducks comes up. Ha, Ha.

madAsHell said...

not related

???

How many Cuomo's do you know??

rhhardin said...

There's also the problem what vaginal contact means.

There's a topological problem and a euphemism problem.

Ann Althouse said...

"Women are such sensitive creatures. How do they survive?"

I don't think that's something you should want to say to Lydia Cuomo. This is a woman who was forcibly penetrated in 3 orifices by a NYC cop in 3 orifices. The evidence at trial on the vaginal penetration was not enough for the jury to get to a guilty verdict. (But it wasn't enough to produce a not guilty verdict either, and the defendant later pled guilty.) Cuomo had the bizarre experience of hearing a verdict that said there was no conviction on rape, even though there was a guilty verdict with respect to the nonvaginal orifices.

I don't think characterizing her as unusually sensitive makes much sense here.

She took her justified outrage to the political process and worked for legislation to solve this obvious nomenclature problem.

I don't see any basis for mocking her or expanding into a more general topic about how women are oversensitive!

Ann Althouse said...

" read the article and I'm not seeing an explanation for why Young wants the definition of rape to be broadened to include vaginal contact without penetration. Doesn't that cheapen the heinousness of what happens to people like the brave Ms. Cuomo if it's defined the same as groping, only without clothes?"

Yes.

And thank you for getting the point!

William said...

The definition of rape should be expanded to include opposition to late term abortions. This is clearly an assault against a woman's uterus.

SGT Ted said...

I don't see any basis for mocking her or expanding into a more general topic about how women are oversensitive!

My critisism isnt meant to mock Ms Cuomo, but to mock the whole feminist "Tough Grrrrrl" bullshit facade they project all the while claiming special consderation of their sensitivities and persons under the law, simply because they possess vaginas.

rhhardin said...

"Women are such sensitive creatures. How do they survive?"

I don't think that's something you should want to say to Lydia Cuomo.


Is this a special injury category?

There are lots of people injured worse every day.

Ann Althouse said...

"Wait a second. The problem was defined as being that oral and anal penetration weren't classified as rape, and the solution offered is to change the legal definition from "vaginal penetration" to "vaginal contact"?"

Right. This is an old legislative game. There's will to legislate because of one problem, and they use the momentum to do something else that they don't like.

Compare it to the gun control legislation we are looking at after Sandy Hook.

But unlike with Sandy Hook, in this case we have a very specific and specifically fixable problem. It's a language anomaly in the statute that is obvious and well understood. It need only be fixed. But instead, the idea is: Don't let the energy to fix a problem go to waste. Let's "fix" nonproblems.

Shouting Thomas said...

I don't see any basis for mocking her or expanding into a more general topic about how women are oversensitive!

The comments, I think, were aimed at you, Althouse, not at Lydia Cuomo.

The question is why you are so oversensitive to something that didn't happen to you.

Mary Beth said...

What would be considered proof of vaginal contact? If rape is difficult to prove when it includes penetration, and the likelihood of some physical evidence, how could you prove "contact"? Do they really mean vaginal or does it include labial?

rhhardin said...

You might want to consider that the social special injury pleading in fact injures the victim much more than the injury itself.

If it's socially taken as no special injury, then it's in fact no special injury.

OnWisconsin1987 said...

It's like changing from "murder" to "homicide."

No it's not. Homicide is simply the broad category of all deaths brought about by non natural causes. They range from negligent homicide (usually a misdemeanor) to involuntary and voluntary manslaughter to murder to capital murder.

Also, with this change what can we now say about about the Todd Aiken "legitimate rape" comment?

Mary Beth said...

What do prosecutors (and legislators) want? Give them what they ask for....

I don't think the demands will ever end.

Aridog said...

...the change Lydia Cuomo is seeking could make it both harder to convict rapists and more difficult for judges to apply sentences consecutively, thereby maximizing prison time.

To this layman, that sounds about right. Why is there a need to classify Forced Anal Sodomy and/or Forced Fellatio as "Rape" for the purposes of prosecution. "Rape" is commonly [as ion a jury's mind] considered to be forcible vaginal penetration by a penis or other object. All of it is assaultive conduct, with sexual battery included, and given that force is established, why can't the actual terms for the acts be used in the law(s).

