This article is written by Sanjana Santhosh, a law student at Christ (deemed to be University), Bengaluru. The article defines and analyses the current legal stance of sexual assault in the United States along with the historical development of sexual assault statutes in the US. The article further examines the commencement and features of various statutes against sexual assault under American law.

It has been published by Rachit Garg.

Introduction

Sexual assault is disturbingly widespread in the United States. An estimated 300,000 women are victims of sexual assault each year. Around 1.2 to 3.7 million people experience unwanted sexual advances each year.  Moreover, roughly 900,000 children are maltreated annually, and 9% of those youngsters are sexually assaulted.

In light of the psychological and physiological effects it has on victims, sexual assault is not exclusively a public safety issue. Prevention strategies must therefore remain a central component of policymaking. The focus on sexual assault has been legislated throughout the past 14 years; however, whether or not these laws have reduced the occurrence of sexual violence is debatable.

Sexual assault is a major issue for public safety in the USA. Legislators have introduced regulatory legislation to reduce recidivism among sexual offenders in an effort to lower the overall rate of sexual assault. Due to this, sex offenders in the United States are subject to a wide range of regulations, including mandatory registration, public notification, GPS monitoring, civil commitment, and restrictions on where they can live, socialize, and even access the Internet. Multiple repercussions have resulted from these measures, making it difficult to reintegrate successfully and possibly increasing the chance of recidivism. In fact, research into the efficacy of these laws reveals they may do more harm than good by failing to prevent recidivism or sexual violence.

What is sexual assault

The general definition of sexual assault is a non-consensual assault on a person with sexual intent. Yet, the legal meaning of this phrase varies from jurisdiction to jurisdiction. It’s important to note that in some jurisdictions, sexual assault is synonymous with rape, forced sexual intercourse, and sexual contact without consent. When it comes to sexually motivated crimes, other jurisdictions may not have a specific term for what we call ‘sexual assault,’ but rather terms like ‘rape,’ ‘criminal sexual penetration,’ ‘criminal sexual contact,’ or ‘sexual battery.’

The term ‘sexual assault’ refers to any unwelcome sexual contact that is initiated or achieved against the victim’s will or when the victim cannot assent due to age, disability, or the effect of alcohol or drugs. Any of the following can constitute sexual assault, whether they involve the use of physical force, weapons, coercion, intimidation, or pressure:

• Intentional contact with the genitalia, anus, groin, or breasts. 
• Voyeurism (the conduct of obtaining sexual gratification by secretly watching other individuals engaged in intimate activity).
• Being among showoffs can be a source of stress.
• Being exposed to pornographic material without permission.
• The wide dissemination of intimate or unsolicited photographs of a person.

Different states and organizations advocate for different legal interpretations of ‘rape.’ In most jurisdictions, rape is defined as the non-consensual oral, anal, or vaginal penetration of the victim by body parts or objects, with the use of force, threats of bodily damage, or the taking advantage of a victim who is incompetent or unable to give consent. A person’s ability to grant consent is revoked in the event of incapacitation, which can take the form of a mental or cognitive handicap, voluntary or involuntary intoxication, being a minor, or any other condition stipulated by law.

Complex and ever-changing, the rules against rape and sexual assault are difficult to navigate. In its earliest forms, rape was not intended to be committed against a person but rather against their property. Therefore, only forcible penile/vaginal penetration was considered a crime against unmarried virgins because it was directly tied to patriarchal inheritance rights and a female’s reproductive capacity. These regulations have developed over time, yet some of their quaint antiquity is still visible in their details.

Historical developments of sexual assault laws in the US

The United States Government has recognized April as “Sexual Assault Awareness and Prevention Month“, sometimes addressed as SAAPM since 2001. Recently, stories about sexual assault and harassment have been all over the news, from Trump’s controversial comment to the flood of assault charges against Harvey Weinstein. The #MeToo movement has been on the front line, with women (including well-known actresses) speaking up about their experiences with sexual assault. The taboo around sexual assault is being broken by bringing formerly hidden information to light.

Their sense of safety is eroding as quickly as that of the rest of society. Many businesses and organizations have been quick to distance themselves from men who have been accused of sexual misconduct as the #MeToo movement gained momentum. After a two-month investigation into many allegations of sexual harassment by female employees, NBC dismissed its “crown jewel”, Matt Lauer, in November 2017. Kevin Spacey was let go from Netflix’s smash original series “House of Cards” after actor Anthony Rapp claimed that Spacey made sexual overtures toward him when Rapp was only 14 years old. Some companies and organizations have been a source of inspiration for employees and customers by adopting a more ethical stance. Although rape is recognized under the law as a particularly serious offense, offenders have not always been punished as severely as they could have been.

The rape of a virgin was regarded as an act of property harm against her father in the Code of Hammurabi, one of the earliest legal codes. For a long time, a husband’s or father’s rape of his wife was seen as a theft of the man’s property. The original meaning of the term was “to seize,” which the Latin word “rapere” translates to. Rape was first recognized as a serious and violent sexual crime in the eleventh and twelfth centuries. When the Statutes of Westminster were passed towards the end of the 13th century, rape was first recognized as a crime against the state rather than only against the victim’s family.

In the early American colonies, “carnal knowledge of a woman 10 years of age or older, obtained forcibly and against her will” was the common-law definition of rape. Late 1800s morality and feminism advocates successfully pushed to increase the legal age of consent from 10 to anywhere from 14 to 18 years old. It should be noted that not everyone applauded this development with open arms. A Kentucky lawmaker from 1895 stated, “I see the twelve-year-old girl as capable of rejecting the wiles of the seducer as any older lady.” The situation was much grimmer for women of color. Most states did not include free and enslaved black women in their rape statutes until the late 1800s. As a result of the widespread prevalence of violent sexual abuse, many slave women became pregnant. A slave female would receive severe beatings if she tried to defend herself against such maltreatment. A black woman could not bring a rape accusation against a white man until 1861.

Almost a century later, during the second wave of feminism, the issue of violence against women rose to the forefront, giving rise to the Anti-Rape campaign. American rape legislation made tremendous strides beginning in the 1960s. The need to assert power over women led to the development of rape as a weapon during this time. Many countries did not criminalize the rape of a spouse by a spouse until the 1970s. In 1976, however, Nebraska became the first state to criminalize rape within a married couple. All 50 states had made it illegal to rape a spouse by 1993.

Perhaps the most noticeable alteration occurred in 1975 when Congress added Rules 412, 413, 414, and 415 to the Federal Rules of Evidence. In states with what is called “rape shield” laws, the defendant is barred from investigating the alleged victim’s sexual history, behavior, or reputation. Evidence of a victim’s sexual behaviour could be used to cast suspicion on their credibility in cases that took place before 1975. A major deterrent to reporting sex crimes was the fear of public shame and embarrassment if victims’ sexual histories were brought up in court. Due to this reason, Rules 412-415 under the Federal Rules of Evidence were brought in, where the evidence of a victim’s sexual past cannot be used to discredit him or her, with very few and narrow exceptions. 

The laws that protect victims of sexual violence, harassment, and abuse are getting better. 41 of the 50 states, including Arkansas, have passed legislation known as “revenge porn” laws that make it illegal to distribute sexually explicit photos or films without the consent of the subject. What is certain is that maintaining sexual assault and harassment as an issue in the public debate is essential to making further progress. Eventually, lawmakers may pass legislation that directly addresses these issues in response to the growing number of experiences that are being shared and the increasing number of men who are participating in this debate.

