It’s not “sex,” it’s rape

A reader sent in this story, about how this 18 year-old man was given only 6 months in jail for raping two women. (Oh, and he gets work and school release privileges.)
Michael Philbin, son of a Green Bay Packers coach, said he was “ashamed” and “embarrassed.” Well, that’s lovely, but I wish he was feeling ashamed from prison for more than 6 frigging months. The short jail sentence aside, what really bugged me about this article was the language it used to describe the attacks:

Philbin had sex with one girl after she passed out and was placed on his parent’s bed. He then joined another 17-year-old boy in the basement and forced a second girl to perform oral sex, according to the criminal complaint filed last month.

Excuse me, but you don’t “have sex” with an unconscious girl. That’s called rape.

Brown County Circuit Court Judge Sue Bischel, in accepting a joint sentencing recommendation, said by all accounts Philbin was a good person who made a horrible decision.

Making a “horrible decision” to rape someone doesn’t make you a good person who fucked up - it makes you a rapist.

Reading from a pre-sentence report, Bischel said Philbin acknowledged that he took advantage of the girls knowing they had too much to drink.

Took advantage of? Again, rape. Judge Bischel also ruled that Philbin didn’t have to register as a sex offender because it was “excessive” (and raping two women isn’t?) and that after completing probation he could petition to have the convictions removed from his record.
I am so tired of the rape apologism – in the media, in the courts, in the culture. How much more can we really take?

Join the Conversation


    aawwww, but you say he’s the son of a Green Bay Packers coach? Yep, he’s another privileged rich Mommy and Daddy’s boy. Stupid bastard, I hope he gets what’s coming to him in the future.

  • dormouse

    I don’t think it’s entirely appropriate to attack his family (or to attribute his obvious misdeed to wealth or upbringing). I’m not trying to defend a rapist, it’s just the rape part we should scorn him for, not his family

  • Kim C.

    “Underage sex case” can be shortened to one word: “rape”.
    It boggles my mind that newspapers would produce shocking headlines with extraneous words in order to snag our attention, but then downplay rape by making it “underage sex” or “forced sex”.
    There’s a reason the word “rape” has a nasty connotation: because it’s a horrifying crime. Don’t want to be called a rapist? Don’t rape!
    I’m confused: how is raping one woman and then ganging up with another person to rape another woman (this one conscious) not something that would label someone a “sex offender”? It’s a real stretch to say that violating one person once makes you a good person that screwed up, but then teaming up to commit the same crime on another person? That’s not a momentary lapse in judgment/viewing a human being to be deserving of the dignity and respect of a human being; that’s taking a practice run and then seeing how far you can go.

  • lyndorr

    How about we give every person who commits a crime but does good things otherwise and acknowledges what they did wrong only 6 months? No? Didn’t think so. (Though it’s true that this happens with other crimes too. Not everyone found with a drug will get the same sentence. But that’s unfair too).

  • Okra

    I want to believe–I hope and pray–that this judge is being blackmailed, paid, or otherwise controlled by this man’s powerful family.
    The alternative–that basic decency and justice for victims are secondary concerns to making sure rapists don’t get labeled “sex offenders”–racks me with a bone-deep chill.

  • DanielJ

    I agree that Philbin should have been prosecuted for rape. I agree that he should be facing a much, much longer sentence for what he did. I agree that the judge’s reasoning for giving him such a light sentence is incredibly wrong for such a disgusting act.
    But I can’t agree with you, Jessica, on blaming this newspaper writer for not using the word “rape.” And I think you already know why, and it frustrates me that you have fallen back on blaming the media when you should know better.
    It’s pretty simple: Rape is a criminal act, one that this kid was not charged with, and not convicted of. For this reporter to take it on himself to call Philbin a rapist would open them up to a huge libel lawsuit – and this is likely not a hypothetical. Given his father’s stature in the community, it is not hard to believe that the paper would have been sued, and again, considering that Philbin was not convicted of rape, they would have lost, and they would have had to pay, bigtime.
    Again, I agree – completely – with your take on the problems with the prosecutor’s and the judge’s decisions. But to blast a reporter for accurately reporting courtroom proceedings – and for NOT exposing himself to a massive libel judgment in the process – is just wrong.