No to be cruel, but is the law intended to punish violent aberrant behavior or to give a victim some form of ambiguous closure. I acknowledge that as a man I can't fully grasp it all...but I will listen.

[...under an alternative...] Prosecutors instead would have to meet a less onerous standard of vaginal contact, which is the same threshold used for criminal sexual act.

Oh, hell no, THAT just makes fake "rape" charges [those from hindsight after consensual sex] even easier to carry off.

THAT does the opposite of what Ms Cuomo is asking...it diminishes rape per se.

OnWisconsin1987 said...

It's like changing from "murder" to "homicide."

No it's not. Homicide is simply the broad category of all deaths brought about by non natural causes. They range from negligent homicide (usually a misdemeanor) to involuntary and voluntary manslaughter to murder to capital murder.

Also, with this change what can we now say about about the Todd Aiken "legitimate rape" comment?

campy said...

What would be considered proof of vaginal contact?

The woman's story. She would never lie.

Chip S. said...

Also, with this change what can we now say about about the Todd Aiken "legitimate rape" comment?

Well, we can still say it was incredibly stupid, just like before.

We can also say that it cost the GOP a Senate seat that seemed like a sure win before that dipshit won a 3-way primary with a plurality.

Ann Althouse said...

"Why do Western women think a sexual injury is so much more important than any other kind of injury?"

That's a question that assumes a fact. (Compare: When did you stop beating your wife?)

Here's a thought experiment for you if you really think the issue is so hard to understand. You will be given a choice between these 2 injuries. Pick one:

1. A man you don't know and don't have any reason to like will penetrate your anus with his erect penis and persist with this activity until he ejaculates inside you.

2. The exact amount of pain involved in that anal penetration will be calibrated and we have a machine with a robot fist that will be programmed to deliver a punch in the chest that inflicts exactly that amount of pain.

edutcher said...

To a certain extent, the Demos are once again defining distinction without difference in the name of catering to the feminazis and the homosexuals.

They're just redefining sodomy.

Ann Althouse said...

We are talking about something that is not consensual and it's also not funny.

No, but what the Patroon class seeks to do about it is.

These are, after all, the people who ridicule the Christers and Conservatives over what they say about rape all the time.

Shouting Thomas said...

1. A man you don't know and don't have any reason to like will penetrate your anus penetrated with his erect penis and persist with this activity until he ejaculates inside you.

This happens with stunning frequency.

In fact, back in the days when I dealt with such issues, I remember reading that men are raped in greater numbers than women, in precisely the way you've suggested.

You've also muddied the waters by referring to "pain," which I did not refer to.

Go back and read carefullly this time.

Mitchell the Bat said...
This comment has been removed by the author.
The Drill SGT said...

Along with mary Beth, I'm confused as well:

Young’s alternative would no longer require that penetration of any sort be proven for a rape conviction. Prosecutors instead would have to meet a less onerous standard of vaginal contact, which is the same threshold used for criminal sexual act.

Contact with what? penis, mouth, hand? what constitutes the element of proof for this 'new rape'.

'contact'? direct contact? or indirect through clothes?

Let's get real equal then. If a female gropes a man in the future, that looks like it ought to warrant a rape charge if touching a vagina is rape.

methinks this new rape definition is going to further blur the line in the area of 'date rape' which is already very fuzzy. Any heavy petting is now forcible rape, if the victim decides it is?

Inga said...
This comment has been removed by the author.
Michelle Dulak Thomson said...

What Mary Beth (9:45) said. I am getting the feeling here that some people do not know just what bit the vagina is. You can't have "contact" without "penetration." Just sayin'.

I'd go with Simotas here; it's absurd that it's legally impossible for a man to have been a victim of rape in NY.

Mitchell the Bat said...

Comment deleted. Made redundant by Althouse's 9:51 AM. That is all.

rhhardin said...

Deal with it like a man, as the saying goes.

ricpic said...

As if calling involuntary anal or oral intercourse rape as opposed to continue calling it sexual assault is going to allow the victim to heal faster. To the extent that healing happens it will happen only because of the passage of time. The great doctor is time, which can't be rushed; it's not terminology.

Shouting Thomas said...

Althouse, you've lived an incredibly soft life.

Until I was 16 years old, I was often involved in fights that carried the threat of dying from injury. Some of these fights were the result of ambushes by men who just plain wanted to kill me.