Elements of sexual assault crimes

In order to make an accurate comparison of the various laws, the analysis focuses on the specific components of each statute and their respective definitions. This is done rather than examining the terms that are used to describe the crimes, which can vary greatly and do not offer much in the way of direction regarding the actions that they cover. For instance, behavior that is referred to as “rape” in one region of the country may be referred to as “sexual assault,” “sexual abuse,” or “sexual battery” in other regions of the country. It is pertinent to demarcate the specific meanings of all these terms:

Rape

The offense of rape is committed when one person engages in sexual acts with another by any of the following means:

1. resorting to the use of illegal force;
2. intentionally or knowingly inflicting serious physical injury or death to another person by the use of force;
3. making a serious threat of murder, serious bodily injury, or abduction against another person;
4. Induce the other person’s unconsciousness first; or
5. forcibly, unlawfully, or without the other person’s knowledge or permission providing to them a narcotic, intoxicant, or similar substance that considerably impairs their capacity to assess or control their behavior.

Sexual assault

When any of the following acts are committed, the offender is considered to have committed sexual assault:

a. A sexual act committed on another individual while:

1. threatening or intimidating that individual
2. falsely claiming that the sexual activity is necessary for one’s job; or
3. deceiving another person into believing they are a different individual using any kind of deception, pretense, or concealment;

b. Engages in sexual activity with another person:

1. without that person’s permission;
2. engages in such activity while the other person is sleeping, unconscious, or otherwise ignorant that it is occurring or while the other person is under the influence of alcohol or drugs.

c. Conducts a sexual act against another person when the other person is unable of consenting to the sexual act owing to:

1. being under the influence of drugs or alcohol or another intoxicating or mind-altering substance and being aware of or having cause to be aware of one’s impairment; or
2. a mental disorder or defect, or physical impairment, and such condition is known or reasonably should be known by the individual.

Sexual contact

To establish sexual contact with someone is to touch their vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks, or to cause another person to do so, with the intention to molest, degrade, or humiliate them, or to excite or satisfy their sexual urge.

Force

 Force is said to have been exercised when there is:

1. the use of a weapon, 
2. physical strength or aggression that is sufficient to overwhelm, restrict, or hurt a person, or 
3. inflicting bodily injury adequate to coerce or pressurize surrender from the victim.

Consent

The following circumstances are considered while determining what constitutes ‘consent’:

1. A competent person’s free and informed consent to the action in question. The absence of consent is communicated either verbally or by non-consensual behavior. The absence of rebellion, either vocal or violent, does not establish an agreement. Consent does not include submission to the usage of force or the intimidation of another person.
2. A person who is asleep, unable to communicate, or otherwise unable to give informed permission is said to have not consented. Force that causes or is likely to inflict death or grave bodily damage, or that renders a person unconscious, cannot be consented to by that person.

When one shifts their attention from the terms to the elements, both similarities and differences become readily apparent. Despite the complexities involved, jurisdictions can be categorized and evaluated in the following ways: 

• The scope of regulated behavior, which may include penetration, contact, or mere exposure;
• Whether or not the victim was physically restrained; 
• Whether or not the victim gave informed consent;
• Whether or not the victim had the mental capacity to give informed consent, and
• Whether or not the conduct was intended to provoke sexual arousal or debasement.

The aspects of penetration, touch and exposure crimes share certain similarities but also have important distinctions.

Penetrative crimes

Conduct

The vagina, anus, or mouth may be penetrated by the penis or another body part, or an item may be used to do so. The applicable criminal legislation depends on the following factors: 

• The tool or part of the offender’s anatomy used to enter the victim’s body; 
• The opening in the victim’s anatomy through which the offender gains contact. 

In all legal systems, offenses involving forcible penile insertion into the vagina carry the heaviest penalties. Punishment for non-penetration offenses and crimes involving different types of penetration may be less severe than for other sex crimes, depending on the law of the land. For instance, if a weapon or physical force were employed, that would increase the severity of the crime. 

Various terms, including ‘rape,’ ‘sexual assault,’ ‘sexual abuse,’ and ‘sexual battery,’ may be used to describe offenses involving penile or vaginal penetration. These terms may be further defined as ‘carnal knowledge,’ ‘sexual intercourse,’ ‘sexual penetration,’ or ‘sexual act.’ Further, ‘sexual assault,’ ‘sexual battery’ and ‘sexual torture’ are all terms that can be used to describe the illegal penetration of an orifice other than the vagina by a person’s penile or another body part or object. The only state that refers to male-on-male sexual penetration as ‘sexual assault’ is Idaho.

When it comes to determining whether or not a penetration constitutes a crime, the statutory components are not uniformly defined across jurisdictions. For more insights, case laws, definitions, and provisions of any statute or penal code should be examined. In most countries, a minimal amount of penetration is enough to establish the crime of penetration. However, slight penetration is not included in the statutes of other jurisdictions such as the states of Arizona, Florida, Georgia, Indiana, Maine, Massachusetts, Mississippi, Texas, and Virginia. However, a study of the legal precedent in the given regions demonstrates that not one of them necessitates more than a slight insertion.

Unlawfulness

Unless it is done with force, without consent, or when the victim lacks the capacity to consent, penetration itself is not a crime. Some countries further require that the act be conducted with the intent to abuse, degrade, or humiliate the victim for sexual purposes. The significance of these factors varies from one jurisdiction to another, and this might affect how the sex crime is classified, how the defendant is punished, and the final verdict reached by the court. Elements, especially those related to force and consent, are further polished, modified, and defined inconsistently among the jurisdictions and occasionally do not reflect their respective colloquial definitions. For instance, a study of the laws reveals significant discrepancies in the two main factors that determine whether or not permission was given freely: 

1. Whether or not the victim had the mental ability to assent, and 
2. Whether or not the victim’s consent was voluntary. 

The ability to consent can be affected by a person’s age, relationship with the offender, level of intoxication, mental/physical handicap, physical capacity, and level of consciousness, among other things.

Force

When examining rape and sexual assault laws, the element of force and how it is defined are key to assessing the criminality of actions. There are a wide variety of ways to characterize what constitutes force, and some countries even include such characterizations in their legal definitions of consent. The element of force normally refers to the offender’s behavior, while the issue of consent pertains to the victim’s action; therefore, the overlap can make interpreting these laws difficult. Therefore, it is essential to comprehend the interplay between force and consent and how it influences the independent and interdependent execution of the law. The absence of physical force is a common defense to sex offense charges in the majority of countries. Moreover, even if the issue of consent is not explicitly addressed in a certain statute, it is virtually always a factor in rape and sexual assault trials and is typically brought by the defendant in an attempt to discredit the victim’s testimony. Forcible sexual penetration, whether attempted or completed, is illegal throughout the country. However, the analyses of force in rape and sexual assault laws vary greatly. 

Legal definitions of force include the use of physical force, violence, the use of force necessary to overcome victim resistance, or the use of overt or covert threats that cause reasonable apprehension of death or serious bodily injury to the victim or a third party, or reprisal. Kidnapping, the use of a deadly weapon or another dangerous instrument, duress, menace, violence, physical confinement, superior strength, the threat of extortion, express or implied intimidation and coercion, and deception, such as a perpetrator posing as the victim’s husband, are all examples of force. However, courts interpreting these laws consider the circumstances of the assault in deciding whether or not the evidence presented meets the threshold necessary to demonstrate that force was used. In recent years, there has been a shift toward a broader conception of force that includes but is not limited to physical might. Human trafficking laws are beginning to reflect this shift by including coercion as a formal definition of the crime. Two jurisdictions’ statutes from the early 1990s also reflect this tendency by defining the use of force that is necessary under the law.