  • Chrissy

    I agree with DanielJ. To use the word ‘rape’ in the article when Philbin was not charged with rape would not only be poor journalism, but even if the author had done so, it never would’ve made it through the paper’s editors.
    However: Should Philbin have been charged with rape? Absolutely. Even with these crimes, should he have a much, much greater sentence and be required to register? Absoutely.

  • Femgineer

    Perhaps the implication is that he got only 6 months because he is priviledged. Which I am inclined to believe.

  • Jessica

    He pleaded no contest to two misdemeanor counts of sexual intercourse with a child – isn’t that sexual assault? (I’m being serious – isn’t it?) He also pleaded to battery, so I think the reporter could have used the word ‘assault’ or ‘attacks’ without it being an issue.

  • MissKittyFantastico

    Is it true that he would be sued over it? It seems to me that rape is a word that has a legal definition and a non-legal definition that overlap but are not necessarily the same. So can he be sued for using the word in its non-legal connotation?
    A worse example is the word “sodomy.” Traditionally it means non PV sex, mostly referring to anal sex, which includes consensual anal sex. When those fundamentalists preachers get all upset about sodomy, they’re talking about a consensual act. But legally (in some states at least), “sodomy” means forcible sex that is not PV sex. So a headline could say that someone was convicted of sodomy, meaning a forcible crime, or that someone said they think sodomy is fine, meaning a consensual act. Can a reporter get in trouble for using the word in its non-legal way?
    Anyway, either way, he was convicted of some crime, right? Was it “sexual assault in the __ degree” or something like that? Then it should say he “sexual assaulted” the girl rather than “had sex with.” If the reason the reporter didn’t say “rape” was to avoid legal repurcussions, there must have been other accurate phrases he could use rather than “had sex with.”

  • Kim C.

    Especially since “had sex with” implies the other party is an active participant, whereas “assault” clearly denotes a lack of consent and a criminal act.

  • DanielJ

    I’m not a lawyer, so take that for what it’s worth, but this fact sheet from the Wisconsin Coalition Against Sexual Assault spells out that the crime Philbin appears to have been convicted of, sexual intercourse with a child 16 or older, is different than sexual assault of a child, under Wisconsin law:
    As for the battery conviction, you may have a point that it could be described as an “attack” or “assault,” except that in the context of this case, that hews pretty closely to calling it a “sexual assault,” which, again, gets you into a very dangerous area with respect to libel, since sexual assault is a defined crime that was not charged in this case.
    To reiterate, I think it’s unbelievably shitty that the DA basically blinked and charged the lesser crime because he felt he couldn’t get a jury to convict on a sexual assault charge. It’s even shittier that he might be right, because we have shown ourselves to be a victim-blaming nation when it comes to these kinds of cases.

  • DanielJ

    But that’s just the thing: The charge he was ultimately convicted of expressly disavows any question of consent. To put forward a theory of no consent in a newspaper article reporting on this conviction would be just begging to be sued, and no responsible journalist would do it. He reported the convictions, and he reported the involvement of alcohol as cited in the criminal complaint. There’s really not anything more a reporter can do here unless he wants to render his J-degree worthless and become a Wal-Mart greeter or something.

  • Kim C.

    The article described the incident, noting that one of the girls had “passed out”: an unconscious person cannot give consent. The reporter would be completely correct if they called that “assault” even if that wasn’t the final verdict.
    I understand what you’re saying, but reporting what happened and describing it in its correct terms is different from reporting the conviction. This article described the incident poorly in the sense that “had sex with” does NOT describe a rape, regardless of the verdict. Also, can we be sure that the reporter would be sued for that?

  • MissKittyFantastico

    If the reporter can say that the girl was unconcious and that they had sex, logically he should be able to say some word like assault or rape. If one of the facts like whether or not she was unconcious or whether or not they had sex was at issue, then he wouldn’t have been able to report them. If those facts are reportable, so is describing them in accurate language.

  • Spokelse

    As a victim of rape, I believe it to be entirely mind-boggling that people don’t take offenses like rape seriously. This man should undoubtedly be on the sex-offender registry and be in prison well over six months. Not convicting him of rape is not only wrong, but doesn’t do justice for the horrors these girls will have to remember and live with for the rest of their lives.

