In August of 2011, 25-year-old Lydia Cuomo had just gotten a job teaching second grade at a school in the south Bronx of New York City. She lived in the Inwood neighborhood of upper Manhattan, and her principal lived nearby. Cuomo planned to get a ride from her on her first day of work. They were planning to meet at 6:15.
“I left my apartment early, eager beaver, super excited first day of work,” said Cuomo. “Someone came up to me and asked me for directions to the 1 train, which is not a weird thing in New York. People ask you for directions to the subway all the time. It didn’t throw me off guard at all in the beginning. The second time he said something, it was clear something was off. He was a little too close to me, and he said you’re going to come with me.”
Cuomo said no, and the man showed her his gun. He put it against her waist, and walked her toward an alley. Cuomo said her knees buckled, and she tried to hold on to a fence, and offered him her jewelry, cellphone, and wallet.
“When he said no, and didn’t want any of my things, I knew pretty clearly I was going I was going to be raped. There’s really no other alternative at that point. So he ushered me into this little alleyway . . . and raped me.”
The perpetrator was off-duty police officer Michael Pena. He penetrated Cuomo: vaginally, anally, and orally. You might think all three of these acts are rape. But New York State law only considers one of them to be—the vaginal penetration. The other two are called “criminal sexual acts” in the state’s legal code.
Police arrived. They arrested Pena. Cuomo went to the hospital and then the police station. When the day was over, she went to stay with family north of the city.
“The first two weeks were just–I was a shell,” said Cuomo. “I cried all the time. I think everyone wanted me to move home, which is not my style. I had worked so hard to get my job. I’m going to go back.”
Cuomo started teaching, and her case went to trial seven months later in March of 2012. The jury was considering a variety of charges: criminal sexual act, which is the forced oral and anal contact. They were also considering the rape charge, the vaginal penetration. And Pena threatened Cuomo with a gun during the attack, which meant he was also charged with predatory sexual assault.
The jury found Pena guilty of the criminal sexual act and sexual assault charges. But they deadlocked on the charge of rape. In other words, they believe that Pena’s penis made oral and anal contact with Cuomo. But they couldn’t agree on whether she’d been vaginally penetrated. When they announced the verdict, Cuomo said she just lost it.
“It was like, oh my god. I’ve sat through this. I’ve waited for this. And this jury just told me you were sexually assaulted but you weren’t raped.”
To understand how someone could be orally and anally penetrated, but it’s not considered rape, we need to go back a long way. Because the word “rape” has a long history, going back to the earliest criminal codes. It starts with the Bible—the Old Testament, in the book of Deuteronomy. Here’s the passage from the New International Version:
“If out in the country a man happens to meet a young woman pledged to be married and rapes her, only the man who has done this shall die…If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, he shall pay her father fifty shekels of silver. He must marry the young woman, for he has violated her.”
Library of Congress, Rare Book and Special Collections Division.
Caption: The Capitall Lawes of New-England, printed 1643
Michelle Anderson, the Dean of the Law School at the City University of New York, has researched the origins of rape law. She said that in biblical times, rape was not considered a crime against the individual who was violated, but more a crime against the family. “In many ways it was the theft of the value of virginity….And the prospect that she would bring a bride price when she became married.”
Anderson says that biblical law shaped the common law. “In fact, Deuteronomy was cited in the first rape laws of the American colonies. Many reference Deuteronomy explicitly.”
That includes the first laws of New England, which were printed in 1643 “If any man shall forcibly, and without consent, ravish any maid or woman that is lawfully married or contracted, he shall be put to death.”
Colonial laws morphed into state laws. For hundreds of years, rape in the U. S. was defined only as forced vaginal penetration. So, only women could be victims. And those who were found guilty faced heavy penalties. The state of Michigan is a good example. There was no death penalty, but life in prison was the common sentence for a rape conviction.
High sentences were one of the reasons that very few people were found guilty of rape.
Virginia B. Nordby, now 84, was a principal drafter of Michigan’s criminal sexual conduct law, which took effect in 1975. Photo Credit: Vincent Duffy
People including Virginia B. Nordby started studying the issue. In the early 1970s, Nordby was teaching a course on women and the law at the University of Michigan. She found that Michigan’s law was not that far off from what had been written in Deuteronomy. A victim wasn’t required to be a virgin, exactly. But defense attorneys could bring in a woman’s sexual history as evidence against her. “The victim became the person who was on trial in many cases,” said Nordby. “So we began this investigation of the law, the history of the law, what might be wrong with the law, and how it might be improved.”
This investigation was happening in the wake of the women’s movement for equal rights. That includes the ERA—or Equal Rights Amendment. Congress passed it in 1972. Even though the amendment was never ratified, it made women like Nordby take note of the lack of equality in Michigan’s rape law. So, they began drafting a new one. They changed the rules of evidence, so a woman’s sexual relations with third parties were excluded. They also created several degrees of the crime, with sentencing requirements that matched. And they included forced oral and anal penetration as offenses. That meant the law applied to male as well as female victims. It was a full-on reform of the law. And Nordby said that part of that reform meant leaving the word rape behind.
“It seemed only by getting rid of the word rape could we completely change the attitude of people about this crime,” said Nordby. “And so it was proposed by the legislature that we use the term criminal sexual conduct. It’s conduct that’s being prohibited here.”
So, all forced vaginal, oral, and anal penetration were called “criminal sexual conduct.” The Michigan legislature passed the bill, and the law took effect in 1975. The word rape had been removed from the code. It was the first reform of its kind in the country.
“It got passed rather quickly,” said Nordby. “And that caught the attention of a lot of people working on reform in their own states.”
