What Is A “Legitimate” Rape Anyway?

“If it’s a legitimate rape, the female body has ways to try to shut that whole thing down.” – Todd Akin, Republican Senate Candidate from Missouri

If you’re anything like me, you’ve probably seen a ton of headlines over the past few days referencing Republican Senate candidate Todd Akin’s comments about rape. Akin’s remarks were asinine on multiple levels because not only is it patently offensive to suggest that some rapes are “legitimate” while others are not, but there is absolutely nothing to back up his provocative claim that women’s bodies have mechanisms in place to prevent rape-related pregnancies from occurring. In fact, research has actually found the opposite of what Akin suggested: specifically, the per-incident pregnancy rate is higher for rapes than it is for consensual sex [1].

Although the Akin controversy has stoked a lot of public anger, the silver lining is that his remarks have prompted a public dialogue about sexual assault that we desperately need to have. I have read so many excellent articles this week that are providing some much-needed attention to this important issue. If I may add one small bit to this, I would like to talk briefly about the definition of rape and how the wide variability in legal definitions of this crime may be contributing to confusion about what rape is and distracting us from the bigger issues at stake here.

Every state in the U.S. has its own legal definition of rape. For instance, let’s consider two states (Indiana and Massachusetts) where I have previously taught Human Sexuality courses and have read up on their sex laws (although please note that I am not a lawyer and do not know the legal code inside and out). In Indiana, rape is defined as occurring “when a person knowingly or intentionally has sexual intercourse with a member of the opposite sex” either through force or threat of force, or when the other person is unaware that it is happening. Thus, in Indiana, rape is defined very narrowly such that it is restricted only to penile-vaginal penetration of someone of the other sex. This means that a man cannot technically rape another man in this state. It also means that non-consensual sexual penetration of parts of the female body other than the vagina are not technically rape. Of course, non-consensual sex acts are still illegal in Indiana and are punishable under the law—they are just given different labels (e.g., sexual battery or deviate sexual conduct).

In contrast, in Massachusetts, rape is defined as occurring when someone “has sexual intercourse or unnatural sexual intercourse with a person” through the use of force or threat of force. This definition is much broader than Indiana’s in the sense that it covers non-consensual oral, anal, and vaginal penetration of anyone, regardless of their gender (i.e., it is not limited to heterosexuals like it is in Indiana). On a side note, the Massachusetts law is rather puritanical in the sense that it refers to anything other than penile-vaginal penetration as an “unnatural” sexual activity, but that’s a whole other discussion we could have about sex laws. One other place where these laws differ is that Massachusetts has a separate “date rape” law that covers cases where someone is furnished with a drug intended to “stupefy or overpower” them, whereas this same activity would fall under the Indiana’s general rape law.

As you can see, definitions and terminology for sex crimes vary considerably at the state level. How about the definition of rape at the federal level? Until earlier this year, rape was defined by the FBI as “the carnal knowledge of a female forcibly and against her will.” Thus, the old federal definition (which had been in place for nearly a century) was not gender-neutral like Indiana and Massachusetts. Moreover, the old federal law specified that rape could only involve penile-vaginal penetration. However, this definition was revised in January 2012 to read: “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.” Thus, the new federal definition is much broader and covers a very wide range of sexual activities and victims. In my book, this change was long overdue because it will ensure more accurate reporting of rape statistics at the national level and help us to best direct funding to prevention efforts and victim assistance.

Given that the federal government has recently changed its definition of rape and that state laws do not define it consistently, it is understandable that some people might be confused about what actually “counts” as rape from a legal standpoint. However, it is important to keep in mind that even though legal definitions of rape can vary, any form of non-consensual sexual activity is a crime that no one should ever have to endure. And just because a specific non-consensual act doesn’t happen to be classified as rape in a given jurisdiction does not make it any less “legitimate” of a crime.

The fact of the matter is that sexual violence is not just one thing that affects one kind of person in one kind of situation. Sexual violence happens to people of all genders and sexual orientations, and it can involve a number of different non-consensual activities that may or may not include sexual penetration. It can occur in a bedroom, in a school, in a prison, or any other location. Sexual violence is something that can be perpetrated by strangers or by intimate partners, and it is something that can be achieved through physical assault, through alcohol and drugs, or through psychological intimidation. Thus, in our public and political discussions of rape and sexual violence, we must be looking at this through a very broad lens.

The question of whether a given sex crime is technically rape is a matter that is only of concern to police officers trying to decide what offense to charge a criminal with under their legal code. In public discourse, the question of whether something is “legitimate rape” or “actual rape” or “rape-rape” is irrelevant and counterproductive and the focus should be where it matters most: preventing sex crimes from occurring in the first place and giving victims of sexual violence the respect that they deserve and help that they need.

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[1] Gottschall, J. A., & Gottschall, T. A. (2003). Are per-incident rape-pregnancy rates higher than per-incident consensual pregnancy rates? Human Nature, 14, 1-20.