  • theminutepast

    States have different wording for rape. In Ohio, it isn’t called rape. It is called “gross sexual imposition” even though the label can apply to multiple types of sexual assault.
    I emailed the reporter and the editor of the paper to tell them how I disturbed I was by their poor word choice. I hope that has an impact.

  • MiddleageLiberal

    Here’s another light sentence for a serial rapist. Bargained down to two separate “attempted rapes” and sentenced to 4-5 1/2 years. Reported today:
    A Durham man pleaded guilty Monday to two counts of attempted second-degree rape stemming from separate incidents, including one that involved a former Duke University student.
    Judge Orlando Hudson sentenced Michael Jermaine Burch to between four years and 5 ½ years in prison. Burch was also ordered to stay away from both victims and agreed to testify against a second suspect in one case.
    Prosecutors said that both victims agreed to the plea deal because they wanted put the painful cases behind them.

  • theminutepast

    If any of you are interested in the defense of the reporter who wrote this article, enjoy this total bullshit:
    I appreciate your familiarity with sexual assault and have understand you have a connection to the world of journalism, but I need to tell you that “rape” would have been the wrong word in this instance.
    Rape is not a legal term in Wisconsin. In it’s colloquial usage, it is reserved for the most serious of attacks, specifically first-degree sexual assault.
    I also contend your belief that sex implies consent is incorrect. It does not. In this instance, the act of penetration and sexual gratification defines the conduct as sex.
    Consent in this case was a moot point. Neither girl could give consent, intoxicated or not, because of their age. Mr. Philbin was not charged with second-degree sexual assault (unconscious victim). He was charged with sexual intercourse with a child (16 or older) as a misdemeanor.
    I believe we accurately reported the facts of this story. If readers have concerns with the charging decision or the outcome, their issue is with the criminal justice system and the state Attorney General’s Office.
    I appreciate your feedback and encourage you to keep reading the Green Bay Press-Gazette.
    — Andy Nelesen
    Crime and Courts Reporter

  • EndersGames

    That is sickening. He should have been charged with rape and been put in jail for years.
    I agree with everything DanielJ said. The reporter was acting quite responsibly in the choice of words. It is the asshole judge and the criminal we should be mad at, not the reporter.

  • MM

    So I agree that the judge’s comments are disgusting and the article’s use of the word sex is troubling, I am suprised that you left out the part about him meeting with the women and their families to apologize.
    While I don’t think that doing this means he should only get six months, by any stretch of the imagination, I think you have to read the sentence in that context. We don’t know what the relationship between the surivivors and the rapist was prior to the assault; it is possible that his taking responsibility and apologizing was more important to survivors than him going to jail. The women involved could have found that far more empowering than just sending him to jail. This also might not be true at all, it might be as bad as it seems.
    I tend to be of the opinion that all rapists should go the jail for huge amounts of time. But I don’t know that what the women want should be irrelevant, and based on the articles I have linked to I can’t come to the conclusion that this is not what they wanted. I also don’t think that it is crazy to think that meeting with two women and their families to apologize might have a significant deterrent effect, particularly if they used that as an opportunity to voice their feelings towards him, a voice that is often lost in the purely adversarial criminal justice process.

  • WickedAnnabella

    I’m sure those girls will be delighted to know that their assaults aren’t considered “serious.”
    And if “rape” is a colloquial and not legal term, I’m pretty sure “had sex with” would be as well.

  • theminutepast

    Exactly my response to him. Rape has a pretty clear definition. Sex, however, can mean a whole slew of things – intercourse, oral sex, anal sex, etc. and according to some people, sex can be consensual and non-consensual.
    His response just does not compute. When did we ever stop calling rape what it is?

  • llevinso

    Am I the only one getting sick of all these EXCUSES for not calling rape what it is: RAPE? Yes yes yes, reporters need to worry about being sued. He wasn’t actually charged with rape. This state doesn’t actually have a charge called rape. This is actually called sexual assault. Blah blah blah. I’m sooooo sick of this! Rape is rape is rape is rape! What do we need to do to get this universally understood? This shouldn’t differ state to state. This crime was rape, pure and simple. As a survivor of rape I’m appalled.