Believe me, the threat of death is worse than the threat of anal rape.

I don't dwell on the pain of my injuries, nor do I dwell on the memories and a desire for "closure," whatever the fuck that might be.

Inga said...

Rape is penetration, vaginal, oral, anal. Little boys and men can be raped too. To broaden the charge of rape to non penetration seems like overkill. Why not call that type of forced contact sexual assault and have a lesser charge?

ST, I'm sorry your wife suffered such a rough life in the Philippines. Western women may be more sensitive to sexual injury, who knows? BUT I think that women who haven't had bad things happen to them in childhood view sexual violence as more traumatic. Perhaps that sentiment was unique to your late wife. Maybe I'm wrong and it is cultural.

kentuckyliz said...

"Vaginal contact"?

What is a vagina?

Serious question. In the narrow medical definition, it is the internal tube part of the structure, not including the labia or clitoris.

In a non-medical generic use, it refers to that whole general area. A lot of people refer to vulva as vagina.

If vagina is taken in a medical sense, then penetration is required.

Forced oral and anal should count as rape. Those are destructive and distressing when nonconsensual.

Nonconsensual vaginal penetration is sometimes legitimate. Guess what I'm referring to. (Just wanting to kick the hornet's nest here.)

Ann Althouse said...

""It's like changing from "murder" to "homicide." No it's not. Homicide is simply the broad category of all deaths brought about by non natural causes. They range from negligent homicide (usually a misdemeanor) to involuntary and voluntary manslaughter to murder to capital murder."

I'm saying making forced penetration of an orifice into one of the subcategories of "sexual assault" is like making murder one of the subcategories of "homicide." It's a renaming and a grouping with other lesser crimes. Is that the way we want the statutes to read or not?

Chip Ahoy said...

It's about seeing something should be done then suddenly the whole wish list pops out. That was my favorite part.

What women tell you they want never ends because they want to keep talking.

Thank you Belgian sheepdogs for showing me two things are a pattern. But that whole time I was thinking about gun regulation and my own state's legislation suddenly talking about that and passing laws that threaten local industries, so that was really three things, and the caterwauling about health care system needing to be fixed resulting in the rug being snapped from under the whole system, so four things, and a visible year-long war for cosmetic taxes on wealthy to disguise actual taxes on everybody else and named anything but taxes altering all citizen's lives significantly so that's five things, and civil unions for gay couples, so six things, contraceptives for everyone even children and abortions on demand so seven things, frustrating and killing off brown industries so eight things, strengthening and organizing government labor unions for the advantage of Party so nine things, you know what? I must get something to eat, this pattern thing is tiresome.

RigelDog said...

Pennsylvania deals with this by categorizing oral and anal penetration as involuntary deviant sexual intercourse (IDSI). Carries the same penalty as vaginal rape. Also, penetration is defined as any penetration, however slight, thereby addressing to some extent the vaginal contact definition that some in New York are now trying to add to their crimes code. The linked article was very frustrating as it was vague and incomplete in its descriptions of the various proposals and of the pros and cons of each.

Lem said...

I guess I've been won over by the force of Althouse's argument.

Michael K said...

I thought the definition of rape was heterosexual marriage.

Lem said...

That was my favorite part.

Its funny... you name popped up in my head when I read that.

Shouting Thomas said...

ST, I'm sorry your wife suffered such a rough life in the Philippines.

It's an odd thing, Inga, but my wife never saw her life in those terms.

She thought she lived a life of high drama, excitement and adventure.

And, I agree with her.

Chip S. said...

I don't dwell on the pain of my injuries, nor do I dwell on the memories

Now you're on to something.

The point is that rape victims don't have this option, b/c the memory of it is stirred when they subsequently engage in voluntary sexual activity.

The emotional connection they want from any subsequent partners is made much more difficult to attain.

SGT Ted said...

BLUF

It's the Special Pleading based on emotions.

There is already plenty of societal condemnation and legal punishment of rape, to the point that they conduct rapist witch hunts in our Universities, the targets being male.

The problem of false rape charges made by vengeful women increasing with an expansion of the term rape is the argument against changing the law. The description to the jury of the actual crime committed will carry it's own weight, whether its called sexual assault or rape.

bagoh20 said...

