No, No-One Is Trying To “Redefine” Rape

No, the legislation does not in any way "suggest that some kind of rape that would be okay."

The most odious smear of the week has been the Democrats’ attempt to convince the public that the GOP wants to make some kinds of rape okay. As one would expect from such an outrageous talking point, it (a) is totally false, and (b) has been taken up with gusto by the worst elements of the new civility chorus.

The bill would, like the Hyde amendment that applies to Medicaid and Medicare, establish a government-wide ban on taxpayer-funding for abortion, except in the cases of rape, incest, or when the life of the mother is endangered. Because the bill says that funding is only allowed for “forcible” rape, some Democrats say that would change the definition of rape, as to exclude both statutory rape and rape that occurs when a woman is incapacitated.

[…]

But the legislation does not in any way “suggest that some kind of rape that would be okay.” There is absolutely no evidence that the legislation would “redefine” rape as to exclude a case in which an incapacitated woman is sexually assaulted. As Douglas Johnson of the National Right to Life Committee says, it would merely codify the longstanding interpretation of the Hyde amendment regarding statutory rape.

[…]

[T]he word “forcible,” therefore, appears to be a redundancy, as far as this law is concerned, and is likely to be stripped since its primary purpose now is to smear pro-lifers and divert attention from legislation that is supported by about two-thirds of American voters.

But even if they change the language, it probably won’t be too long until Democrats find another reason to link Republicans to rape.

Utterly disgusting.

UPDATE (James Joyner):  I agree with Dodd and Johnson on this interpretation. My 28 February post “House Republicans Want to Redefine Rape,” which focused entirely on statutory rape cases involving truly consensual sex between a 19-year-old and his 16-year-old girlfriend.

“Forcible rape” is a legal term of art:

Forcible Rape, by UCR definition, it the carnal knowledge of a person forcibly or against that person’s will, or when a victim is mentally or physically incapable of giving consent. Attempts to commit rape are included in this category. One offense is counted for each victim of rape. Statutory rapes and other types of sexual assaults are not counted as rape under the UCR program.

Under longstanding practice, the Hyde Amendment had excluded statutory rape from the “rape and incest exception.” This bill would have simply codified that practice.

Unfortunately, people reading the term “forcible rape” either innocently or willfully misunderstood it, instead applying lay interpretation and attributing malice to the authors.  But the idea that lawmakers wanted to make it okay to drug women to have sex with them or to force themselves on the mentally disabled is just absurd.

UPDATE 2 (James Joyner): I’ve been in meetings all day but several commenters have pointed out that UCR reporting categories don’t quite amount to a legal consensus.  That’s a fair point, at least in terms of how the law might be interpreted.  I do, however, think the UCR definition is likely what the people who wrote the new law had in mind.  The ambiguity has caused them to rewrite the law, omitting the “forcible” qualifier.

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FILED UNDER: Crime, Gender Issues, Quick Takes
Dodd Harris
About Dodd Harris
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He contributed over 650 pieces to OTB between May 2007 and September 2013. Follow him on Twitter @Amuk3.

Comments

  1. anjin-san says:

    I don’t think they are trying to redefine rape.

    Just make the aftermath a little harder for some of the women who have been, you know, raped.

    But why worry about crap like that when you can whine about “outrageous” Democrats?

  2. legion says:

    Bull. You may be a lawyer, but you’re flat wrong on this. As some other people around the ‘net are starting to point out, when Judges are actually making decisions, they tend to, you know, _read the law in question_. And when they, do, they give a lot of credence to the actual, specific words used in it. Some random legal beagle saying that the work “forcible” “appears to be a redundancy” is a total bucket of crap. And frankly Dodd, you know better. The word being in the law at all directly implies some different category of “rape”. Period. Dot. Full stop. You and the jokers at the NRLC can say “it doesn’t matter” all you want, but YOU AREN’T A JUDGE. And when a Judge looks at that law, he or she _will_ take that into account.

  3. michael reynolds says:

    Dodd:

    Your sole contribution as a blogger is as an echo chamber. The Fox/GOP noise machine speaks, and you repeat.

    Echo . . . echo . . . echo. . .

  4. anjin-san says:

    > As Douglas Johnson of the National Right to Life Committee says, it would merely codify the longstanding interpretation of the Hyde amendment regarding statutory rape.