In the case of State in Interest of M.T.S. (1992), which was heard by the New Jersey Supreme Court, it was decided that “physical force beyond that which is necessary to accomplish penetration is not required.” The Court came to the conclusion that it would be fundamentally inconsistent with the legislative intent to eliminate any consideration of whether the victim fought back or expressed non-consent to require physical force in addition to that which is entailed in an act of involuntary or unwanted sexual penetration. Some laws define sexual offenses by combining the use of force with other aggravating factors, such as causing serious injury to the victim, committing the crime while committing another crime, assaulting the victim more than once, using a deadly weapon or gun, seeking assistance from someone else, wanting to spread Sexually Transmitted Infections (STIs), or making the assault easier by giving the victim drugs or alcohol.

The culpability of an offense could be increased if any of these conditions apply. Fewer than half of the states and territories require evidence of resistance in order to establish a case of forceful rape or sexual assault, and these include Alabama, Idaho, Kentucky, Nebraska, West Virginia, and the Virgin Islands. Legislation of this type typically stipulates that the victim must have resisted the offender “with all deliberate vigor” or “with all the force at his or her disposal” before the offender can be held legally responsible for any resulting harm. There is no duty to resist in the following jurisdictions: Delaware, Iowa, Maine, Michigan, Montana, New Jersey, Ohio, Pennsylvania, and Guam. When it comes to consent and the absence of force, several countries explicitly state that a victim’s silence or inability to defend themselves does not constitute either. Such states include the UCMJ, the District of Columbia, Florida, Illinois, Minnesota, New Mexico, and Oregon.

Consent

Consent is an essential component in evaluating whether or not an act, such as those covered by rape and sexual assault statutes, constitutes a criminal offense. Non-consent is further broken down into factors that have to do with the circumstances of the assault, like the victim asserting her unwillingness to take part in sexual activity, and considerations that have to do with the victim or the attacker, like age and relationship.

Consent freely given

The two most common considerations in statutory definitions of consent are: 

1. Whether or not the subject freely consented, and 
2. Whether or not the individual had the capacity to assent.

Depending on the law, consent may mean granting permission, providing active cooperation in an act or attitude out of one’s own free choice and with an understanding of the nature of the act, or any combination of these. Consent induced through fraud, coercion, or compulsion to submit owing to the use of force or fear of force are all examples of lack of consent. In some jurisdictions, the offender must have had prior knowledge or reasonable suspicion that the victim did not provide their consent. The absence of resistance from a victim, the victim’s current or previous social relationship, or the victim’s manner of clothing with the perpetrator are all factors that are explicitly stated in some statutes do not indicate consent. There are legal systems that rule out consent given by a victim who was misled into giving it.

Affirmative consent

The District of Columbia, Minnesota, New Jersey, Washington, and Wisconsin are among the few states that treat sexual intercourse or acts as consenting only when they have been explicitly authorized by the parties through words or other overt behaviors indicating agreement. In these regions, consent is defined by law or legal precedent as an express or implied agreement to engage in sexual activity.

Capacity to consent

There are many factors that go into determining whether or not a person lacks the mental ability to give informed consent to sexual penetration and contact under the law. Some examples of these are age, mental or physical disability, unconsciousness, and/or the effects of drugs or alcohol. The ways in which these concerns are codified into law vary widely among jurisdictions. Some jurisdictions’ statutory descriptions of the elements of penetration and contact crimes may encompass these factors all in one place, whereas others have distinct statutory descriptions of crimes involving incapacity. It is usual, for instance, to refer to sex offenses committed against people who fall under the age of incapacity as “statutory rape.”

Age

There are two kinds of laws that pertain to age-related sexual offenses: 

1. “per se” age of consent laws, and
2. statutory sexual assault laws. 

While the victim’s age alone determines the prohibition in “per se” age of consent laws, the victim’s age and the age difference between the victim and the offender determine the prohibition in statutory sexual assault legislation. It doesn’t matter if the child “consented” or not, if the offender is over the age of consent and the victim is under the age of consent, the offender is still guilty of committing the crime. These laws assess criminal culpability exclusively on the ages of the victim and offender when the offender is over the age of consent.

Vulnerable adults

In certain regions, the victim’s seniority is considered an aggravating element in cases of assault against elderly individuals. Laws regarding the minimum age of child victims exist in every state, but no such law regarding the minimum age of an adult’s consent exists.

Mental incapacity

Laws prohibiting sexual assault and providing additional protections to victims of rape include provisions for individuals who have mental impairments. This body of law addresses situations in which a victim is unable to comprehend the gravity of his or her acts, and not because of alcohol or drug impairment. Importantly, in not all jurisdictions would a victim with a developmental disorder or other condition be presumed to be mentally handicapped or incapable of giving consent.

Physical disability

This broad concept refers to a variety of events in which a victim is unable to communicate his or her disapproval. When a victim gets so intoxicated that they are unable to care for themselves, they are said to be physically incapacitated. A person’s inability to work may be considered a mitigating circumstance in various legal systems. When deciding whether or not a victim had the mental ability to express consent, the victim’s physical impairment is taken into account in many states.

Unconsciousness

Consent cannot be given by someone who is unconscious, and this fact is recognized by law or judicial ruling in every state. Intoxication, sedation, choking, and trauma can all render a person unconscious, as can simply falling asleep. Many victims of a rape carried out under these conditions will not be able to report particular crimes against them, despite their gut feeling that they were violated. This is because they will not remember the specifics of what occurred to them while they were unconscious.

Non-penetrative crimes

Contact

Direct and indirect fondling or caressing of a person’s genital organs or other private areas constitutes sexual contact offenses. New Mexico is the only state that mandates bare skin-to-skin contact, whereas the rest of the country allows contact over clothing. Across the board, misdemeanors are the highest classification given to contact crimes. Acts like urinating or defecating on a person for sexual stimulation, enjoyment, or degradation are also considered sexual assault in some states.

Exposure

Involuntary observation of a sexual act or body part is a form of sexual exposure. Exposure crimes, which involve grooming techniques, are often written off as ‘ethical crimes.’ In order to insult, frighten, or arouse other people, these criminals engage in sexual behaviors in public or expose their genitalia in a public location or in their presence. Acts that result in another person’s sexual exposure may also be punishable under these laws.

Contact without consent and without force 

More jurisdictions consider sexual touch without force or permission to be a crime than sexual penetration. Twenty countries have made any sexual intercourse under these conditions illegal. The regions that fall under this category are: American Samoa, California, Colorado, Georgia, Kansas, Kentucky, Maine, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, New Mexico, New York, Oregon, Pennsylvania, Tennessee, West Virginia, and Wisconsin.

Other requirements in sexual contact crimes 

Conditions relating to force, consent, age, and relationship are all applicable in sexual contact offenses. Another condition is that the activity was intended to arouse sexual urges.

Sexual assault laws in the United States

Title VII of the Civil Rights Act (1964)

Scholars, attorneys, and judges have argued that sexual harassment constitutes a kind of workplace sex discrimination in order to bring it under Title VII‘s purview. Their focus on the negative impact on the target’s employment and the fact that the action was motivated by or has the effect of sex discrimination are two aspects of the problem they have highlighted. The prevailing viewpoint is that sexual harassment is a violation of formal equality norms since members of one sex (often women) are harassed solely on the basis of their sex. The courts’ emphasis on repercussions in the workplace and sex discrimination has, in effect, downplayed other dimensions, such as the target’s psychological and physical well-being, and the fact that sexual harassment is not always about gender bias but is sometimes the product of simple cruelty or poor impulse control. It is difficult to employ Title VII to combat sexual harassment in settings other than the workplace because it only applies to that setting.

