A Candidate’s Stumble on a Distressing Crime

By ETHAN BRONNER

When Representative Todd Akin of Missouri said in an interview broadcast on Sunday that rape victims rarely get pregnant, he set off an outraged national discussion. Embedded, if unexamined, in all the talk is the rapidly shifting definition of rape, the history of the derided but longstanding term “forcible rape,” and the wildly varied databases on sexual assault.

To dispense with the easy part: The most serious analysis of pregnancy resulting from rape, a three-year study of more than 3,000 women published in The American Journal of Obstetrics and Gynecology in 1996, found that 5 percent of women of reproductive age who had been raped became pregnant.

But the issues raised by Mr. Akin’s comment go far beyond the fertility of a woman forced into sex.

The very term “rape” has such a tortured — many would say ignominious — history that the F.B.I. just this year changed its definition after eight decades, and a number of states have purged their criminal codes of it entirely, referring instead to levels of sexual assault. Many experts now believe that rape is best understood as an act of unwanted bodily invasion that need not involve force.

Aware that federal rape data are flawed, the Justice Department is investing millions of dollars in an examination of how to better collect information, including interviewing victims out of the presence of family members to increase their comfort levels.

In 2010, according to the FBI’s Uniform Crime Report, there were some 85,000 “forcible rapes” — a term that the F.B.I. will stop using next year — but that number included only assaults reported to law enforcement authorities that involved vaginal penetration of a woman by a man through use of force. The Centers for Disease Control and Prevention, by contrast, said that based on interviews with women, the number of men-on-women rapes in 2010 was 1.3 million, some 15 times higher than the F.B.I.’s total, partly because the count also included cases of anal and oral penetration and attempted penetration.

Most experts today embrace the larger number, which is similar to data compiled by two academic studies. Scholars and practitioners are certain that rape is heavily underreported, especially to the police. Scott Berkowitz, president of Rape Abuse and Incest National Network, said that stranger rape is more typically reported but that most rape is committed by someone who knows the victim. Still, he and others put considerable effort into persuading the F.B.I. to broaden its definition to include all forms of penetration, as well as cases involving male victims, and to drop the word “forcible.”

“I was outraged by the F.B.I. definition and was involved in getting it changed,” said Lt. Nancy Dunlap, head of the sex crimes unit of the Minneapolis Police Department. “Most sexual assault does not involve the kind of force they were requiring, and it didn’t include male victims.”

States have been adjusting their definitions of rape for the past 30 years, many moving away from the insistence on evidence of force because most rapes do not result in harm to the woman separate from the act itself. The armed rapist and severely bruised victim, what some have called “real rape” or “legitimate rape,” account for 14 percent of rape cases, according to the Centers for Disease Control study.

Like the word “terrorism,” the word “rape” comes with so much baggage that some are tempted to avoid it. A number of states, including Michigan, Wisconsin, Minnesota and New Jersey, and the federal government no longer refer to rape in their legal codes but rather to degrees of criminal sexual conduct. This was something pressed by feminist lawyers in the 1980s in the hope that by removing a crime from its patriarchal origins, judges and jurors might assess it more like other crimes. It is not clear if the change has had the desired effect.

What is clearer, said Carol E. Tracy, executive director of the Women’s Law Project, is that rape, which referred in its origins to the violation of an unmarried virgin, emerged from English property law related to inheritance. Michelle J. Anderson, dean of the City University of New York School of Law and a leading scholar on rape law, added that marriage was “a transfer of property from father to husband and if someone deflowered the virgin, that removed the property rights of the father. Rape was about stealing his property.”

Later, she said, when the issue was not so specifically property, the determination of rape took on the need for force to be proven. Evidence of struggle was required, as was prompt complaint, neither of which was needed for other kinds of crime like robbery or murder.

Since most rape occurs through pinning, coercion and threat rather than actual violence, and since there is no credible evidence that women claim rape falsely more than others falsely claim other crimes, those requirements have slowly started to disappear, Ms. Anderson said. Until recent decades, marital rape was not considered a crime. In fact, rape was defined as forcing sexual intercourse on a person other than the wife of the accused. But the marital exemption from the criminal code has been eliminated or greatly reduced in every state, according to Carol Tracy of the Women’s Law Project.

She added that new research suggests that many — perhaps most — rapists are serial rapists also involved in other violent crimes. That adds force, in her mind, to the argument of why the police should put more effort into investigating rapes, something they have not always done, she said.

In recent years, the Justice Department’s National Crime Victimization Survey has lumped rape and attempted rape in with all sexual assault, although it is reconsidering its research methods. Ms. Tracy says she would separate out all sexual “penetrations” into one category of crime whether or not it is called rape or severe sexual assault. David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, said there was indeed evidence that “penetrative sexual assault” increased the likelihood, more than other assaults, of psychological trauma.