Other states went on to change their own laws, and many left out the word rape. For example, in Florida, it’s called sexual battery. In jurisdictions controlled by the federal government, it’s called sexual abuse. In total, 25 states have stopped using the word rape. But it’s not known if eliminating the word resulted in more convictions.
“It’s a little hard to tease out just the change in name because so many other things accompanied it,” said researcher Cassia Spohn. She’s a professor of criminal justice at Arizona State University. She’s studied how the reform of rape law has impacted six cities around the country, which included interviewing judges and prosecutors.
“One prosecutor said that changing the name to sexual assault sugarcoated the offense,” said Spohn. “The prosecutor felt jurors understood what rape was. They weren’t as sure what criminal sexual conduct was.”
Spohn published her study in 1991. She also looked at whether jurisdictions with strong rape law reforms had higher conviction rates. She found that they did not, at least at that point in time.
In New York, they kept the word rape–but it doesn’t include all sexual crimes. Just like in Deuteronomy, rape is considered only forced vaginal penetration. Forced oral and anal contact are called “criminal sexual act.”
That brings us back to Lydia Cuomo. Her attacker, Michael Pena, was found guilty of criminal sexual act and predatory sexual assault. But not of rape. All three of those charges carry equally heavy penalties. Pena was sentenced to 75 years in prison. But Cuomo said she wanted him convicted of rape.
“He was going away for the rest of his life,” said Cuomo. “But I wanted him going away as a convicted rapist. Not as a sex offender.”
Pena pled guilty to rape rather than face a re-trial. But Cuomo still thought it was ludicrous that New York defines rape only as forced vaginal penetration. For her, the rape started when she was forced to perform a sexual act she didn’t want to do.
“The first thing he did was force me to perform oral sex on him with a gun pointed to the side of my head,” said Cuomo. “For me personally, that was almost harder for me to get over than the vaginal rape…I was vomiting, there was vomit in my mouth, I was swallowing, I was crying. It was the worst thing—that was a lot harder for me.”
Cuomo said that if she’d only been orally penetrated, and not vaginally or anally, she thinks it would have been just as hard. “The problem with that is it would have been harder for me to talk about,” said Cuomo. “Because it’s not called rape, and because it’s sort of hidden in the closet and you don’t talk about it, just being like, oh I was sexual assaulted, I think it would have been a lot harder for me. I wouldn’t have felt as open, which is weird because that was definitely the hardest piece for me.”
Lydia Cuomo (facing us) hugs Assemblywoman Aravella Simotas in Albany.
Photo Credit: Samantha Darche.
Cuomo wasn’t the only person who found the New York State law inadequate. New York Assemblywoman Aravella Simotas heard about Cuomo’s case, and wanted to change the law. She proposed a bill that would expand the definition of rape to include oral and anal contact.
“Calling rape by any other name rejects the true nature of the crime,” said Simotas at an Albany press conference in February 2013. “It adds insult to injury when it comes to the victim’s trauma.”
The bill was supported by Cuomo, and groups including the Stop Abuse campaign, which works to educate the public about abuse. Andrew Willis, the CEO of Stop Abuse, was at the same press conference. “I was raped when I was ten years old,” said Willis. “I wouldn’t have been raped if it had happened here in New York, because I cannot be raped here in New York under current legislation.”
The bill didn’t pass this session of the legislature. But Simotas plans to sponsor it again next year, and Cuomo is expecting to lend her support.
Meanwhile, groups elsewhere are looking at the issue as well. In January 2012, the FBI announced it was expanding its definition of rape for reporting purposes. The former definition was “carnal knowledge of a female, forcibly and against her will.” The new definition has been expanded to include oral and anal penetration, and allows the victim or perpetrator to be of either gender. It’s the first time in eight decades that the definition has changed.
The FBI’s change is only for reporting purposes, and doesn’t change the law of each individual state. It’s possible that states may adopt more standardized definitions—and terminology—with the publication of a new Model Penal Code. That’s the document that was created by the American Law Institute in the 1960s. Scholars are examining the sexual assault portion , and a revised code is expected in 2014. Rape scholar Michelle Anderson is one of the people working on it.
“It does have an opportunity to be terrifically influential,” said Anderson. “It will be a call to states to reevaluate the way they criminalize sexual offenses, and to look to the new code as a possible model.”
However, for Cuomo, the issue is much bigger than how we talk about rape in the courtroom. It’s all the taboos she has to overcome just to describe what happened to her.
“It’s weird—you don’t think ‘anal’ is a word you’re going to say in front of your dad a lot,” said Cuomo. “But it happens. There’s nothing I can do to change what happened, and I’m not going to beat around the bush or not talk about it, because I was anally raped. I think it needs to be said, and I think it’s important that it be said, and it’s not like my dad doesn’t know what happened. I don’t think he likes talking about it anymore than I do, but it’s the honest truth, and I think a lot can come from calling something what it is and talking more openly about it.”
So, what we’re really talking about here is more than just semantics. We’re talking about how we as a modern society understand what rape is. States that stopped using the word did so with good intentions. They wanted survivors of sexual attacks to receive justice from prosecutors, judges, and juries. But in doing so, they took away the power of survivors to legally call what happened to them rape. In places like Michigan, where all sexual crimes are called the same thing—just not rape—maybe that works. In places like New York, where the term rape describes one specific act, the public receives mixed messages about just how bad all forced sexual acts really are. And whether we call it rape or something else, we all tend to shy away from frank discussions about what happens during a sexual attack.
No matter what the act is called, maybe the most important thing is that we do talk about it, both in the media—and with each other.
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An analysis of rape and sexual assault reforms in the 70s, from the non-profit organization “The Advocates for Human Rights”.
Michigan’s benchbook, or legal procedures, on criminal sexual conduct.
