In a ruling earlier this week, an Illinois Cook County Circuit Court Judge, Honorable Kathy M. Flanagan, dismissed Peter Ludlow’s defamation case against Sun-Times Media LLC and two other media defendants, arguing that the terms “rape” and “sexual assault” are interchangeable.
Ludlow’s case was based not on the accuracy of the news reports in question, but rather on the use of “rape” in the headline as a fair representation of the complaint, which was described in both the news reports and the student’s complaint as “sexual assault.” In other words, Ludlow’s attorneys attempted to argue that, while he may have sexually assaulted a student, he did not rape a student.
“In common usage and in dictionaries, the terms ‘rape’ and ‘sexual assault’ are synonymous,” Flanagan writes in her decision, “The Merriam-Webster definition of ‘rape’ cited by [the plaintiff, Ludlow] has ‘assault’ listed as a synonym, and the definition of ‘sexual assault’ has ‘rape’ listed as a synonym.”
So perhaps citing Merriam-Webster wasn’t a particularly well-thought-out move by the plaintiff’s attorneys. Setting dictionary definitions aside, we might wonder: are sexual assault and rape the same thing, in the eyes of U.S. law?
The short answer to this question is “yes, in many states” – though please note that I am not a legal expert, and am offering this answer not as advice, but rather as an observation based on reading the relevant statutes and codes. Readers who need legal advice should seek the advice of an attorney.
Penal codes throughout the U.S. make use of a wide variety of classification systems for sex crimes. In some states, like Ohio, rape is defined as “sexual conduct with another… when [for example] for the purpose of preventing resistance, the offender substantially impairs the other person’s judgment or control by administering any drug, intoxicant, or controlled substance to the other person surreptitiously or by force, threat of force, or deception.” The state of Washington characterizes rape as one of many different types of sexual assault. And In other states, like New Jersey, the phrase sexual assault has simply replaced the word rape in the statutes, with different degrees of sexual assault and sexual contact. The New Jersey Criminal Code characterizes “intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor” as a crime in the fourth degree. In some states neither term appears in the law. South Carolina, for example, avoids mention of rape and instead refers to unwanted sexual intercourse and unwanted sexual contact as “criminal sexual conduct.” A very helpful interactive map with links to the relevant laws for each state is available at the Rape, Abuse & Incest National Network (RAINN) State Law Database.
In other words, it appears that Judge Flanagan’s argument that “sexual assault” and “rape” are interchangeable is quite reasonable, notwithstanding Brian Leiter’s ill-advised ad hominem attack on the pedigree of her law degree.
We might also wonder: are sexual assault and rape the same thing in the eyes of U.S. universities?
The short answer to this question, again, is “yes, at many universities.”
The story behind this is an interesting one. Over the past 10 or 15 years, universities have begun shifting to the use of “nonconsensual sexual acts,” in place of “rape” or “sexual assault.” The terms “nonconsensual sexual intercourse” and “nonconsensual sexual contact” were originally introduced when Title IX compliance consultants discovered that universities were reluctant to categorize acts of sexual misconduct – even acts that clearly involved force and penetration – as “rape” or “sexual assault.”
The use of “nonconsensual sex” and related phrases, however, is highly contentious. Many activists feel that calling an incident “nonconsensual sex” enables universities to avoid expelling or dismissing the perpetrator. In July of 2013, my own alma mater, Yale University, released the biannual report required by the Office of Civil Rights as part of a voluntary resolution in the wake of a Title IX complaint. In addition to 61 new complaints, the report revealed that there were four cases from previous reports in which there was “sufficient evidence” that an offender had engaged in “nonconsensual sex” – and yet all of the student perpetrators were allowed to continue pursuing their degrees. Headlines read: “Yale Fails to Expel Students Guilty of Sexual Assault,”and a Change.org petition rapidly collected more than 1,500 signatures.
In response, Yale administrators explained that nonconsensual sex does not always mean sexual assault, and produced an unprecedented “Sexual Misconduct Scenarios” document which provided a detailed description of different “scenarios” that would fall under the umbrella of nonconsensual sex – along with the corresponding punishments. (Much of the credit for this goes to philosopher Michael Della Rocca, who has just ended a three-year stint as the Chairperson of Yale’s University-Wide Committee on Sexual Misconduct.)
One of the scenarios reads as follows:
Tyler and Jordan are both drinking heavily at an off-campus event. Tyler becomes extremely drunk. Jordan offers to take Tyler home. On the way, Tyler has trouble walking, and makes several wrong turns. Once in Tyler’s room, Jordan initiates sexual activity. Tyler looks confused and tries to go to sleep. Jordan has sex with Tyler.
There was no consent to have sex. A person who is incapacitated—lacking the ability to make or act on considered decisions to engage in sexual activity—cannot give consent. The UWC penalty would be expulsion.
It’s worth pointing out here that, in the past, it was rare for a university to expel a student who is found guilty of this or other forms of serious sexual misconduct. According to a 2010 investigation by the Center for Public Integrity, only 10 to 25 percent of students found “responsible” for sexual assault were actually permanently prohibited from returning to the university.
It’s also worth pointing out that a much-cited 2002 study of rapes on college campuses, in addition to a 2009 study of the DNA in 11,000 rape kits in Detroit, have demonstrated that: (1) as many as 6 in 10 rapists are serial offenders, and (2) alcohol is a very common tool for serial predators to use.