As Election Day approaches, Americans are debating a question that has recently become political: What, exactly, is sexual violence? The White House said Donald Trump’s remarks about grabbing women's genitals captured on a 2005 recording describe sexual assault. The Republican presidential nominee has dismissed his comments as “locker-room talk.”
Rhetoric aside, the Trump tape highlights the United States' murky understanding of sexual assault, a crime that was once, in the days before women could vote, considered a property offense. More than a century later, people still can’t agree on which unwanted advances rise to the level of criminal, and which should be shrugged off as normal male behavior. This societal discord, researchers say, is part of why police officers across the country have bungled rape investigations and women remain extremely unlikely to report any form of sexual transgression.
“I’m automatically attracted to beautiful — I just start kissing them,” the Republican presidential candidate says in the clip. “It’s like a magnet. Just kiss. I don’t even wait. When you’re a star, they let you do it. You can do anything. Grab them by the p---y.”
Even state laws differ widely on what constitutes sexual assault. The behavior Trump describes on the 11-year-old audio — and the offenses 11 women have now accused him of committing — could be considered in New York “forcible touching,” which is technically a misdemeanor sex crime. But in Florida, the same act could result in a misdemeanor battery charge, giving it no formal distinction from a punch to the arm.
The Justice Department, by contrast, catches a broader universe of actions under its definition, labeling sexual assault “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.”
“I can't believe that I'm saying that a candidate for president of the United States has bragged about sexually assaulting women,” Michelle Obama said in an Oct. 13 speech. "This was a powerful individual speaking freely and openly about sexually predatory behavior, and actually bragging about kissing and groping women."
But Trump surrogates and supporters have taken issue with that description.
“This term ‘sexual assault’ has been bandied about,” Trump campaign manager Kellyanne Conway said on "Fox and Friends," “and I will tell you as somebody who’s worked with and certainly has in my life, as I’m sure we all do, victims of sexual assault, it demeans them to equate that with this.”
The limits of 'carnal knowledge'
That this perception clash happens in 2016 isn’t entirely surprising. Victim advocates have long urged law enforcement agencies to expand the bounds of what they consider to be sexual violence.
For generations, people generally thought sexual violence was perpetrated by strangers. The term “date rape,” which indicates an assault committed by an acquaintance, didn’t emerge in the American lexicon until 1987. After years of activism and research, we began to learn that most victims know their attacker, and many don’t report the crime to authorities, largely over concern that officers won’t believe them.
Still, the old notion died slowly. Until 2012, the Federal Bureau of Investigations, the country's top law enforcement agency, collected sexual assault data that involved only the forced “carnal knowledge” of a woman.
In other words, “rape” involved only male perpetrators, female victims and physical evidence of an attack. The language was written when husbands in the United States could legally rape their lives. It also left out the women who had not given consent but were pressed into an act while they were unconscious or frozen by fear.
One national push that triggered a cultural upheaval at the federal level started in October 1999, when the Philadelphia Inquirer published a bombshell series revealing the city’s police department had dumped thousands of sexual assault cases into a bureaucratic dead zone. From the mid-1980s to 1998, nearly a third of such complaints landed in an obscure category called “investigation of person” — or, as one retired rape investigator put it to an Inquirer reporter, “a nothing.”
Some officers, meanwhile, downgraded cases because sexual assault, by their understanding, imparted evidence of physical force. If a woman was unconscious at the time of an attack, the Inquirer reporters found, police weren’t sure how to label or pursue her case. So, the complaints would stay in limbo and out of crime statistics, a deep freeze that victim advocates said impeded justice and distorted public perception of how often sexual violence occurred.
It was no accounting glitch.
“With pressure from the top to show results, too few investigators and a huge caseload, the unit became expert at getting rid of -- or hiding -- cases that could not be solved easily,” the Inquirer team wrote.
Carol Tracy, executive director of the Women’s Law Project, partnered with the department to revamp the way it investigated rape, offering guidance as a new team examined the improperly coded cases. Then she started hearing from journalists in Maryland, Missouri, New York and Wisconsin, all uncovering similar malpractices in their own communities. The problem transcended Philadelphia, Tracy realized, and couldn’t be tackled until the FBI changed its ways, too.
At the time, the bureau collected crime data from about 17,000 police departments nationwide with a rape definition she called archaic: “The carnal knowledge of a female forcibly and against her will.”
That definition, Tracy wrote in a 2001 letter to FBI Director Robert S. Mueller III, “seriously understates the true incidence of sexual assault in the United States today, confuses and hampers law enforcement, and discourages victims from reporting serious crimes.”
The UCR data, she noted, was supposed to show a nationally representative portrait of crime in the United States. Policymakers used the numbers to inform laws and allocate public funding. In other words, they influenced society’s response to sex crimes.
But for a decade after Tracy’s letter, nothing happened — until national activists such as the Feminist Majority Foundation and the writers of Ms. Magazine began campaigning for change. “Without an accurate definition, we won’t have accurate statistics about rape,” Ms. publisher Eleanor Smea write in a 2011 article, “and without accurate statistics we will never have adequate funding for law enforcement to solve these crimes and stop violence against women.”
That year, Vice President Biden took up the cause, raising the issue at a Cabinet meeting. And in 2012, the Justice Department announced the FBI’s new definition of rape, one that would better reflect the reality of sex crimes in the United States: “The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
Stanford history professor Estelle Freedman, author of “Redefining Rape,” said the Trump tape and the reinvigorated discussion it sparked on how society treats women could lead to the next cultural shift around sexual violence.
Behavior that seemed normal a couple of decades ago is starting to register as predatory. "All these women have gone public about the range of sexual assaults," she said of Trump’s accusers. "We're now dealing with these other bodily rights."
Tracy, the Philadelphia victim advocate, said she hopes these conversations inspire law enforcement to take casual violations more seriously.
"Women are just tired about having their bodies misused and are speaking out about it," she said. "If you're groped at the bar, are the police going to make an arrest? Probably not. Should they? Yes."