  • Spokelse

    I completely agree and I think that people making excuses for the guy can come off as deending him and his actions. He is a rapist whether he was convicted or not and should be seen and thought of as such. Different terminology doesn’t change what those girls or girls like myself and llevinso have survived and have to live with every day.

  • danielle

    But sending a rapist to jail with a damn good amount of time sends a message: If you rape, you’ll get serious consequences.

  • MissKittyFantastico

    Wow, that’s pretty bad.
    1. In its colloquial use, rape means nonconsensual penetrative sex. That totally fits here, even if it wasn’t the most violent of rapes. Now, maybe he could get away with saying the colloquial definition of rape doesn’t cover forced oral sex, but it definitely covers nonconsensual vaginal sex, whether violent or not.
    2. Consent is absolutely not a moot point! She did not consent, she could not consent due to intoxication. If he had had consensual sex with someone underage and he was only being CHARGED with statutory, then maybe it would be a moot point. As it is, he was originally charged with something worse and pled down, right? And regardless of what he was charged with, if they can print, as fact, that he had sex with an unconcious girl, then they should also be able to describe that fact with words that imply non-consent.
    (I’ve actually never been sure about whether the word sex implies consent. I’ve seen arguments about this with women’s groups on campus and overall I agree with them that the word sex should imply consent, but as far as its actually used I’m not sure that it really does. For instance, in #1 I used sex in the definition of rape and I couldn’t think of any other way to phrase that sentence without using the word sex. )

  • MM

    Yes, that will send a message about consequences, but that does mean that he will recognize that the act that sent him to jail was wrong. I agree that when it comes to rape law protecting women should be the top priority, and if need be, rapists should be locked up forver. But if given a choice between incarcerating them all or getting them all to see why rape is wrong, I would pick the latter.
    Again, I don’t know if that actually happened in this case or if it is a BS line being used to justify a short sentence. But while the criminal justice system is good at locking people up, I have a lot of doubts that in prison he would learn anything about respecting women and the kind of harm that he caused. If conveying the level of hurt and making her attacker look her in the eye and apologize was more important to her than jail, I just don’t know that I can tell her that that’s wrong.

  • Maeve

    That’s fucked up. You would think that at the very least he would have gotten hit with statutory rape. What’s the difference between statutory rape and sex with a minor anyways? They sound like the same thing to me, and usually stat rape perps get like 20 years or more in prison AND on the sexual predator list.

  • platon2043

    But if given a choice between incarcerating them all or getting them all to see why rape is wrong, I would pick the latter.
    I disagree. If it were that easy, you’d see a lot of crocodile tear confessions about how it was wrong, and then as they are being let out of court, you’d see them jear and give their buddies a high-five out in the hallway.
    I want these motherfuckers dead. They are all scumbags, and I want them locked up for life. Hopefully they’ll get shanked and raped in the prison showers. They’re all scum and dont deserve to live among us.

  • kristuna1

    Totally agreed with everyone’s comments on his response. If rape isn’t considered a legal term, he wouldn’t be able to be sued, and it certainly did apply here.
    Did he really have to mention “sexual gratification” here? Gag.

  • saraeanderson

    So what is “a rapist?” Obviously, a rapist is someone who rapes, but it’s pretty counterproductive and confusing* to construct the image of a rapist as something other than a human being who did something bad. It doesn’t take a completely bad person to do a bad thing, but it sure helps. Very frequently, I don’t think that “rapist” is an essential identity. It’s enough to tell me that I don’t want to deal with that individual, sure, but knowing the stats about conviction rates and reporting rates means knowing that rapists walk among us in great numbers. That’s not any kind of excuse for committing rape, but it goes a long way toward explaining (explaining is different than excusing) why rape culture doesn’t have to struggle for its existence like it should.
    *It’s confusing for victims as well as rapists themselves (and those close to them). A confused rapist doesn’t exactly make my heart bleed, but when a rapist doesn’t get the harm they’ve committed, they’re still much too far from being able to understand what they’ve done and making sure not to do it again. When your husband rapes you, you’re left to decide whether you are living with a husband, a rapist, or some combination of the two.

