Authored By: Charlotte Jones
This legal article will discuss section one of the Sexual Offences Act 2003,[1] which states that only men can be perpetrators of rape. It will explore the confusion surrounding the current law and address common misconceptions about rape, pointing out their inaccuracies. The article will argue that if rape laws were gender-neutral, more men would feel encouraged to come forward as victims, as the stereotype that rape only occurs when men assault women would be less prominent. The gender-neutral rape laws in Sweden and New South Wales (NSW) in Australia will be analysed and discussed, concluding that a gender-neutral rape law should be implemented in England and Wales.
Section one of the Sexual Offences Act 2003 states that a person commits the act of rape if he ‘intentionally penetrates the vagina, anus or mouth of another person with his penis.’[2] As the legislation says, ‘he’ and ‘with his penis,’ it shows that only men can be the perpetrators of rape. A woman or man can be charged with ‘assault by penetration.’[3] This is when a person ‘intentionally penetrates the vagina or anus of another person with a part of his body or anything else.’[4] The maximum sentence for this offence is life imprisonment,[5] which is the same as rape.[6]
Mckeever states that the penile penetration condition of rape represents a double standard in the law and reinforces harmful gender stereotypes, reinforcing the idea that rape is something that men do to women.[7] This is problematic as many male victims will decide against reporting the assault. The survey, ‘Rape Survivors and the Criminal Justice,’ revealed that nearly 90% of victims who had not reported the incident said that they felt it would be investigated or prosecuted successfully because of their gender, sexuality or lifestyle.[8] This shows that victims are losing faith in the Criminal Justice System and believe the assault will not be taken seriously.
The separate offences of rape and assault by penetration create a confusing message that may indicate that rape perpetrated against women is seen as more serious than against men.[9] The stigma of being a rapist is worse than being a perpetrator of assault by penetration, as O’Hara carried out an analysis of 124 news articles about three rape cases and found that the perpetrator was often described as a ‘beast or ‘freak.’[10] But in America, in states such as Idaho, Kentucky and Louisiana, there is no criminalisation of non-penile body parts, which suggests that people believe that it is less serious than penile penetration.[11] This shows that the offence of rape is seen as a worse crime than assault by penetration.
One reason that forced penile penetration by a man could be seen as worse than a man being made to penetrate a woman is that forced penile penetration carries the risk of unwanted pregnancy for the woman.[12] However, this is not sufficient to distinguish between male and female rape because oral and anal penetration do not carry this risk. Also, as menopausal, prepubescent and infertile women can still be raped by law, it shows that the risk of pregnancy is not significant when defining rape.
Baber states that rape is a serious violation of the right to choose which sexual acts one engages with and with whom, and by denying sexual autonomy, rapists turn them into mere means for their gratification.[13] This reflects the Home Office’s view that rape is a ‘violation of the integrity of another person.’[14] However, they contradict themselves as they state that women who compel men to penetrate them do not rape them, ‘but is a serious assault on the man’s sexual autonomy.’[15] This reflects society’s male-dominated attitudes towards sex, which often disregard the idea that men can be victims of rape or women can be perpetrators. As a result, male victims may be overlooked and afraid to speak out about their experiences.
Rewriting laws in gender-neutral language may encourage the notion that rape is an act of violence, not sex and that both men and women can be victims and perpetrators. However, Brownmiller states that all men are responsible for keeping all women in a state of fear that they could be raped anytime and anywhere.[16] She believes that a gender-neutral law could belittle the harm caused to women that they directly and indirectly face. Novotny agrees and states that ‘the awareness (of potential rape) does not follow men down a dark street in the same way’ as women.[17] There are concerns that a gender-neutral rape definition would deprioritise female victims, resulting in detrimental consequences for women. However, men do get sexually assaulted (or raped) and need to be protected by law. They have every right not to consent to sex, just like women do.
