By Anastasiya Gwinnell
The offence of rape under the Sexual Offences Act 2003 requires penile penetration. Therefore, the act of forced sexual intercourse is not considered rape if the perpetrator is female. If a woman were to have sexual relations with someone without their consent, she would be liable for ‘causing a person to engage in sexual activity without consent’ or ‘assault by penetration’. This article will argue that this distinction is unjust by precluding the fair labelling of female perpetrators as rapists. A relevant distinction to note is that gender fluidity has become widespread so a crime including strictly binary definitions of ‘man’ and ‘woman’ is quickly becoming outdated and potentially problematic.
This article will examine why the law has kept the requirement of penile penetration for rape after the 2003 Act. The law is such due to the following reasons and will be further discussed; (1) that rape allegedly carries more risk when the perpetrator is a man as opposed to a woman, as criticised by David Archard as well as Dr Siobhan Weare alongside Dr Joanne Hulley (2) outdated sexist views of the female perpetrator as examined by Philip Rumney and Dr Siobhan Weare alongside Dr Joanne Hulley (3) the Home Office ignoring material facts and feedback in the Consultation Paper which influenced the 2003 Act, which is heavily criticised by Philip Rumney.
This Article will ultimately conclude that these three reasons given above are poor justifications and that such a technicality matters to give effect to the fair labelling of rapists when the perpetrator is female.
The expansion of the definition of rape can be seen throughout history. Until 1994 if a man had sex with another man without his consent, the crime was called buggery. The Buggery Act 1533 included anal penetration and bestiality, regardless of the sex of the participants but did not include oral penetration. At this time, Buggery was a capital offence. The modernised
version of this offence found in the Offences Against the Persons Act 1861 held a maximum penalty of 10 years, compared with life imprisonment for rape. The Sexual Offences Act 2003 rectified this by making the victim of rape gender neutral. In 1991 under the famous case of R v R, rape was recognised within marriage, whereas before it was not considered rape to have non-consensual sex with one’s wife. The Home Office then submitted a consultation paper in 2000 to modernise the previous patchwork of law surrounding sexual offences, much of which was outdated. This paper later influenced the current Sexual Offences Act 2003.
This resulting Act, however, retained the requirement of penile penetration for a charge of rape, this means that women (without penises) could not rape another person. It would instead be considered sexual assault or ‘causing a person to engage in sexual activity without consent.’ Why then, is the crime of rape not used for all genders? Causing a person to engage in sexual activity without consent and rape both use the same sections to define the parameters of consent, making the crimes near identical but for the specifications of penile penetration7 and the labelling of the perpetrator as a ‘rapist’. Frustratingly, there are two current bills in Parliament awaiting second readings which are amendments to the Sexual Offences Act. However, neither of these pertain to the motion to remove penile penetration as a requirement.
Furthermore, in a time when the fluidity of gender identifications is in its prime, the removal of penile penetration as a requirement would resolve many potential issues caused by a crime dependent on the separation of sexes. Such issues may include transgender perpetrators who have undergone gender reassignment and the current trend of expanding the definitions of ‘male’ and ‘female’ with the inclusion of non-binary identities. A simple solution would be to remove the requirement of penile penetration and define rape as a fully gender-neutral crime.
Reasoning for the current Law
(1) – That rape by male perpetrators carries more risk than that of female perpetrators
One of the common reasons for keeping the requirement of penile penetration is that rape allegedly carries a greater risk of harm when the perpetrator is a male. This idea will be discussed in two different way; firstly, risk of physical harm and secondly, risk of psychological harm, which is discussed by David Archard as well as Dr Siobhan Weare alongside Dr Joanne Hulley.
In relation to risk of physical harm, in the consultation paper The Home Office stated that penile penetration was more serious as it 'carried risks of pregnancy and disease transmission and should properly be treated separately from other penetrative assaults'. The argument concerning the risk of pregnancy falls short when considering prepubescent children and menopausal or sterile women. Furthermore, the rape of a man by a woman in fact does carry this risk of pregnancy where the father would be subject to the legal consequences of a child. Also, the risk of disease transmission is a poor justification as female perpetrators can pass disease through forced penetration and other sexual acts. Therefore, it could be said that risk of physical harm is not a sufficient reason to keep the requirement of penile penetration.
