What defines sexual assault?

People around the world are sexually assaulted every day and the law hasn’t always been a great outlet to seek justice. Sexual assault is a broad term, and every country has their own way of defining what exactly is considered a sexual assault and what factors determine if someone has consented. It is also important to know that many laws and definitions still do not recognize the fact that men can also be sexually assaulted. It’s estimated that 35 percent of women worldwide have experienced sexual and/or physical intimate partner violence or sexual violence by a non-partner at some point in their lives, according to the UN Women, a United Nations organization dedicated to the empowerment of women and gender equality.

No statistic could be found concerning the number of men worldwide who are sexually assaulted, but according to the National Violence Resource Center one in 71 men will be raped at some point in their lives.

Before we look back at how sexual assault and rape used to be classified, let’s look at the current definitions or laws in place.

Sexual assault, according to the United States Department of Justice, is "any type of sexual contact or behavior that occurs without the explicit consent of the recipient." Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling and attempted rape.

Merriam-Webster defines sexual assault as illegal sexual contact that usually involves force upon a person without consent or is inflicted upon a person who is incapable of giving consent (as because of age or physical or mental incapacity) or who places the assailant (as a doctor) in a position of trust or authority.

The Arizona State Legislature classifies a person who commits sexual assault as someone who intentionally or knowingly engages in sexual intercourse or oral sexual contact with any person without consent of that person.

While generally sexual assault covers behavior from unwanted advances to rape, each state actually has their own legal definitions, consent requirements and criminal code. If you’re curious to what the law concerning sexual assault is in your state, take a look at the Rape, Abuse & Incest National Network’s interactive graphic.

Looking back

According to the Women’s Law Project research, under English common law rape was deemed a crime against property, rather than a person, because a woman’s chastity was considered to be property. This is because a woman's father owned her sexuality or virtue, which was then transferred to whichever man became her husband, so if someone deflowered a daughter or raped a man’s wife, they were essentially stealing his property.

This law solely recognized rape as occurring to an unmarried virgin, since vows were perceived to be a wife’s consent to all sexual activity with her husband. Men who were raped or the rape of any orifice other than a vagina was not actually legally recognized.

The legal system used to emphasize and examine a victim’s behavior, character or words to determine if a victim had consented, rather than looking at the actions of the accused like in the case of other assault crimes.

The Women’s Law Project explains, "For example, the crime of battery (e.g. a punch) is established based solely on the perpetrator’s actions and/or intent and the victim’s response to being punched is irrelevant. The victim need not resist nor express unwillingness to being punched to establish a crime, nor is a victim’s history of being punched relevant. Lack of consent is assumed. Rape, on the other hand, under the traditional view, occurred not because of the action of the assailant, but on the basis of the victim’s perceived influence upon and response to the perpetrator’s action."

The Model Penal Code, a text developed by the American Law Institute to assist in standardizing the penal law of the United states of America in 1962, still defines rape as sexual intercourse with a female who is not his wife by force or threat of severe harm.

The outdated code does not classify rape as a 1st degree felony if the victim was a social companion, had previously permitted sexual acts or if there’s no serious bodily harm. It also includes requirements of resistance, reporting the crime to police within three months, corroboration of a victim’s story and age-related provisions.

The American Law Institute is currently working on a project to re-examine this code’s provisions on sexual assault and related offenses, which they believe was ahead of its time in 1962, but has since become outdated and an unreliable guide for courts and legislatures.

Sex crime and rape law saw major reform in the 1970’s due to feminists rejecting the concept that women are simply the property of men and have no independent legal rights or statutes and demanding change.

The activism resulted in most states expanding their sex crime definitions, to be gender-neutral, not take into account marital status or a person's previous sexual encounters or history. The widespread reform allowed the penetration of all orifices to be recognized legally as sexual assault.

Even more recently the Federal Bureau of Investigation revised their Uniform Crime Report’s definition of rape in order to ensure and enable rape to be reported more accurately nationwide.

Before the change, the UCR had defined forcible rape as, "the carnal knowledge of a female, forcibly and against her will," since 1927. This only identified rape as forcible male penile penetration of a female vagina, excluding many other cases.

The new definition became, "The penetration, no matter how slight, of the vagina or anus with any part or object, or oral penetration by a sex organ of another person, without the consent of the victim." This was a huge step because it now not only recognizes any gender of victim and perpetrator, it also includes the rape with an object in any orifice and instances where consent could not be given.

The FBI wanted to make the new definition more inclusive so the number of reported crimes nationally can be more accurate, because many interpreted the old definition as excluding many of the offenses and cases that came in involving rape of males, penetration with objects and oral or anal penetration.

The law has seen major reform over the years but it hasn’t come far enough.

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