Are there different degrees of rape? We know that there are different degrees of murder, from first degree (an intentional, willful and premeditated murder) down to involuntary manslaughter (an unintentional death, such as from drunk driving). But can the same be done for accusations of rape?
For the record, there are already laws handling the degrees of rape, but they don’t deal with variations in intent. For instance, in some states “first-degree rape” refers to a rape by force using a deadly weapon and infliction of physical injuries, whereas “second-degree rape” doesn’t require a weapon or physical injury. There’s also first- and second-degree sexual assault, which follow the same model but are not limited to intercourse.
But two New York University law professors want to extend the varying degrees of rape as they expand the definition. I wrote a couple weeks ago about Stephen Schulhofer and Erin Murphy’s draft proposal to upgrade the criminal code as it relates to sexual assault.
One interesting aspect of the draft – one that would probably enrage many activists pushing for more “rapists” to be punished – is the suggestion of different levels of punishment for sexual offenses. It’s something the “rape is rape” crowd might find unacceptable, but Murphy raised the possibility of treating sexual offenses like other crimes – at least in the sentencing aspect.
“We haven’t in rape made distinctions among, well, maybe if you penetrate another person without making sure that they want that, that’s a low level offense,” Murphy told the Washington Examiner. “And then if you penetrate another person even though they’re telling you don’t do it, stop, that’s another more serious crime. And if you penetrate another person at gunpoint or with physical violence, that’s a very serious crime.”
Of course, when even the holding of a hand or a simple kiss without previous, expressed consent could be considered a crime under this law, the idea of graded offenses may serve merely to give more people a criminal record. And when it comes to sex offenses, no amount of distinction will be able to overcome a label of “rapist” or “sex offender,” and the stigma that comes with such an accusation, especially for those wrongly accused.