While the majority of decisions regarding sexual harassment law have been handled by the courts, the Civil Rights Act (CRA), 1991, was a legislative intervention. In response to the widely broadcast Senate hearings in which Anita Hill testified that Supreme Court nominee Clarence Thomas had sexually assaulted her years earlier, this law was enacted. Punitive and compensatory damages for “future financial losses, emotional pain, suffering, annoyance, mental anguish, loss of enjoyment of life, and other non-pecuniary losses” were available to sexual harassment claimants under the CRA of 1991. The 1991 amendment to Title VII strengthened sexual harassment law by providing plaintiffs with the opportunity to have a jury trial.

According to Title VII, companies must implement and maintain equitable policies and procedures for hiring, promoting, and terminating employees. Since courts have ruled that sexual harassment constitutes sex discrimination under Title VII, employers have been held liable for sexual harassment claims brought by workers. To put it another way, this allows victims of sexual harassment at work to file a claim against their employers rather than the offender themselves. Under American law, a plaintiff can seek both compensatory damages to make up for the victim’s prejudicing and punitive damages to punish the defendant.

The Supreme Court’s decision in Harris v. Forklift Systems (1993) clarified that conduct without direct financial effects can constitute hostile environment sexual harassment. The Court reasoned that there is no hard and fast definition of a hostile work environment and stated that the plaintiff must prove two things: 

1. That the conduct objectively creates a hostile or offensive environment, such that a “reasonable person” would find it hostile; and  
2. That she or he personally found the behavior abusive.

Title IX (1972)

Federal legislation prohibiting sexual orientation discrimination in educational institutions was passed by Congress in 1972. Court decisions have gradually expanded the duty of institutions to safeguard students from sexual harassment and assault. Title IX, or the Patsy T. Mink Equal Opportunity in Education Act, provides legal recourse for victims of sexual assault against their institutions. Every institution of higher education that receives federal assistance of any kind, including student aid, must comply with Title IX.

Federally funded universities have a responsibility to prevent sexual assault and other forms of discrimination against women

Institutions are obligated to provide a safe and welcoming environment free of sexual harassment and sexual assault, per Title IX. Colleges are obligated to act swiftly if they become aware of an event. While no university has lost federal money due to violations of Title IX since its inception, many have been forced to pay large sums in damages and legal fees as a result of lawsuits.

Victims of sexual assault need to feel safe and supported on campus

A college or university has a responsibility under Title IX to provide care and resources to any student who has been a victim of sexual violence or sex-based discrimination. The school also has a responsibility to take measures to prevent future incidents of violence, harassment, or prejudice. Some examples of what can be done to preserve a student’s right to an education free from violence, discrimination, and harassment are issuing a no-contact order to the accused and/or making reasonable adjustments to the survivor’s class schedule, living situation, and/or extracurricular activities.

Methods for responding to allegations of sex discrimination and sexual violence need to be codified

Institutions of higher education are obligated by Title IX to have policies in place for addressing allegations of sexual harassment or assault. Each school must make its Title IX Coordinator easy to reach, and it must examine any complaints received within a reasonable amount of time, regardless of whether or not outside law enforcement is involved. If possible, this investigation should be completed within a semester, and disciplinary action should be taken if adequate evidence is found, with the option for all parties to appeal.

Dispute resolution processes such as mediation are not appropriate for sexual assault cases

As a means of alternative dispute resolution, mediation is occasionally employed. When it comes to allegations of sexual violence, the Title IX regulation does not allow for mediation to replace traditional hearings. An established protocol must be put in place for these formally scheduled sessions.

Retaliation against Title IX complainants is unacceptable

No one can be disciplined for filing a formal Title IX complaint or reporting sexual violence or sex-based discrimination. Institutions of higher education are forbidden from taking any form of retaliatory action against a complainant, and they must also shield their students from any such actions taken by others.

Victims of Crime Act (1984)

A sexual assault survivor may experience negative effects on their mental, emotional, and physical well-being. Medical expenses and lost income are two potential monetary repercussions. The Crime Victim’s Fund was founded in 1984 by the Victims of Crime Act (VOCA). This fund, managed by the office for victims of crime, helps crime victims directly through state incentive schemes and indirectly through state payments to victim care organizations.

Application for financial assistance is available to help victims

The Victims of Crime Act (VOCA) allows victims to seek financial compensation for both actual and anticipated losses. A victim compensation claim must be filed with the state’s victim compensation program. Each state’s victim compensation office and its contact information can be found in the National Association of Crime Victim Compensation Boards (NACVCB) state program database.

Guilty offenders contribute to the Crime Victims Fund

Each year, the VOCA-driven fund disburses resources to help survivors in several ways. Money is put back into the system through the payment of fines, the sale of forfeited bail bonds, and penalties imposed on offenders as part of their sentences.

Grants from VOCA are available to state and local agencies that aid victims

Annual funds are provided by VOCA to organizations that work directly with victims. As an added bonus, it funds discretionary grants for victim service providers to go toward things like training, technical help, and program assessments. Those victims who do apply for compensation or seek assistance will be able to locate services that match their needs, thanks to these financing sources.

Essential programs for crime victims receive the resources they require to succeed

When it comes to helping those who have been victims of crime, there is a vast range of organizations and initiatives that fall under this broad heading. The Victim Notification System, which informs victims of the release or detention status of offenders, the filing of charges against suspects, court proceedings, sentencing, and restitution, as well as the Antiterrorism Empowerment Program, are all eligible to apply for funding under VOCA. Annually, VOCA allocates resources to projects, managed by nonprofit organizations, that enhance national efforts to help support victims of crime. VOCA is also responsible for establishing the Children’s Justice Act (1986), which awards grants to improve the investigation and prosecution of cases of child exploitation and neglect.

Clery Act (1990)

A freshman in 1986 named Jeanne Clery was raped and murdered in her dorm room. The incident raised awareness about the prevalence of crimes that go undetected on many campuses around the country. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act was passed by Congress in 1990. Since its inception, the Act has been revised five times to add more stringent safety and reporting requirements, the most recent of which was in 2013. Universities and colleges, both public and private, are obligated under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, or the Clery Act, to report certain crimes that occur on or near campus. Every school that accepts government dollars, such as student loans, must comply with the Act.

• Institutions eligible for federal financing must provide information on sexual assaults and other crimes:

Institutions are obligated to report certain offenses as specified by the Clery Act. The Department of Education in the United States is in charge of enforcing it, and a punishment of more than $30,000 awaits non-compliant institutions. Reauthorizations and modifications, such as the Campus Save Act, have increased the scope of crimes that must be reported openly. In and around campuses, these crimes might include stalking, intimidation, violent behavior, domestic abuse, sexual assault, and hate crimes.

• Universities should issue an Annual Security Report (ASR) every year: 

Clery Act requirements state that crime data from the preceding three years must be included in the Annual Security Report (ASR). Basic victim rights and the processes for enforcing them must also be included in the report. Education awareness programs for students and employees, as well as a review of emergency response systems and procedures, are two examples of policies that need to be laid out in detail. The ASR must be made available to all enrolled and potential students, as well as all staff members, at all times.

• Universities are obligated to keep a comprehensive and easily accessible crime report:

Every school is required to keep an official crime log detailing sexual assaults and other crimes that occur on campus. Crimes must be recorded in the log within two school days of the institution getting notice of the incident. Many organizations make the log available online and make it available to the public during business hours.

• Accurate crime statistics require reporting of offenses committed on, around, and, in certain situations, away from campus:

Public crime logs and the school’s Clery Report must include data on crimes that occurred around, or within campus in accordance with the Clery Act. Associated off-campus locations are also included here, as are those located either close to or within the campus itself. The Department of Education compiles each institution’s Clery Report.