  • ZoBabe

    Not necessarily, I sweep the floor with a broom. It doesn’t make the broom and active participant.
    How skin crawlingly creepy is it to look at it that way? Do you think that’s what they mean by “had sex with?”
    I understand that professional journalists are held to a different standard, and are not allowed to throw around words like “rape” with impunity, like we can. But I wonder how else you can convey the point without conflating “sex” with something that one person can just do to another.

  • ksimonet12

    Potential trigger warning:
    I guess I don’t really understand why it is not considered “violent” when the victim is unconscious. Not to get too graphic, but I know that many women have to be sufficiently aroused for intercourse to not hurt. I doubt one can get sufficiently aroused if one is unconscious. Therefore, is there not tearing, bleeding, etc.? And I’m definitely not playing down rape where the victim is conscious, but trying to emphasize that ALL rape is violent.
    And saraeanderson, I think the phrase “When your husband rapes you” pretty much sums it up for me whether or not he’s a rapist. Doesn’t seem too confusing to me.

  • ZoBabe

    Ick. I take back the part of my earlier comment about this reporter being held to some sort of standard.
    Is “hack” the correct colloquial term here?

  • 1:32:45

    You know what, we NEVER wish rape on anyone. Even on convicted rapists. Not just because we don’t know the circumstances and they might have been framed – just because as human beings, we don’t wish that experience on anyone. It diminishes us. Please don’t talk like that.

  • danielle

    But until we can live in a society where rape is seen as what it is, I’d rather they be locked up and have the key thrown away.

  • MM

    A couple things. First, I did not say that I wanted anyone who apologized to get off the hook. I just said that if there is an opportunity to actually get someone to see why its wrong, and that is what the victim wants, then what she wants should be respected.
    Also, the reality of the world we live in is taht the average sentence for a rape conviction is 8 years. To the extent that it is possible, if we are not just going to incarcerate everyone for life, we should do everything possible to reduce the liklihood that they will re-offend when released.
    Finally, are you going to be the arbiter of who “deserves” to get raped and who does not? A lot of people get raped in prison, a lot, systemically, and while prison guards do nothing about it. Its not funny and its not something to be celebrated. Especially on a feminist website.

  • Kathleen6674

    From what I can gather, stat rape in that state is sex with someone under 16 years old. There seems to be a different, lesser charge for a victim who is 16 or 17 years old, and that is fucked up.

  • DanaNZ

    I read this at work just before my break ended and felt completely disturbed for hours… he’s “ashamed of himself”. What. The. Fuck.
    Reading this sort of stuff, the phrasing, shit like “taking advantage of a drunk woman”, other vague phrases… tells me really clearly these people have no conception of the horror of sexual assault.
    Not only did he rape an unconcious woman, he forced another woman to give him and another man oral sex. This is not a completely contextless crime. The woman would be scared and horrified and all those feelings that no words describe adequately and he found that arousing. There is something seriously wrong here.
    God, not enough words.

  • MissKittyFantastico

    Well, he has a point that for a crime to be considered something along the lines of sexual assault (whatever term you use) there has to be some sexual gratification or attempt at it. For example, if a doctor gave someone an unneccessary pelvic exam while they were unconcious, it might possibly be considered assault (colloquially at least) but likely would not be sexual assault.

  • MissKittyFantastico

    Its not that its not violent, its just that its less violent than a case where he also punches her repeatedly in the face.

  • bettybrown

    actually, ohio does have the crime of “rape” and uses that term as well. “rape” in ohio is a different crime than “gross sexual imposition” in that the crime of rape involves (among other things but this is the main difference between rape & gross sexual imposition) “sexual conduct” – with sexual conduct being defined as: vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex, and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse”
    gross sexual imposition is similar to the crime of rape, but it does not involve sexual conduct as defined above. it involves crimes such as groping a breast, a thigh, the pubic region, etc. for the purpose of sexually arousing the criminal – basically what is defined as “sexual contact” that involves some sort of force, coercion, drugging of the victim, etc.
    there’s even a lesser crime of “sexual imposition” which covers such crimes as groping someone on a crowded bus.
    sorry to get so wordy – i’m not trying to be a know it all here. i worked for a juvenile court judge in cleveland for years & am all too knowledgeable about these crimes.

