Rape Culture and Hate Crime

Imagine that you have just come home from a stressful day at work. Your routine, after getting home, typically goes as follows: you take off your shoes at the door, you hang your jacket on the coat rack, and you place your keys and phone on the cabinet and proceed to go into your room to prepare to go to sleep. This day was just like any other day. You arrive at home and began your normal routine but as you begin to head toward your bedroom, you hear a knock at your door. Through the door hole, you see an unknown individual standing there. You ask who it is and they reply that you had dropped something on your way up to your apartment. You open the door to retrieve your lost item but before you could speak, you are ambushed by the unknown individual and forced inside. Once inside, the perpetrator makes you take off your clothes and then proceeds to sexually assault you. After they are finished, they escape through the front door. As soon as it is safe, you lock your doors and hysterically proceed to call 911. Upon being examined at the hospital, it is brought to your attention that there has been a spree of sexual assaults occurring in the area and each victim shares a similar trait. Weeks pass, and the perpetrator is apprehended. The district attorney knows that the offender will be tried for aggravated sexual assault, but would like to charge the offender with a hate crime. Would rape be considered a gender-based hate crime or is the consideration excessive?

The definition of rape continues to be revised, but according to the UCR revised definition, rape is defined as the “”penetration, no matter how slight, of the vagina or anus with any part of the body or an object, or oral penetration by a sex organ of another person, without the consent of the victim”” (FBI, 2017, para.1). Rape is rape. The act of rape doesn’t discriminate. Raping can be forced upon anyone no matter the gender, age, race, religion, etc.

In the rape culture, women are seen as the victim while men are seen as the perpetrator. It wasn’t until recently that males were even considered victims of rape. Society has a perceived notion that men cannot be raped because they cannot be overpowered. “”.. a man could always escape a situation, whereas a woman would not be able to, because of economic circumstances and submissive behavior”” (Cook, 2018, p.64). By expanding the definition of rape, we can see the severity of rape culture. Of course there is still the dark figure of crime, the crimes that aren’t reported, but with revision of the definition of rape, the victim profile is no longer one sided. Based on the severity of rape, many are calling for this action to be considered a hate crime. As with every argument, there are counter-arguments and/or limitations to consider. Could rape be considered a hate crime without being seen as more of a “”special right””?

The motion to include rape as a hate crime is based primarily on the rapist choosing the victim based on gender, gender identity, and/or sexual preference. A Majority of those who press the importance of implementing rape as a hate crime focus on a woman being the victim. In the academic journal, Recognizing Another Face of Hate Crimes- Rape as a Gender-Bias Crime, Eric Rothschild provides points on why rape should be a form of hate crime. The first point Rothschild makes is that rape can be considered a hate crime if it is motivated by racial hostility. “”It would seem illogical to include murder or battery as an underlying offense for racial hate crime statutes, but not rape”” (Rothschild, 1993, p.262). Time and time again, rape has been used as a form of a war crime. Those who are impacted by this effort are typically women.

The next reasoning made by Rothschild in regards to implementing rape as a form of hate crime would be how rape correlates to other hate crimes. In some states, gender groups are protected against hate crimes. Based on this knowledge, it would be plausible to consider rape as a form of hate crime based on the assumption that a person can be rape because of their societal differences. Rothschild (1993) states that,

I merely mean to suggest the idea that just as a man might beat a woman because of a gender animus, and just as a man might rape a Black woman because of racial animus, a man might rape any woman because of gender animus. Further, this logical conclusion mandates that in states where gender is a protected category, hate crime count must always be a legal possibility in a rape case (p.262).

In other words, if gender groups are protected against hate crimes than rape should be considered a hate crime and/or be punishable as such because the victim can be raped simply because of their gender, race, nationality, etc.

In the academic journal, The Paradigmatic Hate Crime, Kathryn Carney discusses how rape, although paradigmatic, is not considered a hate crime despite its effect on many women. “”It is a crime that violates and defiles millions of women because of their gender, and still fails to be recognized as a hate crime”” (Carney, 2001, p.319). Just like Rothschild, Carney claims that rape should be considered a hate crime based on the assumption that the victims are targets because of their gender. Carney suggests that rape is a form of hate crime against women. “”Rape is not an act of violence that simply happens to women-it is an act of hate that happens to women because they are women”” (Carney, 2001, p.320).

