Reasons for Using Penal Penetration for Rape in UK Law

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Table of Contents

Background
Problems are Occurring
How to Solve these Problems
Proposed Reforms
Reference List

Background

The inability of the 2003 changes to go very far is exacerbated by the continuation of gender discrimination in rape legislation against perpetrators. Gender neutrality would be the default stance for new laws until there was a “strong basis” to preserve gender prejudice. There were two significant justifications offered for keeping a masculine bias perpetrator. To begin, the government analyzed what people viewed as rape since sexual offenses are focused on activities that society identifies as unlawful. Because the population believed in rape in terms of penile penetration and only males doing it, the government believed that emphasizing this component was the best way to define the crime of rape. “The public viewed rape as a male-on-male conduct done on women and men.” According to the study, “men” are considered to be a misnomer. As a result, if the definition of sexual assault was enlarged past acts involving penile penetration, the Law Commission got uncomfortable.

Applying a gender-neutral description of the culprit might alter the commonly held belief that most victims of sexual assault and violence are usually women. It was claimed that addressing penile penetration like it was other types of penetration would misrepresent unique and gendered rape experiences. This paper seeks to debunk similar related fallacies by arguing that penial penetration makes UK rape law faulty, reflecting wrong myths and stereotypes as protracted herein.

Problems are Occurring

In the United Kingdom, rape is defined as when a person of any gender penetrates another in their vagina, mouth, or anus – either with their body part or another item. The legal system should be forward-thinking rather than backward-thinking in today’s environment. Society’s sentiments have altered considerably since the report was published, and it is vital that the legislation keep up. After all, the law, as a societal institution, is a product of society. If it no longer conforms to modern societal norms. Another issue with existing legislation is that it focuses solely on the terms “male” and “female,” limiting non-binary people’s gender identities. Since the law was enacted, transgender and non-binary people’s legal and social rights have grown considerably more prominent and socially accepted, and the current legislation is out of line with these changes. As a result, a woman penetrating another without consent in UK legislation is not regarded awful as if the perpetrator was a male. This approach also serves to downplay lesbian women’s legal experiences and reduce the extent to which non-consensual penetration or sexual contact between two women is considered by the law. As a result, current legislation fails to reflect the range of persons and sexual experiences in society.

The existing law’s second flaw is that it concentrates on penile penetration as if the possibility of pregnancy and disease indicates that penile intercourse always causes more harm than non-penile penetration. It has been claimed that both penile and non-penile penetration because of significant damages. The law should not be scaled to enhance harm by establishing an unjustified hierarchy that favors one sexual offense above the other based on the kind of penetration. This would mean that survivors of non-penile rape sometimes believe that their pain has been diminished or dismissed by the legal system.

How to Solve these Problems

In light of the aforementioned setbacks, it was deemed necessary to continue to recognize that rape is primarily a product of sexism and a way of opposing patriarchy, which should include any definition of rape. Second, it was claimed that penile penetration causes more injury and is of a more personal nature. Penile penetration carries the danger of pregnancy and sexually transmitted illnesses, all of which can cause the victim more pain in the wake of the crime. Victims of trauma who are unaware of this specific injury may have a less positive experience as a result of these negative consequences. Unplanned pregnancy as a result of rape may have a substantial impact on the woman’s future education, employment, and other goals. This was the vision of society as a whole from a variety of political, religious, and cultural perspectives. Penile penetration was categorized as a result of this dissociation. As a result, the government judged that there was sufficient evidence to reject the gender neutrality assumption and categorize penile penetration as a distinct type of penetration. It has also been suggested that feminism had a key role in exacerbating this sort of inequality by portraying males as the only side capable of rape, hence exacerbating the prejudice.