The next part of this article will discuss the potential justifications for male penile penetration as a condition of rape. Then, it will analyse evidence that shows that they are inaccurate. One potential justification that Mckeever identifies for making penile penetration a condition of rape is that it is physically impossible for a woman to rape a man.[18] The British Government stated in the ‘Protecting the Public’ White Paper that ‘the anatomical differences between men and women must sensibly direct that the offence of rape should remain an offence that can only be physically performed by a man.’[19] One reason for this belief is that it is widely assumed men can only ‘obtain and sustain erections when sexually aroused, and therefore not in stressful or violent circumstances.’[20] If this is the case, it indicates that if a man has an erection, he is enjoying the act and is consenting. However, Sarrel and Masters’s research found that 11 men who were sexually assaulted responded sexually to female assault, even when males felt embarrassed, humiliated, anxious, fearful or even terrorised.[21] This study is significant because it shows that men can be forced to have sexual intercourse with women even if they do not want to. A criticism of this study is that only 11 participants completed it, which limits its credibility. However, further research found that some rape victims wilfully ejaculate as a ‘self-defence strategy to minimise the duration of the sexual assault.’[22] This evidence shows that a man can be sexually assaulted or forced to penetrate a woman whilst having an erection, even if he does not want to.
Mckeever identified the common stereotype that men are stronger than women and can overpower them if they do not consent to sex.[23] This contributes to the social expectations of men, which are that they are self-sufficient and tough, which contrasts with the stereotypical idea that victims are usually weak and unable to overpower the perpetrator.[24] Mckeever identifies that a man may not be able to overpower the perpetrator if he is physically restrained, unconscious, too drunk to consent, physically or mentally disabled, duped about the woman’s identity, under duress, or simply not wanting to hurt her due to a belief that men should not hit a woman.[25] A woman can also give a man Viagra to maintain an erection. The belief that men must use physical force to prove that they were not consenting is problematic as every case is different, and female victims are not judged on how much force they use against it.
A weakness of Mckeever’s article is that she does not provide any evidence or examples that women overpower men. However, research has shown that violence or restraint has been documented as the least common aggressive strategy in cases of female-perpetrated sexual violence, with it occurring between 2 and 10% of cases.[26] This may arguably reflect the fact that many women will struggle to overpower a man, or it could be because men are not reporting the abuse. Weiss suggests that ‘men’s reluctance may be exacerbated by a sense of shame for not fulfilling their masculine roles that dictate they be in control and take matters themselves.’[27]
Walker also found that men can freeze and react with fear, helplessness, and submission during the assault, which is similar to female victims. He also found that 27% of men fought back without success, proving that men cannot always overpower women.[28] Thomas states that male victims are perceived to carry a level of blame for not resisting their attacker, which can contribute to the victim failing to seek help from professionals.[29]
Rush opposes to the implication of neutrality in rape law as she does not believe that rape affects men and is incomparable to female rape.[30] However, Walker, Archer and Davies found that male victims have been shown to suffer more long-term effects than female victims. They found that all 40 male participants reported depression in the weeks and months following the assault. Some of the men expressed confusion and disgust as they had ejaculated during the assault, which made them question whether they enjoyed it.[31] Rodgers’s study found that out of 22 male victims, 41% had a diagnosis of PTSD.[32] This shows that men can suffer just as much as women do.
All the findings in this section show that men can be forced to penetrate women, and it can leave them emotionally and mentally scarred. Weare explored the experiences of men who had been coerced into penetration and contended that, concerning the physical and emotional harm involved as well as the risks of sexually transmitted diseases and pregnancy, these cases should be legally recognized as rape.[33] The remainder of this article will argue that a gender-neutral rape law will help male victims come forward and report the offence.
