Is Rape a Crime?: A Memoir, an Investigation, and a Manifesto

by Michelle Bowdler

Centuries ago, violent sexual crimes committed against women were considered crimes against their husbands—a harming of their property, a stain on their honor.4 In contexts where rape was perceived as affecting men by proxy, it was often addressed with more gravity than it is now.

I assert that rape does not hold status as a crime largely because the victims are overwhelmingly women, children, and persons from marginalized populations. One in six U.S. women and one in thirty-three men will experience rape or attempted rape in their lifetime.

it is clear to me as a long-term survivor of rape that there is a striking disproportion between the severity of the crime’s lifelong consequences for survivors and the seriousness with which it is treated by society and, specifically, by the criminal justice system. It is this disparity I question.

(RAINN)—using an amalgamation of federal data14—estimates that 230 out of 1,000 rapes are reported. Of those, 46 lead to arrest, 9 to prosecution, and 5 to felony conviction. Only 4 percent of all reported rape cases ever see the inside of a courtroom, translating into 1 percent of every 1,000 rapes committed. About 2 percent of rapes reported and one half of one percent of every 1,000 rapes lead to conviction and/or incarceration.

“unfounded” in rape cases is supposed to be used when officers find a case is false or baseless. This label is often applied before an investigation commences at all and makes law enforcement’s “solve rates” artificially higher than they actually are.19 In 2019 the city of Pittsburgh deemed almost a third of its rape cases unfounded.20 In both Scottsdale, Arizona, and Oxnard, California, almost half of rapes reported between 2009 and 2014 were classified as unfounded.21 Additionally concerning is that victims risk being charged with a false report if their case is dismissed in such a way—yet another disincentive for victims to go to law enforcement.

My words come out sparingly those first few days, and each of them wants to talk daily. As much as I love them, I can’t. Their pain and worry bury mine.

Every state in the United States has a victim compensation fund meant to help individuals who have experienced rape, homicide, or assault, and money for lost wages is one of the available benefits listed. Assuming victims learn that these funds even exist, they must apply for them, requiring the wherewithal to request and fill out forms.

I learned about the victim compensation from a friend, not from the detectives I met with in Emmy’s apartment. I received one payment early on, a couple thousand dollars. It was invaluable. It helped me pay for some initial therapy and a security deposit on an apartment. It never occurred to me to reapply, nor would I have felt comfortable approaching the victim compensation fund a few years later, when I was suffering just as much and still underemployed as a direct result of the trauma that held me by the throat most days.

The thing about the truth, though, is that it is not relative, even though those with power and influence would like us to believe it is.

She explained that it was hard, if not impossible, to file a civil action against someone in law enforcement, since they are legally protected from being sued by civilians over which cases should be investigated—often their own. This concept is known as “qualified immunity.”1 Police are given these protections, in theory, because they have challenging and dangerous jobs, and it would inhibit them from being effective if they had to constantly worry about lawsuits.

It had been almost fifteen years from the experience some rape survivors refer to as “soul murder,” a term used by the psychologist Leonard Shengold initially to describe the experience of sexually abused children being robbed of their joy as well as their childhoods. Survivors and trauma therapists began using the term as a way to describe a broader phenomenon: the innocence or lightness that dies after sexual assault at any age.

It is too often victims’ behaviors that are dissected, not the people breaking the law or those charged with investigating the crimes.

In this world, being accused of a crime is supposedly as bad as or worse than being the victim of violence. Someone’s life will be “ruined” if a credible accusation makes the person lose any power to which they are entitled. And in this same world, where 82 percent of all juvenile sexual assault victims and 90 percent of adult rape victims are female and those in power still overwhelmingly male, this frame puts the lives and safety of over half our country at risk.

Other cities also have specially trained sex-crimes officers working in what is often referred to as a special victims unit. Why we are “special” victims, I can’t say. Maybe it’s a euphemism for precious. Perhaps it’s a unique category for those who are special victims of special crimes, the kind where evidence isn’t tested, investigations are underfunded, reports are frequently deemed unfounded, and arrests and convictions almost nonexistent. That sounds pretty special to me.

In 2011 the United States Department of Education issued guidance on how universities should respond to students reporting sexual assault. It was written after a handful of schools were investigated for their abysmal handling of survivors’ complaints and referred to as the Dear Colleague letter.8

Nineteen single-spaced pages long, the letter gave direction on dozens of specific items, but one of its signature features was framing sexual assault policies and response requirements for higher education as a Title IX issue. Since the victims of rape and sexual assault are overwhelmingly female and Title IX guarantees an equal right to education, schools were required to have appropriate sexual assault policies in place to avoid creating barriers for victims/survivors to be able to continue their education.

In 2018 the Department of Education proposed new regulations that, in essence, undo much of the Dear Colleague letter’s guidelines, and suggested a higher threshold for what constitutes sexual harassment, among other changes.11

Studies estimate that between 80 and 90 percent of college students do not report their assaults to law enforcement.

