You may be wondering how on earth did a jury find Donald Trump liable for sexually assaulting E. Jean Carroll but not for raping her—and what’s the difference anyway? Welcome to the decade-long battle in New York state to change the definition of rape in the first degree (aka Rape 1).
In New York, a victim needs to convince a jury that a man put his penis in her vagina without her consent in order to prove rape. This is the layman’s translation of Rape 1, currently defined in criminal statute as forcible compulsion through “penetration, however slight, of the penis into the vaginal opening.”
It’s harder to prove than it sounds, because juries tend to get really hung up on the physics of a rape. Did the penis penetrate or merely have “contact” with the victim’s vagina? What if it wasn’t his penis, but just a finger—perhaps the view taken by some of the jurors in Carroll’s case (though she says both)? If she was also anally penetrated—which is not technically rape—can she be sure that she was also vaginally penetrated? None of this amounts to a hell of a lot of difference to the victim—who has to sit through the humiliation of a trial splitting hairs over which human organ touched which of her body parts and to what degree to the satisfaction of 12 random strangers.
This is the scenario Lydia Cuomo had to deal with. A Bronx school teacher, Cuomo was violently assaulted at gunpoint in 2011 by a drunk, off-duty cop on her way to work one morning. A jury found the assailant, Michael Pena, guilty of predatory sexual assault and sentenced him to 75 years to life in prison, but they deadlocked on the rape charge. The defense argued that there wasn’t sufficient DNA or eyewitness evidence to prove rape, despite the fact that Pena’s semen was found in Cuomo’s underwear. That was apparently enough to confuse one juror, who also thought it odd that Cuomo couldn’t recall the specific color of a parked car, so how could she be sure she was vaginally penetrated?
This is the actual shit women have to deal with at trial—random leaps of logic that have absolutely no bearing on anything. Pena later admitted to rape, which earned him a concurrent sentence of 10 years to life. Cuomo was obviously furious, though, and two years later went to bat for a bill to change the definition of Rape 1:
“I knew I had been raped and I had this jury say, ‘Well, it wasn’t really rape, it was sexual assault.’ But there was still this kind of unresolved idea that he’s going to prison, but not as a rapist. And, every sort of part of my being said that was wrong because I had been raped.”
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Rape Is Rape, as the bill is known, would change the elements necessary to prove rape from “penetration” to “contact” of the penis with the vagina or vulva. Incidentally, it would also define nonconsensual anal and oral “contact” as rape rather than just sexual assault, meaning men would also qualify as rape victims for the first time.
This matters because, as Cuomo put it:
Sexual assault sounds so vague and I don’t think the word “sexual” should be involved in it at all. There’s nothing sexual about it—detest, disgusting violation of someone…. Survivors and victims who had this happen to them, your mind plays a lot of tricks on you. You go back to those moments over and over and over again and it doesn’t help when legally the terminology surrounding it is not what you want to call it.
Who opposes this? An unholy alliance of prosecutors, public defenders, and criminal defense attorneys. Their reasons vary, but all are frankly terrible. The District Attorneys Association of New York doesn’t have a problem with eliminating the vaginal penetration requirement, but thinks that consolidating oral and anal contact under the rape statute will interfere with consecutive sentencing, meaning less jail. The Chief Defenders Association (CDANY) opposes it, thinking it would result in more jail. The criminal defense attorneys just hate it because it’ll make their job of smearing rape victims harder. What’s particularly obnoxious about the public defenders’ argument, though, is that they cite Pena’s conviction and sentence as a clear example of how the law already works. I guess because they’re categorically opposed to any expansion of the criminal legal system this makes sense, but nothing about the system works for victims. And the added burn that we need to accept verdicts even though “it can be tempting to change laws when we feel one outcome was wrong,” as a CDANY opposition memo put it, betrays a stunning ignorance of the scope of the problem. To be clear: Donald Trump is technically not liable for rape because of the existing narrow definition in law. And it’s not just him. There are thousands of less-famous people who’ve had to sit through the brutality of a civil or criminal trial and have their very bodies litigated by the centuries-deep misogyny that permeates our culture and courts.
But that might finally change. For the first time in a decade, the bill is pending a floor vote in the state Senate after passing the state Assembly. If the Senate passes it and the governor signs it into law, rape will finally be rape in 2024. That’ll still be too late for Carroll, because the civil look-back window that allowed her to sue Trump for a 30-year-old crime closes in six months, but it’ll make a whole world of difference.