• Educational institutions are obligated to have a system in place for issuing timely alerts and responding to emergencies:

Whenever a school receives notification of a crime under the Clery Act, an official must assess whether or not the incident poses a “severe or continuous threat” to the campus community. If that’s the case, the whole campus has to get an immediate alert from the school. Emergency response, alerting, and testing systems should be developed and implemented at colleges and universities. Any “major emergency or dangerous situation presenting an immediate threat to the health or safety of students or staff on the campus” must be communicated to the campus community as well. Crimes of sexual violence, fires, earthquakes, on-campus shootings, and other scenarios outlined in the Act are examples of what might fall into this category.

• Victims’ privacy must be safeguarded on college campuses:

In accordance with the Clery Act, universities may not disclose any personally identifiable information about a victim. Furthermore, only the date of the report, the date of the crime, and the geographical location need to be included in an institution’s Annual Security Report. 

Debbie Smith Act (2004)

It is often the case that DNA evidence is crucial for securing justice in cases of sexual violence; yet, there are still obstacles to utilizing this evidence to successfully hold offenders accountable. Assault against women cases typically face delays in prosecution due to the backlog of unanalyzed DNA evidence, sometimes referred to as the ‘rape kit backlog’. The “hidden backlog,” or evidence that was never delivered to a lab for analysis, is one source of the backlog, while evidence that was sent to a lab but never analyzed also contributes to the problem. Named after a victim who received justice owing to DNA testing, the Debbie Smith Act, 2004, was the first piece of federal legislation passed to reduce the backlog.

Debbie Smith was the victim of a sexual assault in her own house in 1989. It took almost five years to evaluate the DNA evidence, despite her undergoing a forensic evaluation for sexual assault. By the time the forensic evidence was entered into the FBI’s national database CODIS in 1994, a “hit” had been returned, identifying the criminal. The offender was awarded with imprisonment for a period of 161 years  for the robbery and kidnapping of two ladies. He was tried for the rape of Debbie Smith and found guilty.

• Crime labs can now receive funds to process DNA evidence according to the Debbie Smith Act:

Debbie Smith’s DNA Backlog Grant Program helps public crime labs analyze DNA evidence, especially that found in rape kits, by providing financial assistance for infrastructure improvements. After being initially passed in 2004, the Debbie Smith Act has been renewed twice with unanimous support from both houses of Congress. Congress funded only $117 million in 2015, despite the Debbie Smith Act’s authorization to pay up to $151 million annually in financing through 2019. The Sexual Assault Forensic Evidence Reporting (SAFER) Act, 2013, which amended the Debbie Smith Act in 2013, increased the bare minimum that must be allocated to testing and capacity-building initiatives. Moreover, the Act authorizes the Justice Department to create national testing procedures and supports audits of evidence awaiting review at law enforcement agencies.

• The Debbie Smith Act mandates that states develop strategies for reducing the backlog:

The grants are a type of federal funding that is dispersed to all 50 states under the Debbie Smith Act. Those receiving grants have certain responsibilities, such as following privacy regulations when collecting DNA evidence at crime scenes or conducting forensic exams on victims of sexual assault and making clear, public goals for reducing the backlog.

• This legislation aids in the improvement of the national DNA database, which is utilized in the solving of crimes:

In the course of investigating a crime, a DNA profile is created and submitted to CODIS (the Combined DNA Index System). This profile can be checked against state databases of those who have been arrested or convicted to see whether there is a match. Each additional sample improves the accuracy of the database and the likelihood of identifying and apprehending criminals in the present and the future.

The SAFER Act (2013)

Numerous terms, like “DNA backlog” and “rape kit backlog,” have been used to describe the mounting pile of sexual assault forensic evidence that has yet to be evaluated. Forensic evidence that was obtained but never forwarded to crime laboratories for analysis is a key contributor to the backlog. The “hidden backlog” describes this phenomenon. To audit, evaluate, and account for the massive backlog of untested rape kits across the country, the Rape, Abuse & Incest National Network (RAINN) collaborated with Congress to create the Sexual Assault Forensic Evidence Reporting (SAFER) Act of 2013 as part of the Violence Against Women Act of 2013.

While her two small children watched, Julie Weil was kidnapped and sexually assaulted. She received forensic medical treatment for sexual assault (‘rape kit’), and the offender was identified by a DNA match many months later. After more than four years, Weil finally found justice with the assistance of law enforcement and medical professionals who believed in her narrative and believed in her capacity to help bring the culprit to court. As a member of RAINN’s advocacy team, Julie met with politicians, sought out co-sponsors, and spoke in favor of the SAFER Act.

• The SAFER Act provides more resources for analyzing and verifying previously unproven DNA evidence and criminal samples:

At least 75% of all Debbie Smith grant money must be used for this purpose, and the SAFER Act boosts funding to do so. DNA testing requires resources, and those resources must be allocated to things like staff education and capacity-building tools for labs that analyze DNA. Crime labs have historically gotten a smaller budget allocation. The SAFER Act increases base funding for DNA testing and capacity improvement.

• Crime labs get money to review and account for the backlog of DNA samples that haven’t been tested yet:

By designating a portion of the Debbie Smith grant money for the auditing of the backlog of DNA samples in crime laboratories, the SAFER Act aids in accounting for untested DNA samples. Grant applicants must demonstrate a need for the money, present an audit plan, and provide a good faith estimate of the number of untested samples.

• The FBI needs to establish strict guidelines for collecting and analyzing DNA evidence:

The Director of the FBI is tasked with creating and publishing a description of policies and practices that provide guidelines for handling DNA evidence in accordance with the SAFER Act. The FBI also has a responsibility to help teach and advise local and state officials so that these policies can be implemented uniformly. An annual report detailing grantees, audit deadline extensions, and backlog processing status must be submitted to Congress by the Attorney General to guarantee transparency and accountability.

Campus SaVE Act (2013)

The Clery Act has been updated to promote greater transparency and introduce additional responsibilities for schools to address and prevent sexual violence on campus through the Campus Sexual Violence Elimination (Campus SaVE) Act. The Office for Civil Rights within the United States Department of Education is responsible for enforcing Campus SaVE, which affects all schools that receive federal assistance in any form, including student aid.

• The Campus SaVE program mandates open communication between schools and students regarding sexual assaults that occur on campus:

Before Campus SaVE was implemented, schools simply had to preserve records of both forcible and non-forcible sex assaults. Campus SaVE mandates that schools keep track of incidents of dating violence, domestic violence, sexual assault, and stalking. In addition to detailing crime rates and other security-related information for the previous three years, each school must also detail its approach to preventing and responding to sexual violence in its Annual Security Report.

• Colleges have a responsibility to protect the rights of survivors of sexual assault and to provide appropriate accommodations for them:

It is a requirement of Campus SaVE that institutions take appropriate precautions to ensure the safety of survivors, regardless of whether they choose to disclose the incident to authorities. It lays out in detail what kinds of academic, housing, transportation, and employment adjustments a school can make for a victim. Also, the victim must be informed of their ability to file for a restraining order or no-contact order from the institution. Colleges and universities also have an obligation to notify victims about local resources for things like therapy, medical care, mental health care, victim advocacy, and legal representation.

• Sexual assault awareness and prevention programming must be implemented across the entire campus:

Campus SaVE mandates that educational institutions must offer awareness and education programs to registered students, one of which must be directed toward the prevention of sexual violence. Institutions also need to provide students who are participating in these programs with clear definitions of awareness programs, primary prevention, consent, and risk reduction, as well as an explanation of how these terms are being used for training and legal purposes. 