When discussing the risk of psychological harm, the current definition has extended to oral and anal penetration to reflect how ‘degrading and traumatic and horrific’ the experience can be. However, the same could be said for victims of female perpetrators. Dr Siobhan Weare and Dr Joanne Hulley found that being forced to penetrate a woman had substantial negative impacts on the mental health of (male) victims, including emotional wellbeing, and within their personal lives and relationships.’ Therefore, this
study outlined that female perpetrators can cause the same negative psychological damage as male perpetrators, and establishes that penile penetration is not necessary to cause this. Furthermore, every victim suffers differently so the presence or absence of penile penetration may not be a valuable way to quantify the risk of psychological harm to any one person. David Archard in a philosophical paper affirms this idea by stating ‘whilst its hurtfulness is evidence of [the wrong of rape], it is not constitutive of it’. This demonstrates that even if the act does not carry the same risk of psychological harm by not being as ‘traumatic’ as other experiences, such as if the victim was unconscious, or induced into consent under deception, it should still be labelled as rape. The same should be said for the alleged idea that penile penetration is more serious than other penetrative assaults. Therefore, although it has been suggested that penile penetration is a necessary requirement as it carries greater risk of psychological harm, this is not an effective conclusion as female perpetrators can present this same risk.
For these reasons outlined, risk of harm is not an effective way to justify the requirement of penile penetration. Female perpetrators can contribute to the same risks and the requirement of penile penetration should be removed to reflect this.
(2) – Sexist Views
Outdated sexist views have an impact on the public views of the definition of rape. The impact of these sexist views will be discussed in two parts; firstly, how they impact the labelling of the perpetrator as criticised by Philip Rumney and secondly, how they negatively impact the victims (particularly male victims will be discussed in this section) as examined by Dr Siobhan Weare alongside Dr Joanne Hulley.
These skewed views impact the labelling of the perpetrator. They are reflected in the Consultation Paper which states that although the Home Office “have also noted concerns about women who compel men to penetrate them”,15 they ultimately concluded that “[w]e do not regard that as rape, but
as a serious assault on the man’s sexual autonomy.” This demonstrates how The Home Office, influenced by sexist views, facilitate the idea that a female perpetrator cannot be considered a rapist. Philip Rumney in a review of this Consultation paper wrote that this way of thinking has resulted in a “particularly narrow conception of the female rapist.”, failing to “discuss in any meaningful way the possibility that women can coerce [others].’ This demonstrates how sexist views of society can disregard the female perpetrator by not labelling her as a rapist. Removing the requirement of penile penetration may resolve this by expanding the conception of the female rapist and begin to redefine society’s views of the female perpetrator.
Similarly, sexist views have negatively impacted victims, as demonstrated by the research paper carried out by Dr Siobhan Weare and Dr Joanne Hulley. This study concluded that the gender expectations around masculinity were a barrier to disclosing abuse18 and that most participants labelled their forced-to-penetrate experiences as rape. If the requirement of penile penetration was removed, it would reflect the views of the victims in how their abuse is labelled. Furthermore, modernising sexist views could aid male victims by destigmatising gender expectations around masculinity. Removing penile penetration as a requirement would be a positive step in rectifying outdated sexist views within society.
For these reasons outlined, sexist views of the female perpetrator can have damaging effects to both fair labelling and the experiences of victims. To rectify this, the requirement of penile penetration should be removed.
(3) - Mishandling of the Home Office in the Consultation Paper referring to reform of the Sexual Offences Act
The mishandling of the Home Office in the consultation paper is most comprehensively criticised by Phillip Rumney. He specifically criticised that if the Review's recommendations were implemented, it would place this country amongst a dwindling number of jurisdictions that fail to recognise that women can physically commit the act of rape.
The review found that 'there was evidence that a woman could force a man to penetrate her against his will' but 'did not discover sufficient [instances] to convince us that this was the equivalent of rape'.’ Philip Rumney discusses that although the review did find evidence of woman perpetrators, they simply chose to ignore it. He also comments that the review’s proposals regarding rape “abandoned [their own] guidance outright” and “included justifications … that appear to be in conflict with its own 'basic principles'.” This is a harsh but fair criticism considering the extent of the oversight made. Furthermore, the Review only assessed the views of legal practitioners and Parliamentarians as part of its consultation process but not any members of the general public. This could suggest that the result is an incomplete view of the law, as previously discussed victims of forced-topenetrate cases consider themselves victims of rape.
The requirement of penile penetration should be removed to better correspond with the findings of the consultation paper and the views of victims. Acknowledging the existence of the female rapist but not labelling them as such was a mishandling of facts and data by the Home Office and should be rectified.
After reviewing the consequences of allowing and perpetuating the idea that women cannot legally rape, this article argues that the requirement of penile penetration within the Sexual Offences Act 2003 should be removed. This would allow a fully gender-neutral crime, facilitating the fair labelling of female perpetrators as rapists. The justifications given for keeping the requirement of penile penetration were insufficient and outdated. The mishandling of the Consultation Paper by the Home Office, in which they failed to properly consider relevant recommendations, only highlights the urgent need for reform in this area. Removing the requirement would resolve any future issues with gender fluidity and modernise the law.