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When the Law Won't Call it "Rape"

If there's confusion among the public (and politicians) about rape, baffling, conflicting state laws make it worse.
 
 
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The night of August 18, 2011, 25-year-old Lydia Cuomo could barely sleep. The next day was her first day of work teaching second grade at an elementary school in the South Bronx. She’d just landed the job a few days before, and she was pumped. In the morning, she planned to get a ride with her new principal, who also lived in upper Manhattan’s Inwood neighborhood. While waiting outside of the principal’s home, off-duty police officer Michael Pena approached her. He asked for directions to the subway, then showed her his gun, and pushed her into an alleyway, where he forcibly penetrated her with his penis — orally, anally and vaginally. (It’s usual practice to conceal the name of a rape victim in news reports, but in this case, Cuomo preferred to be identified. “I want to take the most negative thing that ever happened to me in my life and turn it into something positive,” she said. “At the end of the day this is my story and attaching my name to it allows me to own it and take back what happened to me.”)

It seems fair to call all three of those acts “rape.” But the legal definition is more complicated than that. Under New York state law, rape is defined as forcible vaginal penetration. Forced oral and anal contact both go under the term “criminal sexual act.” If the same crimes had occurred elsewhere, they might not legally be considered rape at all. Twenty-five states and the District of Columbia have stopped using the word “rape” in their criminal codes entirely and instead use terms such as “sexual abuse,” “sexual assault” and “criminal sexual conduct.” This variety of language exists in a country in which the word “rape” is becoming increasingly politicized and where politicians qualify rape as “forcible” or “legitimate,” intimating that other times it’s not. Because the laws — and many lawmakers — differ so wildly on the meaning of rape, it can be hard for us as a society to develop a shared understanding of what it actually is.

In New York, Michael Pena’s case went to trial in March. The charges included rape, criminal sexual act and — because he threatened Cuomo with a gun during the attack — predatory sexual assault. Cuomo testified that she knew she had been penetrated because it hurt. Accounts of the trial say an eyewitness reported seeing Pena push into a woman in the alleyway. Another witness testified to seeing “joyless sex.” Physical evidence is not required for proof of rape, though reports of the trial say Pena’s DNA was found on Cuomo’s underwear. Pena’s attorney, Ephraim Savitt, maintained that while Pena had attacked Cuomo, he hadn’t vaginally penetrated her.

Pena was found guilty of the criminal sexual act and predatory sexual assault charges. But the jury deadlocked on the rape charge. In other words, the jury believed that Pena’s penis had made oral and anal contact with Cuomo, but the jurors couldn’t agree on whether he’d vaginally penetrated her. It’s not clear why. One juror told the New York Times that one of the three holdout jurors questioned Cuomo’s memory because she hadn’t remembered a car in the driveway near where she’d been attacked.

When the verdict was announced, Cuomo said she just lost it. “It was like, oh my god. I’ve sat through this. I’ve waited for this. And this jury just told me ‘you were sexually assaulted, but you weren’t raped because you couldn’t remember the color of a car.’ Apparently there was a car in the alleyway. I honestly don’t remember a car at all. I was in shock. There was a gun pressed to the side of my head. I don’t need to justify it. It’s just insulting. It was offensive. And it was just devastating to think ‘I might have to relive this again.’”

 
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