So if a woman or a man agreed to one type of penetration, but not the other, it would still be a rape, but is that rape rape like the kind where a completely unknown man breaks into a home and rapes a woman. This is where I see a need for delineation. The romance/sexual dance is so blurry that there needs to be a different crime separate for the stranger from the guy you were screwing, but who just misunderstands your boundaries and which signs to take literally, and which ones she hopes you ignore.

The problem I see in the law is that terms are too broadly interpreted rather than too narrowly. You can become publicly identified as a "sexual predator" today without preying on anyone.

Dante said...

So many things wrong with this.

A) why the woman has to look to a legal definition to get satisfaction. Maybe the problem is the punishment wasn't enough. Chop his balls off. Especially since he was a cop.

B) Let's make a new class of crime, every bit as bad as rape, for some horny youngster who sticks his hand down a girls pants and touche her pussy. He finds out she doesn't like it, and now it's as bad as if he really raped her. Easier to prosecute, yes, easier to screw up lives, yes. Damage done? Well, I'm not a woman, but I would guess it isn't as bad as a guy forcing his dick in you.

C) Also, we learned from Bill Clinton that oral sex is not sex. I haven't been raped, and I'm not a woman, but I suspect that oral sex or forced masturbation isn't as bad from many aspects as having someone force his dick into your vagina or rectum.

Now, one has to love this rationale. Let's recall that forced oral, anal, or vaginal sex has the same penalty:

“Those who commit a sexual assault need to be punished for their actions, and victims need to be protected,” added the official, who has spoken directly with Cuomo on the matter. “We’re going to work with all parties to get this legislation done and once and for all make sure that no one falls through the cracks in New York.”

How does this make any sense? The penalty is the same.

Perhaps if we provide a big "R" that women who have had unwanted sexual advances, it will be as good as throwing the guy in jail.

Ann, help me out here. I do not understand this at all.

Shouting Thomas said...

The point is that rape victims don't have this option, b/c the memory of it is stirred when they subsequently engage in voluntary sexual activity.

Why would you assume this?

In my experience (and I do have the experience), this is simply not true.

SGT Ted said...

I do, however, think forced oral and anal should count as rape as well.

But, just "contact"? No, thats attempted rape.

Chip S. said...

Why would you assume this?

I really hate the abuse of the word "assume" on this blog.

I'm not assuming anything. I'm reporting what I've learned from a rape victim I knew.

The fact that someone else's statements don't match up w/ your experience doesn't make them incorrect, ST. It just makes them different.

JHapp said...

The word rape, like the word marriage has special meaning for those of us who are not theophobic.

garage mahal said...

I guess I've been won over by the force of Althouse's argument.

Pardon the pun.

Put me down for Option #2, the robotic fist hitting me in the chest versus the alternative.

RigelDog said...

By the way, I am not convinced that it is important to call all forced penetration by the specific word "rape." In the Cuomo case, we don't know why the jury found as they did; juries do inexplicable stuff every day. Maybe the evidence that the victim was vaginally penetrated was insufficient.
If the law is changed to call all penetration rape, you will probably have more illogical jury verdicts because some jurors will be confused by the terminology. They might also be more willing to find just one count of "rape" and leave it at that, thereby shortening the potential sentence that could be imposed on multiple, different counts. Unintended consequences; and if it ain't broke, don't fix it.

Lem said...

Consent is paramount.

rhhardin said...

We’re going to work with all parties to get this legislation done and once and for all make sure that no one falls through the cracks in New York.

There's a bad choice of words there.

lgv said...

Althouse said, "I don't think characterizing her as unusually sensitive makes much sense here."

Cuomo said, "She said such an outcome makes it harder for the victim to heal."

I think Cuomo's comment may elicit the sensitivity crack.

The real issue is the legal definition of rape. Should it include anal and oral penetration? This is being addressed because the definition of "sexual assualt" has been been broadened to include all sorts or things ranging all the way to anal penetration. She's upset because sexual assault doesn't connotate the same level of evil as rape.

Now, prosecutors want to dumb down rape to include touching. Does this include touching the vaginal area with a hand (without penetration)? Does this include fondling the ass (again without penetration)? Can it go both directions, e.g. woman who "touches" a man's genitalia considered rape?