    Great. A guy who does not believe women have the right to control their own bodies is weighing in about rape. Sleep lightly ladies, danger is surely at hand…

  5. Dave says:

    Until the language in the bill is actually changed, criticism of it is totally valid. Or do you believe a good attorney could not find a difference between forcible rape and date rape? Statutory rape? I’m certain you know people who could and would make such a case to deny a woman access to abortion.

    If the Republicans are not trying to redefine rape as it pertains to abortion, all they have to do to prove it is change the language of the bill.

  6. Herb says:

    What’s disgusting is the Republican’s continuing fixation on abortion. Surely there are more pressing issues on which they can fixate.

    On second thought, maybe it’s best they stick with the little things.

  7. Aidan says:

    Hey, if a writer for the Weekly Standard and a member of the National Right to Life Committee say that Democrats are wrong, that seems more trustworthy than actually reading the language contained in the bill.

  8. James Joyner says:

    Legion and Michael Reynolds:

    You’re wrong on this one. “Forcible rape” has a clear and longstanding meaning under the law. See my update.

  9. EJ says:

    “”The word being in the law at all directly implies some different category of “rape”. ”

    hmm, so you are saying that there is an area of commerce that is not interstate… interesting.

  10. ptfe says:

    @JJ: Actually, it’s not a legal term of art, it’s a term which has solely been defined (as per your link) for the purposes of compiling statistics on rape. There is, actually, no legal definition of “forcible rape” — no other federal law refers to and/or defines it, so all we have is that FBI database. This may come as a surprise, but the way the FBI compiles national statistics is not legally binding. See here and look for a definition.

  11. PJ says:

    @James:
    From the bit you quoted:
    “Forcible Rape, by UCR definition, it the carnal knowledge of a person forcibly or against that person’s will, or when a victim is mentally or physically incapable of giving consent. Attempts to commit rape are included in this category. One offense is counted for each victim of rape. Statutory rapes and other types of sexual assaults are not counted as rape under the UCR program.”

    No. According to UCR, forcible rape is “The carnal knowledge of a female forcibly and against her will”. That’s their definition, the definition you linked to is wrong.
    It’s gender biased, so men can’t be raped.
    And the definition doesn’t say anything about a victim being incapable of giving consent.

    BTW, the UCR definition is only used for statistics they create, it doesn’t have any further use.

  12. TG Chicago says:

    @Joyner: If you are correct, that means that the Weekly Standard writer who claimed the term “forcible” was redundant is also wrong. And that Dodd was wrong for approvingly quoting the writer.

    To me, it seems clear that if the language changes, then it’s changing for a reason. You can call it redefining rape or “codify[ing] the longstanding interpretation” of rape, but that’s tomayto/tomahto. As others have pointed out, if the language of the law changes, then there is the possibility of interpretations changing. If the authors of the law aren’t trying to push a particular interpretation, then why change the language?

    They clearly want to make it more certain that statutory rapes are not included in the exception. Joyner, in the update, says as much. Thus, it’s not unfair for Democrats to point out that Republicans are trying to make life harder for victims of statutory rape.

  13. PJ says:

    Politico writes that the lead sponsor is going to remove the term ‘forcible rape’ and replace it with the wording from the Hyde Amendment.

  14. […] James Joyner and Dodd Harris have written about the controversy that has erupted over the wording of the bill House Republicans […]

  15. mantis says:

    But the idea that lawmakers wanted to make it okay to drug women to have sex with them or to force themselves on the mentally disabled is just absurd.

    No, it isn’t. Republicans have been trying to sneak anti-women redefinitions of abortion, life, conception, pregnancy, and more into legislation for decades. It’s not at all absurd. That’s exactly what they intended to do, but they were caught doing it.

    Just another Republican attempt to force women to bear their rape babies. Ho hum. They’ll try again next month, next year, the year after that, etc.

  16. marginmn says:

    So neither Dodd nor Joyner found it necessary to discuss what this is about: funding abortion. There is no funding for abortion by the federal government already, so this was an attempt to un-fund it from private insurers as well. That, gentlemen, is “utterly disgusting”. Guys…..I’m an Independent from flyover country….I come here for responsible conservative views…..don’t make me rely on Jon Stewart for clarity on this subject. (See 2/2 show)

  17. michael reynolds says:

    Meanwhile, how’s the rest of the GOP agenda coming along?

