When is rape not considered rape

Question: When is rape not considered rape?

Answer: When you live in Pennsylvania.

I always believed – naively as it turns out – that I knew the various manners in which rape could occur. Specifically, I thought that when something was forced inside a woman's vagina against her will and without her proactive consent that it was rape – regardless whether it was a penis, a finger, or an object. That seems pretty standard and uncontroversial and correct, right?

Wrong. Dead wrong.

After reading news reports from reputable media sources about the Steubenville rape case, I kept hearing the same disclaimer over and over again: "Under Ohio law, digital penetration is considered to be rape." That made me wonder: "Under Pennsylvania law, was digital penetration considered rape?"

The short and incontrovertible answer is: No, it is not considered rape in Pennsylvania.

To me, that is disturbing and shocking. It may be to you, as well.

I went to the experts, starting with the man I consider to be the best criminal defense attorney in Philadelphia, Charles Peruto Jr.

"I did my research, and can tell you in Pa., 'penetration' with the fingers, is Aggravated Indecent Assault, as opposed to outside of the panties/pants, which would be Indecent Assault," he explained. "Aggravated is a felony of the 2nd degree, carrying a max sentence of 5-10 years in prison."

It is not Involuntary Deviate Sexual Intercourse, which would be a felony of the first degree and carries 10-20 years in prison, he said.

West Chester attorney Sam Stretton echoes the law in Pennsylvania. "Rape is defined as involving a penis," Stretton told me, adding that several other states have amended the definition of rape.

In fact, as some states have amended their laws to include non-penis penetration as a form of rape, the federal government has broadly expanded its definition of rape.

Philadelphia Weekly staff writer Tara Murtha, who has written some important articles on rape, made me aware that the FBI has revised its Uniform Crime Report's (UCR) definition of rape as "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."

Of course, that's for statistical reporting of rape nationwide, even if a particular state's legislature doesn't define rape that way.

Chris Miller, of counsel to the Law Office of Harper J. Dimmerman, explained Pennsylvania's sex crimes legislation to me.

"Every state legislature can set the law as they see fit. I think having different gradations and clear definitions is better for a jury. When a jury thinks of rape, they think of unwanted sexual intercourse. I think by having clear definitions of other unwanted sexual contact that a jury is able to understand exactly what it is."

And that's the current situation in Pennsylvania, where you might spend up to two times the amount of time in prison if you use a penis instead of a finger.

Is the gradation and sentencing differential for digital penetration fair, or should we be mimicking the Ohio statutes?

I put that question to Dr. Maria McColgan, who serves as a pediatric adviser for Prevent Child Abuse Pennsylvania.

"It's a form of sexual assault. It is just as unwanted, and can be equally damaging - both physically and mentally - but I don't see harm in separating the kinds of sexual assault, as long as it's seen a sexual assault," McColgan said,.

"It's a very big problem," she added. "I see it very often. It may not seem as bad as other forms of rape, but it can be equally stressful and upsetting for the victim."

McColgan, who also is the director of the Child Protection Program at St. Christopher's Hospital for Children in Philadelphia, said that "people are talking about it more and have stop treating the victim like a criminal so they will speak about it, as it's unusual for a child to lie about sexual assault."

To that end, McColgan will be leading a child abuse prevention event at St. Christopher's on April 24th at noon, at 3601 "A" St, Phila PA 19134. For more information, please email maria.mccolgan@drexelmed.edu.