In order to support her position, Carney first discusses what hate crime is and examine the legislation that are already in place. Legislation, both state and federal, has been enacted. At the state level, some states have made it where an offender can receive more time on their sentence if it is found that the offender commits the crime against the victim because of their gender, religion, sexual orientation, etc. This act is known as an enhanced penalty. Carney (2001) discusses the purpose of the enhanced penalty and states that “”[it] is intended to reflect the greater toll exacted on the community by the bias-crime”” (p.322). Carney also discusses the acts established currently such as the Violence Against Women Act or VAWA, the Hate Crimes Statistic Act of 1900, and the Hate Crimes Prevention Act of 1999 or HCPA.

Carney discusses the history of Rape and the Rape Law reform. Prior to now, a woman who was the victim of rape would have to show proof that they were indeed raped. “Generally speaking, it was sufficient proof of force if one could demonstrate that the male used, or threatened to use, force likely to cause serious bodily injury to the female”” (Carney,2001, p.332). In other words, the only way a woman could prove that she was raped was if she received bruises or physical injury.

Before the establishment of the Rape Law reform, it was difficult to prosecute rapists. Carney discussed, in this academic journal, how an offender wouldn’t receive punishment for rape if the victim showed any signs of submission. It wasn’t until the American Law Institutes or ALI established a draft reform proposal that there was hope for more victims of rape. In this proposal, it focused on the offender and not the victim. This proposal also wanted to eliminate if consent was given and focus on the compulsion of the offender. There have been several attempts made to rape reform as a result of the framework of American Law Institutes or ALI. Each reform aimed to protect the victim, rather than force the burden on the victim to prove themselves.

Carney believes that the next step into rape reform is to identify rape as a crime of hate. Carney especially believes that rape is a crime of hate against women. “We, as a society, must come to accept that rape is a violent form of discrimination parallel to other bias-related crime” (Carney, 2001, p.338). This could be interpreted as rape happens because of gender discrimination and should be seen and punishable as a bias-related crime.

Carney supports this claim by discussing eight elements that correlate the hate crime paradigm and the crime of rape. Element one discusses immutable characteristics. Carney (2001) argues that a victim is not chosen by random, but because of their inclusion to a group (p.340). This correlates to hate crime because women are raped because they are women. The second element is the interchangeability of the victim. Carney presents the counterargument that if it is an acquaintance who rapes the victim then it cannot be considered a hate crime on the ground that a specific woman was the intended target. Carney believes that this counterargument fails because of the “”could have been me”” effect. This effect increases a woman’s vulnerability, thus demonstrating interchangeability. Carney also argues that this counterargument fails by relating the notion of the victim knowing the perpetrator to another account of a hate crime. Carney (2001) writes:

For example, a white man burning a cross on his African American neighbor’s lawn, or a high school student-athlete desecrating a teammate’s place of worship, are both accepted as hate crimes in which the victims could have been interchanged despite the familiarity between victim and perpetrator (p.342).

To deny the act of rape as a hate crime based on if the victim knew their accuser undercuts other bias-based hate crimes.

Element three and four discusses communal factors. Whenever there is news of rape, there is a sudden sense of fear in the female community. This fear arises when they acknowledge the characteristics they share with the victim. This relates to hate crime target group because of the anxiety and fear caused by a crime committed against an individual of their specific group (i.e. blacks, females, Jews, etc.). When a rape occurs, it not only impacts the female community but also those who have a relationship with a female figure. “Women obviously fear for themselves and other women while men grow concerned that the victim could have been their mother, sister, wife or daughter” (Carney, 2001, p.344). Although rape, typically, impacts one individual, it is apparent that it impacts both the target community and those in relation to them.

The next element discusses the psychological trauma rape victims endure and how it relates to bias- hate crimes. When a person is raped, there is not only physical but also emotional and psychological trauma. “”Like bias-crime victims, rape victims report of various forms of serious emotional harm or some form of Post-Traumatic Stress Disorder”” (Carney, 2001, p.345). Put differently, rape victims experience similar psychological traumas as a bias-based hate crime victim due to the crime committed against them.