Broadening the definition of rape will just result in fewer convictions for rape. It's like having mandatory 25 year sentences for minor offense "X" will result in lesser convictions rates for the crime of "X". This in turn leads prosecutors to plea bargain or opt for a lesser offense.

SJ said...

@ST, @Inga,


ST, I'm sorry your wife suffered such a rough life in the Philippines.



I suspect that what ShoutingThomas is talking about it not personal experience, but how the women of that culture think about assault(non-sexual) vs. assault(sexual).

I have no experience on this subject; I just suspect that different cultures have different levels of "most damaging injury".

It may be that Philippine culture sees lots of injury and death in ways that are not common in American culture. Thus leading to a different calibration of danger to self.

Or that the Philippine cultural expectation of sexual assault doesn't include potential murder. Does the American cultural narrative about sexual assault always bring murder along with it? I think I've seen two narratives about rape in American culture; one is rape-plus-murder, the other is rape-leaves-victim-with-shattered-personality.

It may be that Philippine women see or hear of coerced sexual contact more often than American women do. Or that their culture thinks about sexuality and individual identity differently.

Just spit-balling here. But this is one of those places where cultural expectations can run into lots of misunderstandings.

phx said...

The fact that someone else's statements don't match up w/ your experience doesn't make them incorrect, ST. It just makes them different.

Chip S. you are more and more like a cultural relativist every day. Next you're going to be giving us all trophies.

phx said...

Just kidding Chip S.

Michelle Dulak Thomson said...

rhhardin,

There's a bad choice of words there.

Dammit, beat me to it. In the context of anal rape, it's really not a good idea to use "fall through the cracks" in your statement.

Chip S. said...

Next you're going to be giving us all trophies.

That reminds me--where are those stinkin' badges?

Rick said...

Great point professor, and it leads to the question of why a penis needs to be involved. Shouldn't penetration of a mouth by an unwanted tongue be rape, and shouldn't tongue to lips contact be rape, even without penetration. Why do we protect one set of lips but not the other? We are just now beginning to see how wrong western culture has been for centuries. We are progressing.

Michelle Dulak Thomson said...

Chip Ahoy,

[...] and a visible year-long war for cosmetic taxes on wealthy to disguise actual taxes on everybody else [...]

I swear I read that initially as a call for cosmetics taxes on the wealthy, and thought, "Hey, great idea! You could balance the budget with the expenditures of the San Francisco socialite community alone. Heck, just stripping a few layers off Nancy Pelosi ..."

Alas, then I realized what you meant. Sigh.

Michelle Dulak Thomson said...

Ann,

Nonapod, this post is not about statutory rape. We are talking about something that is not consensual and it's also not funny.

Point of information here. My understanding of statutory rape is that it is classified as "rape" because minors can't legally consent. Am I wrong?

Bruce Hayden said...

So if a woman or a man agreed to one type of penetration, but not the other, it would still be a rape, but is that rape rape like the kind where a completely unknown man breaks into a home and rapes a woman.

Sounds an awful lot like what happened with that athlete from LA whose name sounds like a type of beef over the pass in Vail a couple years back. She wanted it vaginally, he gave it to anally (only the wife gets it vaginally), she cried rape, he was arrested, and never convicted. Had to go to court in Eagle during that time, and saw the media spectacle first hand (had to show my CO bar card to get in the door).

But, that really does bring up a good problem. She says she wants it. He shoves it in. She says "not there", and cries rape. Consent? Not clear, esp. since the standard most likely has to be from his point of view.

Joe said...

There is another aspect about this that struck me; the increasingly common notion that the primary purpose of sentencing is for the benefit of the victim.

traditionalguy said...

The notion that a woman needs protection from predators is not going to disappear by conflating the crime of rape of a woman with sexual assaults as small as touchings without consent.

But categorizing a woman as trailer trash might work. Who can blame an elite man for misusing a commoner.

bgates said...

We are talking about something that is not consensual and it's also not funny.

Not laugh-out-loud funny like a man who (he says) accidentally killed a woman facing life in prison and being unable to even think about fleeing because (here's the funny part) he had both his legs amputated.

Bruce Hayden said...

One problem that I see is that heavy petting will now be criminalized under a liberal interpretation of the vaginal contact standard. Heck, if the guy puts his leg between hers, that could count.