Rumney states that neutrality within rape reflects modern understandings of the nature, effects, and dynamics of nonconsensual penetrative sex acts.[34] Many jurisdictions currently have gender-neutral sexual offences laws and rape laws. In New South Wales (NSW) in Australia, they have abolished the offence of rape, and it has been replaced with offences in the nature of rape, and offences relating to other acts of sexual assault.[35] The meaning of ‘sexual intercourse’ widened to include penetration of the vagina or anus[36] with any body part[37] or object,[38] penile penetration of the mouth[39] or cunningus.[40] An example of how this is beneficial is shown in the case of Smt. Sudesh Jhaku vs K.C.J. and others,[41] an Indian case. In this case, a six-year-old girl was assaulted by her dad; and he escaped a rape conviction by not using his penis to assault the victim. However, if this occurred in NSW, the legislation caters for sexual assaults, whether the defendant uses his penis, finger, or iron rod or even performs oral sex on the victim. Such an act could result in penal servitude for 20 years in NSW which helps to bring justice for the victim.[42] This new law allows a wider range of sexual acts be criminalised and enables all victims to seek justice regardless of gender. It reduces the risk of technicalities in the law that could prevent victims from seeking justice.
The reason NSW moved to a gender-neutral sexual offences law is because it was noted that rape had the lowest reporting rate of any crime and at least 85% of sexual assaults never reached the criminal justice system at all.[43] This could have been down to societal beliefs that rape only happens to women by men, and men did not want to come forward about the abuse. However, the changes in the law have clarified it, which has made it easier for victims of any gender to know their rights and know that it is against the law for someone to commit these particular crimes against them. However, gender stereotypes still occur extensively, which can stop men from reporting the crime. Manson’s research found that even after the law reforms, 60% of participants from NSW aged 12-20 believe that it is up to the girl to make it clear that she does not consent to sex.[44] This reinforces the stereotype that men are always up for sex, and they are never victims. Implementing educational programs at schools and universities on sex, consent and male victims can further help eradicate stereotypes. Alongside the law reforms, this education can help teach people that men can be victims of sexual assault and women can be perpetrators.[45]
As the law in NSW addresses gender bias in the law and allows men to be victims of rape by women, a similar law in England and Wales could help the Home Office in creating a “safe, just and tolerant society.”[46] However, education needs to be added alongside it. Only by changing society’s beliefs and attitudes about gender norms can the Sexual Offences Act 2003 undergo an essential transformation.
Sweden also has a gender-neutral rape law. Rape is defined as sexual intercourse or a sexual act performed ‘with a person who is not participating voluntarily.’[47] This acknowledges that women can physically commit the act of rape, and it recognises men can be victims. The rape conviction rates in Sweden rose 75% two years following the law reform, which led to greater justice for victims of rape. Chon and Clifford state that victims are more likely to report sexual assaults to police officers, while the officers are likely to report the assault as rape. This shows that having a gender-neutral approach can positively impact the recognition of sexual violence.[48]
Novotny expresses concern that gender neutrality in rape law undermines the victimisation of women,[49] and MacKinnon argues that it is a cover-up for the gendered reality that is going on.[50] MacKinnon’s argument reflects patriarchy’s view, which conveys the perception of women as vulnerable victims and men as perpetrators. However, 9% of rape offences were recorded by men to the police,[51] so the classic ‘male versus female paradigm’[52] should be abolished. Also, gender neutrality does not seek to diminish the impact of sexual violence on women; it enables women and men to be seen as perpetrators and victims of rape, which should enable appropriate convictions to occur.[53] It also dismisses gendered stereotypes and rape myths and brings awareness that any gender can be a rapist. Rumney states that a society that takes sexual violence seriously must recognise all victims and perpetrators.[54]
To conclude, this legal article argues that a gender-specific rape law in England and Wales is harmful as it does not see men as victims of female sexual violence. This reinforces the stereotype that men cannot be victims of such crimes. Implementing a gender-neutral law alongside educational programs that inform the public about male victimization, can help change societal perceptions and beliefs surrounding rape. This should help more male victims report their abuse.
