February 12, 2015

Words Matter: How Language Reflects Our Response to Sexual Violence

Cynthia L. Cooper

The 84-year-old definition of “rape” in the Federal Bureau of Investigation (FBI) Uniform Crime Reporting (UCR) finally had a makeover in 2013. At the urging of the Women’s Law Project in Pennsylvania, the FBI abandoned language that had lingered long past its social-relevance date.

“The definition of rape did not include what we considered to be all serious sex crimes,” says Terry L. Fromson, managing attorney of the Women’s Law Project’s Philadelphia office, which first encountered the problem while researching police miscoding of rapes as noncrimes in Philadelphia.

The language adjustment is just one of several semantic interrogations that women lawyers are bringing to cases of sexual assault.

Defining Rape

The 1929 UCR definition, like the one in William Blackstone’s Commentaries on the Laws of England (1765), stated that rape is “the carnal knowledge of a female forcibly and against her will” and further described “carnal knowledge” as the penetration of the female vagina by the male sexual organ.

Left out? Oral rape, anal rape, rape by penetration of objects, rape of men, incest, statutory rape, rape by women, and, one of the largest categories, nonforcible rape.

“The reality is that a definition that so broadly describes what rape is is very important. Words do matter and language does matter a lot,” says Carol E. Tracy, executive director of the Women’s Law Project, who is also based in Philadelphia (a second office is located in Pittsburgh).

While not part of the criminal code, UCR data form the basis for policy proposals, policing decisions, and media research. With the support of 80 sexual assault organizations, the Women’s Law Project filed a petition to change the definition in 2001. Twelve years later, after congressional testimony, a revived petition, and long meetings with law enforcement, change happened.

The UCR now defines rape as “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.”

Educating About Word Choice

How those in the law speak and write about rape is contested territory on the modern landscape.

Consider that more than 50,000 people signed an online petition protesting a Montana judge’s language and sentence in the case of former teacher Stacey Dean Rambold, a 49-year-old male who pled guilty to the rape of a 14-year-old student in 2013. The student committed suicide while the case was pending. District Court Judge G. Todd Baugh sentenced Rambold to a mere 30 days in jail, saying that the girl was “older than her chronological age” and “as much in control of the situation” as the defendant; later, the judge commented that it wasn’t a “forcible beat-up rape.” After a higher court intervened, Rambold was resentenced to 10 years in prison.

The use of the word “forcible” is particularly prickly, betraying a discredited notion that rape is identified by violent force and not by the lack of consent. But Tracy notes that 41 states have laws on their books that require “force” as an element of rape.

In an effort to better address rape cases, advocates are turning their attention to education within the legal system. Of special concern are words that minimize the harm suffered by sexual assault survivors—that blame the victim, muddle the matter of consent, infer that a survivor must act a certain way to be believed, turn the perpetrator into a passive actor, or linguistically blur rape with healthy consensual sex.

Language concerns spread to all corners of the legal system—defense lawyers, prosecutors, judges, law enforcement, and correctional personnel.

In some cases, defense counsel seek to stop certain words from being used at trial, says Michelle Dempsey, professor of law at Villanova University School of Law in Villanova, Pennsylvania, and a former sex crimes prosecutor. In one case in Nebraska in 2007, a judge banned the words “rape,” “victim,” “assailant,” “sexual assault kit,” and “sexual assault nurse examiner” from the trial.

“The defense wants to control the language in the courtroom in rape cases,” Dempsey says. “But there is no problem referring to a robbery victim as a ‘victim’ or what was done to that person as a ‘robbery,’ even before conviction.”

Even a straightforward word like “no” can be interpreted differently in rape cases because of cultural attitude that “good girls” say “no” to be coy, Dempsey says. “There is a myth that there is a higher false reporting rate in rape, and, of course, there isn’t,” she explains. “Rape is treated as a special case because we’re consumed with this myth.”

Claudia J. Bayliff, former chief of the U.S. Air Force’s Sexual Assault Prevention and Response Program, collects sample cases where the language clings to disproven rape myths and distorts the experiences of victims. In seminars she regularly conducts for judges and other constituencies, she critiques written decisions and reframes the way that legal professionals speak about sexual assault.

