In 2011, Lydia Cuomo, a New York City teacher, was sexually assaulted on her first day teaching at a Bronx charter school. A drunk off-duty police officer approached her and asked for the directions to the subway as she awaited her principal to pick her up.
The police officer, Michael Pena, at gunpoint, dragged Cuomo to a nearby courtyard where he violated her sexually. Last year, the officer was convicted of forced anal and oral sex, but not rape.
Cuomo, 26, is seeking to remedy this. She is on her way to Albany to promote a legislative effort to change state law to place forced oral and anal sex under New York State’s rape statute.
“I feel like essentially I had a silver platter of a rape case,” Cuomo told the Daily News. “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 first time, and that just highlights to me the problem in the system.”
Problems in understanding the law
The headache lies in the realization that anal and oral sex is covered by New York State’s definition of rape.
According to New York State’s Penal Law Article 130.35: Rape in the first degree, a person is guilty of rape if he or she engaged in sexual intercourse with another person by forcible compulsion; or with who is incapable of consent by reason of being physically helpless; or with who is less than eleven years old; or with who is less than thirteen years old when the principal actor is eighteen years old or more.
New York State’s Penal Law Article 130.00 Sex offenses; definitions of terms, define “sexual intercourse” as having “its ordinary meaning and occurs upon any penetration, however slight.”
The problem lies in New York State’s Penal Law Article 130.50: Criminal sexual act in the first degree, which defines this crime accordingly: “A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) By forcible compulsion; or 2) Who is incapable of consent by means of being physically helpless; or 3) Who is less than eleven years old; or 4) Who is less than thirteen years old and the actor is eighteen years old or more.”
New York State law gives the presiding judge choices in the charge he/she can apply to a case such as Cuomo’s. A judge can charge a suspect under Article 130.35 or under Article 130.50; in the Cuomo case, the judge chose the later. As both classes are class B felonies — which have a typical prison sentence of three to 25 years — the judge may have felt comfortable attributing this case as an Article 130.50 violation.
But, for many, the devil is in the details.
“Rape is rape”
Pena was charged with rape, criminal sexual act and predatory sexual assault when he was brought to trial March 2012. In court testimony, Cuomo attested that she knew she was penetrated because it hurt. Eyewitness accounts reported seeing Pena pushing a woman into an alley. Another witness testified to seeing “joyless” sex. Pena’s DNA was found on Cuomo’s underwear.
In lawyer-speak, this prosecution should have been a slam dunk.
Problems arose, however, in the question of if Cuomo was vaginally penetrated. While the jury found Pena guilty of criminal sexual act and predatory sexual assault charges, on the rape charge, it was deadlocked. As the jury has already found Pena guilty of violation of Article 130.50, unless they can prove that Pena vaginally penetrated Cuomo, the jury will be double charging Cuomo on the anal and oral assault.
Hence, the problem.
The jurors questioned Cuomo’s memory of the event. The fact that Cuomo could not remember the car in the driveway near where she had been attacked convinced jurors that her recollection may be wrong, and as there was no distinct evidence to suggest vaginal rape, the jury was hung on that charge.
As told to Salon, Cuomo lost it after hearing the verdict. “It was like, oh my god. I’ve sat through this. I’ve waited for this. And this jury just told me ‘you were sexually assaulted, but you weren’t raped because you couldn’t remember the color of a car.’ Apparently there was a car in the alley. I honestly don’t remember a car at all. I was in shock. There was a gun pressed to the side of my head. I don’t need to justify it. It’s just insulting. It was offensive. And it was just devastating to think ‘I might have to relive this again.’”
State Assemblywoman Aravella Simotas (D-Queens) feels that semantics played too big a role in this case. “Rape is a very emotionally charged word,” said Simotas. “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.”
Simotas is introducing a bill to the state legislature that would classify all forced state penetration as rape. While the bill has bipartisan support, it is unlikely to change the public’s perception of sexual assault.
“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 and a scholar on rape law. “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.”
Twenty-five states and the District of Columbia do not use the word “rape” in its legislation at all. The point behind the shift was to reinforce the sentiment that these crimes are in response to an act of violence, and not sex.
These states vary in the terms and requirements needed to prove a violation. Some are simply written, neatly-bound legal packages that define sexual assault broadly, while others are more complicated and more precise in aim.
It is these variations, and — in general — the media’s coverage of these crimes that are adding confusion. “I think people are uncomfortable talking about it. And they’re uncomfortable using the right language around it,” said Cuomo. “It’s weird — you don’t think ‘anal’ is a word you’re going to say in front of your dad a lot. But it happens. There’s nothing I can do to change what happened, and I’m not going to beat around the bush or not talk about it.”
Cuomo points out that, under New York State law, she was raped — even if the court could not attribute to the charge to her violator because of a legal technicality. This made it easier to talk about her particular case. “The problem with that is it would have been harder for me to talk about … because it’s not called rape and because it’s sort of hidden in the closet … I wouldn’t have felt as open, which is weird, because that was definitely the hardest piece for me.”
Originally, State Sen. Catharine Young (R-Cattaraugus County) supported Simotas’ bill, which would simplify the codification of sexual assaults in the state’s penal code. However, Young dropped her support by introducing an alternative bill shortly after appearing in a press conference with Cuomo. Young’s bill would lower the burden of proof of burden for proving rape, while preventing adding more confusion by expanding the definition of rape to fit three different crimes.
Pena was sentenced to the maximum sentence of 75 years in prison to life.