Similar to hate crimes, Carney discusses, in the sixth element, that rape is underreported. Like bias-based hate crimes, “rape victims feel that the police either could not or would not help them” (Carney, 2001, p.346). There is a stigma that is placed on a rape victim similar to a bias-based crime victim. The victim feels vulnerable and doesn’t know who to trust. The victim rarely turns to the justice system because of the thought of being pre-judged and not receiving the proper justice they deserve.

The final two elements discuss the nature of the attack and its heightened violence. Rape is a violent act that needs a proper solution. Rape is a crime that can happen to a previous victim or be recommitted by an offender. Rape has been seen as an excessively violent crime and causes injury to victims in all aspects. There must be heavier sentences for rape crimes thus Carney’s argument for rape being considered a hate crime.

Beverly McPhail, author of Gender-Bias Hate Crimes: A Review, explores both sides of the argument of why gender should be included in the hate crime paradigm. For the purpose of this part of the paper, I will only pull from the section that argues in favor of the inclusion and the benefits in doing so. As previously stated, numerous times, women are attacked because they are women. McPhail (2002) states that “”the rape of women is almost always a hate crime, one exception possible being statutory”” (p.135). Gender animus is what drives rape against women. McPhail also discusses the benefits of gender inclusion as it relates to rape victims. McPhail (2002) presents the following benefits:

a) directs attention away from rape myths and onto motives of hate, power, and control, (b)shifts attention away from the victim and on to the motives and actions of the perpetrators, and(c)also moves attention away from the relationship and on to the violence (p.137)

With the shift of the focus being on the offender and the crime at hand, there will be a decrease in victim-blaming. The inclusion of rape as a hate crime allows for victims to receive justice without the uphill battle.

Although there are several valid points on why rape should be considered a hate crime, you must also take into consideration the limitation and/or counterarguments that come into place about including rape into the realm of hate crimes. These limitations can vary from state to state based on their definition of rape. One would be what each state defines as rape and based off this definition, which would be represented as a victim of a hate crime. As we can see, the definition of rape is constantly being revised. Some states don’t recognize rape happening to any other gender except a woman. In the academic journal, Rape as a Hate Crime: An Analysis of New York Law, author Lisa Campo-Engelstein analyzes New York’s hate crime laws and discusses the current state of New York’s definition of rape. Campo-Engelstein mentions that New York’s definition of rape is very narrow. She also mentions that the state’s definition refers to unwanted vaginal penetration from a penis as rape. Based on New York’s definition, the only person that could be considered a rape victim would be a woman. This doesn’t allow men, homosexuals, or transgender to be victims of rape.

Limitation two would be what is considered rape. Just as the state can decide who could be considered as a rape victim, the state can also decide what rape is. As mentioned previously, the state of New York defines rape as vaginal penetration. Based on the limitation of vaginal penetration, anyone who has been penetrated orally or in the anus would not be considered a rape victim. New York laws also mention that penetration has to occur from a penis. By this statute, anyone penetrated with an object other than a penis would also be exempt from being a rape victim.

The final limitation would be who can rape. Despite societal perception, men can be raped too regardless if it is male/male or female/male. In the academic article, The New Definition of Rape: When Women Assault Men, Philip Cook (2018) quotes from the Centers of Disease Control and Prevention or CDC that “”‘Nearly 1 in 5 women (18.3%) and 1 in 71 men (1.4%) in the United States have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration.'””(p.69). Based on how much male rape is under reported, there is not an accurate representation of male rape victims. Just as a male can be the victim, women can also be the rapist. Anyone can fall victim when they feel powerless. Although some states, for example New York, defines rape as unwanted vaginal via penis intercourse, it is a strong possibility that there was an oversight as the law excludes a woman as the perpetrator.

Rape impacts not only the victim but also their community and those in relation to them. To establish rape as a hate crime will require much thought. One must consider the limitations as well as the benefits. In order to describe an act as a hate crime, this act must be driven by a person’s prejudice. Although rape is reported to happen to majority women, it doesn’t exclude that rape can happen to males. Although rape is mostly defined as forceful penetration vaginally, this does not exclude oral or anal penetration as also being a form of rape. Although rape is mostly seen as an act against a victim by a male, women are equally capable of being the perpetrator. Will rape as a hate crime provide those impacted by this the rights they deserve, or will this be a form of special rights given?

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