    And by the way, what is that agenda? Does it extend beyond symbolic health care votes and sneaky backdoor attempts to defend the parental rights of rapists?

  18. Loviatar says:

    Based upon PTFE (09:39) and PJ (09:47) comments Foricable Rape is not a legal term, so it seems that Jame’s update is wrong, I wonder how long its going to take him to correct his update.

    We know Dodd would never correct a right wing falsification, how about James?

    Tic

    Tic

    Tic

  19. PD Shaw says:

    James is correct.

    “Rape” is not a crime in all states; the term “rape” has been superceded in many states by the term “sexual assault.” All states differ on the terms they use.

    In the 1930s, Congress charged the FBI with the task of categrorizing criminal offenses for purposes of data collection and analysis. The definitions used by the FBI’s Uniform Crime Reports, are the result and are AFAIK the only national systemic organization of the various state criminal definitions. And since state and local governments report to the FBI using these categories, they know how to use them.

  20. legion says:

    James,
    Just to stake my own territory, even though others have pointed it out: you’re wrong too. UCR definitions are not law, nor legally binding. They are an artifact of one federal agency’s reporting standards, and neither the Legislative nor Judicial branches are bound by them in any way. Again I say – what do you think a Judge is going to use to determine the proper application & interpretation of this law – an FBI manual, or the law’s own wording? As a former Asst US Attorney says,

    The bill hasn’t been carefully constructed, Levenson notes. The term “forcible rape” is not defined in the federal criminal code, and the bill’s authors don’t offer their own definition. In some states, there is no legal definition of “forcible rape,” making it unclear whether any abortions would be covered by the rape exemption in those jurisdictions.

    http://motherjones.com/politics/2011/01/republican-plan-redefine-rape-abortion

  21. PD Shaw says:

    Yet a quick search at GPO Access finds the term “forcible rape” to be used dozens of times in federal statutes and regulations.

  22. PJ says:

    @PD Shaw:

    The UCR is about statistics, nothing else. When state and local governments report to the FBI, they should classify according to the definitions in the UCR, they shouldn’t use state laws, nor should they decide on their own.

    This also obviously means that a crime that is being reported to the FBI as rape may not locally be tried as rape and vice versa depending on state laws.

    All the talk about the UCR definition of rape spotlights one thing, that their current definition is outdated and should be updated. It should be made gender neutral and it should remove the need for rapes to be forcible.

    This wouldn’t change the legal definition of rape, nor does it create a federal legal definition of rape, but it would fix the major underreporting of rapes in the statistics.

  23. legion says:

    PD:
    Used != defined. And again, your previous comment only supports my claim – by using the term without defining it, the law _removes_ clarity from an issue that desperately needs some.

  24. PD Shaw says:

    The question is whether the term has an ascertainable meaning within a federal context. It does. The FBI was required by law to develop categorical definitions to synthesize crimes being charged primarily at the state and local level. Everybody without a partisan nit to pick understands how useful these terms can be used for definitions. And Congress and government agencies have used them before.

    “Rape” is not a term used in my state. Does that mean there is no exemption here?

  25. PD Shaw says:

    This quote would equally be true if you take out the word “forcible”

    “The bill hasn’t been carefully constructed, Levenson notes. The term “forcible rape” is not defined in the federal criminal code, and the bill’s authors don’t offer their own definition. In some states, there is no legal definition of “forcible rape,” making it unclear whether any abortions would be covered by the rape exemption in those jurisdictions.”

  26. Dodd says:

    Until the language in the bill is actually changed, criticism of it is totally valid.

    Well, no, as James made clear (tendentious attempts to hold onto the smear notwithstanding). Rape is, by definition, forcible, as an essential element of the crime is lack of consent. There is no meaningful distinction legally between ‘forcible’ and ‘against the will.’ Statutory rape, for instance, is presumed to be against the will of the minor because the minor lacks the capacity to grant consent.

    But your requirement has been met, just as the quoted passage suggested it would.

    One senior GOP aide told Huddle it’s a no-brainer to get rid of the modifier. “Such a removal would be a good idea, since last I checked, rape by definition is non-consensual,” the aide said.

    Anyone want to lay odds that this won’t end the smear? Of course it won’t. In fact, lefty reporting on the change in language merely subsumes the smear into the report.