And, the young women today wonder while they can't find a decent guy, and instead find themselves forced into the hookup culture. Used to be that you would build up, over a period of time, to ultimately having sex - but that invariably required the guy to push a bit. Back in college, it took me once most of a semester. More recently (i.e. 25-40 years later), most of the women I have spent time with over the last had a 3 or 4 date rule. But, that would now be potentially criminal, if the woman were to take affront of the guy pushing things a bit. So, no romance. No build up. Just sex fully consented to up front.

bgates said...

This is a woman who was forcibly penetrated in 3 orifices by a NYC cop in 3 orifices

Does the giant in whose orifices the other forcible penetrations happened have a case?

Jay said...

RigelDog said...

Pennsylvania deals with this by categorizing oral and anal penetration as involuntary deviant sexual intercourse (IDSI). Carries the same penalty as vaginal rape.


Yes.

Apparently taking this approach is too complicated for these feminists.

Trying to posture as the toughest against rape! Is apparently the goal here...

CachorroQuente said...

"But, that really does bring up a good problem. She says she wants it. He shoves it in. She says "not there", and cries rape. Consent? Not clear, esp. since the standard most likely has to be from his point of view. "

Seems pretty obvious that consenting to vaginal intercourse is not consent to anal intercourse, but what do I know. Shouting Thomas, apparently, has experience in such matters. Perhaps he will explain.

bgates said...

it leads to the question of why a penis needs to be involved

That's something of a theme in feminism, Rick.

gregq said...

1: What Lydia Cuomo seems to have missed was that, for whatever reason, the jury wasn't willing to say that the guy raped her. They WERE willing to say he "sexually assaulted" her.

What's more important to her: trying to get the jury to say the guy "raped" her? Or trying to get the guy punished for his crimes?

Or is this one of those "he said / she said" situations, where she's more interested in "validation" than punishment, and it may be that the guy wasn't actually guilty of any crime at all?

2: Gee, they want to "lower the burden of proof" in rape cases. Now I'm definitely on the other side. No, it's not "rape" if you changed your mind afterwards.

Bruce Hayden said...

Seems pretty obvious that consenting to vaginal intercourse is not consent to anal intercourse, but what do I know.

But, that was the Kobe Bryant case in a nutshell.

Renee said...

Agreeing with Igna here..

Assault and battery are all wrong, but with sexual assault and batter and rape, it is taking something of humanity that is suppose to designed as pleasurable and life giving into something about dehumanizing power and control to shame a victim.

You have a temper you can't control, and you punch someone in the face. Yeah, that's really wrong. But to step it up now and use sex as a weapon, that's another level of evil for the majority of us we can't wrap our heads around.

Ann Althouse said...

"Point of information here. My understanding of statutory rape is that it is classified as "rape" because minors can't legally consent. Am I wrong?"

Well, you're sort of turning it into a tautology. "Can't" ... is right if you mean the statute makes it a crime based on the age, regardless of consent, so that it's not an element of the crime to prove nonconsent and consent isn't a defense. In statutes, you define the crimes.

You might be driving at the idea that the law needs to decide a specific age at which children become adults and hence responsible for their contracts, able to consent to an abortion, able to consent to sex, etc. But these ages could all be different. It's defined by statute and could be changed.

(Voting age is in the Const.)

Ann Althouse said...

"This is being addressed because the definition of "sexual assualt" has been been broadened to include all sorts or things ranging all the way to anal penetration. She's upset because sexual assault doesn't connotate the same level of evil as rape."

No, under the current NY law, penetration by force in any of the 3 orifices is the same level of crime, but the word "rape" is only used for vaginal penetration.

"Sexual assault" has different degrees, but the degree where you find force oral/anal penetration has it as the same level punishment.

So the dispute is about naming things, not how the crime is punished.

The shame embodied in the name is part of how society expresses its outrage about what happened, and a defendant capable of feeling shame might feel worse about a rape conviction than a sexual assault conviction, but the prison time is the same.

Ann Althouse said...

"What Lydia Cuomo seems to have missed was that, for whatever reason, the jury wasn't willing to say that the guy raped her. They WERE willing to say he "sexually assaulted" her."

Yikes. That assumes the jury didn't understand the instructions about the crimes.

