If California changes definition of rape, will that matter?

California lawmakers’ call this week to redefine rape under state law is well-intentioned – but may be off the mark, legal analysts say.

California is one of a handful of states that limits rape, which carries a sentence of up to eight years in state prison when the victim is over age 14, to an act that involves both physical force and sexual intercourse. State Assemblymembers Cristina Garcia and Susan Eggman on Monday called for legislation that would broaden that definition to include almost any act of penetration without consent. 

The call follows the public outcry over the six-month jail sentence of ex-Stanford University swimmer Brock Turner, who in March was convicted of sexual assault – not rape – after he violated an unconscious woman outside a party. The goal, the lawmakers say, is to close a gap in the law’s language that protects perpetrators of sexual assault from facing punishment equivalent to their crime.

The effort is in line with an ongoing push to empower survivors of sexual violence. But the greater need is to address a rape culture and to enforce the laws on the books, not change their language, legal analysts and women’s rights advocates say. 

“In the overwhelming majority of cases, the laws are already there,” says Jennifer Gentile Long, chief executive officer at AEquitas: The Prosecutors’ Resource on Violence Against Women. “Ninety-nine percent of the time, it’s implementation [that’s the problem].”

Prosecutors originally filed five charges against Mr. Turner. They dropped two of the most serious – rape of an intoxicated person and rape of an unconscious person – at a preliminary hearing, after receiving DNA results from the rape kit, the Los Angeles Times reported. Turner was instead charged and convicted of felony sexual assault. Judge Aaron Persky, who presided, gave him six months in jail and three years’ probation. 

The public backlash has been fierce. But instead of going after the judge, as others have, Democratic Assemblymembers Garcia and Eggman say they are going after the system: Turner, they posit, slipped through cracks in the language of the law. 

“Sexual penetration without consent is rape. It is never invited, wanted, or warranted. Rape is rape, period,” Garcia said in a statement Monday. “We found a loophole in California’s criminal code and need to fix the law to send a strong message that we do not accept rape in California.”

The move is in some ways a response to a letter from Turner's victim – which quickly went viral – detailing her experience and the consequences of existing legal language surrounding sexual violence. “The seriousness of rape has to be communicated clearly, we should not create a culture that suggests we learn that rape is wrong through trial and error,” she wrote. “The consequences of sexual assault needs to be severe enough that people feel enough fear to exercise good judgment even if they are drunk, severe enough to be preventative.”

The new bill would adopt for California the Federal Bureau of Investigation definition of rape, which requires only that an offender penetrate a victim with any body part or object without the victim’s consent. Physical force is not necessary for the law to consider such an act as rape.

“Because the FBI definition does not require force, that can make a difference,” says Ms. Long at AEquitas.

But she and other legal experts note that the issue in the Turner case lay in the judge’s discretion – not the law itself.

California’s sexual assault statute does carry a penalty of up to four years in prison, says Peter Arenella, a professor of criminal law at the University of California, Los Angeles. But after evaluating the risk Turner presented to public safety, a probation officer recommended that he receive a “moderate county jail sentence, formal probation, and sexual offender treatment.”

Judge Persky focused on that recommendation and on preventing Turner from committing the crime again, says Professor Arenella. What was lost along the way was the need to provide the victim with retribution for the crime committed against her, he says. And he doubts that a broader definition of rape would have made a difference.

“I have no objection to expanding a rape statute,” Arenella says. “But the issue [here] is not the definition of rape. The issue is the inherent conflict between the different purposes of punishment.” 

More than changing laws, Arenella and others say, policymakers should focus on broader ways of changing attitudes around sexual violence – such as further educating law enforcement, court officials, and the public about sexuality, safety, and drinking and drug culture.

“I think as a society, instead of rushing for the quick, easy solution that makes us feel good about ourselves, we have to think about the most effective solution, the deeper solution,” says Brenda Smith, a law professor at American University in Washington who specializes in criminal justice, sexual violence, and gender issues. “What did we learn here? I don’t think we learned that the law was not adequate. The law was adequate to address issues around retribution and punishment that the public wanted to enforce.”

“What we need to figure out is what we can do address the harm to the victim, and also create opportunities for the defendant and institutions and society to do better,” she says. “Because we have to do better about this.”