• Universities must have a system in place for handling disciplinary issues, and they must adhere to certain guidelines:

Guidelines for disciplinary hearings must be established, and they should detail all potential consequences for a student found guilty of misconduct. For Campus SaVE to flourish, schools must hold fair and timely disciplinary hearings. Furthermore, the institution is responsible for providing a variety of safeguards for survivors to use during these hearings.

Sexual assault under state laws

California

In California, a person is guilty of the crime of rape if he or she has any of the following sexual encounters with another person:

• Any case in which the perpetrator knows, or should know, that the victim is unable to provide consent due to mental illness or a developmental or physical handicap and the offender acts nonetheless;
• To the extent that the victim is subjected to or compels the use of physical force, psychological coercion, or the threat or actual infliction of serious bodily harm to themselves or another person in order to complete the act;
• If the perpetrator knew or should have known that the victim was under the influence of alcohol, a narcotic, or another drug that rendered him or her incapable of resisting;
• In cases when the criminal knew that the victim did not realize what had happened;
• In cases when the victim gives in because he or she thinks the offender is someone else the victim knows and the offender has encouraged this false notion by deceit, deception, or concealment;
• When the victim is coerced into action by the offender’s threats of future retaliation against the victim or any other person, and there is a substantial likelihood that the offender will carry out those threats; or
• Where the victim reasonably believes the offender to be a public official and the offender carries out an act against the victim’s will by using the official’s power to threaten incarceration, arrest, or deportation of the victim or another person.

While the phrase “sexual intercourse” is defined in the context of other crimes, California law does not provide a definition for it in the context of the crime of rape. However, the definition of rape is extensively interpreted by the legislation. The following details are included in the relevant statutes:

• The term “rape” can be used to describe any sexual attack that is not consented to by the victim.
• The outrage to the victim’s person and the victim’s sentiments is the primary determinant of whether or not an offender is guilty of rape.
• A rape can occur with even the most little sexual intercourse.

Delaware

In Delaware, to be guilty of sexual harassment, a person must have engaged in any of the following acts:

• The individual has threatened to act in a way that might lead to a sexual crime being committed against another person; or
• The actor knows that by suggesting, soliciting, requesting, commanding, importuning, or otherwise attempting to compel another person to engage in sexual contact, sexual intercourse, or illicit sexual penetration, he or she is likely to irritate, offend, or frighten the target.

If a person meets the following criteria, they have committed rape:

1. Has sexual contact with another person knowing that the other person is under the age of 16; or 
2. Knowingly participates in sexual activity with another person who is under the age of eighteen, and who is at least thirty years old; provided, however, that such conduct shall not be illegal if the victim and the person are married at the time of such conduct; or
3. Participates in any of the following types of sexual intercourse with another person:

1. The victim does not provide permission for the sexual penetration to take place; or
2. The victim is under the age of sixteen at the time of the crime.

Illinois

The crime of sexual assault or rape carries severe legal repercussions. When a person engages in a penetrating sexual act against another without their consent or the ability to offer consent, they have committed the crime of sexual penetration. Sexual assault, including the use or threat of physical force, as well as sexual activities committed against minors or the mentally impaired, are included here. It also includes those who cannot give informed permission. Sexual assault occurs when an adult has sexual relations with a juvenile without the youngster’s permission.

Many sexual assault cases involve discrete encounters between two people in a private setting. As a result, there are sometimes competing versions of events surrounding criminal activities, which makes prosecution more difficult. While advances in forensic science and police training, as well as the creation of sex crimes sections within police forces, have helped improve this, sexual assault and associated offenses still pose special challenges for both the prosecution and the defense.

Considering an example with regards to the state of Illinois, when convicted of a sexual assault charge, the offender faces anything from four years’ imprisonment to life in prison, depending on the severity of the crime and whether or not they have a criminal record for rape.

Criminal sexual assault occurs when a person performs an act of sexual penetration, including:

1. Makes use of physical force or threats of physical force;
2. Belongs to the victim’s immediate family and the victim is under the age of 18; 
3. Is at least 17 years old and has power or trust over the victim and the victim is between the ages of 13 and 18.

Florida

In the state of Florida, rape is now classified under the larger category of ‘sexual violence,’ which includes actions generally referred to as ‘sexual assault’ in many other states. In other words, the crime of rape, groping, or any other unwelcome touching of a sexual character is prosecuted as sexual battery.

The prosecution must prove all of the elements of sexual battery under state law in order to secure a conviction for rape. The sexual battery legislation in Florida requires the state to prove that the defendant penetrated the victim’s oral, vaginal, or anal cavity with a sexual organ or other item. It is also possible that the prosecution will need to show that the defendant’s mouth, vagina, or anus came into sexual contact with the victim.

There is no need for the prosecution to prove that the victim did not provide consent if the child is under the age of twelve; the lack of consent is inferred from the victim’s youth alone. The prosecutor has the burden of proving that a rape victim over the age of twelve did not give informed consent.

Georgia

Sexual assault and rape laws in Georgia define “rape” as an assault on a female victim by a male or vice versa.

When it comes to sexual assault and rape in the state of Georgia, male offenders are treated very differently than female offenders. In Georgia, a woman cannot be charged with defamation for raping a man. If a woman commits sexual assault against a man, she will face different charges. A possible charge in such a situation may be:

To violate this law, codified in O.C.G.A. 16-6-22.1 (sexual battery), one must make unlawful physical contact with another person’s private parts. The sexual assault and rape laws in Georgia do not cover every facet of rape.

If an individual purposefully inserts something into another person’s sexual organ or anus without their consent, they commit an act of aggravated sexual battery under O.C.G.A. 16-6-22.2.

Kansas

In Kansas, to commit sexual battery, one must intentionally touch a person aged 16 or older who is not the offender’s spouse in order to stimulate or gratify the offender’s or another’s sexual urges without the victim’s permission.

When a person 16 or older is touched in any of the following ways with the goal to stimulate or gratify the sexual desires of the offender or another person without the victim’s permission, this is considered an aggravated sexual battery:

1. When the victim succumbs to physical or psychological coercion;
2. When the victim is physically unable to defend herself; or
3. Where the criminal knows or should have known that the victim lacked the mental capacity to provide consent because of a mental disability or sickness, or because of the influence of any alcoholic liquor, narcotic, drug, or other substance.

Massachusetts

The two types of sexual assault are indecent assault, battery, and aggravated sexual assault. An indecent assault can be escalated to the more serious offense of aggravated indecent assault if the victim suffers any kind of physical injury as a result of the attack. A sexual assault is considered aggravated if it results in physical harm that necessitates medical care. Longer jail terms and other severe consequences will accompany this. Both acts constitute sexual assault because they entail inappropriate or forced sexual contact. The perpetrator of a sexual assault in Massachusetts may expect to go to jail and end up on the state’s Sex Offender Registry Board.

Michigan

Rape, sexual assault, and sexual battery are all referred to as criminal sexual conduct (CSC) in Michigan law. Under Michigan law, there are four different levels of criminal sexual conduct (CSC), and each encompasses a different type of sexual contact and/or degree of physical or psychological coercion. The four levels are as follows: 

‘First-degree felony’ includes those that involve sexual intercourse (broadly defined) and any of the following:

• Victim is under the age of 13; victim is between the ages of 13 and 15 and has a blood relation to the defendant, is in the defendant’s family, or is under the defendant’s control; victim is over the age of 15 and is a stranger to the defendant.
• When there are more than two people engaged, when the victim is disabled (physically helpless, mentally incompetent, or mentally defective), or when there is a weapon involved, we say that there was sexual coercion.
• Infliction of bodily harm plus the use of force or duress; infliction of bodily harm plus the victim’s incapacity to provide informed permission (e.g., because of the victim’s age, mental capacity, drunkenness, drug use, etc.); or the commission of one offense while the second is in progress.

