No Bruises, No Black Eyes, No Justice

Fighting back against America’s archaic rape laws

I spent the weekends of my sophomore year of college watching Netflix, cramming for tests, and talking about rape at collegiate speech competitions.

Please, don’t stop reading.

I know, discussing sexual assault can be uncomfortable. As the white, upper-middle-class, forty-year-old man sitting next to me in a small-town Kansas restaurant said, it’s the “annoying thing those feminists do these days.” Well, aren’t you just the King of Privilege, sir.

By the end of my freshman year at Rice University, I felt ready to tackle the topic my peers and professors hesitated to discuss. As I sifted through articles, studies, and blogs researching for a persuasive speech on sexual assault, one legal flaw became horrifically motivating to me.

Thirty-three states legally define “non-consent” only as mental or physical impairment of the victim, or the use or threat of use of force by the perpetrator.

Realistic simplification? If a victim does not have bruises, scrapes, or proof of intoxication, a majority of states say the individual was not raped.

This is “forcible rape”: a legal phenomenon in which state laws require a higher standard of non-consent than simply saying “no”. It is just one tenant of the American penal code that perpetuates rape culture — the very environment that made a collegiate debate coach feel comfortable writing to me, “This is just another rape speech.” As if the gross endangerment of men and women’s wellbeing is too ordinary, boring, and unimportant to discuss. The Rutgers University Slam Poetry Team tactfully sums up the 15 expletives I wanted to shout in response, saying, “The rape poems will continue until there is no damn material left.”

The problem begins with state legal code. Lawyers John Decker and Peter Baroni explain in the 2013 Journal of Criminal Law and Criminology that forcible rape law can be divided into three categories: true non-consent states, contradictory non-consent states, and force states. The 17 true non-consent states — the good states — do not demand the survivor prove force or the threat of force was used in the assault, but rather that he or she vocalized non-consent, that is, said “no”. Next, in the nine contradictory states, the definition of non-consent indicates force must be implied or used. Finally, 24 states require the use of force for non-consensual sex to be classified as rape. Thus, two-thirds of state lawmakers are insisting it is victims’ responsibility to fight off assailants, or surrender their chance at justice.

Two major issues are fueled by and fuel the problematic definition of non-consent: neurological responses to assault are ignored by the law, and reporting mechanisms impede convictions.

The neurological effects of violent trauma on sexual assault victims often cause tonic immobility, or rape induced freezing. Professor Marci Hamilton explains this phenomenon causes victims not to struggle, because their minds hinder movement and, at least partially, erase their memory of events. California Attorney General Kamala Harris notes that even when victims can recall the crime, their emotional responses can make their accounts difficult to believe. Some victims express no emotion. Others smile or laugh, exhibiting a classic, yet counterintuitive reaction to trauma. Yet, law enforcement officials often argue the range of emotions makes it difficult to determine whether victims felt threatened, undermining non-consent law.

But, it is this culture of focusing exclusively on the physical effects of rape that fuels the second component — underreporting and lack of convictions. Many assault survivors feel partly to blame or believe they lack adequate proof, and thus don’t report the incident. Unfortunately, they are often correct. The University of Kentucky’s Center for Research on Violence Against Women estimates the highest rate of rape conviction in the US is 18 percent. Even if the perpetrator is punished, the victim’s road through the justice system is rocky. Jane Brody of the New York Times points out that prosecutors and police, influenced by outdated rape laws, often interrogate victims as if they were suspects or accuse them of false reporting, reinforcing the cultural and judicial bias against victims.

However, there are solutions on the horizon. Nationally, the American Law Institute’s Model Penal Code — emulated by states for complex legal standings — is updating its punishable definition of rape, for the first time since 1962. The ALI’s: 2014 Sexual Assault Report emphasizes criminal law modification is key by providing harsher sanctions to assailants, shaping societal norms, and creating a safer environment for the future.

States should adopt the ALI’s force-free legal approach and ensure the new rape laws are consistently enforced. For instance, California legislators passed a law last September eliminating force rhetoric from the definition of rape at public universities. While a seemingly enormous leap forward, the government did not change its state-wide rape laws —meaning, if you are assaulted anywhere except a college campus, the dated, dangerous laws still hold.

Most importantly, we can help. We are capable of creating change. We can be agents of action.

Non-profit organizations, such as FORCE: Upsetting Rape Culture, are working to alter the way society views sexual assault through projects ranging from public art displays to social media activism. Support these groups; the ease of the internet-connected world makes it as simple as a click.

Simpler yet, we should talk about forcible rape. Every time I delivered my speech, I noticed at least one person in the room looking shocked these laws still stand. Instinctively, we believe all non-consensual sex is rape, so why are we so unaware our legal system says otherwise? Finally, we must stop allowing others to excuse rape that isn’t “bad” enough. Ceelo Green took to Twitter last fall saying, “When someone brakes in a home there is broken glass. Where is your plausible proof anyone was raped?” It was favorited and retweeted hundreds of times before being deleted just hours later. Those followers are our coworkers, our friends, and even our family members. Those are the people we can influence.

The United States has long preached the success of its strong and swift justice system. Yet, there is a clear disconnect; laws need to be changed, survivors’ stories beg to be heard, and victims await prosecution of perpetrators. We must continue the fight against America’s archaic rape laws, so men and women don’t have to fight off their attackers to find justice.