Bibliography
Primary sources
Legislation
Sexual Offences Act 2003
Crimes (Sexual Assault) Amendment Act 1981
Swedish Penal Code 1965
Cases
Smt. Sudesh Jhaku vs K.C.J and others [1998] CriLJ 2428
Secondary Sources
Journal articles
Mckeever N, ‘Can a Woman Rape a Man and Why does it Matter?’ (2018) 13(1) 599
Sarrel M P and Masters H W, ‘Sexual molestation of men by women’ (1982) 11(2) 117
Fuchs F S, ‘Male Sexual Assault’ (2004) 51(1) 70
Rumney P, Morgan-Taylor M, ‘Recognizing the male victim: Gender neutrality and the law of rape’ Part 2, 26(1) 330
Weiss K, ‘Male Sexual Victimization Examining Men’s Experiences of Rape and Sexual Assault’ (2010) 12(3) 284
Walker J, Archer J and Davies M, ‘Effects of Rape on Men, A Descriptive Analysis’ (2006) 69
Rodger’s P ‘ Post-traumatic stress disorder following male rape’ (1997) 6(1) 5
Weare S, ‘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’ (2017) 14(1) 110
Rumney NS P, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481
Chon Soo D and Clifford E J, ‘The Impacts of International Pape Laws Upon Offical Rapes’ (2021) 65(2) 244
Novotny P, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?’ (2002) 1(3) 743
O’Hara S, ‘Monsters, playboys, virgins and whores: Rape myths in the news media’s coverage of sexual violence’ (2012) 21(3) 247
Baber E H, ‘How Bad is Rape?’ (1987) 2(2) 125
Rush F, ‘The many faces of backlash’ (1990) 165
Manson M, ‘Sexual assault law and community education,’ (2021) 56(3) 319
Reports
Molina J and Poppleton S, ‘Rape survivors and the criminal justice system’
Home Office, ‘Setting the boundaries: Reforming the law on sex offences’ (2000)
Home Office, ‘Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences’ (2002)
Bianca Fileborn, ‘Sexual Assault Laws in Australia’ (2011)
Books
Kruttschnitt C and others, ‘Estimating the Incidence of Rape and Sexual Assault’ (National Academies Press (US) Apr 2014)
Brownmiller S, ‘Against our will: Men, women, and rape’ (Ballantine Books, 1993)
Bows H, ‘Twelve- The ‘ideal’ rape victim and the elderly woman: a contradiction in terms?’ (Bristol University Press, 2018)
Websites
Office for National Statistics, ‘Sexual offences victim characteristics, England and Wales: year ending March 2022’ (ons.gov.uk, 2023) < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesvictimcharacteristicsenglandandwales/yearendingmarch2022 > assessed 9 December 2024
[1] Sexual Offences Act 2003 s1
[2] Sexual Offences Act 2003 s1 (1)(a)
[3] Sexual Offences Act 2003 s2 (1)
[4] Sexual Offences Act 2003 s2(1)(a)
[5] Sexual Offences Act 2003 s2 (4)
[6] Sexual Offences Act 2003 s1(4)
[7] Natasha Mckeever, ‘Can a Woman Rape a Man and Why Does It Matter?’ (2018) 13(1) 599,600.
[8] Julian Molina and Sarah Poppleton, ‘Rape survivors and the criminal justice system’ 1,57.
[9] Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it matter?’ (2018) 13(1) 599, 600.
[10] Shannon O’Hara, ‘Monsters, playboys, virgins and whores: Rape myths in the news media’s coverage of sexual violence’ (2012) 21(3) 247,247.
[11] Candace Kruttschnitt and others, ‘Estimating the Incidence of Rape and Sexual Assault’ (National Academies Press (US) Apr 2014) 2.
[12] Natasha Mckeever, ‘Can a Woman Rape a Man and Why Does it Matter?’ (2018) 13,1 599, 605.
[13] Harriet Baber, ‘How Bad is Rape?’ (1987) 2(2) 125,127.
[14] Home Office, ‘Setting the boundaries: Reforming the law on sex offences’ (2000) para 2.8.8
[15] Home Office, ‘Setting the boundaries: Reforming the law on sex offences’ (2000) para 2.20.1
[16] Susan Brownmiller, ‘Against our will: Men, women, and rape’ (Ballantine Books, 1993) 5.
[17] Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?
(2002) 1(3) 743,750.
[18] Natasha Mckeever, ‘Can a Woman Rape a Man and Why does it matter?’ (2018) 13(1) 599, 603.