One more reason to use the same word for the same thing... unless NY wants to say it's NOT the same thing (the vagina is special).

CachorroQuente said...

"(Voting age is in the Const.)"

Sort of. Constitution says, in effect, that minimum voting age must be no more than 18. Says nothing whatsoever about younger ages.

AprilApple said...

I hope they consulted with Whoopie Goldberg first.
There's rape and then there
's rape rape.

Astro said...

Slightly off topic I suppose, but it occurs to me that rape is an issue troubling for women ('Not Funny') but which men will sometimes joke about.
And...
The equivalent for men is not male rape, but cutting off a man's penis. I think most men are troubled by the idea of that happening ('Not Funny') but women will sometimes joke about it.

Bryan C said...

"It suggests that vaginal penetration has special meaning. It is different in that it can result in pregnancy (and in a virgin, there is a hymen that can be broken)."

STDs also. Yes, those can be spread via any orifice, but not all are equally susceptible to all types of infection. And vaginal infections are unique in that they can permanently damage the victim's reproductive system.

The Cuomo case aside, this seems like it would still be an important distinction for many women.

Would a woman who was forcibly penetrated vaginally, with ejaculation and the subsequent fear of pregnancy, resent the implication that oral or anal penetration are exactly the same?

I suspect it wouldn't be long before someone demanded that "vaginal rape" be made a specific crime.

Bender said...

One more reason to use the same word for the same thing... unless NY wants to say it's NOT the same thing (the vagina is special).

By all means, let's make sure that "rape is rape" under the law. But that would mean not saying that penile-anal penetration or penile-oral pentetration is the same thing as penile-vaginal penetration.

Most people - except for law professors and Democrat legislators - can tell you that the anus, mouth, and vagina are not the same thing. They are different things.

Once upon a time, words meant something, and the word "rape" meant something - it had a precise definition for hundreds of years. But this latest silliness is all of a piece with the continuing redefinition of words. Words no longer mean anything. If they were honest, they would call this the "not-rape is rape" bill.

Michelle Dulak Thomson said...

Ann,

Well, you're sort of turning it into a tautology. "Can't" ... is right if you mean the statute makes it a crime based on the age, regardless of consent, so that it's not an element of the crime to prove nonconsent and consent isn't a defense. In statutes, you define the crimes.

You might be driving at the idea that the law needs to decide a specific age at which children become adults and hence responsible for their contracts, able to consent to an abortion, able to consent to sex, etc. But these ages could all be different. It's defined by statute and could be changed.


What I'm getting at is that the theory behind the crime of statutory rape is that people below a certain age aren't capable of freely consenting to sex. Granted that there's a lot of fiction in the theory, as shown by all the happily hooked-up teenagers who are (statutorially) simultaneously victims of and perpetrators of statutory rape; it's taken for granted that two 15-year-olds bonking away aren't sex criminals.

Would there be such a thing as statutory rape without the theory that minors can't give consent to sex? That would put every adult/child case back into the "S/he said/s/he said" category, with the bonus of one party being a child.

Shanna said...

Rape emotion is from a pre-feminist era.

I don’t know if you are serious or not, but this is bullshit.

Believe me, the threat of death is worse than the threat of anal rape.

We’re not talking about threat of. Actual murder generally carries higher punishment than rape.

Rape is penetration, vaginal, oral, anal.

This is my view, generally, however I don’t think it hurts anyone for a crime to be called ‘sexual assault’ rather than rape, particularly if the penalties are the same. I am curious how they had evidence to convict for oral and anal but not vaginal. I think she’s probably really just pissed that he was not convicted for that crime.

gregq said...

Ann Althouse said...

GregQ said: "What Lydia Cuomo seems to have missed was that, for whatever reason, the jury wasn't willing to say that the guy raped her. They WERE willing to say he "sexually assaulted" her."

Yikes. That assumes the jury didn't understand the instructions about the crimes.

One more reason to use the same word for the same thing... unless NY wants to say it's NOT the same thing (the vagina is special).
<<<

You've missed my point, Ann. From what you quoted, and what I read in the paper, it does NOT sound like this is "she was walking down the street, he jumped out, stuck a knife to her throat, and raped her." If for no other reason than she wouldn't be babbling about "it makes it harder to heal" if the jury didn't call it "rape".