    I have to admit the irony and projection on display in this thread is pretty epic.

  27. MarkedMan says:

    Dodd said: “The most odious smear of the week has been the Democrats’ attempt to convince the public that the GOP wants to make some kinds of rape okay. ”

    I say: the most odious smear of the week has been Dodd’s attempt to convince the public that the Democrats were saying the GOP wants to make some kinds of rape okay. I haven’t hear anyone say that. What they have been saying is that the GOP wants to make some kinds of rape off limits to abortion funded by Medicare, Medicaid, or tax-incentivized insurance policies. Which is true. In fact, it’s the point of the bill.

    What’s that word where instead of arguing what the other side is saying, you put outrageous words in their mouths and argue against that instead?

  28. PJ says:

    “Forcible rape” as defined by the UCR is statistical definition, it’s not a legal term.

    The United States Postal Service may define certain things to make their statistics more easily to compare between different states due to different local laws, rules or definitions, that won’t make these created definitions special in any way, especially not in regard to the law.

  29. mantis says:

    To Dodd, pointing out what Republicans try to do = smear.

  30. TG Chicago says:

    I’m enjoying watching Dodd and Joyner argue with each other by proxy. Their arguments go against each other — Dodd claims “forcible” was a redundancy while Joyner claims “forcible rape” is a specific legal term. But neither is willing to actually take on their fellow blogger directly, they just argue with one another through other commenters.

    Of course, they’re both wrong. Dodd’s suggestion that the authors of the law threw in the word “forcible” unnecessarily — Whoopsie! — is silly. Who would do that? If you were writing a law about fraud, would you put in a phrase referring to “egregious fraud”? Of course not… *unless* you were creating some legal wiggle-room to let non-egregious fraudsters off the hook.

    It’s funny that people on the right are so afraid to admit that Republican lawmakers wanted to make abortion harder to obtain. That’s what they do! That’s a big part of their coalition. Why be so afraid to admit it in this case?

  31. James Joyner says:

    @TG: I don’t think Dodd and I are disagreeing here.

    1. “Forcible rape” basically means any form of nonconsensual sex. As used by the UCR, it excludes statutory rape.

    2. But, as the Hyde Amendment has been interpreted over the decades, we never used public money to pay for abortions in those cases, anyway.

    So, no, “forcible rape” is not redundant as a standalone concept. But *is* redundant in the context of public financing for abortions.

    @Dodd:

    I agree that the Republicans aren’t “redefining” rape. I typically take post titles from the larger controversies, and that was the charge being levied. In this context, though, House Republicans *were* trying to distinguish forcible rape from teen-teen statutory rape. And it’s a distinction I happen to agree should be made.

  32. anjin-san says:

    > Anyone want to lay odds that this won’t end the smear?

    Poor babies, being smeared. Life is hard.

    I would suggest spending less time complaining about “smears” and more trying to figure out how to give rape victims the very most support we can humanly muster. Oh, wait. It’s the GOP. What was I thinking?

  33. mantis says:

    In this context, though, House Republicans *were* trying to distinguish forcible rape from teen-teen statutory rape.

    Nice try covering for them, but there was nothing about the age of the parties involved. It didn’t say “only for teenagers!” Don’t lie to cover for the scumbags.

    Republicans were trying to redefine rape. Period. They got caught, and we’re going to make them own it. Don’t like it? Don’t support politicians who try to do this sort of thing.

  34. TG Chicago says:

    @Joyner: “1. “Forcible rape” basically means any form of nonconsensual sex.”

    Isn’t that just “rape”?

    “As used by the UCR, it excludes statutory rape. ”

    But statutory rape is nonconsensual.

    “So, no, “forcible rape” is not redundant as a standalone concept. But *is* redundant in the context of public financing for abortions.”

    So I guess if you’re saying the word change is redundant, then you’d disagree with someone who claimed that the language in this bill “would dramatically narrow” the rape exception of the Hyde Amendment.

    Of course, the person who said that is you, from your January 28 post.

    “House Republicans *were* trying to distinguish forcible rape from teen-teen statutory rape.”

    If that’s what they wanted to distinguish, they should have said so. If the idea is to exempt teen-teen statutory rape, then don’t use language which includes adult-child statutory rape. Unless you *want* to include adult-child statutory rape, in which case don’t pretend it’s just a teen-teen thing.