Sexual contact (no penetration) with the genital area, groin, inner thigh, buttock, or breast, plus any of the circumstances enumerated for 1st degree CSC, constitutes the ‘second degree felony’.

A combination of any of the following and ‘third-degree felony’:

• Victim is between the ages of 13 and 15; crime was committed with force or compulsion; or victim was unable to resist (unable to consent to due age, mental challenges, intoxication, date rape drug, etc.).

Crime of the ‘fourth degree’ includes intimate sexual interaction and any of the following:

• Coercion or force;
• Incapacity of victim (unable to consent to due age, mental challenges, intoxication, date rape drug, etc.);
• The prisoner who was wronged by the defendant is currently serving time.

New York

Exposing another individual to sexual contact without the latter’s permission is one of several acts that New York considers to be “sexual abuse” and is thus illegal. Article 103(3) of the  New York Penal Code broadens the definition of “sexual contact” to include any touching of the actor by the victim, as well as touching of the victim by the actor, whether directly or through clothes, for the purpose of satisfying either party’s sexual desire.

Forced physical contact and long-term sexual abuse are also related offenses. Insertion of a foreign item into another person’s vagina, urethra, penis, rectum, or anus is considered severe sexual abuse in New York and is punishable by one of four levels of punishment.

North Dakota

In the interests of stimulating or fulfilling sexual or aggressive urges, ‘sexual contact’ refers to any touching of the genital or other intimate areas of the person, regardless of whether or not clothing or other covering is present.

Anyone who intentionally engages in sexual activity with another person or induces another to engage in sexual activity with that person commits sexual assault if and only if the following conditions are met:

1. They are aware, or should reasonably be aware, that the other person finds the touch offensive;
2. That individual is aware, or has reasonable grounds to suspect, that the other individual suffers from a mental condition or defect that prevents the other individual from comprehending the nature of the other individual’s action;
3. The offender or an accomplice has used intoxicants, a controlled drug or other techniques to prevent resistance that have seriously affected the victim’s ability to assess or control the offender’s actions;
4. The other person is under the actor’s supervision or disciplinary control while imprisoned in a hospital, jail, or other institution;
5. The other person is a minor (at least 15 years old), and the actor is the other person’s father, guardian, or otherwise responsible for the other person’s general supervision of welfare;
6. Both parties are under the age of eighteen, but the actor is at least fifteen years old.

Pennsylvania 

In Pennsylvania, violating a person’s right to bodily integrity by participating in sexual activity (including deviant sexual activity) without that person’s agreement is considered sexual assault. If the victim was younger than 16 years old, the defendant was older than the victim by more than four years, and the couple was not married at the time of the incident, then the defendant may be guilty of statutory sexual assault.

In Pennsylvania, indecent assault is a separate crime. To some extent, indecent assault is the same as sexual assault. Committing indecent contact without the victim’s consent, with force or the threat of force, or when the victim is severely incapacitated is a crime that can be punished by imprisonment and/or a fine.

Texas

In accordance with Texas law, sexual assault is a major criminal offense. Without the victim’s permission, the defendant commits sexual assault, sometimes known as rape, if he or she engages in any of the specific banned sexual acts mentioned in Texas’ sexual assault legislation.

If the defendant threatened or utilized physical force to coerce the victim into submission or participation in the act, the victim might claim that the conduct was performed without her permission. A lack of consent also exists if the victim is unable to resist or understand the nature of the act being done.

If any of the following occur during the conduct of the sexual assault, the charge may be upgraded to that of aggravated sexual assault:

• The accused has attempted to kill the victim or has seriously injured them.
• The offender caused the victim to fear for his or her life, physical harm, or the safety of others by kidnapping them.
• At some point during the criminal activity, a potentially lethal weapon was displayed or utilized.
• The offender committed the crime along with another person.
• The so-called “date rape drug,” also known as rohypnol or ketamine, was used to facilitate the crime.
• The age of the victim is less than 14.
• The person who has been victimized is either elderly or has some sort of physical impairment.

Washington

The offense known as “sexual assault” does not exist under Washington state law. Instead, crimes are classified as “sexual offenses.”   Assault is another category that covers sexual assaults.

The following are the legal definitions of rape in the state of Washington:

• First-degree rape is defined under RCW 9A.44.040:

When one party uses force or the threat of force to coerce another into sexual activity, that party is guilty of rape in the first degree if they participate in sexual activity with the victim, intend to commit rape, or aid the alleged rapist.

A violent crime is defined as an act in which the offender:

1. Uses or threatens to use a deadly weapon or what appears to be a deadly weapon;
2. Kidnaps the victim;
3. Inflicts serious physical injury, including but not limited to physical injury that renders the victim unconscious; or 
4. Knowingly and unlawfully enters the building or vehicle in which the victim is located.

• Second-degree rape is defined under RCW 9A.44.050(1)(b):

1. When one engages in sexual intercourse with another person under conditions that do not amount to rape in the first degree, one is guilty of rape in the second degree.
2. By coercion; or
3. Where the victim is unable to provide informed consent due to weakness or incapacity.

• Third-degree rape as per RCW 9A.44.060:

One commits rape of the third degree when they have sexual relations with another person under the following conditions that do not meet the threshold for first- or second-degree rape:

1. To threaten substantial unlawful harm to the victim’s property rights, as defined by RCW 9A.44.010(7), or 
2. where the victim did not consent to sexual intercourse with the perpetrator, as defined by RCW 9A.44.010(7), and such lack of consent was clearly expressed by the victim’s words or conduct.

Criticism

Given the low likelihood of a rape being investigated or prosecuted, sexual assault is the least likely violent crime to result in repercussions for the perpetrator. The tide is turning, but it’s turning slowly rather than at tidal wave speed like the #MeToo movement. Weinstein’s trial, like that of Bill Cosby before him, is undeniably a step in the right direction. But as Loyola University New Orleans’ president and former federal prosecutor Tania Tetlow puts it, “it’s a terrible sort of progress that we now believe victims after the 40th or 50th victim comes forward.” It seems that skepticism about sexual violence is ingrained in Western culture and, by extension, Western law. This idea was summed up by Lord Matthew Hale, an English judge from the 17th century, who urged the jury to give due consideration to the victim’s testimony. He emphasized the need for “caution” while evaluating the woman’s testimony because a rape claim “is an accusation readily to be made, hard to demonstrate, and harder to be contested by the person accused.“

Those terms may seem archaic, but the Model Penal Code, a guide for governments to follow when drafting their own criminal codes, provides modern direction. The American Law Institute completed the Code in 1962 and released it to the public. The initial proposal said that a woman should report an assault within three months, the so-called prompt-outcry rule, which makes even the most restrictive statute of limitations today look lenient. The writers suggested that prosecutors should not take the woman’s word for it and instead look for independent evidence instead in “an attempt to slant the resolution of… disputes in favor of the defendant. In addition, they warned of the dangers of blackmail or psychopathy posed by a vindictive complainant and advised that judges assess a female witness’s testimony with great care, due to the emotional involvement of the witness.” Many states adopted the code, and it was used in this form until 2012, when attorneys started making changes.

Jane Manning, a former sex-crimes prosecutor in Queens, New York, and the current director of the Women’s Equal Justice Project, an advocacy group for survivors of sexual assault, claims that the laws in most states were constructed in a way that makes rape extremely difficult to prosecute. First, she claims that a woman’s testimony was not considered credible until it could be corroborated by other means, a practice that persisted until the 1960s. A woman’s testimony could lead to a man’s conviction for robbery but not for assault in the case where he robbed and raped her. Second, the lady had to provide evidence of ‘earnest resistance,’ which meant she had to prove that she had fought or escaped despite the risk to her life. Third, if she went to court, her private life, including her sexual history, would be open to harsh scrutiny. 

