Melecki: columnist gives legal definition of rape in Nebraska

As college students, we are affected by rape and sexual assault more than any other group. In fact, for more than two decades, it has been widely held that one in every four women in college will experience an attempted or completed rape by the time they graduate. And while the percentage is smaller for men, a significant amount of the male population is still subject to sexual assault during the college years.
Rape on the college campus is, in addition, most likely to be an acquaintance rape, making the campus environment feel awkward or even unsafe for collegiate victims of rape. In a 2000 Department of Justice report titled “The Sexual Victimization of College Women,” it was reported that nine out of 10 victims knew their assailant, and that in both attempted and completed rapes over 35 percent of rapists were classmates of the victim.
While we often look at rape from the point of view of the victim, getting inside the head of the rapist is almost never touched upon. Why do people rape?
We know most people do not rape, but those who do are likely to commit the behavior more than once, and those who rape have most likely been ingrained with unhealthy ideas about sex and relationship from a young age. It isn’t as if a person comes to college, sees how much fun his buddy has raping some girl and decides to rape someone himself.
And in addition to those who knowingly and willingly commit rapes, there is a completely different group of people who are legally responsible for the same crime. A fair share of rapists don’t realize that the behavior they are engaging in is actually rape, making it dangerous for both parties involved. David Curtis stated in a 1997 American Academy of Experts in Traumatic Stress publication that according to his research, 84 percent of people who committed a rape said that what they did was “definitely not rape.”
It’s important to understand that just because a person doesn’t mean to be committing a rape, the experience is not any less traumatic for the victim. And just because a person doesn’t realize what he or she is doing is legally considered rape doesn’t make them any less responsible for his or her actions.
For example, many people think that rape can only occur if vaginal or anal penetration occurs and that if they do anything else, they are legally off the hook. Not so, at least in Nebraska.
I don’t want anyone to look at all of these scary statistics and decide that college is just too dangerous for them. I don’t want anyone getting nightmares obsessing over the prevalence of rape among our peers. What I do want is for all of us to take a few minutes to remind ourselves about the basic facts of rape.
Let’s start with avoiding becoming a victim of rape. In a perfect society, none of us would have to change our behavior because of the stupid decisions of others, but we don’t live in that world. So there are a few tips to know.
The basic premise your mom taught you when you were 5 years old about going places with a buddy, of course, still stands. And it is pretty self-explanatory that people who are really drunk tend to be picked as targets of rape because their minds are inhibited.
But in college, it’s especially important to remember that we are very susceptible to acquaintance rape, so we need to make sure that we stick with a buddy we really trust. Knowing a person and trusting a person are two completely different things. Be a little bit picky in the people you choose to party with, making sure you can count on someone around you.
If you are raped or someone attempts to rape you, it is not your fault. It is never, ever, your fault that another person chose to take an action, and it affected you. We are all responsible for our own actions. Just because you wear a sexy outfit or you have too much to drink does not give someone a license to rape you. So don’t ever, even for one second, blame yourself for someone else’s action.
What may be even more important than trying to avoid being raped, however, is having the knowledge of exactly what a rape is. This knowledge can not only help us protect ourselves and each other from being raped, but it can help us protect ourselves from committing rape unintentionally. Each state has its own definition of rape set out in its statutes. In Nebraska, the statute books use the term “sexual assault” instead of rape.
Sexual assault in Nebraska is defined as “any person who subjects another person to sexual contact (a) without the consent of the victim, or (b) who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct.”
The statutes say that the term “sexual contact” includes intentional touching of the victim’s sexual or intimate parts, either bare-skinned or through clothing. If the victim is intentionally caused by the actor to touch the actor’s sexual or intimate parts (through clothing or not) it falls under “sexual contact.” In addition, any time a child is touched with the actor’s sexual or intimate parts, the term “sexual contact” applies.
In Nebraska, a lack of consent can be expressed in many ways. One doesn’t have to physically resist, but can say they don’t consent or, if they do state they consent but do so because they were deceived as to the identity of the actor or the nature or purpose of the act, consent is not legally granted.
If it would be useless to physically resist, Nebraska law says that victims don’t have to in order for the crime to be considered sexual assault.
Also, the Nebraska courts have interpreted the statutes to mean that if a person is intoxicated, he or she cannot give consent, and therefore, any time one party is intoxicated, the law says that sexual encounters are technically sexual assaults.
Just because you aren’t doing overt things like slipping drugs into people’s drinks doesn’t mean you shouldn’t be making sure you are protecting yourself and the people around you by knowing what exactly rape is. Even when a victim doesn’t label what they have gone through as rape, the experience is traumatizing. With so many of our peers dealing with this problem, we need to better educate ourselves.
Trying to prevent rapes from happening is a never-ending process because as a society, we have to constantly remind ourselves that this huge problem is, indeed, out there. Rape is a hushed topic that victims don’t often talk about, and most likely because of this, preventing it doesn’t get the amount of attention it deserves.
You don’t have to go around talking about rape. But you can be a part of the solution by arming yourself with enough knowledge not to rape someone without realizing it.
Sarah Melecki is a senior Political Science major. Reach her at sarahmelecki@dailynebraskan.com.