  • MiddleageLiberal

    You are correct on the age difference on statutory rape vs. intercourse with a minor, the latter being a significantly less serious charge. But is that fucked up? Are you suggesting that women 16 and 17 years old should not be allowed to give consent to or enthusiastically have sex?
    My state sets up an age differential (two or three years, I forget specifically) within which consensual intercourse is not a crime. So a 21 year old could still be prosecuted for consensual sex with a 17 year old.

  • Lynne C.

    Yeah, I don’t think this person was attacking wealth in general, but the privilige that often comes with being the son of a coach, or famous to some degree. In the arena of sports, the athletes often get away with a lot, including rape. It really sickens me. I wonder what happened with the other boy who was with him when they raped the other girl by forcing her to perform oral sex. He should be getting some punishment too.


    The only reason he got a slap on the wrist for two felonies is because his dad is a Packers coach.
    The judge – like most men in Wisconsin ESPECIALLY those in or near Green Bay – is a fan, and might even be a team shareholder.
    So it’s transparently obvious that a double rapist got a slap on the wrist and won’t even have to register as a sex offender is because of the Packers connection.
    As for the race thing – just look around you.
    America’s criminal justice system is notoriously racially biased, just look at the numbers.
    In light of that fact, it’s probable that a Black teenager accused of the same crime, even one with connections to the Packers, would have gotten more time.


    Daniel J,
    Quit being an apologist for the MSM.
    The editors did their best to help the judge cover up a double rape, by their word choices.
    As far as libel suits go, that’s a typical excuse that media outlets use when they refuse to print negative coverage of well connected and powerful people.
    The same outlets cheerfully condemn the weak and powerless who can’t afford good lawyers.
    It’s all part of the same system of class, gender and race privilege – and you are too, for defending it.


    Andy Nielson sounds like a rape apologist.
    I mean really, he’s so damned cavalier about a rapist raping an unconscious woman – what a total scumbag!
    How would HE like it if the son of a Green Bay Packers coach got him drunk and raped him while he was passed out?
    I bet you he’d be calling it rape then!


    Did you read the comment from the crime and courts reporter?
    He’s a total rape apologist – he didn’t use the word rape FOR A REASON, a very misogynist reason.
    So quit apologizing for the creep – he’s almost as bad as the rapist is!

  • rhowan

    I found another article which gives further details of the case.

    Under a plea arrangement, Philbin pleaded no contest to two counts of sex with a child over the age of 16 and two counts of battery. Philbin received six months in jail for each battery charge and 30 months probation for each sex-assault charge. The terms will be served concurrently.

    That’s right, battery charges earn him jail time, but for sexual assault he gets off with probation (when they could have given him up to 18 months in jail).
    From the description in the article of what he actually did it looks like he ideally should have been charged with either first degree sexual assault:

    Aiding or abetting by one or more other persons and having sexual contact or sexual intercourse with another without consent by use or threat of use of force or violence.

    or second degree sexual assault:

    Sexual contact or sexual intercourse with another person without consent by use or threat of force or violence
    Sexual contact or sexual intercourse with a person known to be intoxicated, known to be unconscious, or known to suffer from diminished capacities of any sort that temporarily or permanently render the victim incapable of understanding the consequences of such conduct.
    Sexual contact or sexual intercourse with another person without consent and causing injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim
    Sexual contact or sexual intercourse with another person without consent and with the assistance of one or more other persons

    And heck, if they really didn’t feel they could pull off a prosecution for any of the above they also had the option of third degree sexual assault where the only thing they have to prove is lack of consent. Even fourth degree sexual assault, though it has the same level of punishment as sexual intercourse with a minor between the ages of 16-18, would at least have acknowledged some wrongdoing above and beyond having “sex” with a girl who was a year younger than him. [Wisconsin Sexual Assault Laws]
    What I’m getting from their choice of charges is that they didn’t feel they could convince the jury that the (intoxicated and/or unconscious) girls didn’t consent. And that’s messed up.