Time is an imperfect healer, massaging the edges of an experience, but it is inadequate as a stand-alone remedy. It’s a fact I couldn’t ignore, as much as I tried. As a rape survivor, I lived then and forever in a world with a different sense of safety and reason than most. The fear one pushes down during a violent assault in order to survive takes up permanent residence in the synapses and nerves of the body

Fears are not always conquered; some can’t be. Maybe it’s enough to stand side by side with them and look them straight in the face instead of letting them crush us with power they have no right to wield.

If we don’t change the attitudes of those responding to rape victims, if we allow categories like “unfounded” and “exceptionally cleared” to inflate solve rates, if we continue to have district attorneys declining to prosecute and judges making public statements about why the victim’s behavior is problematic, legislation alone will not make a difference. Further, I still do not understand why so much legislation is needed as a kind of “watchdog” to fix a problem that shouldn’t exist in the first place. Rape cases should not need extraspecial support to make sure law enforcement do their job and rape crimes are investigated.

I had spent the last decade of my work life asking colleagues not to say “he said/she said” because it implies it’s as likely as not that a woman would lie about something as deadly serious as rape.

The detective consistently used the term “survivor.” It seemed to be the term in common use to describe people who had lived through all sorts of maladies. If uttered more than a few times in a conversation or in reference to me, I bristled. People survive sometimes. It didn’t seem appropriate to be lauded as an Olympian for the effort. I was the victim of a violent crime. I didn’t die. Let’s get on with it.

One of the things trauma took from me was the sweetness of the earth. And I longed for the world around me to come alive again. I ached to smell the bread baking in the oven. The soft, sticky wetness under my hands as I kneaded the dough the moment before it went into the loaf pan. To have noticed the fly buzzing around my head, fearing it would wind up in the bread and be mistaken for a raisin. But if someone asked what I did over the weekend, I would most likely say, “I made bread.”

Searching the internet for “uninvestigated rape cases” yields dozens of recent articles where cases have been dismissed with no investigation. A 2019 New York Times article, “These Rape Victims Had to Sue to Get the Police to Investigate,” highlights a growing trend of women suing police departments for this very reason.2 The article reports on examples from seven U.S. cities: a plaintiff from Austin, for whom “police collected no evidence from the crime scene after a rapist broke into her apartment”; a college student “whose screams for help were recorded but whose case was dropped when her attacker, a stranger, claimed the sex had been consensual”; and another woman “forcibly taken to a motel and raped by three men, one of whom was not arrested even when his DNA was found in her sexual assault kit.”

the “DOI found there are only 67 investigators for more than 5,000 adult sex crime cases a year. That’s compared to about 100 homicide detectives to handle less than 300 murders a year.”

Later, a TV reporter would coach us on packaging our stories for maximum effectiveness. By now, I felt sure that this endeavor attended to a symptom rather than the underlying cause of the problem,

Can we really say that rape is a crime given the way this felony is addressed by law enforcement, politicians, and the larger world? For many intractable social and political issues, progress gets measured by whether things are slightly less bad than they once were. Unfortunately, sex crimes are still placed in that category. Slight improvements to issues that never should have been tolerated are celebrated, and the deeper and pervasive issues remain barely touched.

A recent article in Forbes reported that in some business environments women are less likely to be hired for jobs where they are required to interact with men in one-on-one situations and that “attractive women” are especially impacted by this hiring bias.

In 2012 a young girl in Steubenville, Ohio, was raped at a party, and video footage taken. The two boys who perpetrated the attack were convicted in juvenile court. A CNN reporter covering the sentencing said on-air, “I’ve never experienced anything like it; it’s incredibly emotional … these two young men, with promising futures, star football players, ‘A’ students, literally watched as their lives fell apart.”3 In order to avoid “ruining” a young man’s life, rape is often framed as a “mistake,” “youthful transgression,” or miscommunication rather than as an intentional, violent act.

What is too often articulated in the public sphere is the tragedy befalling the perpetrator, while victims and the consequences they suffer are rendered invisible.

If rape is perceived as a shared tragedy rather than a crime of violence, then victims are seen as having a role in a mutual experience. A judge in Montana gave a high school teacher who had raped a freshman student a multiyear sentence and then required only thirty-one days be served, declaring that the victim looked older than...

Sex crimes are still uniquely minimized, the focus staying on whether the victim is lying, is seductive, is mistaken, is making a big deal out of nothing. There remains no other felony crime where a victim must first pass a test of veracity and legitimacy before her complaint will proceed—and, too often in our current world, she will fail that test.

Early in my graduate education, a professor told a story that illustrates how the chaos resulting from a crisis often prevents us from understanding the root cause of the problem and developing strategies that bring about effective change:

The broken bridge is societal tolerance of violence against women; it is complacency for data that shows rape is investigated and prosecuted at shockingly low rates and results in almost no convictions, even when cases do go to trial; it is the absence of awareness that rape evidence sat for decades untouched in cities around the country until a massive effort to uncover this neglect led to some reforms; it is politicians who minimize rape, comedians and their audiences who laugh at rape, entire industries where sexual harassment and assault were hidden secrets and perpetrators’ careers thrived. It is all this and so much more.