Rape shield laws limit the disclosure of a victim’s prior sexual history in criminal proceedings in other states, such as the United States. In UK courts, such evidence is not always inadmissible, but it may be if its probative value is outweighed by its adverse effect. Specific restrictions pertaining to the admission of such evidence in juvenile court proceedings are accentuated in S-41 of the YJCA (1999). The court will weigh two elements in determining whether evidence is admissible based on the individual case, if it bears probative value and its detrimental effect. The first consideration is whether the evidence is relevant to the case. The second element is how much evidence admitting will jeopardize the defendant’s right to a fair trial. The legislation in England and Wales regarding rape shield laws is far from ideal, but any modifications should be implemented with the goal of protecting victims from further suffering while simultaneously protecting defendants’ rights.

While many countries have implemented gender-neutral legislation in order to define penetrative sexual abuse of Trans women in a similar fashion as abusive behavior against traditionally recognized women is defined, there is no record of it being an objective of any reform. Similarly, most of the public support for this sort of change was based on the idea that such conduct equates to a comparable degree of negative impact for both male and female victims because it is classified as rape. It is intriguing that despite the fact that current authorities understand intersex people have a legal right to posit rape allegations if established that there was a sexual violation. Oddly, there has been little, if any, debate on the significant impact such a change might have on these communities. In recent years, in some nations where the phrase “rape” has been stretched to recognize penetration by objects and other body parts. For example, in Australia’s states of New South Wales and Queensland, there is an acknowledgment that this shift reflects typical usage.

Furthermore, for various reasons, rape, and sexual assaults are currently underreported to authorities, and the number of these complaints that result in a successful conviction is much lower. The fact that legislation does not represent their knowledge of what crime survivors have gone through further adds to their apprehension about reporting these crimes and supporting criminal prosecutions. Where hierarchy by the oppressor is established, the court has been noted to augment prosecution. As a result, any reform effort should try to incorporate a full account of the various techniques of penetration to ensure that survivors believe the legislation accurately represents their lived experiences. By offering individual labeling and subdividing assault, the uniqueness of harm may be kept; nonetheless, all penetrations will be labeled as rape. To a person that is not too keen, this may appear to be purely intellectual. Conversely, a non-penile rape victim sees this as the law accurately recognizing the depth of the hurt committed and respecting their independence in line with the law.

In addition, in contrast to part 1, the second segment examines oral sex in more depth. While the first part recognizes that penetration of another’s vagina, anus, or mouth is permissible with their consent, section B raises the issue of consent. The issue is that it has disregarded oral penetration, which presents a legal gap. Penetrating a person’s mouth without their consent is not only unlawful and unethical, but it can also result in serious bodily and psychological harm. Any portion of the perpetrator’s body (such as a finger) or an inanimate object can be used in non-penile rape. Non-penile rape can have a wide range of physical, mental, and emotional implications, regardless of whether it is acknowledged. A last point to consider is the impact of all penetrations on one’s physical health. The notion that any of the three might transmit sexually transmitted illnesses are ignored by UK legislation. This debunks the myth that penile penetration is one-of-a-kind.

Proposed Reforms

The term ‘rape’ has been applied to a wide range of events and behaviors, including those committed by women against men. According to Phillip Rumney, the term “rape” does not preclude a gender-based understanding of rape. Another difficulty is how to deal with how female criminals should be recognized. Avendano-Hernandez v. Lynch drew attention to the essence of highlighting the experiences of Trans and intersex individuals as sexual violence victims/survivors, as well as how a redefining of legal rape could assist both criminal law and social justice, as well as how gender-diverse people are helped after such abuse. Gender dysphoria highlights feminist concerns about domestic and sexual violence’s gendered nature. It’s possible that gender-neutral legislation will hide long-standing social issues with gender-based violence. If gender-neutral law obscures long-standing societal issues with gender-related violence, it would appear to obscure the extent and nature of harm Tran’s women, and their counterparts suffer.

