By Claudia Wald, Gainesville Area National Organization for Women
Last year, we celebrated the third reauthorization of the Violence Against Women Act (VAWA), along with its 17th anniversary. Although significant, VAWA is still lacking in several areas, perhaps the foremost being a loose and ambiguous set of guidelines. In current practice, criminal prosecution is dangerously susceptible to subjectivity by police, prosecutors, judges and juries as they approach cases differently. This is in part due to inconsistent and conflicting definitions for sex crimes. This detrimental effect is multiplied by prevailing stereotypes about sexual assault. General rules written by legislatures offer only preliminary guidelines on how these cases should be handled.
A broad definitional ambiguity clouds sexual violence literature and legislation in characterizing and prosecuting violent crimes against women. Professor TK Logan of the University of Kentucky, speaking for the Sexual Violence Research Roundtable convened by the National Institute of Justice and the Office of Violence Against Women in Arlington, Va., on Sept. 8-9, 2011, explains that many of the articles fail to define important terms such as “sexual coercion” and “sexual violence.” These articles also fail to explain the methodology used. In addition, perpetrators have inconsistent labels in research. Terms such as “stranger,” “date,” and “intimate” lack concrete definitions.
Along with this definitional “fuzziness,” increasing fears about crime have contributed to an explosion of new criminal statutes, leading to a complicated network of law that is conflicting and inconsistent.
When addressing crimes that fall under the purview of VAWA, it is important to be able to assess the gravity of an individual offense of rape using generally agreed upon factors. In American courts, the existence of a prior relationship has been used to moderate charges. This follows the long-standing stereotype (derived from 17th century laws exempting spouses from rape laws) that marital rape is less brutal and traumatic than stranger rape. Following this stereotype, rape between intimates is addressed as a less severe crime than rape between strangers. Recently, however, several courts have recognized that sex forced upon an intimate partner can cause harm that equals, if not exceeds, the harm experienced by the victim of a stranger rape, as a result of the breach of trust involved in the violation.
VAWA’s 2011 reauthorization fortunately provides numerous new technical definitions and revisions that shed light on the need for clear, consistent, and streamlined language, deterring the influence of problematic stereotypes based on archaic standards such as these. The recent reauthorization’s increased dedication to training service-providers on sexual assault, and streamlining funding with other relevant federal programs, aims to increase consistency and uniformity in service delivery and other practices. In other developments, VAWA’s STOP and Arrest programs have been tailored to include provisions specific to sexual assault issues. For instance, the Arrest Program requires certification of HIV testing for sex offenders at the request of the victim within 48 hours of indictment, and provides the results to the victim.
In January 2012, Attorney General Eric Holder announced the Uniform Crime Report’s (UCR) definition of rape, which will contribute to a more ample statistical reporting of rape nationwide. This definition, with its increased breadth, will better encompass state criminal codes and concentrates on the different types of sexual penetration commonly considered as rape. The new definition of rape is: “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.” The Federal Bureau of Investigation (FBI) uses this definition of rape to collect information from local law enforcement agencies about reported rapes. With this move, it is hoped that the number of victims of this heinous crime will now be more accurately reflected in national crime statistics.
Considering that VAWA will soon be of an age to attend her senior prom, she has a great deal of challenges to tackle, and some more growing up to do. Bringing criminal justice actors and academicians to the same table to develop standards and conventions on key terms is certainly a work in progress, with a great distance ahead, hopefully bringing to greater light the urgency of victims and survivors everywhere.