Section 1 of the Sexual Offences Act 2003 defines rape as the non-consensual and intentional penile penetration of the victim’s vagina, anus, or mouth by the perpetrator, and that the perpetrator does not have a reasonable belief in the victim’s consent. Under this definition whilst both men and women can be victims of rape, only men can be principal offenders (because of the requirement of penile penetration of the victim by the perpetrator). Women can be secondary offenders, i.e. accomplices. Under the current definition of rape, cases where a man is forced to have sex with a woman (by that woman) without his consent, so-called ‘forced-to-penetrate’ cases, are excluded. These cases, where a man is forced to penetrate a woman’s vagina, anus, or mouth with his penis, and without his consent, are prosecuted under different offences in the Sexual Offences Act 2003, principally section 4; causing a person to engage in sexual activity without consent.

 

Section 4 differs substantially from the section 1 rape offence. Section 4 creates two separate offences[1] where the victim is aged 13 or over; one involving non-penetrative sexual activity, and the other involving penetrative activity. It is the penetrative offence that forced-to-penetrate cases would be prosecuted under. Moreover, the section 4 penetrative offence incorporates a range of non-consensual sexual activity, including: ‘where a victim is forced to carry out a sexual act involving their own person, such as masturbation, [where they are forced to] engage in sexual activity with a third party, who may be willing or not, or [where they are forced to] engage in sexual activity with the offender, e.g. a woman forces a man to penetrate her.’[2]  There is also a significant difference in sentencing between the two offences. Where penetration is involved in a s.4 offence (i.e., forced-to-penetrate cases), the sentencing range is from a community order to life imprisonment.[3] This can be compared with rape, where the offence range is 4 years custody to life imprisonment.[4] (Sentencing Council, 2014, p. 9).

 

In my article, ‘‘Oh you’re a guy, how could you be raped by a woman, that makes no sense’: towards a case for legally recognising and labelling ‘forced-to-penetrate’ cases as rape’, published in the International Journal of Law in Context, I argue that consideration needs to be given to legally recognising forced-to-penetrate cases as rape. Applying a methodology that draws upon the lived experiences of male victims, I argue that there are significant similarities between compelled penetration cases and what is legally recognised as rape. First both rape and compelled penetration involve non-consensual penile penetration, secondly there are clear similarities in the aggressive strategies used by perpetrators, and finally there are substantial overlaps in the harms experienced by victims. In making my arguments, I am not seeking to the undermine the gendered nature of rape. Rather, I believe that consideration needs to be given to a wider gendered paradigm of victims and perpetrators within rape discourse to ensure that all victims, regardless of gender, are protected equally from harm of like degree, and that similarly all perpetrators are held culpable.

Dr Siobhan Weare is a Lecturer in Law and Director of Engagement at Lancaster University Law School.

[1] R v Courtie [1984] AC 463

[2] Crown Prosecution Service, ‘Rape and sexual offences—Chapter 2: Sexual Offences Act 2003—Principal Offences, and Sexual Offences Act 1956—Most commonly charged offences—Legal guidance’ (N.D. CPS) Available at: https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-2-sexual-offences-act-2003-principal-offences-and

[3] Sentencing Council, ‘Sexual offences: Definitive guide’ (2014, Sentencing Council) Available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Sexual-Offences-Definitive-Guideline-web5.pdf 21

[4] Sentencing Council, ‘Sexual offences: Definitive guide’ (2014, Sentencing Council) Available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/Sexual-Offences-Definitive-Guideline-web5.pdf 9

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