“The language of the legal system has an impact beyond just the parties in front of them because it is used to create the narrative for society as a whole,” says Bayliff, who has worked on sexual assault matters for 26 years and is currently project attorney for Legal Momentum’s National Judicial Education Program, which is based in New York City. (Lynn Hecht Schafran, director of the National Judicial Education Program, is on the board of Perspectives.)

In one seminar, “Raped or ‘Seduced’? How Language Helps Shape Our Response to Sexual Violence,” Bayliff helps judges identify inappropriate language that hides the nature and extent of rape. She notes that there is no such thing as “child prostitution because legally a child cannot consent.” What’s more, she says, “kiddy porn” makes it seem like a game, while “performed oral sex” sounds like a voluntary act.

“If you’re a judge and you’re writing about a defendant who’s convicted, you wouldn’t want to write about it in terms of the defendant’s having ‘intercourse’ with the victim or ‘fondling the victim’ rather than ‘he forced his penis into her vagina’ or something that reflects the reality of the crime,” Bayliff explains.

Participants crammed Bayliff’s session at the National Association of Women Judges annual conference in October 2014, according to the conference’s education cochair, retired California Superior Court Judge Susan Finlay. Recalling a discussion on “the invisible perpetrator,” Finlay says, “How many times have we read the victim was assaulted—like nobody did it, like she was walking down the street and all of a sudden was assaulted, even when we know the offender.

“You don’t realize the effect words have,” she continues. “Particularly from the bench, it’s a heightened responsibility. Language can perpetuate bias; unless we’re aware, we don’t change.”

Be Aware of Semantics

The responsibility of those inside the courtroom to hold defendants accountable while supporting sexual assault victims is central to the work of AEquitas, a nonprofit organization in Washington, D.C. Staffed by seven former prosecutors with specialization in violence against women, the nonprofit holds trainings for prosecutors in the United States and other countries.

AEquitas staffer Viktoria Kristiansson says “sex” itself can be the biggest semantic stumbling block. “The fact that we—prosecutors, law enforcement—continue to use ‘sex’ when describing sexual assault, rape, indecent sexual conduct makes it difficult for a layperson who doesn’t understand what rape can be,” says Kristiansson, who began prosecuting cases in 2003. The language paints victims as merely experiencing regret over a bad sexual encounter and has the effect of “misrepresenting facts and thus furthering myths,” she notes.

Jody Raphael, senior research fellow at DePaul University College of Law in Chicago, Illinois, goes one step further. She thinks “sexual assault” itself is a euphemism that should be discarded. “We need to use the word ‘rape.’ Stop using ‘sexual assault.’ Let’s admit that we have a problem with rape and stop denying it,” says Raphael, author of the 2013 book Rape Is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis.

A high percentage of rapes are committed by friends, relatives, and acquaintances of the victims, accounting for 63 percent of the rapes reported by women, according to the Bureau of Justice Statistics for 2008 (www.bjs.gov/content/pub/pdf/cv08.pdf), while studies also point to extensive underreporting of these cases.

But Raphael points out that the terms “date rape” and “acquaintance rape” minimize the impact of the crimes. “It’s inherently violent,” she says. “People’s lives are ruined. It’s important for victims to speak out in very graphic terms.”

Attempting to sort through the language, the social norms they represent, and the law, a panel of the American Law Institute (ALI), based in Philadelphia, completed a 160-page tentative draft report in 2014 reexamining rape in the Model Penal Code (Article 213). Last revised 53 years ago, the model code was “outdated in its vocabulary and out of sync with prevailing American law and American culture,” according to ALI. The draft report was two years in the making.

Bayliff understands that a change in language will not end the crime of rape. But her seminars are premised on a belief that language is neither neutral nor impartial. “This is something you can do to make a change as soon as you leave the room,” Bayliff says. “I want people to think about how they talk about these issues.”

Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist in New York and a former practicing attorney.