4 comments

Beth

Wed Sep 30 2009 19:46

Rory,

Just because you don't find certain non-consensual sexual contact to be as "traumatic" as other kinds of non-consensual sexual contact does not mean that I see it that way. Groping can be just as bad--it is still another person deciding for you what is to be done with your body. In some cases, it makes a powerful statement about gender and power dynamics.

I would adamantly disagree that groping is harmless. It says a lot about how much power you might have in a given situation. If a person thinks s/he can get away with feeling you up, then what next? We need to stop even the tiniest sexual infractions. They are still non-consensual, and therefore dangerous in their own way.

Regards,
Beth

Rape survivor

Mon Sep 28 2009 23:39

Thank you for putting the focus and teh blame on the rapist. Too often, victims get blamed for rape. I don't care what the legal definition of rape vs. sexual assault vs. "groping" is, it's always wrong and it's always the perpetrator's fault.

Ade Sogbesan

Sun Sep 27 2009 15:29

Ms. Melecki has not only shown her ignorance in this matter but has gone ahead to confuse rape and groping as the same things. Rather than educate as I suggested in my last rejoinder on her previous article, I am now forced to support Mr. Larson’s point that Ms. Melecki has made a bunch of mess with this story. Ignorance is truly a disease.
By definition, 'Rape' is forced, unwanted sexual intercourse. Rape, sometimes also called sexual assault, can happen to both men and women of any age.
Rape is about power, not sex. A rapist uses actual force or violence — or the threat of it — to take control over another human being. Some rapists use drugs to take away a person's ability to fight back. Rape is a crime, whether the person committing it is a stranger, a date, an acquaintance, or a family member.
No matter how it happened, rape is frightening and traumatizing. People who have been raped need care, comfort, and a way to heal.

Under the Nebraskan statue, it is clearly defined and well documented:
“Sexual assault; first degree; penalty.
LAW 28-319. (1) Any person who subjects another person to
sexual penetration (a) without consent of the victim, or (b) who
knew or should have known that the victim was mentally or
physically incapable of resisting or appraising the nature of his
or her conduct, or (c) when the actor is nineteen years of age or
older and the victim is less than sixteen years of age is guilty
of sexual assault in the first degree.
(2) Sexual assault in the first degree is a Class II
felony. The sentencing judge shall consider whether the actor
caused serious personal injury to the victim in reaching a
decision on the sentence.
(3) Any person who is found guilty of sexual assault in
the first degree for a second time when the first conviction was
pursuant to this section or any other state or federal law with
essentially the same elements as this section shall be sentenced
to not less than twenty-five years and shall not be eligible for
parole.

Sexual assault; second or third degree; penalty.
28-320. (1) Any person who subjects another person to
sexual contact (a) without consent of the victim, or (b) who knew
or should have known that the victim was physically or mentally
incapable of resisting or appraising the nature of his or her
conduct is guilty of sexual assault in either the second degree
or third degree.
(2) Sexual assault shall be in the second degree and is
a Class III felony if the actor shall have caused serious
personal injury to the victim.
(3) Sexual assault shall be in the third degree and is
a Class I misdemeanor if the actor shall not have caused serious
personal injury to the victim.”

Rory Larson

Thu Sep 24 2009 22:12

Sarah,

I think your argument involves a shell game with words. Throughout your article, you use the term "rape", with a rather expanded meaning which you justify by the State of Nebraska's legal definition of "sexual assault". This definition obviously includes groping as well as rape. You state that Nebraska law speaks of "sexual assault" instead of "rape", and seem to take it that the terms should be treated as synonymous in Nebraska.

I was momentarily groped on two or three occasions in the '70s and early '80s, by the kind of guys that used to haunt public places finding excuses to touch other people's groins and say "Excuse me!" By your definition, these trivial incidents should count as rape, and I should be traumatized for life.

In more recent years, I have a) been beaten up on a street at night by a gang of punks; b) been held up and robbed at knifepoint; and c) had my family home burglarized repeatedly, with every room in the house looted and trashed. These experiences were each traumatic and personally problematic, each in its own special way.

I have never been raped, but in terms of humiliation, trauma and after-effects I am sure that being the victim of forced sexual penetration would generally be at least as bad as any of these latter experiences. And I do not find those groping "sexual assaults" I experienced to be even comparable to the non-sexual ones.

We should keep life in perspective, and we should be cautious with words. When you cite statistics about rape, and then proclaim that inappropriate touching is also rape, the reader can't even tell what your statistics refer to. In the heat of your cause it is tempting to force the gray areas you want to condemn under the most gut-punching extreme word you can find. But when you do, you polarize and confuse the issue, promote paranoia and fanaticism, and ultimately devalue the extreme word even for situations where it is appropriate.

Regardless of what the solons of the State of Nebraska have decided, let's not confuse groping with rape. The minor annoyance of disentangling oneself from an amorous but generally harmless doof who has merely touched us wrong does not deserve a word of that caliber.

Regards,
Rory

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