Setting its own terms: the FBI’s impact on rape culture

For 84 years, from 1927 to 2011, the FBI’s definition of rape never changed. And for 84 years, human rights activists demanded that it should.

That’s because the definition went like this: “carnal knowledge of a female, forcibly and against her will.” A translation from its original old-testamentalian would look like the “forcible male penile penetration of a female vagina.” As narrow as this definition sounds, in practice it was even more so.

In 1927, the only women capable of being raped were white. And those white women were only capable of being raped by strangers. And those white women raped by strangers were only capable of being raped if they could display physical injuries as evidence of their assault.

Southern white women and men claimed people of color did not have the “respectability” or “purity” necessary for rape to even be possible.

Ideas that women could be raped by people they knew weren’t studied until the 1950s. And we had no term for such an idea until Diana Russell coined “acquaintance rape” in 1978.

Some states still require women to provide evidence of their “earnest resistance.” Such laws assume only one correct, universal response to rape: struggle, even though doing so may place the survivor in more physical danger, and even though responses to trauma vary as much as the people involved. On April 19th, 2017, this was a headline: “New Maryland Law No Longer Requires Rape Victims to Prove Physical Resistance.”

A definition for rape culture to fall back on

The FBI’s definition has made for very slow change in human rights. Any time someone argued for greater protections for rape survivors or a more inclusive understanding of who rape survivors were or safeguards against future rape crimes, all an uninterested party had to do was point to the FBI’s official definition.

The FBI’s take on rape copies colonial British common law: “unlawful and carnal knowledge of a Woman, by Force and against her will.” The principle of coverture entwined in these words made wives the property of their husbands. He owned her “matrimonial consent.” Though a law like this sounds barbaric, thanks in large part to definitions like the FBI’s, women fought the last three decades of the twentieth century to pass laws protecting wives from their husband’s sexual abuse. Marital rape wasn’t a crime in all of the U.S. until 1993.

In 2011, republicans tried to pass the No Taxpayer Funding for Abortion Act. Since it was already illegal to use federal funding for abortions, this act confused most of the country.

Turns out, two exceptions allow federal funds for abortions: incest and rape. Republicans wanted to further eliminate such exceptions down to only the FBI definition of “forcible rape.” Yes, the party currently in control of all three branches of government tried to force women who are survivors of incest, statutory rape, drug-induced rape, and mentally/physically incapacitated rape to have their rapists’ babies.

Luckily, a national conversation and backlash led by several activists and lobbyists not only killed the bill but also increased the pressure on the FBI to revise its definition. Ms. Magazine created the petition “Tell the FBI: Rape is Rape!” that saw more than 140,000 letters launched in the direction of the government agency.

On January 6th, 2012, the U.S. Department of Justice admitted to the damage its definition had done over the course of nearly a century. “That definition, unchanged since 1927, was outdated and narrow.” The admission continued,

“Even though most states have more expansive definitions of rape in their criminal codes, they had to report the smaller number of crimes falling under the more narrow [FBI] definition.  This meant that the statistics that were reported nationally were both inaccurate and undercounted. Because the new definition is more inclusive, reported crimes of rape are likely to increase.  This does not mean that rape has increased, but simply that it is more accurately reported.”

For years, policy makers would point to the disparities between the FBI’s data collected on rape and other government agencies’ data on rape. Since, for example, the CDC had more inclusive rape definitions, its results drastically differed from the FBI’s. “See,” judges and lawyers and politicians would say, “the results are too all-over-the-map to be reliable.”

And even now, deniers will dismiss more inclusive definitions as liberal ways of “fluffing” the data. The longer the FBI kept its definition in place, the more it ingrained into generations of Americans.

A definition for rape culture to call a ‘legacy’

Pressure applied, the FBI revised its current definition: “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.”

In 2012, the FBI acknowledged for the first time that men could be raped.

They admitted that any object or body part can be used in rape, that a person can be raped in situations that do not include simple, brute force, and that oral and anal rape exist. While progressive for FBI agents, what they did next would be the equivalent of building a confederate statue into their change of policy.

After Director Robert Mueller had approved the revision, the old definition got a new name. The DOJ’s announcement referred to it as the “historical definition.” But the FBI decided to recast it as the “legacy definition of rape.”

Some notes on what the FBI celebrates as a ‘legacy’

• requiring women to be beaten to be believed
• no acquaintance rape (the majority of reported rapes)
• rape as damage to men’s property, where a rapist paid the husband or father of the woman raped for damaging her value
• no statutory rape protections for children
• no rape protections for boys or men
• no rape protections for wives
• salvaging accused men’s careers instead of protecting rape survivors
• dissuading 80% of women from reporting their rapes
• using women’s sexual history in court as if it might justify their rapes
• dehumanizing women of color (especially African American and Native American women)
• guaranteeing white men lighter penalties for raping women of color
• blaming rape on women of color for their overly-sexual nature
• falsely accusing African American men of rape to justify lynchings (the word “rapist” was first used by an American newspaper about lynching a “‘nigger’ rapist”)
• congressmen stamping federal anti-lynching legislation in the 1930s as “a bill to encourage rape“

Does the FBI consider the legacy to be its place and role in a racist and misogynistic history?

I’m baffled, wondering what good, if any, was achieved.