Why Rape Still Isn’t Considered Rape in New York State

The battle to bring rape laws into the 21st century rages on.

Women dance to the theme song of the "One Billion Rising" campaign in New York City's Washington Square Park as the clock strikes 2:14EST on Valentines Day February 14, 2013.

The ‘One Billion Rising’ movement marches on Valentine’s Day in New York’s Washington Square Park to stop violence and sexual predation against women. (Photo: Mike Segar/Reuters)

Matt Fleischer was awarded a Fund for Investigative Journalism grant for his series “Dangerous Jails.”

On a summer day in New York City in 2011, schoolteacher Lydia Cuomo was held at gunpoint by an off-duty police officer named Michael Pena, who then forced her into a variety of sexual acts under the threat of her life. Cuomo survived the ordeal, and, though obviously devastated, was able to find some solace in the fact that she had enough evidence to send her assailant away to prison for a long time.

“I feel like essentially I had a silver platter of a rape case,” Cuomo told the New York Daily News. “I had witnesses; I had DNA; I had my own testimony; I had two cops. I had them saying, ‘We admit he sexually assaulted you.’ ”

Yet when the verdicts came down, Pena was not convicted of rape. For apparently completely arbitrary reasons, the state of New York considers the oral and anal penetration Cuomo was forced to endure to be “sexual assault” and not “rape.”

The difference is semantic—Pena was sentenced to a 75-year prison sentence under the state’s sexual assault laws—but incredibly meaningful to Cuomo and rape survivors like her.

“As a survivor, hearing the word solidifies what you went through and helps you to move on,” Cuomo has said in campaigning to redefine New York’s rape laws. “Who runs around saying, ‘I was criminally sexually acted upon last year?’”

New York State Assemblywoman Aravella Simotas proposed a “Rape Is Rape” bill that would alter the definition of rape in New York state to include any unwanted penetration.

Indeed, though “sexual assault” crimes can carry harsh penalties, they also include boorish, but comparatively less severe, crimes like unwanted buttocks grabbing. A person with sexual assault on his or her record does not face quite the same societal stigma as someone convicted of rape.

Cuomo’s indignation over the labeling drove her to become an activist—demanding the state of New York change its rape laws to include forcible oral and anal sex. She found a willing backer in Democratic New York State Assemblywoman Aravella Simotas. Simotas proposed a “Rape Is Rape” bill that would alter the definition of rape in New York state to include any unwanted penetration. The bill drew bipartisan support from Republican New York State Senator Catharine Young.

Earlier this month, however, after standing side-by-side with Cuomo to support the bill, Young withdrew her support, claiming juries would somehow be less likely to convict anal and oral rapists.

The battle to bring the criminal justice system into the 21st century when it comes to rape is not isolated to New York. Earlier this year, a Los Angeles-based 2nd District Court of Appeals ruled that a man who snuck into the bedroom of an 18-year-old woman and pretended to be her boyfriend to initiate sex did not technically commit rape, due to an 1870-era law dictating that a man who impersonates another man in order to commit a sexual assault has committed a crime only if the victim is a married woman. This ruling came down despite the fact that when the woman became aware of the subterfuge, she put up a fight against her assailant and demanded he stop. He did not.

Perhaps Cuomo’s case isn’t as legally egregious as its L.A. counterpart—Cuomo’s attacker, Pena, was sentenced stiffly under the existing, but semantically inadequate, statues—but it does highlight the fact that the American criminal justice system is still functioning in the 19th century when it comes to its rape laws.

That throwback mentality may or may not change in New York. Assemblywoman Aravella Simotas’s “Rape is Rape” bill is currently stalled in the state legislature.

If the law fails to move forward, activists like Cuomo will continue pushing, and our society needs them to win. After all, if we can’t agree that rape is rape, what can we agree on?

Do you think semantics matters in defining what rape is? Tell why in COMMENTS.

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