Are Federal Definitions of Rape Realistic

A recent study revealed that the definition of rape used by federal statistical reports may not reflect the true number of incidents. This illustrates at a very high level the challenges in dealing with any type of sex crime. The FBI's current definition of rape is "the carnal knowledge of a female, forcibly and against her will." This definition is more than 80 years old and critics of the FBI's statistical reports say that it does not reflect current mores or even the definitions used by local law enforcement.

The old standard does not include crimes such as anal rape, penetration with an object, date rape or rape involving male victims. Critics say the FBI should be reporting crimes such as these and that continuing to use the old definition means that sexual assaults are seriously underreported. Chicago's statistics are an extreme example of this; the Chicago Police Department recorded 1,400 sexual assaults in 2010, none of which appeared in the FBI's Uniform Crime Report because the federal agency does not accept Chicago's definition of rape.

As a result of criticism from feminist groups and local law enforcement, the FBI has announced that it will begin updating its definitions. However, none of this controversy or its proposed solution addresses underlying problems with all sex crime prosecutions; whatever definition is used, rape is usually a private act with no witnesses.

Biological evidence that can be used to confirm the identity of a suspect can help the prosecution when a defendant says that he was not present. Otherwise, rape kits can confirm that a sexual act occurred, but cannot always tell whether the act was consensual or violent. And this is a problem for both the defense and the prosecution in a rape case.

Neither the prosecution nor the defense is able to build a case solely on biological evidence in the absence of witnesses. From the defense perspective, a victim may have initially consented, but had second thoughts. The victim may have been trying to manipulate a bad divorce or child custody battle and turned consensual sex into rape. The prosecution may have doubts about the victim's veracity, making the district attorney's office less likely to pursue charges. In all these cases, justice is not served.

Updating the federal definition of rape will help local law enforcement receive more funding for sex crimes units and detective bureaus because the federal government will accept reported numbers more frequently. However, it will not change the basic problem in sex crime cases with no witnesses and no physical evidence of violence or assault.

The Innocence Project has been successful in vindicating many men convicted of rape before the mid-1990s, when using DNA evidence in sex crime prosecutions became common. Most of these convictions were based on eyewitness testimony or were at the losing end of a "he said-she said" battle. But although DNA evidence is a wonderful tool for proving innocence after a wrongful conviction, its use when no one denies a sex act occurred seldom clarifies anything. It is up to the prosecution and defense attorneys to assemble other types of evidence to resolve the question of whether a rape or other sexual assault occurred.

And how the federal government defines rape does not help with this problem at all.