Lastly, a woman whose spouse engages in sexual abuse has nowhere to seek protection from the law. This rape clause was written into the marriage contract. A wife was considered a man’s property at all times, from the time of Genesis to the early nineteenth century in America. The last fifty years have been marked by irregular progress. The necessity of corroboration has been abolished in every state. Although the statute of limitations has been extended in most states, reporting an assault must be done within a decade or fewer in a dozen of them. It wasn’t until the 1970s that rape-shield laws were enacted at the federal and state levels, making it illegal for defense attorneys to question a female defendant about her sexual history. By 1993, all 50 states had passed laws prohibiting marital rape. But in around a dozen of them, there are legal loopholes that make it impossible to prosecute a man for raping his wife if she is unconscious or under the influence of drugs at the time of the crime. 

After Jenny Teeson shared her experience in the media, lawmakers in Minnesota finally passed new legislation only last year: She had discovered tapes on which her husband had raped her while she was asleep and under the influence of drugs. In one of the tapes, the camera panned in on her face and the face of their small boy, who was sleeping next to her. The earlier law in Minnesota’s penal code permitted someone accused of sexual assault to claim self-defense if they were already acquainted with the victim. This tactic, which was employed in the case involving Teeson’s ex-husband, is no longer available to criminals in Minnesota. According to a statement from Governor Tim Walz of Minnesota remarked after signing the measure abolishing the pre-existing relationship defense that “this exemption should never have been part of our criminal legislation. That’s a despicable thing to do. And now, thanks to Jenny and the other survivors, it has been overturned.“

Steps to successfully combat sexual and gender-based violence

1. Eliminate Estupro and similar laws and provide a clear definition of rape based on consent, rather than the presence of force, to enhance legal protections.
2. All sexual offenses should be considered public offenses, and there should be a comprehensive examination of legislation impacting women and girls, such as those regulating child marriage and access to reproductive healthcare, in order to improve access to justice under the law.
3. Training criminal justice professionals to overcome gender stereotypes and handle sexual violence cases, collecting disaggregated statistical data, and dedicating sufficient state resources to prevent and manage sexual violence are all ways to better implement accountability and access to justice.
4. Public awareness campaigns to combat victim-blaming and impunity for perpetrators, along with age-appropriate sex and relationship education programs in schools, are examples of ways to work toward these goals of challenging negative stereotypes and increasing public understanding of sexual violence.

Conclusion

The laws against rape in America are inadequate and not consistently implemented, which puts women, adolescents, and girls at an increased risk of being sexually abused. Due to sex, gender, class, and racial discrimination, many rape survivors are unable to obtain justice. Harmful gender stereotypes contribute to the problem by placing blame on victims, normalizing sexual assault, and contributing to the pervasive underreporting of incidents.

Meanwhile, the criminal justice system fails to appropriately process incidents of sexual violence, leaving criminals unpunished because of inadequate protection, legal loopholes, inadequate implementation, and widespread failure. Lack of implementation of existing laws and protocols meant to protect women and girls, and the fact that the majority of rape legislation in the Americas falls short of international human rights standards. This means that victims of sexual assault often lack proper legal recourse.

Adolescent girls are particularly exposed to predation and prejudice due to the lack of legal protections in the region.

Common examples include estupro, which applies when an adult rapes or sexually abuses a minor who is over the age of consent by using ‘deceit or seduction.’ Due to the discriminatory nature of this law, rape is incorrectly labeled, and the sanctions are much less severe than they should be. Such laws typically exist in jurisdictions where rape is defined in terms of physical force rather than the absence of consent.

Estupro and related regulations, which are based on sexist ideas about women’s chastity and morals, were discovered in 17 of the 43 jurisdictions reviewed by researchers. Some provisions of estupro law include the following: 

• In Bolivia, the penalties for raping a minor or an adult are 15 to 20 years in prison, while the penalties for estupro for those aged 14 to 18 are 3 to 6 years in prison.
• Under the estupro rules, rape of a minor between the ages of 14 and 16 does not carry a prison penalty in Paraguay, whereas rape of a minor or an adult entails a punishment of four to fifteen years in prison.
• In Virginia, ‘carnal knowledge’ of a minor between the ages of 13 and 15 is considered a different crime from rape, carrying a possible term of two to ten years in prison, as opposed to five years to life for rape.

In-depth interviews with survivors, activists, and attorneys, as well as a review of existing laws that are biased against youth, led researchers to identify the ineffective implementation of sexual violence laws due to: 

1. limited definitions for rape that require proof of violence or struggle; 
2. a lack of consent-based definitions of rape (only six out of 43 jurisdictions have comprehensive consent-based definitions of rape); 
3. the failure to fully criminalize rape against a spouse or intimate partner; 
4. statutes of limitation that cut short the time during which rape cases may be filed.

Frequently Asked Questions (FAQs)

What constitutes consent?

The term ‘consent’ refers to an individual’s verbal or nonverbal agreement to participate in sexual activity, indicating that the individual is of legal age and has the mental capacity to give informed consent. If a person is under the influence of drugs or alcohol, or if they are physically or mentally incapable of giving consent, or if they are unconscious, then they cannot provide consent.

Whether sexual assault and sexual harassment are synonymous?

No, they are not synonymous. It’s important to note that sexual harassment can happen without an assault ever happening. Harassment in the workplace based on a person’s sexual orientation is considered sexual harassment. Sexually inappropriate comments are one form of harassment. Offensive comments regarding one’s appearance or other comments of a sexual character are also examples of sexual harassment. If the harasser’s comments or actions cause the victim to feel threatened by unwanted physical contact, the behavior can be classified as sexual assault.

Whether the rape has been said to occur if the victim does not attempt to defend themselves?

The victim of forced sex may fear that the perpetrator of the rape is also capable of physical harm. Due to the terror and disbelief, he/she may be paralyzed. Also, he or she may conclude that escalating the conflict now will just incite the other person to more extreme acts of violence. The victim may have also been forced to engage in sexual activity or may have done so under duress. Whether or not the victim fought back is irrelevant; if permission was not freely given, then it was rape.

Whether the accused is not guilty for the assault if both parties the victim and accused were intoxicated?

No amount of alcohol ever justifies sexual assault, and sexual assault victims are never at fault. The offender is the one who must take responsibility for their actions; the victim is never to blame. The intoxicating effects of alcohol can make a person more vulnerable to sexual assault and less able to give informed consent or to defend themselves, but it is not the direct cause of sexual assault.

References

• https://www.womenslawproject.org/wp-content/uploads/2016/04/Rape-and-Sexual-Assault-in-the-Legal-System-FINAL.pdf
• https://www.equalrights.org/issue/equality-in-schools-universities/sexual-harassment/
• https://www.cairn-int.info/article-E_TGS_028_0089–french-and-u-s-legal-approaches-to.htm
• https://www.rainn.org/sexual-assault-laws-and-court-decisions
• https://ualr.edu/socialchange/2018/04/15/reflection-history-sexual-assault-laws-united-states/
• https://nij.ojp.gov/topics/articles/overview-rape-and-sexual-violence
• https://www.findlaw.com/criminal/criminal-charges/sexual-assault-overview.html
• https://vc.bridgew.edu/cgi/viewcontent.cgi?article=1055&context=undergrad_rev
• https://www.theatlantic.com/ideas/archive/2020/01/american-law-rape/605620/

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

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