The New York legislature moved to classify more kinds of sexual attacks as rape on Wednesday in new bill referred to as the “rape is rape” legislation.
In 2011, Bronx schoolteacher Lydia Cuomo (no relation to Gov. Andrew Cuomo) was attacked and sexually assaulted by an NYPD officer. While Cuomo waited to be picked up for her first day at a new job, a drunk, off-duty cop named Michael Peña approached her to ask for directions, before suddenly drawing his weapon and forcing her to have sex in a nearby alleyway. Later, in court, Peña’s lawyer conceded that Peña had penetrated Cuomo orally and anally–but not, he contended, vaginally. When the jury announced the verdict, Cuomo was astonished to learn that the rape charge had been dropped.
Under New York law, forced oral and anal sex are not considered rape. Only sexual assaults involving vaginal penetration warrant that designation. In Cuomo’s case, one juror had doubts about her story because she couldn’t remember the color of a car at the site of the attack–despite eyewitness testimony and DNA evidence on Cuomo’s underwear. Peña was convicted of forced oral and anal sex, which are both considered “criminal sexual acts,” and predatory sexual assault, since he had a gun, for a 75-year-to-life sentence.
The sentencing requirements for criminal sex acts are the same as those for rape–Peña eventually pleaded guilty on two counts of rape after prosecutors threatened to retry him, though it added no time to his sentence–but in cases of this kind, terminology matters.
“I feel like essentially I had a silver platter of a rape case,” Cuomo told the Daily News on Monday. “I had witnesses, I had DNA, I had my own testimony, I had two cops. I had them saying, ‘We admit he sexually assaulted you,’ and I didn’t get the verdict I needed.”
The distinctions between forced oral, anal, and vaginal sex seemed so preposterous to New York Assemblywoman Aravella Simotas, D-Queens, that she wrote a bill which would legally redefine forced oral and anal sex as rape.
“Rape is a very emotionally charged word,” Simotas told Salon in January. “It means a lot to victims and it means a lot, I think, just to society. People whom I’ve spoken to—victims and their families—they all, if they’re violated in this way, if they’re forced to engage in a sexual act against their will, the word they use is ‘rape.’ They don’t use ‘sexually criminal act.’ People don’t even know what that means.”
On Tuesday, Cuomo travelled to Albany to speak in favor of Simotas’ bill, which has the backing of key lawmakers. A spokesman for New York Gov. Andrew Cuomo said Tuesday that he supports the change outlined by the bill. Assembly Speaker Sheldon Silver has said he would take the bill to the state conference and recommend it. And Senate co-leader Jeffrey Klein has said the law “definitely needs to change.” However, Silver has said that he wants to check with district attorneys before moving the legislation forward.
New York is one of only 25 states to have the word “rape” in their penal codes. The other 25 have purged it, opting instead for terms like “sexual assault” or “criminal sex act.” This underscores the fact that there is no federal definition of rape, though last January the FBI updated its own definition to include oral and anal sex.
“What the legislature does is a factor, but it’s not the only factor in how society conceives of the crime,” said Michelle Anderson, dean of the law school at the City University of New York. “It’s an amalgam of popular media, consciousness being raised by non-governmental organizations and public interest organizations, sexual education—there are a lot of factors that influence how a society conceives of rape.”
The attempt by New York lawmakers to strengthen the state’s definition of rape comes as federal lawmakers try to reauthorize the Violence Against Women’s Act. VAWA passed the Senate Tuesday by a vote of 78-22. The bill now moves to the House of Representatives, where Republicans have suggested they will introduce their own version of the law, instead of voting on the Senate-passed version.