[19] Home Office, ‘Protecting the Public: strengthening protection against sex offenders and reforming the law on sexual offences’ (2002) 21.
[20] Phil Rumney, Martin Morgan-Taylor, ‘Recognizing the male victim: Gender neutrality and the law of rape’ Part 2, 26(1) 330,333.
[21] Phillip M Sarrel and William H Masters, ‘Sexual molestation of men by women’ (1982) 11(2) 117
[22] Sigegmund Fred Fuchs, ‘Male Sexual Assault’ (2004) 51(1) 70
[23] Natasha Mckeever, ‘Can a Woman Rape a Man and Why Does it Matter?’ (2018) 13,1 599,604.
[24] Hannah Bows, ‘Twelve- The ‘ideal’ rape victim and the elderly woman: a contradiction in terms?’ (Bristol University Press, 2018) 231.
[25] Natasha Mckeever, ‘Can a Woman Rape a Man and Why Does it Matter?’ (2018) 13,1 599,604.
[26] Karen Weiss, ‘Male Sexual Victimization Examining Men’s Experiences of Rape and Sexual Assault’ (2010) 12(3) 284,285.
[27] Karen Weiss, ‘Male Sexual Victimization Examining Men’s Experiences of Rape and Sexual Assault’ (2010) 12(3) 284,285.
[28] Jayne Walker, John Archer and Michelle Davies, ‘Effects of Rape on Men, A Descriptive Analysis’ (2006) 69,70
[29] Jayne Walker, John Archer and Michelle Davies, ‘Effects of Rape on Men, A Descriptive Analysis’ (2006) 69,70
[30] Florence Rush, ‘The many faces of backlash’ (1990) 165,169.
[31] Jayne Walker, John Archer and Michelle Svies, ‘Effects of rape on men: A descriptive analysis’ (2005) 34(1) 69,73.
[32] Paul Rodger’s ‘Post-traumatic stress disorder following male rape’ (1997) 6(1) 5,6.
[33] Siobhan Weare, ‘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’ (2017) 14(1) 110,111.
[34] Philip N.S Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481,481.
[35] Crimes (Sexual Assault) Amendment Act 1981, s3(1)(a)
[36] Crimes (Sexual Assault) Amendment Act 1981, s61A(1)(a)
[37] Crimes (Sexual Assault) Amendment Act 1981, s61A(1)(a)(i)
[38] Crimes (Sexual Assault) Amendment Act 1981, s61A(1)(a)(ii)
[39] Crimes (Sexual Assault) Amendment Act 1981, s61A(1)(b)
[40] Crimes (Sexual Assault) Amendment Act 1981, s61A(1)(c)
[41] Smt. Sudesh Jhaku vs K.C.J and others [1998] CriLJ 2428
[42] Crimes (Sexual Assault) Amendment Act 1981, 61B(1)
[43] Bianca Fileborn, ‘Sexual Assault Laws in Australia’ (2011) 1,1.
[44] Gail Manson, ‘Sexual assault law and community education,’ (2021) 56(3) 319,410.
[45] Gail Manson, ‘Sexual assault law and community education,’ (2021) 56(3) 319,411.
[46] Home Office, Setting the Boundaries: Reforming the law on sexual offences (Home Office Communication
Directorate, 2000) para 1.1.1
[47] Swedish Penal Code 1965 chapter 6 s1
[48] Don Soo Chon and Janice E Clifford, ‘The Impacts of International Pape Laws Upon Offical Rapes’ (2021) 65(2) 244, 245.
[49] Philip N.S Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481,488.
[50] Philip N.S Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481,488.
[51] Office for National Statistics, ‘Sexual offences victim characteristics, England and Wales: year ending March 2022’ (ons.gov.uk, 2023) < https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesvictimcharacteristicsenglandandwales/yearendingmarch2022 > assessed 9 December 2024.
[52] Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?’ (2002) 1(3) 743,744.
[53] Philip N.S Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481,508.
[54] Philip N.S Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) 481,510.
