'Language issue' recognized in rape classification

5:43 a.m. July 8, 2000

It was a sleepover.

A 14-year-old boy and his friend were sleeping in a mutual bed. The 14-year-old awoke to the sensation of a touch on his genitals.

Afraid and unsure of what to do, as if paralyzed in a state of shock, the 14-year-old pretended to sleep. The other boy began performing oral sex on him and following the initial sexual acts, proceeded to force himself inside the victim.

The 14-year-old ultimately reported the series of events that unfolded that summer morning to Bloomington police.

After the report, a rape kit was completed at an area hospital.

This case, as it is recorded in police records, was a sexual assault. In fact, it was a number of things according to Indiana Code, including sexual battery and criminal deviate conduct.

But, according to the code, it wasn't "rape."

***

Indiana law does not constitute sexual assault as rape unless it is between members of opposite sex. However, there is deviate conduct, “a person who knowingly or intentionally causes another person to perform or submit to deviate sexual conduct.”

Investigators and prosecutors typically file for criminal deviate conduct when an accused person makes forced sexual contact through means of anal penetration, oral penetration  or penetration with an object without the victim’s consent or if the victim is in a state in which they cannot grant permission.

Prosecutors, psychologists and advocacy leaders have made it clear that a change is necessary — some even calling the current code “archaic.”

There were at least 21 reported same-sex sexual assaults from 2000 to 2010, according to Bloomington and IU police records.  During the same time period, about 680 other sexual assaults were reported between members of the opposite sex. From January 2011 to September 2012, there were at least nine same-sex sexual assaults reported. In less than two years, there were almost half the number of incidents that were reported in the previous 10 years. 

The Middle Way House Domestic Violence and Rape Crisis Shelter is a sought-after resource for victims of sexual assault, both male and female, in Bloomington.

“We de-gender the crime,” said Shani Robin, Middle Way House crisis intervention services coordinator. “We don’t go by Indiana Code, and that’s deliberate.”

Sixteen percent of all sexual assault cases at Middle Way House involve male victims, Robin said. The perpetrators in nearly all the cases: other men.

Robin said sovereignty is at play. Given that the Federal Bureau of Investigation has its own definition of “rape,” the laws differ from state to state. Her answer to the issue: education. 

However, visiting lectures and classes, she said, can only do so much. In her experience, people hear the statistics related to sex crimes and will oftentimes display signs of legitimate concern, but fail when it comes down to implementation and action.
As members of a nonprofit advocacy group, Robin and her associates’ involvement in pressing for legislation can only go so far.

“We can’t necessarily lobby in our positions,” Robin said. “We’re restricted by the government as a nonprofit. It lies in the hands of the people to care.”

Terms such as “deviate” act as curveballs to Robin and her team. “Loaded terms,” she calls them — terms that can incite “traumatic” reflections and repercussions for victims.

“We know language matters,” Robin said. “I know that the label of sexual deviance is a loaded term, and that kind of term can be traumatic to someone that’s been raped by a member of the same gender.”

At Middle Way House, the sanctions and response are the same regardless of terminology, she said.

“A survivor is a survivor.”

***
In September 2009, the Monroe County Prosecutor’s Office established a sex crimes deputy prosecutor position thanks to a federal stimulus grant.

For about two and a half years, Rebecca Veidlinger occupied that position. Then the grant expired at the beginning of 2012, and the county didn’t have the funds to sustain the position. But during her time as the  sex crimes deputy prosecutor, Veidlinger said she became an expert in handling such cases. The cases she handled, at the time, were exclusively sex crimes.

So when the grant expired and the money ran out, she became a felony deputy, an arrangement that still allowed Veidlinger to specialize in sex crimes but handle a copious mix of other types of crimes, too.

“I’m going to get comfortable,” she said, propping her legs atop her desk. “The legislation I’ve seen essentially does away with criminal deviate conduct as a separate crime and just incorporates it into rape. And so under the proposed legislation, a forced anal penetration by one man of another man would be rape.”

State Sens. Sue Landske, R-Cedar Lake, and Brent Steele, R-Bedford, co-authored a bill that would do exactly that.

Senate Bill 374 underwent its first reading Jan. 8.

If passed, the legislation would “merge the offense of criminal deviate conduct into the crime of rape.” It would also repeal the statute defining the crime of criminal deviate conduct.

In January 2012, the FBI expanded its definition of rape to include male victims as well as forced anal and oral penetration. Until that point, the definition had remained unchanged since 1929.

“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim,” the FBI’s most recent definition reads, versus the old definition of “the carnal knowledge of a female, forcibly and against her will.”

The redefinition was implemented in hopes “of leading to a more comprehensive statistical reporting of rape nationwide,” according to the U.S. Department of Justice Office of Public Affairs.

"The Indiana change would not be a substantive kind of change,” Veidlinger said. “It’s a language change.”

Substantive, she said, means something that is illegal becomes legal or something that was previously legal becomes illegal.

The law is actually not gender-discriminatory in the sense of a sexual assault, she said. Criminal deviate conduct is the same level offense as rape considering they’re both Class B felonies and under the same conditions.

“Because you’re calling one ‘deviate conduct’ and one is called ‘rape.’ And although it’s ‘deviate,’ sometimes people misspeak and call it ‘deviant.’ So it’s a legitimate criticism of the language, for sure,” she said. “Language carries judgment with it.”

Veidlinger said sexual assault is one of the most underreported crimes in the country, citing that the number of same-sex assaults not reported perhaps surpass the amount of non-reported male-female sexual assaults three-fold.

“I can tell you right now, what the legislature is focusing on, is they’re completely revamping the criminal code,” she said. “The whole criminal code — massively. This is what all the prosecutors across the state are talking about.”
 
***
The walls that make up the perimeter of the IU Health Center’s fourth floor are largely consumed with motivational posters and wooden racks flooded with self-help pamphlets.

Many detail information about various crisis service centers as well as treatment and counseling resources for sexual assault victims.

Gary Stepp, known to most as “Brad,” is a psychologist working out of the health center’s Counseling and Psychological Services.

“I think there are certain barriers to disclosing, not only to the police, but also to mental health providers, that they’ve been sexually assaulted by someone of the same sex,” Stepp said.  “Some perceive that the police would not take it as seriously if it’s a same-sex sexual assault, which given Indiana’s code, I don’t think that that’s an unreasonable fear and a fear that has been substantiated over the years.”

Stepp said he works with his patients, including victims of same-sex sexual assault, in an open-ended manner, encouraging them to arrive at their own realizations. He steers clear of pressuring them into pursuing formal charges or prosecution.

“I try to be very careful not to push on them on what I think they should do, because I feel it takes away some of the power they’ve already had taken away because of the sexual assault,” Stepp said.  “I really try to support them, he said, and empower them the best I can.”

Same-sex sexual assault may very well be under-reported on the IU campus, he said, and it needs to be addressed and discussed.

Party scenes and intimate relationships, he said, are the types of situations in which this type of assault is most likely to occur.

“Even though the current law in Indiana doesn’t currently recognize their trauma in an equitable fashion as non-same-sex sexual assault, there is support for them,” he said. “They are not alone. Absolutely not.”

***
As Shani Robin expressed her frustration with the system, her voice, at first calm, became increasingly concerned and flustered.