The issue of defining rape does not need legislators to start from scratch. Various countries, like Sweden and France among Europeans, have gender-neutral definitions of rape. Additionally, scholars such as McKeever and Archard have considered and/or proposed new legislation for England and Wales. As determined in an Ohio Court, a more encompassing “crime of rape,” which would include more subtlety and fragmentation, rather than designating a “narrow crime of rape,” should be reinforced with a “wide crime of sexual assault.” This “crime of rape” would recognize the necessity to distinguish between rapes involving penile penetration and those that do not, rather than treating the latter as a sort of sexual assault known as “assault by penetration.” The second section, ss2, should be renamed “Assault through penetration” to a more comprehensive viewpoint from the start. In contrast, the scope of sexual acts should be broadened to fit section 1, allowing 2(1) to be used as an example of “mouth.” Some academics contend that there’s no reason to disregard non-penile penetration as ss2 already takes care of it in subsection 76.

To meet a critical need, there is universal consensus that the government should conduct a full and all-encompassing review of sex crimes legislation, as well as any required adjustments. At the same time, there are no impediments to enacting this narrowly focused modification, which requires just a revision to Section 2 of the Sexual Offences Act. Fundamentally, UK legislators have a chance to make an immediate impact by reforming the laws around rape. This is a critical issue that deserves attention, and the proposed changes would help to better protect victims of sexual violence. One of the main goals of any proposed reform should be to provide a more accurate description of sexual assault and rape. This is achievable by creating a new, more comprehensive crime that includes all forms of penetration, not just penile penetration.

A reliable approach would envelope looking at Sweden. In Sweden, the legal definition of rape is sex without consent. This includes all forms of sexual penetration, including vaginal, anal, and oral sex. The use of force is not required for a sexual act to be classified as rape. The Swedish government first introduced gender-neutral rape legislation in July 2005. The change was made in response to research that showed that many rapes were not being reported or prosecuted because they did not fit the traditional definition of rape as forced intercourse by a man against a woman.

The new law has been successful in increasing reporting and prosecution of rape cases in Sweden. In 2006, the year after the law went into effect, there was a 14% increase in reports of rape compared to the previous year. In 2007, there was a further 8% increase. Furthermore, the Swedish government has been widely praised for its progressive stance on sexual violence. The gender-neutral rape law is seen as an important step forward in the fight against sexual violence and a model for other countries to follow. The UK can learn from Sweden’s example that non-penial penetration can also be rape and that prosecution rates can be increased by changing the definition of rape. The UK should also adopt a more victim-centric approach to rape, as Sweden has done. This would send a clear message that all forms of sexual violence are unacceptable, and it would help to better protect victims.

Reference List

Agnes, F. (2002). Law, ideology and female sexuality: Gender neutrality in rape law. Economic and Political Weekly, 844-847.

Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015).

Barn, R., & Powers, R. A. (2021). Rape myth acceptance in contemporary times: A comparative study of university students in India and the United Kingdom. Journal of interpersonal violence, 36(7-8), 3514-3535.

Chon, D. S., & Clifford, J. E. (2021). The impacts of international rape laws upon official rape rates. International journal of offender therapy and comparative criminology, 65(2-3), 244-261.

Code, U. S. (2017). 920-Art. 120. Rape and sexual assault generally.

Deming, M. E., Covan, E. K., Swan, S. C., & Billings, D. L. (2013). Exploring rape myths, gendered norms, group processing, and the social context of rape among college women: A qualitative analysis. Violence against women, 19(4), 465-485.

Ferguson, P. R., & Raitt, F. E. (2006). Reforming the scots law of rape: Redefining the offence. Edinburgh Law Review, 10(2), 185-208.

Gangoli, G., & Westmarland, N. (2011). International approaches to rape. Policy Press.

Mooney, A. (2006). When a woman needs to be seen, heard and written as a woman: Rape, law and an argument against gender neutral language. International Journal for the Semiotics of Law, 19(1), 39-68.

People v. Paz, 10 Cal. App. 5th 1023, 217 Cal. Rptr. 3d 212 (Ct. App. 2017).

Sexual Offences Act 2003, s 1(1) (c).

Weare, S. (2021). “I feel permanently traumatized by it”: Physical and emotional impacts reported by men forced to penetrate women in the United Kingdom. Journal of interpersonal violence, 36(13-14), 6621-6646.

Welch, J., & Mason, F. (2007). Rape and sexual assault. Bmj, 334(7604), 1154-1158.

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