See How Your State Legally Defines Rape (or Doesn’t)

Brock Turner has been referred to as a rapist by media outlets, legislators, and his victim. But in the eyes of the law, the 20-year-old former Stanford swimmer who digitally penetrated an unconscious woman behind a Dumpster is not one.

Under California’s penal code, Turner’s use of his fingers instead of his penis to penetrate his victim is the difference between charges of sexual assault and charges of rape.

In June, prompted by the public outcry over Turner’s sentence of six months in a county jail after being found guilty of sexual assault, California Assemblymembers Cristina Garcia and Susan Eggman presented legislation proposing to alter the state’s definition of rape to mirror the Federal Bureau of Investigation’s classification, which includes all forms of sexual penetration. On Tuesday, the bill passed the Senate Public Safety Committee.

California law separates sex crimes into distinct charges, including rape, spousal rape, sodomy, and sexual assault, which includes forcible object penetration and oral copulation. Rape is defined as nonconsensual “sexual intercourse with another person who is not the offender’s spouse.”

“This archaic definition reflects a culture that blames women for the crimes that are committed against them, and finds any excuse to be lenient with rapists,” Eggman said in a press release.

Turner’s sentence spurred a national conversation about rape and rape sentencing, much of it focused on what the public perceived his crime to be. But as the intricacies of California’s penal code make clear, the legal definition of rape and the sentence it carries can be difficult to understand and varies widely across the country.

By introducing the California bill, Eggman and Garcia joined a growing chorus of voices looking to expand the definition of rape to include all forms of nonconsensual sexual penetration. They believe the wide variations in language can make it difficult to punish acts of sexual violence and have created a system that allows perpetrators to walk away with shorter prison sentences based on the form of sexual penetration.

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The Turner case dominated headlines after Judge Aaron Persky sentenced Turner to six months in county jail despite a unanimous guilty verdict on three assault charges. The victim’s searing impact statement, detailing the trauma of the event and its aftermath, has fueled public outrage.

“Forcing someone into sexual activity is rape, and the law should say that,” Eggman said in the press release. She and Garcia argue that identifying forms of sexual assault as different crimes indicates that they are not equal offenses.

“When you’re looking at terms like sodomy or marital rape or things like that that are split out into degrees, I think that’s extremely problematic,” Ebony Tucker, advocacy director of the National Alliance to End Sexual Violence, told TakePart. “It definitely gives the impression that if you’re married to your rapist, it’s a lesser crime. Or that if your rape was an anal rape, it was not as serious of a crime as if it were a vaginal rape.”

Historically, rape was considered a crime against a man’s property rather than one against the person assaulted. Sex-crime reform bubbled up in the 1970s as women’s rights activists rejected that notion. Individual state legislators began to make changes to reflect rape as a crime against bodily integrity, but these changes have not happened uniformly across the nation. It took the FBI until 2013 to alter its 1929 definition of “the carnal knowledge of a female, forcibly, and against her will” to “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.”

Just eight states include all forms of sexual penetration under their legal definition of rape. More than half of states decline to define rape in their penal code at all and instead defer to blanket terms such as “sexual assault” or “sexual battery” to encompass a variety of sex crimes. More than a dozen states define rape as California does and list nonconsensual object penetration, oral sex, and anal sex as different crimes. Additionally, some of these states classify each crime as a different level of felony—or even misdemeanor—which creates a hierarchy of penalties dependent on the form of penetration.

(Data: Rape, Abuse, and Incest National Network; illustration: Élishia Sharie) 

Because of the confusion around what each state considers to be rape, “you have people that don’t really understand how their own laws work,” Tucker said. She has worked at both the state and the national level and knows firsthand how tricky it is to parse information from individual state penal codes covering sex crimes. Deciphering any legal jargon can prove challenging, but because sex-crime statutes have often undergone multiple revisions, creating overlapping codes, they can be especially confusing.

“Some states try for clarity, but in order to make sure they’re including all the crimes that they want to be, the language becomes very verbose, and it’s really hard to sit down and sort it out,” Tucker said. “Without consulting with a person who actually knows [the law], it’s hard to get a good feel for it.”

Not only does each state create its own definition of rape or sexual assault, but each also has its own definitions for what qualifies as a specific sex act. That means sex crimes like the ones committed by Turner could fall under myriad different classifications depending on where they were committed.

Kentucky lists rape as nonconsensual sexual intercourse but includes anal sex and foreign-object penetration in its definition of sexual intercourse. Alaska does not define rape in its criminal code but rather, includes all forms of unwanted sexual penetration under a sexual assault charge. New York state law defines rape as sexual intercourse without consent, and foreign-object penetration falls under sexual assault.

“But it’s the same penalty,” Bill Fitzpatrick, district attorney of Onondaga County, New York, and the president of the National District Attorneys Association, said.

Along with New York, Alabama, North Carolina, and Virginia are among the states that have separate charges for each sex act but consider all acts of sexual penetration to be of the same severity. California also considers rape and sexual assault to be equally offensive, with both charges carrying a penalty of three, six, or eight years in prison. Turner faced up to 14 years in prison for his three-charge conviction but received a short sentence at the judge’s discretion.

Fitzpatrick believes that uniform punishment for all forms of sexual penetration, rather than what each crime is called, is the most important aspect of sex-crime laws.

“In terms of atrocity, in terms of the breaking of the social contract by the defendant, in terms of the impact on the victim, does it really matter to her at the end of the day if it was a penis or some kind of foreign object?” Fitzpatrick said. “In my judgment, no.”

Discrepancies in language and the disparate penalties each crime carries contribute to the low rates of reported rape. Only about one out of three rapes is reported to the police, according to the Rape, Abuse, and Incest National Network. More than 10 percent of rape survivors said they did not report their attacks because they believed that the police would not help them or because they thought it was not considered a serious enough crime.

“Once a survivor is really considering making a report, the way the statute is explained can definitely make [her] feel as if the system does not respect what has happened to [her],” Tucker said.

Tucker agrees with Fitzpatrick that all forms of unwanted sexual penetration should be considered equally severe in the eyes of the law, but she argues that the words used in criminal codes are important as well.

“Language really leads to the way that we talk about rape and also is a reflection of how we, as a society, think of it,” Tucker said. “There should be a more grounded definition in state legislation…. Rape is a term that we have all in this work identified with as far as being descriptive of the experience, of being descriptive of the crime.”