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How We Describe Sexual Assault: Times Journalists and Lawyers Respond

Oct 31, 2017 / Media Coverage / New York Times — Stephen Hiltner

“Nonconsensual sex” is the language of the accused, used to hijack the conversation and sugarcoat allegations of sexual assault. Bill O’Reilly, Harvey Weinstein, Roy Price, and others have all recently denied allegations of “nonconsensual sex” in this paper ... It’s time to stop allowing the perpetrators to frame the dialogue. Words matter, choose them wisely.

— Diane Tider-Johansson, in a letter to the editor

The New York Times is at the forefront of a national conversation about sexual assault. In recent weeks, Times journalists have broken stories related to allegations against an ever-growing list of powerful men within America’s media landscape, including Harvey Weinstein and Bill O’Reilly, among many others.

Many responses from our readers have been notes of gratitude, offering thanks to reporters like Jodi Kantor, Megan Twohey, Michael S. Schmidt, Emily Steel and Jennifer Steinhauer for pursuing a subject that, for so long, has avoided national exposure.

Some readers have expressed particular interest in the terminology we use to describe sexual assault. Readers have wondered, in particular, why certain terms — “nonconsensual sexual relationship,” “forced oral and vaginal sex” — have been used instead of the word “rape.”

The answer is complicated, and we’ve invited a handful of Times journalists — including lawyers for our newsroom — to offer their insights. You’ll find them, along with a few of the responses and queries from our readers (some edited and condensed), below.
But first it may be helpful to offer a framework for how articles like these come together. At The New York Times, articles are rigorously reported then dissected by desk editors before publication. And major investigative stories are scrutinized to an even greater degree. For those stories, not only do the desk’s editors probe the work, but masthead editors — the most senior journalists at The Times — also weigh in, as do members of our legal team. And especially careful consideration is given to the language used to describe potentially criminal allegations.

As always, we’re interested in hearing from you on this topic. After you’ve read the article, please share your thoughts and questions in the comments section.


Just boys being boys?

Wow! Haven’t we just gone through weeks, articles and campaigns trying to determine all the facets of why women hadn’t previously stepped more forcefully forward to take down Harvey Weinstein? So now we see the use of terms like “non consensual sex” instead of “rape” to soften the violent acts perpetrated against women as just boys being boys and doing nothing more than getting “20 minutes of action” (see Stanford rape case last year). I guess it’s no surprise in the Trump era to see no steps forward, two steps back.

— D.A.Oh, in a comment on our recent story about the mothers of male college students accused of sexual assault

Ian Trontz, the editor of the story, explains our approach to discussing such issues.

It is certainly understandable that some readers would want The Times to use the strongest wording possible. Whenever we write on this topic, we find ourselves searching for the right term. As a rule, we should be striving for wording that is descriptive and not euphemistic, while above all being accurate and fair.

There are several terms often used to describe the accusations in these cases, and at one point or another we’ve used each of them. The strongest term is “rape.” As a criminal matter, the definition varies by state, though in general (and at the risk here of being euphemistic) it involves physical sexual contact without consent. Indeed, that type of contact is what some of the men in the story we published last week were accused of.

When we’re choosing our wording, we also consider connotations. “Rape” has a strong association with the criminal justice system, and it is one of the most serious criminal acts. We do, at times, use the term “rape” or “campus rape,” but since the cases we are writing about are often not being handled in criminal court, we prefer to be judicious in using a term that is so closely identified with a heinous crime, especially if the student has not been formally charged.

In this article, we used a couple of terms when describing the charges faced by the students. One was “sexual assault.” This, too, has a criminal connotation; in many states, the term is in the penal code. Despite this, we believe that “sexual assault” is an appropriate term to use because it is a term often used by colleges when investigating complaints and meting out discipline. (For example, here’s Yale’s periodic report on its sexual misconduct investigations.) Indeed, the university documents we examined for one of the men in the article said he was accused of sexual assault. It is an accurate and fair way to describe the campus accusations. To not use the term would be to deprive readers of the specificity the issue demands.

We also used the term “nonconsensual sex.” There is no doubt that this is generic and clinical sounding. But it also adds a layer of understanding to this complex issue. The key question in campus investigations is whether consent was freely given by both parties. Some colleges adhere to a “yes means yes” standard that requires an affirmative response by both people for each sexual act. Other colleges are not that explicit but still require willing engagement in the act by both parties. In many cases, alcohol is involved, and the question becomes whether either person was too incapacitated to be considered capable of giving consent. In all these circumstances, the question comes down to whether consent was given. The term “nonconsensual sex” helps the reader understand the issue a little better.

That said, we do not liberally sprinkle a term like “nonconsensual sex” throughout an article about serious, sometimes violent acts. It adds context, but it should not be used so often as to become the default terminology for the act. The term we use most often is “sexual assault,” the one that best defines the nature of the accusations.

The Power Relationship

Our newsroom lawyer, David McCraw, further clarifies the use of the phrase “nonconsensual sexual relationship.”

In the case law, “nonconsensual sexual relationship” is often used in cases where the victim is intoxicated or drugged, and in cases where someone has sex with a policeman or prison guard and feels there is no choice but to submit because of the power relationship.

It would also include rape by force or threat.

Call it rape. That’s what it is.

Dear NYT, please do not call it “forced vaginal sex.” Call it rape. That’s what it is.

— Michelle Grua, in a comment on the Times story in which women, including the actresses Gwyneth Paltrow and Angelina Jolie, came forward to say Harvey Weinstein harassed them.

Rebecca Corbett, a senior enterprise editor on our Investigations team and one of the editors on the story, responds.

We were trying to be very precise in describing other allegations against Mr. Weinstein reported by The New Yorker, to give readers as much information as possible. We were not trying to minimize the gravity of the allegations. But in retrospect, it would have been better to use the term “rape” at least once, since it certainly applies to that particular set of allegations.

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