So, they were on a date / they were hanging out together / they met at a bar and then went somewhere else, something happened, and she goes to the police, charging rape.

Now, the reason prosecutors are opposing this change is because they think that in cases like Lydia Cuomo's, the jury will be less likely to convict if they have to take "he said - she said" and turn it into "rape". That may be a totally emotional and wrong-headed reaction. But you don't get to dictate other people's emotions.

"They went to bed together, things got out of hand, he pushed too far and needs to be punished, but what he did isn't the same thing as jumping a girl walking down the street and raping her." Whether you like it or not, there's a fair number of people who think that way. So you can either acknowledge that, and keep NY's rules the way they are, or rage against it, change NY's rules, and have guilty people walk free, or get convicted of far less than they did, because one or more people on the jury disagree with you.

As for facilitating Lydia Cuomo's "healing": if you need a government pronouncement in order to feel good about yourself, the problem is with you, not the law.

(Note: if you walk down a dark alley in the middle of the night, because you didn't want to walk the extra block to get to a well lit and populated street, and you get mugged in that dark alley, you made a bad choice. The mugger is still a criminal, and should still be punished, but YOU should learn something from the experience, too. Likewise if you take a guy home from a bar, agree to have sex with him, and then he forces you to have anal sex as well, you've been sexually assaulted, and he should be punished.

But you have something to learn from that experience, too. And it's not that the law needs to be changed.)

Renee said...

gragq,

no means no. ok. even like when you're married and share the same bed, no means no. ok.

so does stop, stop means stop.

rhhardin said...

"Rape emotion is from a pre-feminist era."

I don’t know if you are serious or not, but this is bullshit.


Why?

Women's political and citizenship game has to be raised to men's level if you want to be taken seriously as adults.

Why not call it assault, which is what it is, without the childlike protection women were thought to be entitled to long ago.

Make a choice.

Bruce Hayden said...

no means no. ok. even like when you're married and share the same bed, no means no. ok.

Except from time immemorial, the way it really works is that males push, and females resist, until they don't any more. And, a good part of the time, the females seem to feel that they need to put up a decent amount of resistance, even if they think that they are going to go all the way, just so that neither they nor their sexual partners think that they are too easy.

Part of the problem is that - that something that is too easy is often discounted as not being as valuable as something that is harder to obtain. So, resisting increases a female's worth in the view of her sexual partner, and, with maybe even herself.

gregq said...

Wow, Renee, once you read what I wrote, did you bother to think for even a tenth of a second? Or did you just go straight to emotion land (yes, that's a worthless place to be when discussing matters of public policy)?

Yes, Renee, no means no. Stop means stop. If you married someone who doesn't understand that, you screwed up. If you chose to climb into bed with someone who doesn't understand that, you screwed up.

If you can't take ownership of your screwups, then you aren't an adult, and you shouldn't be having sex in the first place.

There is a moral difference between accidentally killing someone, and deliberately murdering them. There is a moral difference between climbing in to bed to have consensual sex with someone, and then powering through a belated "no", and grabbing a woman off the street, sticking a knife in her face, and using the threat of that knife to rape her.

All of the above are wrong. Nevertheless, if you can't see any difference in the level of wrong, you need to get out of your doctrinaire black and white world, and discover some shades of gray. And not the book kind.

Renee said...

I read what you read.

" There is a moral difference between climbing in to bed to have consensual sex with someone, and then powering through a belated "no", and grabbing a woman off the street, sticking a knife in her face, and using the threat of that knife to rape her."


It's all the same no.

Grabbing someone off the street and sticking a knife in their face even without the threat of rape or theft, for instance is still a crime.

What if it wasn't rape, but someone who just wanted the money in a man's wallet that is located in his back pocket. Stealing is stealing, by knife point in a dark alley or taking it by force in his living room where the thief was invited as a guest in his home.



gregq said...

Renee writes:
"What if it wasn't rape, but someone who just wanted the money in a man's wallet that is located in his back pocket. Stealing is stealing, by knife point in a dark alley or taking it by force in his living room where the thief was invited as a guest in his home."

Both would be crimes. But in the second case, you screwed up by inviting the guy into your house, and you need to question your judgement about letting him in.

BTW, the first one is armed robbery, and the second one is theft. And we punish the first with higher sentences than we punish the second.

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